The Northern District of Iowa concludes that a search warrant for premises in a drug case can logically include computers and digital media as a thing to be searched under a warrant for the premises. United States v. Gocha, 2007 U.S. Dist. LEXIS 63518 (N.D. Iowa August 28, 2007):

Upon review of the record and [Magistrate] Judge Zoss’s Report and Recommendation, the court concludes that Judge Zoss correctly concluded that there was a substantial basis to support the state magistrate’s finding of probable cause to search defendant Gocha’s personal computers. The court recognizes that the Eighth Circuit Court of Appeals has held that “punctilious paragraph-by-paragraph dissection of the supporting affidavit” is not the appropriate standard of review. United States v. Townsley, 843 F.2d 1070, 1076 (8th Cir. 1988); see United States v. Leisure, 844 F.3d 1347, 1354 (8th Cir. 1988) (declining to “undertake a piecemeal dismemberment of the various paragraphs of the affidavit without attention to its force as a whole.”). Rather, the court acknowledges that a determination of probable cause depends on a reading of the affidavit as a whole. Gates, 462 U.S. at 237. Here, Judge Zoss considered the affidavit as a whole. Viewing the affidavit in a common sense manner, the court cannot say that the issuing state magistrate did not have a substantial basis to believe that the items sought in the warrant would be found on defendant Gocha’s personal computers. “‘[I]n the case of drug dealers, evidence is likely to be found where the dealers live.'” United States v. Newton, 389 F.3d 631, 635 (6th Cir. 2004) (quoting United States v. Jones, 159 F.3d 969, 975 (6th Cir. 1998) (internal citations omitted)). This would logically extend to personal computers found where dealers live. The court, therefore, also overrules this objection.

Query: Is judicial deference to the issuing magistrate’s conclusions about the officer’s experience in what might be found and where becoming absolute? There have been several cases like this in the last few months, and computers are becoming a target of drug search warrants. I’ve regularly seen it in search warrants coming across my desk, too.

Plaintiff was arrested for credit card fraud after her car was connected to a scam as the getaway car. Police were getting a search warrant and they staked out her house, and they knocked to arrest her. The warrantless entry here was based on probable cause and exigent circumstances that evidence would be destroyed before the warrant could arrive. This was not considered police created exigency because a warrant was coming, and they were legitimately in fear of destruction of evidence since the plaintiff was aware that she was being followed by the police. (The criminal case was dismissed against her.) Clark v. Luker, 2007 U.S. Dist. LEXIS 63895 (W.D. Mich. August 29, 2007).*

Defendant lacked standing to challenge a search of a package, so his counsel could not be ineffective for not having challenged a search of the package. As to a search of his residence, any Franks challenge would have failed. United States v. Hernandez, 2007 U.S. Dist. LEXIS 63046 (D. Haw. August 24, 2007):

“Both the sender and the addressee have privacy interests in mailed packages.” United States v. Sheldon, 351 F. Supp. 2d 1040, 1043 (D. Haw. 2004) (citing United States v. Hernandez, 313 F.3d 1206, 1209 (9th Cir. 2002)). “Generally, a third party who is neither the sender nor the addressee of a mailed package does not share this privacy interest.” Id. (citing United States v. Pierce, 959 F.2d 1297, 1303 (5th Cir. 1992) (“Arguably, a defendant who is neither the sender nor the addressee of a package has no privacy interest in it, and, accordingly, no standing to assert Fourth Amendment objections to its search.”); United States v. Koenig, 856 F.32d 843, 846 (7th Cir. 1988); United States v. Givens, 733 F.2d 339, 341-42 (4th Cir. 1984)). However, a defendant who is neither the sender nor addressee of a mailed package, but claims an ownership interest in the package, exercises control over the package, and takes measures to reinforce his or her privacy interest in the package may have a legitimate expectation in that package. See Sheldon, 351 F. Supp. 2d at 1044 (“Sheldon demonstrates that she owned the Airborne Express parcel and exercised control over it upon delivery. She also took measures to reinforce her privacy interest after taking delivery of the parcel.”).

Two teenage girls staying in defendant’s house discovered a video camera installed in their wall clock and it fed into defendant’s computer in his bedroom. After three weeks, they informed somebody and the police were called. They could consent to the entry into their room, but, by all accounts, they had no apparent authority to consent to an entry of his room or his computer. The undisputed proof was that they needed permission for both, and they did not have it. The police justification of exigent circumstances was belied by the three week delay in the report. They should have obtained a warrant, if one would issue in that case [it might have if the private search was used to get the warrant, and PC was shown, and not the view of the police]. United States v. Peden, 2007 U.S. Dist. LEXIS 61354 (E.D. Cal. August 9, 2007):

Moreover, with respect to “apparent authority,” the officers were not operating under any mistaken facts. They were aware that the two girls were minors who lived in defendant’s house. (Opp’n to Mot. to Suppress 3:1-5.) Moreover, they were aware that the computer resided in defendant’s bedroom, that it belonged to him, and that he granted the girls limited permission to use it that evening while he was gone. (Id. 3:9-10.) The government does not point to any mistaken facts which caused the officers to believe they were justified in their actions. Accordingly, the girls also did not have apparent authority to consent to the search.

Franks motion over a seizure of case denied. “Defendant’s general suggestion that the affidavits were imprecise as to who owned real property at issue does not meet this standard.” United States v. Lange, 2007 U.S. Dist. LEXIS 61573 (D. Minn. August 14, 2007).*

The stop of defendant’s car was with probable cause, and an impoundment and inventory would have occurred in any event, so what was found was admissible. United States v. Clarkson, 2007 U.S. Dist. LEXIS 61107 (D. Utah August 20, 2007).*

Landlord’s complaint to the police that a former tenant had returned as a trespasser to smoke dope in the premises and the police came to check it out and entered did not violate a Fourth Amendment right of the plaintiff. They also had to shoot plaintiff’s dog who was coming at them, and that was unanticipated but reasonably necessary. Conner v. Rendon, 2007 U.S. Dist. LEXIS 61036 (W.D. Mich. August 20, 2007).*

The drivers of two cars moved to suppres on the grounds that searches of the passengers produced cocaine. The drivers were held to lack standing to challenge their search. The mere fact the government alleged “aiding and abetting” them did not create standing. “No testimony was offered in support of the two motions to suppress that the drivers of the two vehicles had provided the cocaine to the passengers or even were aware that the passengers were couriers of the cocaine seized.” United States v. Pittman, 2007 U.S. Dist. LEXIS 61332 (N.D. Ohio August 21, 2007). Comment: Seems like they might be close to a judgment of acquittal without the government producing some evidence that they knew. They should take care, moreover, that the government does not take a position in the trial inconsistent with its opposition to the motion to suppress. If so, the government would be collaterally estopped or the doctrine of judicial estoppel would apply.

School officials had reasonable suspicion to conduct a drug test during the school day after plaintiff left the school, was eluding school security, came back in and refused to go to the principal’s office at first but finally did, and had bloodshot eyes and runny nose and was asked about what he was doing outside and he said “I don’t smoke weed.” Also, the drug test was an oral swab. Summary judgment for defendants granted. Ineirghe v. Bd. of Educ., 2007 U.S. Dist. LEXIS 61841 (E.D. N.Y. August 22, 2007).*

Government required to put on proof that it did not use privileged information that it obtained during a search and that it possessed as a potential due process violation under Rochin v. California, 342 U.S. 165 (1952). United States v. Warshak, 2007 U.S. Dist. LEXIS 61358 (S.D. Ohio August 21, 2007):

Although the government provides assurances in its filings that it enacted procedures to protect Defendants’ privileged information, the Court finds gaps, both temporal and substantive, that can only be closed by sworn testimony of government agents that they did not use privileged information in obtaining evidence against Defendants. The Court finds well-taken Defendants’ questions concerning the amount of time that Agent Almaguer possessed privileged data, as well as concerning the fact that the government segregated in-house counsel computers, but apparently did not comprehensively screen other computers for privileged information. These questions merit a response.

