The court found that the defendant granted a general consent to search his validly stopped car for drugs, and that permitted a search of any container in which drugs would be found. United States v. Burnett, 2007 U.S. Dist. LEXIS 68218 (E.D. Ark. September 13, 2007):

As for the scope of the search, immediately before Burnett gave his consent, Coleman asked him whether he was transporting drugs or guns, and Burnett answered, “No.” Accordingly, it was objectively reasonable for Coleman to believe that Burnett’s consent extended to any area or container where drugs or guns might be stored. See Florida v. Jimeno, 500 U.S. 248, 251-52 (1991)(consent to search car included consent to search containers that might hold drugs).

Furthermore, before Coleman cut the money bag with a knife, he asked Burnett if he had the key, and Burnett replied “No.” Burnett voiced no objection to Coleman cutting the bag, and it was objectively reasonable for Coleman to believe that cutting the bag was within the scope of consent. See U.S. v. Siwek, 453 F.3d 1079, 1086 (8th Cir. 2006) (“Siwek argues that he effectively withdrew any consent to search the truck bed when he informed Goltz that he lacked the key to the tonneau cover. We do not agree that this statement amounts to a withdrawal of consent to search, which can only be accomplished by an unequivocal act or statement.”).

Court finds that probable cause for child porn at defendant’s house was lacking. The defendant was accused of being a child molester, and the uncle of one of the alleged victims said that the child told him that the defendant had pictures at home of nude children. This made it into the affidavit, but there was no reference to time. Because of this, the court determined that there was no probable cause for the warrant for child porn in the house. The good faith exception, however, was enough to save the search because there was no contention that the affidavit was facially deficient. United States v. Doyle, 2007 U.S. Dist. LEXIS 68228 (W.D. Va. September 14, 2007). (Comment: Based on other cases, the court could, and maybe should, have found that there was, in fact, probable cause because time in child pornography cases is extremely flexible because child porn is likely to be kept for a long time.)

The Cleveland fire department obtained an administrative warrant pursuant to a city code provision to inspect industrial property “to get to know the property” so they would be aware of what was there and whether hazardous materials were present should they ever have to respond to an emergency there. The parties agree that probable cause in the “criminal law sense” was not required. Engineering & Manufacturing Services, LLC v. Ashton, 2007 U.S. Dist. LEXIS 67784 (N.D. Ohio September 13, 2007):

In the instant matter, Plaintiff, Engineering & Manufacturing Services, LLC, admits for the sake of argument (without conceding this warrant’s validity) that an administrative warrant does not require probable cause in the criminal law sense. Rather, administrative probable cause, justifying the issuance of a warrant, “may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect [*7] to a particular establishment.'” Trinity Industries, Ine. v. Occupational Safety and Health Review Comm ‘n, 16 F. 3d 1455, 1463 (6th Cir. 1994) (Batchelder, J., concurring), quoting Marshall v. Barlow’s Inc., 436 U.S. 307, 320 (1978). “A warrant … would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria.” Barlow’s, 436 U.S. at 323. The parties agree this warrant application did not allege specific evidence of an existing violation. The parties also concur that the property owner’s refusal to allow entry to fire inspectors (admittedly recited in Ashton’s affidavit) cannot provide the basis for probable cause to issue the warrant. Still, Plaintiff insists the affidavit of Battalion Chief Ashton. presented to Judge Pianka, was a mere “bare bones” affidavit. Plaintiff argues the affidavit contains no supporting information, and is based upon the Chief’s conclusory beliefs and suspicions. Plaintiff likens it to the deficient affidavit in United States v. Laughton, 409 F. 3d 744 (6th Cir. 2005), which mentioned no address and made no connection between the defendant and the address nor between the address and the illegal activity.

This Court finds the grievous defects cited in the Laughton case are not present here. The affidavit Judge Pianka reviewed provides the identity and qualifications of the affiant. Chester Ashton is the chief of the battalion closest to the industrial premises; and the firefighters he supervises would “be responsible for responding to a fire at this address if one were to occur.” Reference is made to Cleveland Codified Ordinance § 381.04, authorizing the Fire Chief or his representatives to enter during reasonable hours “to examine and inspect for hazardous or dangerous conditions, equipment, materials, liquids, gases or accumulations; obstructions to or on fire escapes and other means of egress; and for the maintenance of fire protection equipment.” In addition, paragraphs # 3 and # 4 mention the Fire Department’s annual inspections of industrial sites, to “get to know the property” and “make certain there are no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire.” Considering the totality of the circumstances, therefore, probable cause for the administrative warrant existed: 1) Battalion Chief Ashton was competent to make the sworn declarations in the search warrant application; 2) a valid city ordinance authorized an administrative search, such as the one conducted here; and 3) annual inspections of industrial premises for fire safety concerns are reasonable and neutral.

Where plaintiff in a § 1983 case cannot state a claim under the Fourth Amendment, he cannot somehow breathe life into it under the Fourteenth Amendment as a due process issue for a “continuing seizure” of notoriety and incidents of an arrest continuing but where he was not arrested. [A creative argument, but it has to fail.] Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007):

Becker nonetheless argues that we should adopt a broader theory of seizure, based on the Supreme Court’s decision in Albright v. Oliver, 510 U.S. 266 (1994). In that case, the Court concluded that the Fourteenth Amendment does not provide a substantive due process right to be free from prosecution without probable cause, but left open the possibility that a plaintiff could bring such a claim under the Fourth Amendment. In a noteworthy concurrence to the Court’s plurality opinion, Justice Ginsburg analyzed Albright’s claim under the Fourth Amendment and urged the Court to adopt a non-custodial concept of “continuing seizure” in order to take into account under the Fourth Amendment the harms incident to the control exercised by the state over a citizen before trial. She argued that seizures for Fourth Amendment purposes include requiring a person to post bond, compelling a person to appear in court, or imposing restrictions on a person’s right to interstate travel, all of which might create reputational, emotional, and financial harms. Id. at 278.

. . .

We thus agree with the courts that have also declined to accept Justice Ginsburg’s invitation to expand Fourth Amendment liability in cases where the plaintiff has not been arrested or incarcerated. See DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005); [citations omitted] (all declining to recognize typical pre-trial release conditions, such as receiving a summons, posting bond, restricting travel, and appearing in court, as a seizure); see also Washington v. County of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (finding no seizure when plaintiffs charged in administrative proceeding and suspended without pay but never physically detained). These cases, moreover, are consistent with those rejecting a “continuing seizure” rationale for post-arrest incarceration, which hold that even when a defendant is in custody, a seizure ends when pretrial incarceration begins. See Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997); Reed v. City of Chicago, 77 F.3d 1049, 1052 n.3 (7th Cir. 1996) (citing Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989)).

Even those courts that subscribe to the line of reasoning endorsed by Justice Ginsburg have recognized a seizure only when criminal charges are coupled with another significant restraint on liberty, such as restrictions on travel. [citations omitted] Becker does not argue that she was subject to any of these indicia of non-physical control arising from MFCU’s investigation and prosecution–she apparently never posted bond, was not required to appear in court, and had no specific restrictions on her freedom of movement. Under these circumstances, even if we were inclined to broaden the meaning of seizure beyond our traditional understanding, this case does not present a vehicle for doing so.

Accordingly, the district court did not err in determining Becker was not seized under the Fourth Amendment.

Officers received a tip about drugs being hauled in a load in a tractor trailer, and they found the tractor trailer in the shop at the company’s facility in Odessa, Texas. With the permission of the company, the DEA surveilled the truck and did a dog sniff on the trailer. That gave probable cause for the trailer search under the vehicle exception. United States v. Ibarra, 493 F.3d 526 (5th Cir. 2007) (Comment: There is no discussion of the immobility of the trailer since the truck was disabled. This is an example of a per se rule for vehicle searches without regard to immobility of the vehicle because of apparent likelihood of mobility in the near future, and that would be reason enough.)*

Habeas claim for ineffective assistance of counsel for not challenging a search has to be brought after the conviction; bringing it after revocation of probation to undo the underlying conviction is still a waiver. Canady v. Harrison, 2007 U.S. Dist. LEXIS 52239 (M.D. Fla. July 19, 2007).*

Police do not need a warrant to walk down the driveway to look at defendant’s car. It is in the curtilage, but it is visible to all. Here, the vehicle was not even visible from the street, but the same rule applied because a driveway and a sideway is the expected route of entry of visitors. State v. Vierheilig, 2007 N.J. Super. LEXIS 244 (July 12, 2007):

Whether the car could be seen from the sidewalk was irrelevant as the police did not need a warrant to walk down the driveway to the garage to speak to defendant. State v. Nikola, supra, 359 N.J. Super. at 581. Fourth Amendment protections are limited to a person’s house and the “curtilage” of the house. United State v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987). “[T]he extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home itself.” Ibid. Furthermore, “a portion of the curtilage, being the normal route of access for anyone visiting the premises, is ‘only a semi-private area.’ … Thus, when the police come on to private property to conduct an investigation … and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.” State v. Johnson, 171 N.J. 192, 209 (2002) (quoting 1 Wayne R. LaFave, Search & Seizure: A Treatise on the Fourth Amendment, § 2.3(f) (3d ed. 1996)). We note that defendant makes no proffer that there was a fence across the driveway or any other measures taken to prevent visitors from using the driveway to access the property. The testimony was undisputed that the officers remained on the driveway when they spoke with defendant and did not enter the garage, thus they were not subject to any constitutional constraint.

Low flying helicopter surveillance of a marijuana grow in a corn field was not unreasonable under the N.J. Constitution because it was in open fields. Also, an alleged violation of the Posse Commitatus Act by involvement of the military or Coast Guard no longer even merits discussion. State v. Marolda, 394 N.J. Super. 430, 927 A.2d 154 (2007).

Ohio finds that a strip search of an armed man on the floor of a convenience store that produced crack cocaine was not unreasonable under the circumstances [by just calling it not a strip search]. State v. Gillis, 2007 Ohio 3456, 2007 Ohio App. LEXIS 3200 (2d Dist. July 6, 2007):

[*P4] Gillis was apprehended inside the store, and during a pat down, a knife was removed from Gillis’ pocket. Gillis was handcuffed due to recovery of the knife. House continued checking the area between Gillis’ buttocks and felt a hard object there which was in fact crack cocaine. House worked the crack cocaine up to the waist band of Gillis’ pants and then removed it with a plastic bag provided by the store clerk.

[*P5] Davidson, age 11, and McShann, age 15, testified that they were in the store when the pat down occurred. According to the boys, once Gillis was handcuffed, he was put on the floor and his sweatpants and underwear were pulled down. Davidson and McShann testified that they observed one of the officers retrieve something from Gillis’ “butt.” McShann testified that the officer made jokes; “When he was pulling whatever he *** pulled out of his butt. He was like he having a baby. It’s a boy.”

. . .

[*P16] The trial court determined that the officers did not conduct a strip search of Gillis and that “the defendant was not stripped naked or embarrassed in that manner.” Given the events that the officers witnessed, Gillis’ Fourth Amendment rights were not violated; the officers witnessed Gillis’ participation in what they believed to be a drug transaction, Baker told them he had purchased drugs from Gillis and that Gillis still had crack on his person, Gillis attempted to flee from the officers, and he was armed with a knife. We defer to the trial court judge who is in the best position to evaluate the credibility of the officers and the boys who testified. Since Gillis’ Fourth Amendment rights were not violated by a strip search, the trial court did not err in overruling Gillis’ motion to suppress. Gillis’ first assignment of error is overruled.

Reasonable suspicion for a stop existed because the defendant’s conduct and method of parking led the officer to conclude that the defendant was waiting in a getaway car parked near a bank with the engine running. United States v. Riley, 493 F.3d 803 (7th Cir. 2007):

Given these standards, we believe that Detective Reyna had a reasonable, articulable suspicion to justify the stop of Mr. Riley’s car. The information in Detective Reyna’s possession, as assessed by an experienced officer, supported the reasonable suspicion that Mr. Riley had committed a crime at the Blackhawk State Bank and therefore justified the stop of Mr. Riley’s vehicle. Detective Reyna had observed a car in an adjacent parking lot, which was backed into its space in the lot. There was a man sitting in the driver’s seat of the car, the car engine was running and the driver was focused on the entrance of the bank. Detective Reyna testified that, in his experience investigating bank robberies, it was common for perpetrators to park in lots close to banks, but not in the bank parking lots. Furthermore, the fact that the Lincoln was backed into the parking space and that the driver was focused on the bank indicated to him that the Lincoln was a “getaway” car. R.20 at 8. Case law from this court notes similar behavior by individuals involved in criminal activity at banking institutions.

Plaintiffs stated a claim for relief for putting a recording device on a jail telephone system without warning the participants in the calls that they would be recorded. Walden v. City of Providence, 495 F. Supp. 2d 245 (D. R.I. 2007).

The trial court’s suppression of the evidence was sustained in this case because the officer testified that he smelled marijuana during defendant’s traffic stop, and that justified the search of defendant’s car. But, on cross, he admitted that he never mentioned it in any of his five reports or to other officers. The trial court’s order suppressing the evidence on the officer’s credibility was not clearly erroneous. State v. Hamilton, 227 S.W.3d 514 (Mo. App. 2007).

Minnesota declines to grant probationers greater rights under the state constitution. There was reasonable suspicion, and the search was valid under Knights. Defendant made no showing that the federal constitutional protection here was inadequate. “The Supreme Court’s decision in Knights does not appear to be a sharp or radical departure from its previous decisions or a retrenchment on its Fourth Amendment jurisprudence with respect to probation searches. Moreover, we are not convinced that federal precedent inadequately protects our citizens’ basic rights and liberties. Accordingly, we decline Anderson’s invitation to deem the search of his residence unreasonable under the Minnesota Constitution.” State v. Anderson, 733 N.W.2d 128 (Minn. 2007).*

Officers had a search warrant for defendant’s house and vehicle. After the raid, they saw a co-defendant’s car illegally parked outside and used a flashlight to see small quantities of marijuana on the console. State v. Beavers, 2007 Ohio 2915, 2007 Ohio App. LEXIS 2698 (8th Dist. June 14, 2007):

The Euclid detective explained that Beavers’ car was parked illegally on a public street. The detective shone his flashlight in the car and saw marijuana and marijuana cigarettes in plain view on top of the console in Beavers’ car. This alone gave the detective probable cause to seize the marijuana. The issue is whether the detective had probable cause to further search the trunk of the car. After a review of the record, we find three separate justifications for the search of Beavers’ car. Each alone supports probable cause.