The government asserts that its case is based upon proffers made by Berkeley employees and not on email communication. Should this be the case, it is not an onerous burden for the government to further produce its witnesses, who can testify that the government did not obtain their proffers by persuading them with privileged documentary evidence or information relating to conversations with lawyers.

The Court is not interested in enabling Defendants to conduct a fishing expedition by permitting the sort of discovery proposed by Defendant Chavan. The Court will not extend discovery so as to permit forensic discovery of case agent activity, short of a showing, under sworn testimony, that case agents used privileged material to support their investigation. The government characterizes any exposure that agents may have had to privileged information as incidental, harmless, and forgotten. Should such characterization be supported by credible sworn testimony, any alleged intrusion into privileged materials, although improper, cannot be prejudicial to Defendants or arise to the level of a due process violation.

Hawai’i declines to follow Harris v. New York under its state constitution. The police unlawfully entered defendant’s house after an “‘abuse-type’ call” where the defendant’s wife and daughters were outside. Harris is rejected because, in this court’s view, it rewards violations of the law by police. State v. Marino, 114 Haw. 271, 160 P.3d 1258 (2007):

With all due respect, we disagree with the Harris Court. The rule in Payton was designed to protect, not just “the physical integrity of the home[,]” Id. at 17, 110 S. Ct. at 1643, although that is wherein the Fourth Amendment and Article I, section 7 find their highest expression, Id. at 18, 110 S. Ct. at 1643, but ultimately the constitutional right of the people to be free of unreasonable searches and seizures and invasions of privacy. For a house is just a house, and does not become a home in the constitutional sense unless so imbued by the inherent rights of the householder. It is not merely the materially limited and located “persons, houses, papers, and effects” that are constitutionally protected, but more profoundly, the immanent “right of the people to be secure” therein. Fourth Amendment; Article I, section 7. For this reason, the Harris Court’s focus on the limits of the physical house to the exclusion of the metaphysical home feels, at first blush, foreboding.

For while there was probable cause to arrest Harris and the police could have done so lawfully on his doorstep or on the street, to say that “the legal issue is the same” once Harris was removed from his home, Id. at 18, 110 S. Ct. at 1643, is to be oblivious to the unlawful arrest which led to his removal and any aftereffect it may have had on his decision to talk:

“The majority’s per se rule in this case fails to take account of our repeated holdings that violations of privacy in the home are especially invasive. Rather, its rule is necessarily premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his home. But the concerns that make a warrantless home arrest a violation of the Fourth Amendment are nothing so evanescent. A person who is forcibly separated from his family and home in the dark of night after uniformed officers have broken down his door, handcuffed him, and forced him at gunpoint to accompany them to a police station does not suddenly breathe a sigh of relief at the moment he is dragged across his doorstep. Rather, the suspect is likely to be so frightened and rattled that he will say something incriminating. These effects, of course, extend far beyond the moment the physical occupation of the home ends.”

Id. at 28, 110 S. Ct. at 1648-49 (Marshall, J., dissenting). And while it may seem conceptually self-evident that suppression in a Harris situation would have minimal “incremental deterrent value” because police with probable cause “need not violate Payton in order to interrogate the suspect[,]” Id. at 20-21, 110 S. Ct. at 1644, the fact remains that the violation happened in Harris, and it happened again here.

When all is said and done, perhaps the most damning indictment of Harris is the powerful but perverse incentive it creates for police misconduct:

“More important, the officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today’s decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. Thus, the officer envisions the following best-case scenario if he chooses to violate the Constitution: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and will see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution’s case in chief. The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to those incentives.”

Id. at 32, 110 S. Ct. at 1650 (Marshall, J., dissenting) (footnote omitted). We must part ways with the Harris Court.

The Virgin Islands court encounters a Garrison-type situation: They investigated and determined that there was one dwelling at the address to be searched, but, on arrival at the property, they discovered that there were two and entered anyway. This violated the Fourth Amendment. People v. Kevin, 2006 V.I. LEXIS 32 (December 14, 2006):

C. Execution of Warrant

If the officers’ execution of the warrant exceeded the scope of the warrant, the evidence recovered from the illegal search will be suppressed, even though the search warrant was validly issued. See, e.g., King, 227 F.3d at 751 (“a valid search warrant can turn into an invalid general search if officers flagrantly disregard the limitations of the warrant”). In Garrison, officers executed a search of the third floor of an apartment building pursuant to a warrant. 480 U.S. at 80. When they realized that the third floor consisted of two, not one, apartments, they immediately discontinued their search. The Court held that the officers acted properly. “[T]hey were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.” Id. at 87.

In Ritter, a search warrant was issued for a house, but when the officers arrived to conduct their search, they realized that the property’s main structure was not a single dwelling, but rather consisted of at least four separate apartments. 416 F.3d at 260. The officers searched all of the apartments and seized contraband. The Third Circuit held that the search warrant was valid, but the officers’ execution of the warrant required that the evidence be suppressed. “[O]nce the officers discovered that the house had multiple dwelling units, they could no longer rely on the warrant to justify their search of the building.” Id. at 267.

The facts in Ritter are similar to the facts in this case. The officers arrived on the premises armed with a search warrant, and only upon arrival did they realize that there was more than one dwelling on the property. Just as the Court held in Ritter, the officers were required to discontinue their search once they realized that there was more than one dwelling unit involved. “It is settled that where … a structure is divided into more than one unit, probable cause must exist for each unit.” United States v. Gonzalez, 697 F.2d 155, 156 (6th Cir. 1983).

D. Good Faith Exception

. . .

Even if it was not immediately apparent to the agents that there were three unattached structures on the property, agents Charleswell and Freeman admitted that they had to walk out of Ms. Trotman’s house and around it to get to Keith’s house, and the same for Kevin’s house. Agent Freeman admitted that he had to walk through a small gate to get to Keith’s residence.

In King, the officer had a warrant to search the first floor of a two-unit house; he came upon a hallway where he found stairs that led to the basement. Relying on the warrant, the officer proceeded down the stairs and searched the basement. 227 F.3d at 737. The court found that the officer’s decision to proceed without a warrant for the basement was flagrant and unreasonable, and the evidence seized from the basement was suppressed. Id. at 752.

Here, the officers had to walk outside of each dwelling to reach the next. There were no inner doors or stairways that provided access to the adjoining dwellings. Once the officers were forced to go outside and through a separate door, they were on notice that other dwelling units were involved, and they should have known that other warrants were needed.

Consent to search defendant’s bicycle basket was by consent, and the trial court did not err by so concluding. State v. Texter, 923 A.2d 568 (R.I. 2007) [Caution: Lexis only has a summary online at this citation, so the official link to the opinion is provided.] Comment: This opinion almost implies that the defendant carried some burden of proof on the question of consent:

At the conclusion of the hearing on the defendant’s motion to suppress the tangible evidence seized by the police, the hearing justice addressed the defendant’s contention that he had given the police consent to search his bicycle baskets involuntarily, as a result of coercion. The hearing justice noted that the defendant had admitted that no one threatened him or “applied any form of physical stress upon him.” The hearing justice also noted that the defendant did not provide the court with any articulable basis in support of his contention that he could not have refused consent. He further noted that the defendant first gave oral consent and then later “followed up by giving written consent.” Consequently, the hearing justice rejected the defendant’s contention that he had been coerced, and he denied the defendant’s motion to suppress the tangible evidence. After independently reviewing the record, we agree with the hearing justice’s ruling in this regard. (emphasis added)

Defendant was involved in online chats with an undercover law enforcement officer, and he showed up at an assigned place for a meeting. He said he was bringing condoms. The police had probable cause to search his car incident to his arrest to look for evidence of the crime. United States v. Lanzon, 2007 U.S. Dist. LEXIS 45013 (S.D. Fla. June 21, 2007).