The police had no probable cause or other justification to search defendant’s dorm room for further identification evidence, so the trial court erred in not suppressing the evidence. Also, the inevitable discovery doctrine would not save the search because the state could not show that the investigation was progressing such that the evidence would be found anyway. Commonwealth v. Jones, 2007 PA Super 181, 928 A.2d 1054 (2007).*

Defendant was stopped for a traffic offense, and the officer asked for consent three seconds before handing the warning ticket to the defendant. A request for consent is not per se a continuation of detention. A written consent form was signed. During the stop, the officer noticed screwheads had been tampered with, and he pried open the glove box finding drugs. This was not outside the scope of the consent. Medvar v. State, 286 Ga. App. 177, 648 S.E.2d 406 (2007).*

Washington refuses to adopt a negligence standard under its state constitution for a state Franks violation because it would be unduly burdensome and encroach on the magistrate’s role. State v. Chenoweth, 160 Wn.2d 454, 158 P.3d 595 (2007):

¶31 In sum, Washington courts have consistently applied the Franks standard, requiring a showing of reckless or intentional misstatements or omissions of material facts. [citations omitted] Thus, our prior case law does not suggest a heightened standard for veracity challenges to a facially valid warrant. But we have not considered whether this is the appropriate standard under our state constitution.

. . .

¶34 Thus, drawing the line at reckless or intentional falsehood, and denying challenges based solely on negligent or inadvertent mistake, rests on the language of the warrant clause, which implicitly protects from reckless or deliberate fabrication of the factual allegations comprising probable cause, but not from unintentional errors. As noted earlier, the statutes and court rules in this State relating to issuing a warrant mirror the warrant clause requirements of the Fourth Amendment.

¶35 The Franks decision further rests on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Limiting veracity challenges to instances of alleged reckless or intentional falsehoods “leaves a broad field where the magistrate is the sole protection of a citizen’s Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.” Franks, 438 U.S. at 170; see also American Law Institute, A Model Code of Pre-Arraignment Procedure § 290.3(1)(a), (b), at 183, 569-70 (1975) (allowing challenges based on an affiant’s “honest mistake” would unduly encroach on the magistrate’s role).

¶36 Like the United States Supreme Court, this court historically followed the common law rule that reviewing courts could not go behind a warrant to challenge the factual allegations comprising probable cause, relying on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Thus, the Franks test is consistent with this court’s historical deference to a neutral magistrate.

“[T]he police officer reasonably relied in good faith upon the defendant’s wife’s apparent authority to consent to the search of the bedroom closet and the unlocked case which contained the seized weapon ….” People v. Singson, 2007 NY Slip Op 4516, 40 A.D.3d 1015 (2d Dept. 2007).*

Maine holds that mandatory blood testing for intoxicants in fatal vehicle accidents does not violate the Fourth Amendment as justified by exigent circumstances and special needs. State v. Cormier, 2007 ME 112, 928 A.2d 753 (2007):

a. Inevitable Discovery and Exigent Circumstances

. . .

[*P20] The exigencies that exist at the site of a fatal collision are obvious. When a serious collision, likely to involve a fatality, has just occurred, responding officers are, and should be, occupied with potentially life-saving matters that are more urgent than gathering evidence of intoxication to support the probable cause necessary for a blood test. The officers may also be responsible for assuring that the collision scene does not create greater dangers to other motorists who must travel the same road. The Legislature, in attempting to identify drivers involved in deadly accidents while intoxicated, has also taken into account the chaos inherent at the scene of a fatal, or likely fatal, accident. The statute requires immediate testing, in these narrow circumstances, without the ordinary pause to collect evidence relevant to whether alcohol or drugs might have impaired the driver.

[*P21] The statute’s legislative history also demonstrates that the Legislature took into account the urgent life-and-death nature of an accident scene in crafting the mandatory drug and blood-alcohol testing legislation. …

. . .

[*P23] Thus, the statute requires the test in this limited situation because of “the gravity of the accident” and “the evanescent nature of evidence of intoxication.” Roche, 681 A.2d at 474.

[*P24] Having dealt with the exigencies, the Legislature then provided protections for drivers that incorporate the concepts of inevitable discovery. It did so by narrowly tailoring the statute to allow admission of those test results, in the absence of a warrant, consent, or simultaneous determination of probable cause, only when the State demonstrates probable cause to believe that the accident has resulted, or will result, in a fatality. 29-A M.R.S. § 2522(1). Further, the statute allows the admission of drug and blood-alcohol test results against a defendant only when other independent evidence, gathered before, during, or after the administration of the test, would inevitably have prompted the blood test if the police had had adequate time to investigate and were not otherwise occupied as responders to a scene involving one or more medical emergencies. 29-A M.R.S. § 2522(3); see Bento, 600 A.2d at 1096.

[*P25] The combined effect of the statutory provisions assures the following. First, the State and NHSTA will always obtain information regarding the intoxication or sobriety of drivers in fatal collisions. Second, the results of mandatory drug and blood-alcohol testing will be admissible in a criminal proceeding against a driver without violating the Fourth Amendment only when the State demonstrates that: [there is probable cause to believe the driver was under the influence or consent, etc.].

. . .

b. Special Needs

[*P36] Accordingly, we proceed to balance the compelling need of the State to obtain information about the intoxication of drivers involved in fatal, or likely fatal, collisions against the privacy interest of drivers, who are prohibited by law from driving while intoxicated, in the level of alcohol or other intoxicants in their blood. We conclude that the State’s interest in gathering information to assist in addressing the problem of intoxicated driving outweighs the privacy interest of drivers in the content of their blood. The State’s special needs, separate from the general purpose of law enforcement, justify an exception to the warrant requirement in these circumstances. See Skinner, 489 U.S. at 620-21, 629-30 (holding that the railroad employee blood-testing regulations serve special needs, separate from the general need for law enforcement, to enhance railroad safety, safeguard the public, and gather information about the causes of major accidents, for purposes of prevention).

The rules of evidence do not strictly apply to suppression hearings, except as to privileges. F.R.E. 104(a). Transcripts of other proceedings were admitted because of inherent trustworthiness. United States v. Waldron, 2007 U.S. Dist. LEXIS 54779 (D. S.D. July 17, 2007):

In United States v. Matlock, 415 U.S. 164, 169, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974), the Supreme Court resolved the issue of whether hearsay from the defendant’s wife should have been admitted at the suppression hearing in the case. The Court, relying on Rule 104, held that the district court had erred by not admitting the hearsay. Matlock, 415 U.S. at 169. In so concluding, the Court held that the rules of evidence are not applicable at suppression hearings and that otherwise inadmissible evidence can still be considered by the trial court in determining admissibility issues so long as the evidence contains some indicia of reliability. Id. at 172-177. Rule 104, and the Court’s ruling in Matlock, are discretionary in nature. They grant the court the discretion to dispense with the rules of evidence (except as to privileges) when the Court considers preliminary questions concerning the admissibility of evidence. See Matlock, 415 U.S. at 172-177; Fed. R. Evid. 104(a).

. . .

Here, although discretionary, the court finds that transcripts offered contain sufficient indicia of reliability to warrant their consideration, and the court will accept them into evidence in ruling on this preliminary question of admissibility. The indicia of reliability include the following: defendants were present and represented by counsel at the prior hearing where the testimony was given, the defendants had a similar motivation for cross-examining the witnesses (i.e. the suppression of evidence at a criminal trial), and the witnesses who testified did so under oath, and thus, it would have been against their penal interest to have testified falsely.

There was probable cause to search defendant’s vehicle for evidence of a homicide, and, when it was found, the interior was wet and smelled of bleach, an apparent effort to destroy trace evidence of blood. It was towed and searched later, and blood evidence was found, but, because of the bleach, it could not be typed. State v. Weaver, 2007 S.C. LEXIS 293 (July 30, 2007):

In the instant case, there was probable cause to conduct a warrantless search of the Jeep. Investigators knew that petitioner, a suspect in McKnight’s murder, had been seen driving the Jeep around the time of the murder. Upon finding the Jeep, it seemed apparent there had been an attempt to destroy evidence given the Jeep’s interior was wet and smelled of bleach. Therefore, upon finding the Jeep, the investigators could have conducted the search at that time; however, they chose to impound the vehicle.

The fact investigators chose to wait to search the Jeep after it had already been impounded does not affect the propriety of the warrantless search because there is no requirement that the warrantless search of a vehicle occur contemporaneously with its lawful seizure. United States v. Johns, 469 U.S. 478, 105 S. Ct. 881, 83 L. Ed. 2d 890 (1985) (upholding warrantless search that occurred three days after seizure).

Magistrate Judge properly determined Franks by deciding that even if the court accepts defendant’s allegations as true, if he cannot prevail on that claim by undermining probable cause, the government prevails. United States v. Perez-Velazquez, 488 F. Supp. 2d 82 (D. P.R. 2007).*

California holds that qualified immunity does not apply to civil rights actions under Cal. Civil Code § 52.1. Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230, 63 Cal. Rptr. 3d 741 (2d Dist. 2007).*

State law enforcement officers’ extrajurisdictional activites in participating in a search did not constitute a Fourth Amendment violation. A state law violation does not equate with a Fourth Amendment violation. United States v. Nure, 2007 U.S. Dist. LEXIS 43974 (E.D. Mo. June 18, 2007).

In Washington State, it does not violate the state constitution either. State v. Barron, 139 Wn. App. 266, 160 P.3d 1077 (2007).

Pro se arrestee sued under § 1983 for immediate release on state charges, which the district court found barred by Younger absention. Green v. Kingsport Police Dept., 2007 U.S. Dist. LEXIS 43925 (E.D. Tenn. June 15, 2007):

Under the doctrine established by Younger v. Harris, 401 U.S. 37 (1971), federal courts must abstain from entertaining lawsuits by an individual seeking to enjoin a criminal prosecution against him in state court where those proceedings implicate important state interests and the plaintiff has an adequate opportunity to raise his challenges in that forum. See O’Shea v. Littleton, 414 U.S. 488, 499-504 (1974). All of the factors supporting abstention are present here. Therefore, the Court must abstain from interfering in plaintiff’s state criminal proceedings by issuing rulings as to whether the warrantless entry into the plaintiff’s room, seizure of his property, and subsequent arrest violated his constitutional rights.

Defendant was on probation, and he had to make his computer available to his PO. The PO with “consent” looked at the computer and found “inappropriate if not illegal” images, so he went to the police for further guidance. The PO came back with the police and defendant further consented to a search of the computer. The search of the computer was not by consent. State v. White, 2007 R.I. Super. LEXIS 82 (June 7, 2007):

This entry was without the express permission of the defendant. White and two others were ordered to sit in the television viewing area “as a safety precaution” and one of the four troopers was assigned to watch the three civilians. White was not allowed to accompany the State Police to his back bedroom or observe what the officers did with respect to his computer. A man of limited intelligence and education, who is unable to take care of his ordinary everyday affairs without constant help, was now surrounded by six law enforcement officers in his home. He was not allowed to move from his living room area and was described by the man who knows him best as nervous, tense and “actually scared.”

Trooper Borek was obviously not trained in the area of investigating child pornography offenses. He had one of the other troopers call their supervisor for instructions. The troopers on the scene were instructed to seize the computer if they could get “consent.” Apparently no serious consideration was given to collecting the facts known about the defendant and the computer’s contents in support of a search warrant application. No consent form was offered to the defendant to memorialize his informed decision to consent to a seizure of his computer.

Moreover, when asked by Trooper Borek if he would consent to the seizure of his computer, Borek told White that if he did not consent to the removal of his computer, the police would just get a warrant and stay in White’s trailer until they obtained it.

Considering the totality of the pertinent facts and circumstances, this Court cannot conclude that the state has proved by a preponderance of the evidence that the verbal consent by White was freely and voluntarily given. [Although the standard may be clear and convincing, the preponderance standard was not satisfied.]

Defense counsel would not be ineffective for not pursuing a motion to suppress that could not win. King v. Runnels, 2007 U.S. Dist. LEXIS 43884 (E.D. Cal. June 18, 2007).*

The Sixth Circuit today dismissed (2-1) the ACLU’s domestic spying case on appeal from the U.S. District Court in Detroit on standing grounds. American Civil Liberties Union v. National Security Agency, 493 F.3d 644, 2007 FED App. 0253P (6th Cir. 2007).

The NY Times today reports that the government’s brief said that the information was so sensitive that they could not tell anybody about it.

The government said the case involves state secrets whose disclosure would threaten national security.

“The information … is highly sensitive in nature, and goes to the heart of how the government’s foreign intelligence gathering is conducted at a time when the nation is at war with an enemy that has already inflicted devastating damage on the United States by operating through a shadowy terrorist network,” a Justice Department brief stated.

The majority opinion is far too complex to discuss here, but this is the comment about the Fourth Amendment claim:

2. Fourth Amendment

The plaintiffs allege that the NSA has, by conducting the warrantless wiretaps, violated the “plaintiffs’ privacy rights guaranteed by the Fourth Amendment.” The district court — asserting a heretofore unprecedented, absolute rule that the Fourth Amendment “requires prior warrants for any reasonable search,” ACLU v. NSA, 438 F. Supp. 2d at 775 — agreed and granted the plaintiffs’ motion for summary judgment on this theory, id. at 782. However, the Supreme Court has made clear that Fourth Amendment rights are “personal rights” which, unlike First Amendment rights, may not be asserted vicariously. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978). The Court explained in Rakas:

Under petitioners’ target theory, a court could determine that a defendant had standing [] without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle that the rights assured by the Fourth Amendment are personal rights, which may be enforced [] only at the instance of one whose own protection was infringed by the search and seizure, the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. … Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of ‘standing,’ will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forth-rightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.