In dealing with a clerical error that a want on a particular car had been removed from the system by the time of the stop, that led to a vehicle stop, the court should assess, first, whether the stop was reasonable, and second, what is the remedy. Here, the court found that the stop was not reasonable because the collective knowledge rationale was based on conclusions. United States v. Anderson, 2007 U.S. Dist. LEXIS 45137 (N.D. Ohio June 21, 2007).*

Officer admitted that he did not have reasonable suspicion to stop the defendant, but the court finds that the defendant was not stopped–it was a consensual encounter. United States v. Rogers, 491 F. Supp. 2d 530 (M.D. Pa. 2007).*

2255 petitioner never challenged the search and seizure before pleading guilty, and he was well aware of it. It is waived for post-conviction. United States v. Borer, 2007 U.S. Dist. LEXIS 44872 (D. Neb. June 20, 2007).*

Defendant was patted down for weapons, and a matchbox was removed from his pocket. Its content was not immediately apparent to contain contraband, and it certainly did not contain a weapon. Mason v. State, 285 Ga. App. 596, 647 S.E.2d 308 (2007).

Entry into a vehicle to neutralize weapons that were there was reasonable. Also, the vehicle would be impounded, so the weapons would have inevitably be discovered. Stringer v. State, 285 Ga. App. 599, 647 S.E.2d 310 (2007).*

A USMJ finds a consent search of a vehicle valid on the totality of circumstances, despite the number of officers around. United States v. Moody, 2007 U.S. Dist. LEXIS 38830 (W.D. La. April 20, 2007).*

Plaintiff’s pro se claim from jail that his house was searched without cause or consent survived screening for defendants to answer. Swift v. City of Milwaukee, 2007 U.S. Dist. LEXIS 38891 (E.D. Wis. May 27, 2007).*

Plaintiff stated a claim for relief in a § 1983 case for officers’ entering his home without exigent circumstances. They entered because they heard a woman crying, but she was only mourning the death of a loved one. “Exigent circumstances is a fact-intensive analysis that is not properly resolved on a motion to dismiss. Dennis Ostini has successfully pleaded a claim for unlawful entry.” Ostini v. City of Burlingame, 2007 U.S. Dist. LEXIS 39090 (N.D. Cal. May 17, 2007).*

Plaintiff was arrested during a simultaneous drug raid on three houses in the night. She alleged she was dragged from bed nude, handcuffed behind her back, and the officers did not immediately attempt to get a bathrobe to cover her. She alleged the handcuffs were excessively tight for 45 minutes. “Here, allegedly plaintiffs Jor and Elizabeth Havens were subjected to an even more humiliating and abusive detention given the lack of clothing. The motion for summary judgment on the excessive force claim is denied as to all defendants who were present during the detention.” Havens v. City of Eugene, 2007 U.S. Dist. LEXIS 50084 (D. Ore. July 6, 2007). Accord: Davage v. City of Eugene, 2007 U.S. Dist. LEXIS 50337 (D. Ore. July 6, 2007) (plaintiffs in another house in the raid).

“Simply stated, ‘a person arrested with probable cause cannot cry false arrest …. and without a predicate constitutional violation, one cannot make out a prima facie case under § 1983.’ Juriss, 957 F.2d at 349 n.1.” Pritchett v. City of Chicago, 2007 U.S. Dist. LEXIS 50391 (N.D. Ill. July 11, 2007)* (ellipsis in original).

“An officer need not be certain that a crime has been committed for probable cause to exist to permit the seizure of evidence under the plain view doctrine. Soldal v. Cook County, 506 U.S. 56, 67 (1992).” A warrant for drugs supported a plain view seizure of a gun because officers knew that defendant had a prior conviction. United States v. Armstrong, 2007 U.S. Dist. LEXIS 50292 (D. Minn. July 10, 2007).*

“Plaintiff also has no claim of violation of the Fourth Amendment prohibition of unreasonable search and seizure as the Supreme Court has held that inmates do not possess such a right in relation to their prison cells. Hudson, 468 U.S. 517, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984).” Vandergriff v. DeLano, 2007 U.S. Dist. LEXIS 50236 n.2 (W.D. Wash. May 24, 2007).*

Curtilage = home; probable cause + exigent circumstances required. United States v. Trejo, 492 F. Supp. 2d 659 (W.D. Tex. 2007):

It is well-established that “[a] warrantless intrusion into an individual’s home is presumptively unreasonable unless the person consents or probable cause and exigent circumstances justify the encroachment.” United States v. Jones, 239 F.3d 716, 719 (5th Cir. 2001). The Government concedes that the gated backyard of Trejo’s residence was part of the curtilage of the home. Govt’s Resp. 8-9. Entry into the backyard by the officers is thus analogous to entry into the home itself. Oliver v. United States, 466 U.S. 170, 180 (1984) (noting that the curtilage “has been considered part of the home itself for Fourth Amendment purposes”). Therefore, to validly enter Trejo’s backyard, the officers needed a warrant, consent, or probable cause and exigent circumstances. It is undisputed that a warrant was not obtained and consent was not given. Therefore, the Government must show the existence of probable cause and exigent circumstances. United States v. Wallen, 388 F.3d 161, 164 (5th Cir. 2004) (“[W]arrantless searches are presumptively unreasonable, and the government bears the burden of establishing circumstances to justify them.”).

[Here there were exigent circumstances, elaborately explained.]

International (and some domestic) wire transfers go throught the S.W.I.F.T. system, and the government accessed the system by subpoena to look for terrorist movement of money, but SWIFT overproduced what was sought. When this was revealed in an article in the N.Y. Times, suit was filed for permitting the government access without valid legal process. On the Fourth Amendment claim, the case survives summary judgment: Miller shows there is no reasonable expectation of privacy in the records, but it was alleged that SWIFT provided more than the subpoenas sought, and that stated a claim. Walker v. S.W.I.F.T., 491 F. Supp. 2d 781 (N.D. Ill. 2007):

SWIFT is an international cooperative consortium based in Brussels, with its principal American place of business in northern Virginia. (Dkt. No. 16 at 1). SWIFT’s services include “supplying secure, standardized messaging services and interface software to 7,800 financial institutions in more than 200 countries.” (2d Am. Compl. P 3). SWIFT routes more than 11 million financial transactions each day, and “virtually every major commercial bank, as well as brokerage houses, fund managers and stock exchanges, uses its services.” (2d Am. Compl. P 14). At issue in this case is SWIFT’s response to subpoenas issued by the Treasury Department under the International Emergency Economic Powers Act, 50 U.S.C. § 1701, et seq, through a program that eventually became known as the “Terrorist Finance Tracking Program.” (2d Am. Compl. PP 2, 13; Article at 8). Plaintiffs allege that SWIFT’s initial response to the government’s requests for information was overbroad, in that SWIFT turned over to government officials “the entire SWIFT database.” (2d Am. Compl. P 14; Article at 8).

. . .

In Count II of their Second Amended Complaint, Plaintiffs argue that SWIFT “violated [their] reasonable expectations of privacy and denied … their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States.” (Compl. P 47). In United States v. Miller, the Supreme Court held that individuals have no legitimate expectation of privacy regarding financial information “voluntarily conveyed to … banks and exposed to their employees in the ordinary course of business.” United States v. Miller, 425 U.S. 435, 442-43 (1976). The Court concluded that “[s]ince no Fourth Amendment interests of the depositor are implicated …, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of [the depositor.]” Miller, 425 U.S. at 444. It thus is clear that private citizens have no Fourth Amendment rights in financial records created and shared in the ordinary course of business.

However, it is also apparent that there may be limitations to the scope of Miller‘s holding. In both Miller and its predecessor case, California Bankers Ass’n. v. Shultz, 416 U.S. 21 (1974), the Supreme Court implied in dicta that unfettered government access to the bank records of private citizens could be considered constitutionally problematic.

. . .

Furthermore, Plaintiffs have alleged that SWIFT disclosed more information than was requested by the government subpoenas, as discussed in detail below. This, too, brings the case outside the bounds of “existing legal process.” The majority in Miller specifically distinguished that case from the case of Burrows v. Superior Court, 529 P.2d 590 (Cal. 1974), on the grounds that “the bank records of respondent’s accounts were furnished in response to ‘compulsion by legal process’ in the form of subpoenas Duces tecum” unlike Burrows, where “the bank … provided the statements to the police in response to an informal oral request for information.” Miller, 425 U.S. at 445 n.7. This distinction is included in the Supreme Court’s analysis of whether the subpoena in Miller should have been subject to “more stringent Fourth Amendment requirements than is the ordinary subpoena.” Id.

Based on the foregoing analysis, the court finds SWIFT’s argument that Miller necessarily precludes Plaintiffs’ Fourth Amendment claims to be unpersuasive. On its face, Miller does not preclude Plaintiffs’ Fourth Amendment claims as set forth in the Second Amended Complaint. SWIFT’s motion to dismiss Count II on these grounds is therefore denied.

Michigan holds 4-3, obviously incorrectly in my opinion, that an illegal seizure of cash being civilly forfeited is not subject to the exclusionary rule because One 1958 Plymouth Sedan v Pennsylvania, 380 U.S. 693 (1965), has been weakened sufficiently to allow the exclusionary rule to be applied to determine “jurisdiction” to forfeit [what a cover!]. This is a singularly bad opinion as described by the dissent, albeit artfully twisting the law, and is an example of result-oriented jurisprudence of the worst kind. One has to read it to believe it, so I provide a free link to it in the case name below. This case allows a bad search to be sanitized into legality for civil forfeiture because “The police officer’s main focus is not on obtaining evidence for a civil forfeiture action.” This, we all know, is false. [I’ve got clients that can testify to the virtually salivating police officer at the headlines and department kickback on the proceeds of the forfeiture. Officers are well trained in cash seizures. One would think these guys would know that; or are they conveniently just not noticing it?] In re Forfeiture of $180,975 in United States Currency, 478 Mich. 444, 734 N.W.2d 489 (2007):

In One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693; 85 S. Ct. 1246; 14 L. Ed. 2d 170 (1965), the United States Supreme Court held that the exclusionary rule applied to forfeiture proceedings because forfeiture proceedings are quasi-criminal in nature. In this case, the prosecutor has raised questions about the continuing viability of One 1958 Plymouth Sedan. However, the prosecutor has not appealed the suppression order and, therefore, this issue is not before us. Nevertheless, while One 1958 Plymouth Sedan has not been overruled and, thus, is still applicable, several subsequently decided cases indicate that the underpinnings of One 1958 Plymouth Sedan have been weakened.

. . .

As acknowledged by the Court of Appeals in In re Forfeiture of United States Currency, “the Michigan forfeiture statute [MCL 333.7521(1)(f)] closely parallels the analogous federal statute, 21 USC 881(a)(6).” 14 MCL 333.7521(1)(f) is contained within the controlled substances article of the Public Health Code. In summary, § 7521(1)(f) provides for the forfeiture of “any thing of value that is furnished or intended to be furnished in exchange for a controlled substance … in violation of this article [or] that is traceable to an exchange for a controlled substance, … or that is used or intended to be used to facilitate any violation of this article ….” Forfeiture proceedings under the administrative section of the Michigan Public Health Code are not within the offending police officer’s primary zone of interest. The primary goal of a police officer is to collect evidence to be used to convict a defendant in a criminal proceeding. The police officer’s main focus is not on obtaining evidence for a civil forfeiture action.

. . .

Because a basic purpose of a drug forfeiture proceeding is to establish that the item subject to forfeiture (here the $180,975 in cash) is connected to drug activity, a court cannot be forced to pretend that the cash does not exist. Nor must the court turn a blind eye to the conclusions one reaches when considering all of the circumstances surrounding its existence and its implications. Rather, we apply a commonsense approach to drug forfeiture hearings in which the item subject to forfeiture has been excluded from evidence: while the court may not consider the specific physical characteristics of the item itself, the court can consider evidence presented in relation to the fact of the item’s existence, such as the fact that claimant’s testimony about the money itself is questionable. This approach in no way redefines the judicially created exclusionary rule. Here, the court can consider the reliability of the claimant’s testimony concerning the money’s origin, its existence in her rental car, its intended purpose, the amount of the money in relation to her reported income, the fact that she was traveling along a known drug corridor in a rental car, and that she had rented several cars in the preceding weeks, and any other circumstantial factors not specifically related to the physical characteristics of the money.

CONCLUSION

We conclude that the exclusionary rule was not meant to immunize illegally seized property from a subsequent civil forfeiture proceeding in which the seized property is the subject of the proceeding. We hold that, in accord with In re Forfeiture of United States Currency and MCL 333.7521, as long as the forfeiture can be established by a preponderance of untainted evidence, the forfeiture is valid. Consequently, it was appropriate for the circuit court to proceed with the forfeiture hearing as long as the illegally seized currency was excluded from evidence. As summarized by the Court of Appeals in its opinion affirming the circuit court, a preponderance of independent evidence supported the forfeiture:

At trial, expert testimony was presented that I-94 is a primary “pipeline” for narcotic sales. Couriers carry large sums of money west on I-94 to purchase drugs in Chicago. The drugs are then transported and delivered east to Detroit and other eastern cities. Cash is the customary method of payment; cars are the most common form of conveyance; couriers frequently use rental cars; and the trips are quick. The evidence indicated that claimant was driving a rental car. Further, in the three-months before the stop, claimant had rented at least four cars for three days each, placed several hundred miles on each car, and did not recall where she had driven. Additionally, her tax records reflected that from 1998 through 2001, claimant generally earned between $4,000 and $5,000 a year. An expert opined that the large amount of cash claimant was transporting west on I-94 was consistent with claimant’s being a courier and intending to purchase drugs. [In re Forfeiture of $180,975, slip op at 2.]

Reviewing the circuit court’s findings, under the “totality of circumstances,” we agree with the Court of Appeals that the circuit court did not clearly err in determining that although the money had been illegally seized, there was a preponderance of untainted evidence to support a civil forfeiture pursuant to MCL 333.7521(1)(f).

Accordingly, we affirm the Court of Appeals judgment below and we further conclude that the Court of Appeals in In re Forfeiture of United States Currency reached the correct result.

The dissent:

B. MAJORITY’S REDEFINITION OF EXCLUSIONARY RULE

While the majority purports to apply this law, it effectively redefines the law to avoid the necessary consequences of the exclusionary rule. It does this through its central assertions that the use of suppressed evidence “should be limited to the circumstances surrounding its existence,” ante at 16, that the court must not “turn a blind eye to the conclusions one reaches when considering all of the circumstances surrounding [the suppressed evidence’s] existence and its implications,” ante at 18, and that “while the court may not consider the specific physical characteristics of the item itself, the court can consider evidence presented in relation to the fact of the item’s existence, for example the fact that claimant’s testimony about the money itself is questionable,” ante at 19. The majority also effectively redefines this law through its conclusion that “the court can consider the reliability of the claimant’s testimony concerning the money’s origin, its existence in her rental car, its intended purpose, the amount of the money in relation to her reported income, … and any other circumstantial factors not specifically related to the physical characteristics of the money,” ante at 19, and that “the trial court could properly consider the implications of the presence of such a large amount of cash in the vehicle.” Ante at 20-21. Apparently, all that the majority would exclude from consideration is the color of the currency and the Presidents who are pictured on it.

However, as noted, suppressed evidence is admissible only to “establish its existence,” not “the circumstances surrounding its existence” or their “implications.” While we may consider the fact that the excluded property subject to forfeiture exists, as a consequence of the suppression, we may not rely on any other information relating to this property, such as the place where it was found, its value, its physical characteristics, or any explanation regarding its origin or intended use, to sustain the property’s forfeiture. The “establishment of its existence” exception to suppression is required to allow identification of the defendant property and to justify the court’s jurisdiction over the property. Because suppressed evidence is inadmissible for broader purposes, LoCicero, supra at 508, the majority’s new rule, which allows the “surrounding circumstances” of the illegally seized property and their “implications” to be considered, constitutes an incorrect reading of the law.

. . .