Id. at 138-39 (quotation marks, citations, footnotes, and edits omitted; emphasis added); see also Ellsberg v. Mitchell, 709 F.2d 51, 65 (D.C. Cir. 1983) (“An essential element of each plaintiff’s case is proof that he himself has been injured. Membership in a group of people, ‘one or more’ members of which were exposed to surveillance, is insufficient to satisfy that requirement.”).

The plaintiffs do not, and cannot, assert that any of their own communications have ever been intercepted. Instead, they allege only a belief that their communications are being intercepted, based on their own assessment of their overseas contacts as people who are likely to fall within the NSA’s broad, public description of its targets. As acknowledged by plaintiffs’ counsel at oral argument, it would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure. See Rakas, 439 U.S. at 133-34.

. . .

VI.

We hold that the plaintiffs do not have standing to assert their claims in federal court. Accordingly, we VACATE the order of the district court and REMAND this case to the district court with instructions to DISMISS for lack of jurisdiction.

The defendant argued that a search warrant was required for the police to send an informant in to make a buy. This was rejected. State v. Prestwich, 2007 UT App 206, 2007 Utah App. LEXIS 212 (June 14, 2007):

Defendant first argues that the trial court erred in failing to suppress evidence seized in violation of his Fourth Amendment right against unreasonable searches and seizures when a confidential informant entered Defendant’s home without a search warrant. “However, the Fourth Amendment has no application to the actions of invited and authorized persons, even when, unbeknownst to the unwary, they are acting as police agents.” State v. McArthur, 2000 UT App 23, P20, 996 P.2d 555 (emphasis omitted). “It is not illegal for a private individual, even if acting as a government agent, to enter another’s home if he or she does so with the owner’s permission.” State v. Koury, 824 P.2d 474, 478 (Utah Ct. App. 1991). Here, the confidential informant initiated contact with Defendant, made arrangements to buy marijuana from Defendant, and went to Defendant’s residence to conduct the purchase. The confidential informant asked Defendant if she could enter his apartment, and Defendant allowed her in the residence. Based on this evidence, we conclude that the confidential informant’s entry was permissive and that the trial court did not err in ruling that the warrantless entry did not implicate the Fourth Amendment.

The defendant was ordered out of his vehicle by an officer who came upon his parked vehicle. “In the instant case, defendant was directed to exit his vehicle, subjected to a pat-down search, instructed to perform field sobriety tests and then told to sit down on the police vehicle before the officer asked him to sign the consent form authorizing a search of the interior of the vehicle. Defendant was treated as if he was not free to leave …. We note that, although not mandatory, the People did not establish that defendant was advised that he could refuse to consent to the search …. In view of the foregoing, we conclude that defendant’s consent was not voluntary.” People v. Keesler, 2007 NY Slip Op 27247, 16 Misc. 3d 45 (2d Dept. 2007).*

Franks hearing denied where the affidavits offered did not make it impossible for the drug deal to have gone down as the informant said it did. The affidavits were from biased witnesses who were related to the defendant. People v. Gorosteata, 374 Ill. App. 3d 203, 312 Ill. Dec. 492, 870 N.E.2d 936 (6th Dist. 2007).*

Defense counsel was not ineffective for not challenging a search that was uniformly testified to be consensual. People v. Starnes, 2007 Ill. App. LEXIS 652 (2d Dist. June 12, 2007), released for publication July 17, 2007.*

Officers showed probable cause to seize photographs of nude young boys from defendant’s house based on his own admissions there would be photographs. His staleness argument was not raised in the trial court and was waived. Commonwealth v. Tiffany, 2007 PA Super 162, 926 A.2d 503 (2007).*

The defendant hid a bag in his apartment’s dryer vent which was accessible by anyone in the common area of the apartment complex. He failed to show a reasonable expectation of privacy in that place. People v. Carodine, 374 Ill. App. 3d 16, 311 Ill. Dec. 856, 869 N.E.2d 869 (1st Dist. 2007):

Guided by the foregoing factors, we conclude that defendant failed to carry his burden of establishing that he held a reasonable expectation of privacy in the dryer vent. Neal, 109 Ill. 2d at 218. Defendant had no possessory interest in the area searched. Although defendant leased the apartment in which he and his mother resided, he had no possessory interest to the common area from which the officer reached because the inhabitants of two other units had access to the common area. Defendant had no possessory interest in the exterior wall outside of his apartment and no possessory interest to the dryer vent. Although the dryer vent was used exclusively by the basement apartment, which the defendant inhabited with his mother, the dryer vent was accessible to the landlord, who was responsible for the maintenance of the exterior of the building, and other members of the general public including deliverymen, door-to-door salesmen, etc. Defendant did not have the ability to control or exclude others’ use of the property. He had no ability to exclude others from the common property from which the officer reached, had no ability to exclude others from the exterior wall of the building, and had no ability to exclude others from the dryer vent.

Notwithstanding the foregoing, defendant argues that he had a reasonable expectation of privacy in the dryer vent because it led to the inside of his apartment. The fact that the dryer vent leads to the inside of defendant’s apartment is outweighed by the more persuasive fact that the dryer vent is accessible to the outside world from the exterior wall of the building.

Defendant lacked a reasonable expectation of privacy as a guest in his girlfriend’s apartment. While he had lived there before, he did not at the time of the search. His primary residence was elsewhere, and he seldom spent the night. Commonwealth v. Colon, 449 Mass. 207, 866 N.E.2d 412 (2007).*

Probable cause existed for arrest of the defendant for hand to hand drug deals. They could search a bulge in his sock. State v. O’Neal, 190 N.J. 601, 921 A.2d 1079 (N.J. May 22, 2007).*

Frisk of defendant was justified for safety reasons during execution of a search warrant where he was on the premises because there was reason to believe that the target of the search had lookouts there for him. State v. Marquez, 2007 UT App 170, 163 P.3d 687, 578 Utah Adv. Rep. 3 (2007)*:

[*P12] The record reflects that the officers received information that Gerrish was a fugitive, wanted for possession of controlled substances, that he was “hiding out” in the residence, and that other persons present at the home were acting as “lookouts” for him. Upon entering the house, Officer Wood testified that he did not know whether Marquez was Gerrish, and that he did not know what “the situation was inside the house.” These facts, coupled with the inherent danger associated with entering a residence at night, sufficiently establish that “a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. 1 at 23, 88 S. Ct. 1868, 20 L. Ed. 2d 889; cf. Summers, 452 U.S. at 702-03 (noting that execution of warrant to search for drugs “may give rise to sudden violence or frantic efforts to conceal or destroy evidence”). Further, information that occupants may be acting as “lookouts” for Gerrish reasonably suggests that any person on the premises during the search might violently interfere with the search or the arrest of Gerrish. Accordingly, we agree with the trial court that the frisk was reasonable for purposes of officer safety and therefore did not violate Marquez’s Fourth Amendment rights.