C. MAJORITY’S RELIANCE ON IRRELEVANT CASES

I cannot recall an opinion of this Court that employs caselaw as much to obscure as to illuminate. The several dozen cases cited in the majority opinion, with a single exception, either stand for undisputed propositions of law or are irrelevant to the question whether the “surrounding circumstances” and “implications” of illegally seized property may be considered to support a forfeiture. With that single exception, the cases cited by the majority can fairly be characterized as standing for three distinct propositions of law–none of which is in dispute and none of which actually supports the rule announced by the majority. These propositions of law may be stated as follows: (1) illegally seized property may only be offered into evidence for the limited purpose of establishing its existence and the court’s jurisdiction over it; (2) illegally seized property may still be forfeited, as long as the forfeiture is supported by sufficient untainted evidence; and (3) the circumstances surrounding the lawful seizure of property, such as the amount or value of the property, a claimant’s lack of legitimate income, the place where the property was seized, and a claimant’s false statements, can be relied on to support a forfeiture.

Comment: The dissent should have taken majority more to task and not been as kind. If I were on that court, I would have been far less kind than the dissenters here. For any state Supreme Court to state that “The police officer’s main focus is not on obtaining evidence for a civil forfeiture action” is just plain false. Either this court has its head in the sand or somewhere else or it is lying. They are utterly oblivious that police officers are trained to seize cash, and most, if not all, states divide the money up with the seizing department, which then uses it to supplement its budget. I’ve paid forfeiture to counties that went into the courthouse remodeling fund or to buy new police cars. And four members of the Michigan Supreme Court buy into the notion that grabbing cash from even innocent holders is not the “main focus.” If it is not a part of their main focus, why do they do it, and then go on local TV with all the cash on a table for a photo op and brag about their good deeds? The Michigan Supreme Court has either bought into a scam or are they willingly going along with one. They note that the “Prosecuting Attorneys Association of Michigan (PAAM)” filed an amicus brief in support of getting to keep the money. And they do not even question the motives of PAMM to get in on the money?

All in all, a wonderful opinion for just before Independence Day to remind us of how the law can be an instrument of oppression.

A person is under arrest, for Fourth Amendment purposes, when he is asked to step out of his car and placed in handcuffs, when no special circumstances, such as a risk of flight or danger to the police officers, exists justifying the use of handcuffs. Longshore v. State, 399 Md. 486, 924 A.2d 1129 (2007).

Defendant failed to plead sufficient discrepancies of material fact to get a suppression hearing. The discrepancies were minor and did not undermine the government’s version sufficient to change the outcome. United States v. Dewar, 489 F. Supp. 2d 351 (S.D. N.Y. 2007).*

Plaintiff stated a claim for his detention for an hour and a half based on a stop for a broken side mirror. At the least, discovery will have to occur. Aikman v. County of Westchester, 491 F. Supp. 2d 374 (S.D. N.Y. 2007).*

Florida reaffirms that no suspicion is required to run wants or warrants during a stop. Mays v. State, 959 So. 2d 216 (2007), following Golphin v. State, 945 So. 2d 1174 (Fla. 2006), petition for cert. filed, 75 U.S.L.W. 3512 (U.S. Mar. 9, 2007).*

Ohio holds that a stop for riding a bicycle on the sidewalk justified running wants or warrants and an FTA warrant appeared, and defendant was searched incident to that arrest. State v. Groce, 2007 Ohio 2874, 2007 Ohio App. LEXIS 2664 (10th Dist. June 12, 2007).*

Terry frisk did not produce a weapon, but the officer searched the pockets anyway. The search was invalid. Commonwealth v. Wilson, 2007 PA Super 175, 927 A.2d 279 (2007).*

The District Judge in the SDI Future Health case upheld the Magistrate Judge’s suppression of the search under a warrant. The individual major stockholders had standing to contest the search, the warrant failed particularity in several areas, and the good faith exception did not apply to those failures. United States v. SDI Future Health, Inc., 491 F. Supp. 2d 975 (D. Nev. 2007). (Note: Defense counsel provided me the order by e-mail a few days ago, but the District Court’s order did not make Lexis until today.)

Defendants were validly stopped for a traffic offense, but the government failed in its burden of showing the detention was reasonable. Objective evidence of radio logs showed that the defendants were not shown to have warrants for their arrest for over an hour, and an hour’s detention was unjustified by the purpose of the original stop. United States v. Marks, 2007 U.S. Dist. LEXIS 26226 (W.D. Tex. March 28, 2007).*

If the plaintiff was not convicted of a crime, Heck does not bar the action. McClish v. Nugent, 2007 U.S. App. LEXIS 8294 (11th Cir. April 11, 2007).*

Plaintiff’s pro se complaint against housing inspectors who had probable cause to enter was dismissed on summary judgment. Marcello v. Maine, 489 F. Supp. 2d 70 (D. Maine 2007).*

Plaintiff stated enough to stay in court on arrest without probable cause and lack of qualified immunity. The defendants offered alternate theories of cause for arrest that were never raised in the ancillary state court proceeding. Sykes v. Wicomico County, 2007 U.S. Dist. LEXIS 26197 (D. Md. March 30, 2007).*

Knock and talk led to finding of crack on the table. The defendant did not live there, and it was held that his business relationship with the owner denied him standing. United States v. Gray, 491 F.3d 138 (4th Cir. 2007):

The Fourth Amendment’s protections do not attach to every visitor. For not every visitor “merely present with the consent of the householder” has a legitimate expectation of privacy. Carter, 525 U.S. at 90. It is rather a foundational principle that “not all persons in the company of the property owner have the owner’s right to assert the spatial protection.” Id. at 99 (Kennedy, J., concurring). Indeed, the Supreme Court has repeatedly held that the Fourth Amendment is not so broad as to encompass “anyone legitimately on the premises where a search occurs.” Id. at 90; see also Rakas, 439 U.S. at 147-48. Thus, a temporary visitor to a residence–perhaps the mailman or pizza deliverer–cannot generally claim the Fourth Amendment’s protections. See, e.g., Carter, 525 U.S. at 90; Terry v. Martin, 120 F.3d 661, 664 (7th Cir. 1997).

In Minnesota v. Carter, the Supreme Court held that visitors who were “essentially present for a business transaction” had no legitimate expectation of privacy in the apartment of a third party. 525 U.S. at 90; see also United States v. Rhiger, 315 F.3d 1283, 1286 (10th Cir. 2003) (interpreting Carter to create “a clear distinction between the status of individuals present at a residence for social purposes and those present for business or commercial matters”); United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir. 2000) (interpreting Carter to hold that “[a]n individual whose presence on another’s premises is purely commercial in nature … has no legitimate expectation of privacy in that location”).

. . .

The distinction between business and social guests also draws upon the fact that a social host often shares not only his home but also his privacy with his guest. See Olson, 495 U.S. at 99. Many social guests entrust their hosts with the safety and security of both their persons and their belongings. An overnight guest, for example, seeks shelter in another’s home “precisely because it provides him with privacy, a place where he and his possessions will not be disturbed.” Id. The same generally cannot be said of business visitors. Often strangers with little or no connection to a residence, business associates may or may not have reasons for mutual trust. To expand the protections afforded by the Fourth Amendment to cover any such caller, does not map onto “the everyday expectations of privacy that we all share.” Id. at 98.

The facts of this case suggest that Askew was a business, not a social, guest.fn3 There can be no doubt that at the time of his arrest Askew was using Gray’s apartment to traffic in drugs.

fn3 Askew, of course, maintained a legitimate expectation of privacy in his person within Gray’s residence. Accordingly, Askew has “standing” to challenge the pat down search of his person. But searches incident to lawful arrest are a long-standing exception to the warrant requirement.

The First Circuit deals with the “moveable area of immediate control” aspect of search incident and finds that officers could search a closet compartment when they had a defendant in custody who was allowed to get dressed. He went into the closet area, and the officers first did a cursory search of the area and found a gun frame which he was indicted for. United States v. Nascimento, 491 F.3d 25 (1st Cir. 2007) (1st Circuit’s website does not provide usable links; you have to enter the case name; and note the potential frivolousness of the court’s language):

Before moving to the heart of Nascimento’s argument, we pause to brush aside a potential complication. The police originally encountered Nascimento in the front of the apartment. At that time, the cabinet was unquestionably beyond his immediate control. Under the circumstances, however, it was not inappropriate for the police to escort Nascimento to his bedroom in order that he might get dressed.

When police encounter and arrest a partially clothed individual in his home, the need to dress him may constitute an exigency justifying the officers in entering another room in order to obtain needed clothing. See United States v. Gwinn, 219 F.3d 326, 333 (4th Cir. 2000). Generalizations are hazardous because one can imagine infinitely variable fact patterns. It suffices to say that both human dignity and the New England climate counseled here in favor of a more complete wardrobe. In addition, the district court supportably found that the police neither manipulated the situation nor used Nascimento’s dishabille as a pretext to carry out an otherwise impermissible search. Accordingly, the conduct of the police in deciding to dress the suspect falls within the reasonable latitude afforded arresting officers in coping with exigent circumstances. See United States v. Cook, 277 F.3d 82, 86 (1st Cir. 2002) (explaining that “common sense and practical considerations must guide judgments about the reasonableness of searches and seizures”).

This brings us to the search itself. The evidence at the suppression hearing indicated that, as a matter of policy, Boston police officers in similar situations allowed arrestees to select the clothes that they wished to wear. The arrestee, however, typically would not be given direct access to the closet. Thus, the question reduces to whether a cabinet eight to ten feet away from an unrestrained suspect can be said to be within the suspect’s immediate control. Emphasizing that there were two officers between him and the closet, Nascimento argues that we should answer this question in the negative. To buttress his argument, he calls our attention to United States v. Johnson, 16 F.3d 69 (5th Cir. 1994), modified on rehearing, 18 F.3d 293, in which the Fifth Circuit found that a briefcase some eight feet away from an unrestrained suspect was not under his immediate control. See id. at 70-72. In so holding, the court stressed that four officers were present in the room. Id. at 71.

In our estimation, Johnson is of little help to Nascimento. There, unlike in the case at hand, the officers “never felt threatened” and never “believed that Johnson was about to destroy evidence.” Id. at 72. Despite that mindset, they engaged in “precisely the type of generalized, warrantless search prohibited by Chimel.” Id.

This case is a horse of a different hue. The officers were arresting a person whom they knew to have been charged with a crime of violence. Law enforcement officers who embark on perilous duties are not expected to ignore the need for commonsense precautions. And here, in sharp contradistinction to Johnson, the officers targeted their search to the closet, which was about to become the locus of activity. The district court found as a fact that the closet was readily accessible to Nascimento. That finding was not clearly erroneous.

That is game, set, and match. Given the finding of accessibility, the closet (and, thus, the cabinet) was within Nascimento’s immediate control. Accordingly, we uphold the district court’s ultimate conclusion that the scope of the search was within permissible limits. See Abdul-Saboor, 85 F.3d at 671 (holding an area that is “conceivably accessible” to arrestee to be within his immediate control). On that basis, the district court appropriately denied the motion to suppress.

(Comment: This is a RICO case that also admittedly created a circuit split on the commerce question.)

Plaintiff was stopped in Tennessee for speeding. He was asked about whether he had various things in his car, including cash, and he said that he had “something over $9,000” to pay his employees. It was $9,400, and the officer found that was a discrepancy. A nearly same name came back on a criminal history check for importing marijuana 10 years earlier, but that person had a different FBI number, which would indicate it was a different person. The court held the video belied the officer’s claim that the plaintiff was nervous. Plaintiff claimed he did not use banks because he had a running IRS dispute which was being handled. There was a dog alert, but nothing was present [presumably the dog alerted on cash, and cases have held for 20 years that a dog alert on cash alone is meaningless; I just researched that issue in January when I sued an officer over a seizure after a dog alert produced no drugs]. After the seizure, the state ALJ ordered return of the money, but the officer told the IRS so they could seize it. The plaintiff stated a claim for unlawful seizure of the cash under the Fourth Amendment and conversion, and the officer’s claim of qualified immunity was denied. Ibarra v. Barrett, 2007 U.S. Dist. LEXIS 29143 (April 19, 2007).

Extending a valid traffic stop was not an unreasonable detention because it was based on reasonable suspicion based on what the officer observed during the stop. United States v. Sanchez, 225 Fed. Appx. 288 (5th Cir. 2007)* (unpublished):

Sanchez’s arguments resemble those made in Brigham. There we rejected the notion that an officer’s questioning “on a subject unrelated to the purpose of a routine traffic stop” was itself a Fourth Amendment violation, and held that the officer did not act unreasonably in extending the stop. 382 F.3d at 508 (emphasis omitted); see also id. (“[D]etention, not questioning, is the evil at which Terry’s second prong is aimed.” (quoting United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993))). The occupants of the vehicle in Brigham had aroused the officer’s suspicion because the lessee was not present and they had appeared nervous, avoided eye contact, and answered questions indirectly. Id.

Assuming Turk extended the detention, he had reasonable suspicion based on articulable facts that Sanchez was involved in drug trafficking. Turk’s suspicions were aroused by the “roaring noise” emanating from the dashboard; Sanchez’s shaking hand and nervousness; the recently issued insurance certificate; the discrepancy between the addresses on Sanchez’s license and the insurance certificate; Sanchez’s averting his eyes when asked if he carried contraband; and the fact that Sanchez was driving a known drug-courier route.

Dog alert was not apparent to anybody but the handler, but the USMJ credited the handler’s testimony that there was an alert, and the videotape apparently confirmed it. United States v. Willis, 2007 U.S. Dist. LEXIS 29077 (D. Neb. April 17, 2007).

As opposed to both Jacobs and Heir, Sergeant Van Buren testified that Rocky indicated to the presence of drug odor, n5 and Judge Thalken credited Sergeant Van Buren’s testimony in that regard. That Rocky is a fast dog and a passive indicator, and that Sergeant Van Buren did not let Rocky go into a full sit, does not render Rocky’s behavior ambiguous. An officer who is familiar with a dog’s tendencies can testify to the behaviors that dog would exhibit to indicate to the presence of drug odor. I have reviewed the tape and, crediting Sergeant Van Buren’s testimony concerning Rocky’s behavior, I find objectively observable evidence that Rocky indicated to the presence of drug odor. I concur with Judge Thalken’s findings, and accordingly I will adopt the Report and Recommendation in its entirety.

State JP issued warrant did not specify the crime under investigation, so the particularity clause of the warrant was fatally overbroad, quoting at length from United States v. George, 975 F.2d 72 (2d Cir. 1992). The good faith exception did not save the warrant, either. United States v. Smith, 2006 U.S. Dist. LEXIS 96396 (W.D. N.Y. December 15, 2006):

The search warrant in this case, as previously stated, does not mention a particular crime or criminal activity to which the evidence to be seized must relate. As a result, it “is so unconstitutionally broad that no reasonably well-trained police officer could believe otherwise.” Id. at 77. Therefore, it is hereby RECOMMENDED that defendant’s motion to suppress the evidence seized pursuant to that search warrant be GRANTED.

Warrant for a particular address did not allow or justify search of defendant’s car when he was found driving on the street, even though the warrant permitted search of defendant’s vehicles without mentioning them being parked on the premises. State v. Southall, 2007 Tenn. Crim. App. LEXIS 491 (June 25, 2007):

We agree with the trial court and the defendant that the search of the defendant’s vehicle was not authorized under the search warrant. Although the search warrant states that the place to be searched included any vehicles in the defendant’s possession or control, we conclude that this provision can only be read to include vehicles found on the property described in the search warrant at 481 Southport Road. A warrant authorizing the search of a building “presupposes that the building mentioned in the warrant to be searched would include outhouses, vehicles upon the premises, and other places, which are appurtenant to the described building and are under the control of persons named in the warrant.” Worden v. State, 197 Tenn. 340, 344, 273 S.W.2d 139, 141 (1954) (emphasis added). However, this authorization does not extend to vehicles that are not on the premises described in the search warrant. See Dolen v. State, 187 Tenn. 663, 667, 216 S.W.2d 351, 353 (1948). In Dolen, the defendant challenged the search of a vehicle that was on a road adjoining the property described by the search warrant. Our supreme court held that the vehicle search was invalid because “a warrant directing the search of a certain described parcel of real estate does not authorize the search of an automobile parked in front of that real estate, but outside its boundaries, on an adjoining road.” Id.