The defendant’s business was put into receivership. After collecting the books, the FBI sought access and the receiver consented. The receiver had the legal power to consent. United States v. Madison, 226 Fed. Appx. 535 (6th Cir. 2007) (unpublished):

The appointing court here ordered the receiver to “[t]ake exclusive custody, control and possession of all … effects, books and records of account and other papers and property or interests owned or held by the [Cherokee Corporations] … with full power to … receive and take possession of such receivership properties.” R.R. at 9. Thus, the receiver exercised Cherokee’s own authority, and had the authority to consent to the FBI agent’s search of 2771 Colony Park Drive. See Javitch v. First Union Sec., Inc., 315 F.3d 619, 626 (6th Cir. 2003).

The Bankruptcy Court for the D.N.J. held that the trustee was entitled to an order entering the debtor’s property in the face of a Fourth Amendment challenge. In re Bursztyn, 2007 Bankr. LEXIS 1207 (D. N.J. Bankr. April 10, 2007).

[Without stating any facts for the reader,] The officer had reasonable suspicion to stop the defendant near the border, and the defendant’s consent was voluntary. The defendant was not advised of a right to refuse, but all other factors favored voluntariness. United States v. Dubas, 228 Fed. Appx. 695 (9th Cir. 2007)* (unpublished).

The defendant got a Franks hearing but failed on the merits. The question was alleged information about the wrong apartment which was innocent or negligent at worst. United States v. Oung, 490 F. Supp. 2d 21 (D. Mass. 2007):

Hershey has fallen far short of his burden under Franks as to all three elements. The evidence does not support the inference that Agent Brackett intentionally lied or acted recklessly in procuring the affidavit. Any mistakes or inconsistencies in the affidavit were credibly explained by Agent Brackett by reference to the hurried circumstances of the evening, the inclusion of written portions of an affidavit drafted prior to that night, his exhaustion, and simple typographical error. See Tzannos, 460 F.3d at 136 (“‘Allegations of negligence or innocent mistake are insufficient.'” (quoting Franks, 438 U.S. at 171)).

This conclusion as to Brackett’s motives is reinforced by the existence of ample probable cause even with the errors cited by defendants removed from the affidavit. Based on surveillance and intercepted calls, the agents had reason to believe that either Unit 36 or 37 was the “Clubby Two” referenced over the wire. The initial mistaken entry into Unit 36, the identification of Unit 37 as Hershey’s home by the neighbors outside Unit 40, and the discovery of the dark green Nissan in the garage at Unit 37 — the offending omissions cited by defendants — all shore up, rather than weaken, the agents’ cause to believe that Unit 37 was the stash. Thus even if these omissions were deliberate (and I find that they were not) the warrant would survive. See, e.g., United States v. Legault, 323 F. Supp. 2d 217, 226 (D. Mass. 2004) (“A reviewing court should add any facts intentionally or recklessly omitted from the affidavit and determine whether the new information, if included, would have defeated the finding of probable cause.” citing United States v. Cole, 807 F.2d 262, 267-268 (1st Cir. 1986))). Any errors or misleading statements occasioned by these omissions, such as the statement that probable cause was based on facts contained in the affidavit, do not undermine the agents’ reasonable belief that Unit 37 was the likely location of the stash. See, e.g., Valente v. Wallace, 332 F.3d 30, 32 (1st Cir. 2003) (explaining that “centrally, the mercurial phrase ‘probable cause’ means a reasonable likelihood” (citing Illinois v. Gates, 462 U.S. 213, 235 (1983))).

State search and seizure claim that was ligitated to conclusion could not be reasserted in federal habeas. Swecker v. Brady, 2007 U.S. Dist. LEXIS 28947 (E.D. Wash. April 19, 2007)*; Allison v. Eberlin, 2007 U.S. Dist. LEXIS 28912 (N.D. Ohio April 17, 2007).*

Defendant’s failure to raise his Franks challenge in the District Court made it subject to only plain error review on appeal. The single issue raised is whether some ambiguity in the timing of events was sufficient to raise a Franks issue, and it was not. United States v. Snow, 228 Fed. Appx. 203 (3d Cir. 2007)* (unpublished):

Snow did not argue in his motion to suppress that McCue’s affidavit contained false statements or material omissions. Snow’s counsel merely noted, after the District Court’s denial of the suppression motion, that “there is some ambiguity as to the timing as to when some of the issues actually happened.” App. at 13. This statement, made after the Court’s ruling on the motion, is plainly insufficient to make a preliminary showing under Franks that the affiant included a false statement in the warrant affidavit.

Defendant was stopped for entering a federal parkway with a bow and arrows in the backseat, which is a violation of federal regulations. Once out of the car, he spontaneously admitted he had a hand gun, too. The search of the vehicle was with probable cause. United States v. Carrico, 2007 U.S. Dist. LEXIS 28672 (W.D. Va. April 10, 2007).*

N.J. recognizes racial profiling in stops by a lower threshold of proof, and, in this case, the defendant met that burden. After his stop things occurred with the vehicle occupants (flight, furtive movements, wrestling with police) which the state argued and trial court initially held broke the causal connection between the stop and search. Defendant at least gets a hearing on the profiling issue. State v. Lee, 190 N.J. 270, 920 A.2d 80 (2007).*

Police had cause and exigent circumstances to enter plaintiff’s home without a warrant to look for his missing girlfriend, so they were entitled to qualified immunity. Colao v Mills, 2007 NY Slip Op 3230, 2007 N.Y. App. Div. LEXIS 4705 (3d Dept. April 19, 2007):

Here, defendants possessed information that Bergman was missing, she had been involved in a domestic disturbance with plaintiff, she feared that plaintiff would kill her, he had alcohol and weapons in his home and she intended to return there. It was objectively reasonable for police officers possessing this information to believe that Bergman could be inside plaintiff’s house, she could be injured and they needed to find her quickly. Under the circumstances, defendants were justified in entering plaintiff’s home and searching for Bergman (see People v Evans, 21 AD3d 1317, 1317-1318, 801 N.Y.S.2d 462 [2005], lv denied 6 N.Y.3d 775, 844 N.E.2d 797, 811 N.Y.S.2d 342 [2006]). It was reasonable for defendants to conduct the second search of every area inside the house where a person or body could be located, including the large gun safe, because the initial cursory search did not include all areas where a person could hide or be hidden, Bergman had still not been located and, after the initial search, defendants obtained additional information indicating that the domestic disturbance may have been violent (compare Tierney v Davidson, 133 F.3d 189, 197-199 [2d Cir 1998]). Hence, defendants’ conduct in executing the two warrantless searches of plaintiff’s house was permissible under the exigent circumstances exception and did not violate plaintiff’s constitutional rights.

Officers executing a facially valid discovery order that required entry into property were entitled to quasi-judicial immunity for that act. Moss v. Kopp, 2007 U.S. Dist. LEXIS 11383 (D. Utah February 16, 2007):

Defendants qualify for quasi-judicial immunity because they did not exceed their authority and acted pursuant to a facially valid court order. When properly invoked, quasi-judicial immunity serves as an absolute bar to recovery. Guttman v. Khalsa, 446 F.3d 1027, 1033 (10th Cir. 2006)(“Absolute immunity bars suits for money damages for acts made in the exercise of prosecutorial or judicial discretion.”). As the Tenth Circuit has explained, “an official charged with the duty of executing a facially valid court order enjoys absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.” Valdez v. City & County of Denver, 878 F.2d 1285, 1286 (10th Cir. 1989).

Quasi-judicial immunity springs from the protections which preclude civil liability for judges performing their official duties. Whitesel v. Sengenberger, 222 F.3d 861, 867 (10th Cir. 2000)(“[A]bsolute judicial immunity has been extended to non-judicial officers where ‘their duties had an integral relationship with the judicial process.'”)(quoting Eades v. Sterlinske, 810 F.2d 723, 726 (7th Cir. 1987)). While cloaking judges from liability, courts have recognized that judicial immunity must also extend to individuals charged with carrying out judicial orders. Valdez, 878 F.2d at 1288 (“Absolute immunity for officials assigned to carry out a judge’s orders is necessary to insure that such officials can perform their function without the need to secure permanent legal counsel. A lesser degree of immunity could impair the judicial process.”). Because “it is simply unfair to spare the judges who give orders while punishing the officers who obey them,” courts recognize that “[o]fficials must not be called upon to answer for the legality of decisions which they are powerless to control.” Id. at 1289. Otherwise, a narrow application of judicial immunity would “allow plaintiffs to bring suit any time a state agent executes a judicial order which does not fulfill every legal requirement [and] would make the agent ‘a lightning rod for harassing litigation aimed at judicial orders.'” Turney v. O’Toole, 898 F.2d 1470, 1473 (10th Cir. 1990)(quoting Valdez, 878 F.2d at 1289).

Pulling vehicles over was a seizure under the Fourth Amendment. Plaintiff was an anti-abortion protest group, and the police pulled over a car and two trucks with anti-abortion messages on the side. The dress of those in the vehicles gave reasonable suspicion because they were wearing body armor and kevlar helmets. It was extended and became an arrest without probable cause. Center for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807 (6th Cir. 2007). As to reasonable suspicion:

This initial seizure was proper in light of the Defendants’ reasonable and articulable suspicion that criminal activity was afoot. Such a seizure is permissible where officers assess all the objective facts and circumstances, and that assessment “raise[s] a suspicion that the particular individual being stopped is engaged in wrongdoing.” United States v. Cortez, 449 U.S. 411, 418 (1981). Here, Defendant Clark observed Plaintiffs driving box-style trucks while dressed in body armor and Kevlar helmets, accompanied by a vehicle modeled to look like a law enforcement car. This occurred in a post-9/11 and post-Oklahoma City bombing context, at a time when law enforcement officers were in a heightened state of alert to fight would-be terrorists. When Clark initially made contact with Patch, he overheard Patch on the two-way radio telling Harrington the police were approaching him and observed him behaving in an “extremely nervous” manner. (J.A. at 421) Thus, specific and articulable facts gave rise to reasonable suspicion to stop Plaintiffs.

Federal courts lack jurisdiction to determinine enemy combatant status after Congress changed the law. Boumediene v. Bush, 375 U.S. App. D.C. 48, 476 F.3d 981 (D.C. Cir. 2007):

Federal courts have no jurisdiction in these cases. In supplemental briefing after enactment of the DTA, the government asked us not only to decide the habeas jurisdiction question, but also to review the merits of the detainees’ designation as enemy combatants by their Combatant Status Review Tribunals. See DTA § 1005(e)(2). n15 The detainees objected to converting their habeas appeals to appeals from their Tribunals. In briefs filed after the DTA became law and after the Supreme Court decided Hamdan, they argued that we were without authority to do so. Even if we have authority to convert the habeas appeals over the petitioners’ objections, the record does not have sufficient information to perform the review the DTA allows. Our only recourse is to vacate the district courts’ decisions and dismiss the cases for lack of jurisdiction.

Civil suit against unlawful entry and excessive force styled as a substantive due process claim was dismissed under Albright v. Oliver because it was a Fourth Amendment claim. McCracken v. Lancaster City Bur. of Police, 2007 U.S. Dist. LEXIS 11471 (E.D. Pa. February 15, 2007).*

When government appeals grant of a suppression motion as to one issue (a statement) under 18 U.S.C. § 3731, the defendant cannot cross-appeal under that statute another issue he lost on (denial of suppression of a search). The defendant must wait for the conclusion of the case. The district court’s order of suppression was clearly erroneous on the causation question for the statement. United States v. Marasco, 487 F.3d 543 (8th Cir. 2007):

Harms cannot satisfy her burden of establishing the causal nexus between the illegal search of her purse and her statements. At best, Harms shows that it is remotely possible that she made her statements after the search of her “stuff” began. The record indicates that Simones informed Harms that methamphetamine and items used to manufacture methamphetamine were in the motel room, and then Harms made incriminating statements. Harms argues that these referenced items were discovered during the search of her purse, but there is nothing in the record to indicate that the referenced items came from the search of Harms’s “stuff.” These items could have been those observed in plain view (the pipes and scale), those legally seized from Marasco incident to his arrest (the bags of methamphetamine), those discovered during the search of the room, or those found in Harms’s “stuff.” Harms’s scenario is the least likely to have occurred because although the record is unclear on when the search of the room began, the record indicates that most of the search occurred while Simones was questioning Harms.

Because the record lacks support for Harms’s contention that Simones confronted her with evidence obtained during the illegal search of her purse before she made the incriminating statements, the District Court’s finding that Harms’s statements were “given immediately after the search” is clearly erroneous.

Magistrate’s interlineations on affidavit showed, not that the magistrate was not neutral and detached, but that he was fulfilling his judicial role by questioning the factual scenario. Also, the continuous nature of the allegations was sufficient to overcome defendant’s claim of staleness of information. United States v. Uhrich, 228 Fed. Appx. 248 (4th Cir. 2007)* (unpublished):

Simply stated, Johnston’s bare allegation that the interlineations demonstrate that the Magistrate Judge lacked objectivity, without more, is an insufficient basis for us to find that the search warrant was invalid. In fact, and as posited by the government, we are of the firm belief that the interlineations in the affidavit establish not that the Magistrate Judge ceased being “neutral and detached” but instead that the Magistrate Judge carefully considered the affidavit before deciding whether to issue the search warrant.

Defendant clearly consented by his words, and failure to object during the search as to a scope issue is also a showing of consent. United States v. Thaqui, 2007 U.S. Dist. LEXIS 39669 (E.D. Mo. May 31, 2007):

When asked if they were carrying any illegal contraband, Defendant said, “If you want to search the vehicle go ahead. The quicker you search, the quicker we can go.” Defendant clearly consented to the search. The consent included the hole near the rear driver’s side wheel-well. None of the occupants objected at the time when Detective Pratt looked in the hole and saw something wrapped in cellophane that did not look natural. Nor did the occupants voice any objection upon further inspection with the screwdriver. Based on the totality of the evidence, the Court finds that the officers had the legal right to search the vehicle, including the search of the hole.