As the state points out, the search warrant in Dolen authorized, by its terms, a search of “all outbuildings or vehicles on the premises.” Id. at 664, 216 S.W.2d at 352 (emphasis added). In contrast, the warrant in the present case states that a search is to be conducted of all outbuildings and vehicles in the defendant’s “possession and or control.” However, the conclusion in Dolen was not premised on the language of the search warrant. Rather, the court relied on the statute providing that a search warrant must “‘particularly’ describe ‘the place to be searched,'” Id. at 668, 216 S.W.2d at 353, and on prior cases holding that a search warrant allowing the search of a building at described premises also authorizes the search of vehicles on that premises, Id. (citing Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716 (1940); Seals v. State, 157 Tenn. 538, 11 S.W.2d 879 (1928)).

Search of a matchbox during a frisk could not be justified. Meth suppressed. State v. Kelley, 227 S.W.3d 543 (Mo. App. 2007).

Traffic stop with an objective basis can be pretextual. State v. Fry, 2007 Ohio 3240, 2007 Ohio App. LEXIS 2998 (9th Dist. June 27, 2007):

[*P13] Appellant has countered that the traffic stop was pretextual because Officer Rastorfer testified at the suppression hearing that he was not concerned about the turn signal and that he failed to issue a citation or a warning for the traffic violation. Even if Officer Rastorfer’s failure to cite or warn the cab driver indicates a pretextual reason for the traffic stop, Appellant’s argument still fails as a matter of law.

[*P14] Both the United States Supreme Court and the Ohio State Supreme Court have held that a police officer’s subjective intent when initiating a traffic stop has no bearing on the Fourth Amendment analysis if the officer stops the vehicle based on probable cause that a traffic violation has occurred. See Whren, 517 U.S. at 819; Erickson, 76 Ohio St.3d at syllabus. This is the case even if the traffic stop is pretextual. Id. Here, the record is clear that Officer Rastorfer had probable cause to pull Appellant’s cab over for a traffic violation: namely, the failure to properly use a turn signal. The initial traffic did not violate the Fourth Amendment.

Defense counsel’s failure to appeal the suppression motion was not ineffective assistance because it was strategic [nothing is said, however, that he would not have prevailed]. Also, defense counsel’s failure to call defendant to testify at the suppression hearing was based on the fact that defendant had nothing to add, and this issue was waived in the post-conviction proceeding by changing the argument between the trial court and appeal. Cammon v. State, 2007 Tenn. Crim. App. LEXIS 673 (August 23, 2007)*:

There is no constitutional requirement that every conceivable issue be raised on appeal. Campbell v. State, 904 S.W.2d 594, 597 (Tenn. 1995). The determination of which issues to raise is a tactical or strategic choice. Id. The petitioner offers nothing on appeal to show that appellate counsel was ineffective in his strategy. Counsel testified that he was experienced in criminal appellate practice and that he made a strategic decision not to appeal the suppression issue because he did not believe it would be successful on appeal. The State correctly argues that appellate counsel’s judgment, as to which issues would likely prevail on appeal, was sound because he did successfully gain a remand on the aggravated assault conviction. Our review does not reflect that the petitioner has met his burden of demonstrating either that appellate counsel’s performance was deficient or that the petitioner was prejudiced by appellate counsel’s representation.

Defense counsel was not ineffective for not filing a motion to suppress that the defendant elected not be filed to expedite the release of his mother from jail. Reyes v. State, 2007 Tenn. Crim. App. LEXIS 670 (August 22, 2007).*

Officers had probable cause to arrest the defendant, so the statement that came from that arrest was not suppressed. United States v. Aldershof, 2007 U.S. Dist. LEXIS 62448 (D. Kan. August 23, 2007).*

Defendant left the front yard of a known drug house on a bicycle and an officer followed in car and found various traffic offenses, such as not signaling and not stopping for a stop sign. He had the defendant sit on the curb while he wrote a ticket. He noticed a bulge in the defendant’s pocket and he patted the defendant down, asking what was inside, and defendant stammered that it was “a point” (needle). The search was invalid. State v. Petri, 162 P.3d 1053 (Ore. App. 2007):

The state first contends that Durbin inevitably would have discovered the evidence after arresting defendant pursuant to the warrant. Evidence obtained in violation of a defendant’s rights under Article 1, section 9, may be admissible if the state can demonstrate, by a preponderance of the evidence, that police would have used certain proper and predictable investigatory procedures that would inevitably have resulted in discovery of the evidence at issue. State v. Johnson, 335 Ore. 511, 514 n 2, 73 P.3d 282 (2003). Here, the state contends that, after arresting defendant on the warrant, Durbin would have searched him both for reasons of officer safety and as part of an inventory. The state’s inevitable discovery argument thus separates into two prongs: (1) a search incident to a lawful arrest on the warrant, justified by officer safety, and (2) an inventory. We examine each in turn.

The first part of the state’s argument fails because there is no evidence that such a search was required to protect the officer’s safety.

“Under the Oregon Constitution, a valid custodial arrest does not by itself authorize a search. State v. Caraher, 293 Ore. 741, 757-60, 653 P.2d 942 (1982). A warrantless search must be justified by the circumstances surrounding the arrest. Id. ‘Under Article I, section 9, there are three valid justifications for a search incident to lawful arrest: to protect the officer’s safety, to prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant was arrested.’ State v. Hoskinson, 320 Ore. 83, 86, 879 P.2d 180 (1994).”

State v. Sopiwnik, 176 Ore. App. 127, 132, 30 P.3d 430 (2001) (footnote omitted). Here, the state contends only that, after arresting defendant pursuant to the warrant, Durbin would have searched him for officer safety reasons. Assuming that Durbin inevitably would have arrested defendant pursuant to the warrant and then seized him, however, there is no evidence that officer safety concerns would have required Durbin to open the sunglasses case.

Burglar alarm report from monitoring company is exigent circumstances to enter the premises to look for intruders. Only the bedroom had been disturbed and evidence of marijuana had been seen. The owner consented to a further search to avoid the police looking through the whole house. The entry and later search was valid. State v. Inghram, 2007 Tenn. Crim. App. LEXIS 555 (July 11, 2007). (Comment: My associate had a case just like this in Arkansas, and he lost too, as I predicted. If one is going to keep dope in the house, you shouldn’t have a burglar alarm inviting a police response to and entry into your house while you are gone.)

The defendant was arrested, and his vehicle was impounded under a city police policy for impoundment on any custodial arrest. The policy is invalid because it allows impoundment with complete discretion of the officer. [The fact the policy was written does not end the inquiry; it starts there.] United States v. Osborne, 489 F. Supp. 2d 860 (C.D. Ill. 2007):

The Government argues that since the Police Department has adopted a set of written, standard guidelines and because those guidelines were followed when the officers impounded and searched Osborne’s vehicle, the impoundment and search were valid. The Court disagrees.

The facts of the instant case do not meet any of the conditions that would trigger a valid tow under the “General Guidelines” subsection of the Police Department’s tow policy or under the officers’ “community care-taking” functions. Therefore, the instant case is distinguished from U.S. v. Cherry. In Cherry, the court found that the vehicle did present a safety hazard because it was located on the side of an interstate highway, and the [*9] court’s analysis did not proceed beyond that point. 436 F.3d 769, 773-774 (7th Cir. 2006). Osborne’s vehicle was not left on the street and did not present any sort of safety hazard; it was parked on the private property of an autobody shop and did not present any hazards to the public.