The defendant’s patdown at night was without reasonable suspicion. The officer could articulate nothing except that stop was at night. United States v. Scott, 2007 U.S. Dist. LEXIS 35608 (W.D. Va. April 27, 2007):

Ranger Buxton has not articulated any facts which the court can find lead to a reasonable suspicion that Scott was armed and dangerous or that the car contained narcotics, before he executed the search. Darkness alone is not sufficient to justify a pat down search. Additionally, the court can conceive of many reasons why a passenger may remain quiet during a lawful traffic stop which are not indicative of criminal activity.

A question on the street quickly ripened into reasonable suspicion by the defendant’s actions. State v. Parnell, 960 So. 2d 1091 (La. App. 5th Cir. 2007)*:

When Deputy Williams first stopped, he just wanted to ask the Defendant some questions. However, we find that what started as a hunch ripened into reasonable suspicion for an investigatory stop and a Terry pat down, with the smell of marijuana, the startled look, and the immediate insertion of his hand in his pocket with a clenched fist and his refusal to remove it after numerous requests, along with his backing up the driveway and pronouncement that he could not be questioned because he was in his yard. As Deputy Lehrmann approached and the Defendant turned, changing his angle, Deputy Williams saw the outline of the top strap and front site of a .38 caliber revolver through the Defendant’s pants. He immediately restrained the Defendant, having cause to conduct a Terry pat down search for weapons for the protection of himself and others, as well as probable cause for arrest.

Officer was following plaintiff on a scooter, and the plaintiff ran off the road on his own and there was no pursuit. The officer had reason to believe that the defendant was a felon in possession of a firearm, and that justified his detention until the officer located a gun in the grass. Ray v. Pauley, 2007 U.S. Dist. LEXIS 35546 (N.D. Ind. May 14, 2007).*

Defendant’s arrest was without probable cause, and his statement thereafter was not attenuated from the arrest, and it was suppressed. State v. Gooden, 2007 Ohio 2371, 2007 Ohio App. LEXIS 2210 (8th Cir. May 17, 2007).*

Officers had probable cause to stop the defendant, a known drug dealer, when he showed up for a drug deal. The fact the entire drug “stash” was not found on him permitted them to search the vehicle to look for the “stash.” Curry v. State, 228 S.W.3d 292 (Tex. App. — Waco 2007).*

Showing that the phrase “constitutionally protected area” still has validity, Florida’s 5DCA held that the trial court erred in finding that defendant’s porch was, and reversed a suppression order. State v. E.D.R., 959 So. 2d 1225 (Fla. App. 5th Dist. 2007):

The trial court erred in suppressing the evidence in this case. The porch was not a constitutionally protected area. The unenclosed porch was in the front of the house, not obscured from public view, E.D.R. was sleeping in a chair on the front edge of the porch, and any delivery person or passerby could have walked onto the porch and left a package or knocked on the door without a violation of the resident’s reasonable expectation of privacy. In doing so, the police officers, like a delivery person, would have observed the crack cocaine in plain view in E.D.R.’s lap. The officers had probable cause to arrest him and seize the evidence. We reverse the trial court’s order granting E.D.R.’s motion to suppress and remand for further proceedings.

Plaintiff’s affidavit contradicting the officers’ version of his arrest was sufficient to overcome the officers’ motion for summary judgment. Benson v. Sefton, 2007 U.S. Dist. LEXIS 44875 (E.D. N.C. January 4, 2007).*

Oregon holds that taking DNA from a convicted person put on probation does not violate the state constitution or the Fourth Amendment. State v. Sanders, 343 Ore. 35, 163 P.3d 607 (2007).*

Reasonable suspicion was present when the defendant and a companion were pushing bicycles out from behind a closed bar at 3 a.m. and defendant did not stop for over 50 feet after the companion did. The officer noticed knives clipped to his pocket, and asked for permission to search. “According to his affidavit, Maldonado asked Tanner if he had any other contraband, particularly drugs, and Tanner replied, ‘I don’t know; you can check.'” Tanner v. State, 228 S.W.3d 852 (Tex. App. — Austin 2007).*

(Sorry for the delay in posting, but I had an early drive for court that turned out to be a complete waste of time, and I had to e-file a pleading tonight that I’ve been working on for three days.)

The Texas Third District Court of Appeals at Austin sustained a computer search in a strangulation murder case where the appellant conceded probable cause and only challenged exceeding the scope of the warrant. Russo v. State, 228 S.W.3d 779 (Tex. App. — Austin 2007). The opinion is interesting if only for those interested in computer searches. The police had a search warrant for the computer and found information that appellant had visited a subscription website named www.necrobabes.com which the state contended dealt with strangulation death. [I visited the website, and it describes itself as “erotic humor for men” and has a disclaimer, including: “These sites deal with very politically incorrect fantasies. If you do not have these sorts of fantasies, you will likely find them shocking, if not offensive–our sites are not for you, please go away.” It has links for posed death scenes including asphyxia.] The police thought this was relevant to the strangulation investigation. The court found the searches valid, and the evidence relevant.

Appellant does not complain of the admission of all the evidence taken from his computer. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. He urges that the execution of the search of the computer’s contents exceeded its scope with the search of a computer file relating to “necrobabes.com.” It is argued that the search should have been limited to the computer’s contents involving real estate as authorized by the search warrant of June 18, 2003.

Another search warrant was issued on November 18, 2003, expressly authorizing the search of the “necrobabes.com” computer file. It does not appear that appellant challenges the validity of this warrant or its execution. The State contends that the evidence shows that the computer file in question was not itself searched until after the issuance of the search warrant on November 18, 2003.

The essence of appellant’s complaint is that the police exceeded the scope of the search under the June 18 warrant when the police “used” information that they learned from the computer’s Internet history to “discover private information on appellant’s computer.” On appeal, appellant simply states: “[A]ppellant’s objections and argument are located at R. Vol. 9, 4-5, 75, 81 [pretrial]; R. Vol. 37, 205.” 15 Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer’s hard drive, which is protocol for forensic computer examination. Rector examined the computer with a program called “Encase,” which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Rector then performed some keyword searches on the hard drive copy using “Diane Holik,” “Pathfinder,” and “Lakki Brown” (Holik’s realtor). There were no positive hits on these terms. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate.

Officer was performing community caretaking function for entering business premises that was months behind on lease payments because the landlord was afraid of who or what he may encounter. The entry was on behalf of the landlord who had a right of entry, not the tenant. State v. Albaugh, 2007 ND 86, 732 N.W.2d 712 (2007):

[*P13] The essential inquiry is whether Zeeb had the right to enter the shop. The district court found “Officer Zeeb entered the premises through an open and unlocked door at the request of the landlord. …” (Emphasis added). By the tenant’s concession and the terms of the lease, the landlord had the right to enter the shop. The tenant, Albaugh’s brother, testified he was three months behind in rent and acknowledged the landlord had the right of entry if he defaulted on the terms of the lease. The landlord was the individual for whom Zeeb was performing the community caretaker function. The landlord requested Zeeb to be present in case he encountered a tenant or problems arose. Officer Zeeb had a reasonable belief that the shop was expected to be empty and in the event the landlord encountered someone in the shop, his assistance would be needed. Zeeb waited outside the shop, which, according to Detective Berg, was “a public business,” with one door “apparently for public access to what appeared to be a public business.”