Therefore, this situation must fall under the “Custodial Arrest” subsection. While the provisions of the “Custodial Arrest” subsection technically constitute a policy, for all practical purposes, it is no policy at all. The subsection sets forth no criteria by which the decision to impound is to be made. Essentially, it provides for unfettered police discretion in making impoundment decisions. A police department tow policy cannot delegate enforcement of the Fourth Amendment to the discretion of police officers.

Defendant filed a motion to suppress a warrantless entry, which the government first opposed and then assented to. The arrest inside, however, was lawful. Later, defendant disputed money found in his pants at booking, pants he put on when arrested after the entry the government conceded was unlawful. The court applied the general rule that book-in searches were valid, unless manipulated, and here it was not. United States v. St. Pierre, 488 F.3d 76 (1st Cir. 2007):

Therefore, the circumstances by which the pants came to be on St. Pierre are important. If it were the case that the police, knowing that the evidence found in the apartment search was likely to be suppressed, conspired to stash the $380 in the pocket of a pair of pants and then coerce St. Pierre into wearing them, this would be a very different case. Here, however, St. Pierre has not alleged any bad faith by the agents, nor is there any evidence of such. Furthermore, having the consent of the girlfriend to search the apartment, the agents had no reason to believe that the evidence they discovered would be suppressed. Finally, given St. Pierre’s condition, it was entirely reasonable for all parties, himself included, to want him to be given pants, and there is no evidence that he protested or asked for a different pair of pants. Thus, under these somewhat unusual circumstances, a search of St. Pierre’s pants at booking was proper, and we see no error in the denial of the motion to suppress the $380.

Dog bite on arrest is not always excessive force. Balancing the three Graham factors on excessive force, the court concludes that the force used in this case was reasonable under the totality of the circumstances. Here, the plaintiff’s injuries were exacerbated by his efforts to flee the dog and extricate himself from the first bite. Pace v. City of Palmetto, 489 F. Supp. 2d 1325 (M.D. Fla. 2007):

While Pace’s injuries were severe, the undisputed material facts demonstrate that the use of K-9 force and the severity of Pace’s injuries were the direct result of Pace’s decision to flee and hide in the dark, densely vegetated mangrove swamp to avoid apprehension. Brix attempted to apprehend Pace in the manner in which he had be trained, namely, the bite and hold method. (Ahler Depo I, p. 207). Under this method, a dog is trained to subdue a suspect by biting his arm or leg, but if a leg or arm is unavailable, the dog is trained to apprehend the suspect by biting any area of his body exposed. If the suspect breaks free, the dog is trained to reestablish the bite. As a result, suspects often suffer serious injury from multiple bites received during the course of an apprehension. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1550 (11th Cir. 1989). The bite and hold training method is not unconstitutional. Nor is it objectionable unreasonable. See Kerr, 875 F.2d at 1550 (recognizing the constitutionality of using police dogs trained in the bite and hold method when an officer is placed in a threatening situation); see also Kuha v. City of Minnetonka, 365 F.3d 590, 599-600 (8th Cir. 2004) (“mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation” and does not constitute deadly force).

There is no per se rule on there being exigent circumstances in a domestic disturbance. This one involved a “commotion.” United States v. Sikut, 488 F. Supp. 2d 291 (W.D. N.Y. 2007):

The Second Circuit has recognized the “combustible nature of domestic disputes,” which provides “great latitude to an officer’s belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger.” Tierney, 133 F.3d at 197. However, courts have held that domestic violence situations are not per se exigent, United States v. Najar, 451 F.3d 710, 719 (10th Cir. 2006), cert. denied, 127 S. Ct. 542, 166 L. Ed. 2d 401 (2006), and that “there is no domestic abuse exception to the Fourth Amendment, generally.” United States v. Black, 466 F.3d 1143, 1147 (9th Cir. 2006). The Second Circuit has upheld an officer’s determination that exigent circumstances, based on asserted domestic violence, were present where the anonymous call was made by the victim from the location to which police were responding. Anthony, 339 F.3d at 136-37. Specifically, in that case the court found that the substance of the 911 call created exigent circumstances because the caller expressed the belief that she faced “an immediate and deadly threat of harm.” Id. Here, the 911 call was placed by a neighbor who refused to identify herself, not by the alleged victim, nor from a person within the potential victim’s residence. Gov’t Exh. 1; Tr.I 15; Tr.II 334-36.

Additionally, contrary to the facts in Anthony, supra, the information provided by the 911 caller in the instant case was not unambiguously indicative of a recent domestic dispute involving personal violence. Rather, the 911 caller stated that “some degree of commotion” daily transpires at the residence and asserted that the noise “sounds like a physical fight, you can hear people going at the walls, rumbling down the stairs ….” Gov’t Exh. 1. When Stephens spoke with the neighbor, she described “family arguments” as occurring at the apartment. Tr.II 133. Although as described by the neighbor, such sounds may have been caused by “family argument[s]”, they are also consistent with people noisily running up or down stairs, and loud and even offensive talking.

That it was objectively unreasonable for the investigating officers to conclude exigent circumstances justified their warrantless entry of the Sikut residence is tellingly supported by the relevant transcript of the 911 call which demonstrates, unequivocally, contrary to the Government’s contention, that, upon arriving at the scene, Stephens did not believe that the elderly couple residing at the apartment were in imminent danger. Rather, according to his own statement to the dispatcher, Stephens believed, prior to the warrantless entry at issue, that the unidentified caller was probably incorrect in believing that a domestic disturbance at the Sikut apartment had occurred when she telephoned 911, on March 20, 2005, even stating to the 911 dispatcher that the elderly couple “should be alright.” Gov’t Exh. 1.

Plaintiff’s plea to a lesser offense precluded litigating the question of probable cause for his arrest for the greater offense, too. Corvin v. Bice, 2007 U.S. Dist. LEXIS 17314 (E.D. Tenn. March 9, 2007), all without citing Heck v. Humphrey:

[S]tate court proceeding is accorded preclusive effect in a later § 1983 suit in federal court so long as the state court proceeding met minimal standards of due process. Stemler, 126 F.3d at 871. Plaintiff has not presented any evidence he suffered a deprivation of due process in the state court criminal proceedings. Plaintiff’s guilty plea in state court and the imposition of fines by that court estop his assertions in this Court that Defendant officers acted without probable cause and consequently, his Fourth Amendment claim of false arrest. Walker, 854 F.2d at 142; Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir.1998); Stemler, 126 F.3d at 871; Donovan, 105 F.3d at 297-98; Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir.1987)(abrogated on other grounds Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)); Wilson v. Johnson, 2005 U.S. Dist. LEXIS 39311, 2005 WL 2417057 at *7-9. n12

The Court concludes it is bound by the state court decision that there was probable cause to arrest Plaintiff and consequently, his Fourth Amendment claims of false arrest and imprisonment are precluded. As noted above, the Court did not consider Plaintiff’s response to Defendants’ motion (Court File No. 23) since it was untimely filed. However, even if the Court had considered Plaintiff’s response before making its ruling, it still would have granted Defendants’ motion for summary judgment on these issues since Plaintiff admits the granting of summary judgment is proper concerning his false arrest and false imprisonment claims. Accordingly, Defendant’s motion for summary judgment on these issues will be GRANTED and Plaintiff’s 42 U.S.C. § 1983 false arrest and false imprisonment claims will be DISMISSED as to all Defendants.

Defendant’s request for a Franks hearing failed because his moving papers attack the statements of two persons they believed were the unreliable confidential informations, but they were not the informants. The two informants provided significant corroborating information. United States v. Makki, 2007 U.S. Dist. LEXIS 17413 (E.D. Mich. March 13, 2007).*

Civil case over entry for alleged drinking of minors did not state a claim because there was probable cause. The plaintiffs did not challenge the statute was unconstitutional. “Whether or not a minor is in possession of an alcoholic beverage just by being in the house is a question for a court to decide. There is no indication that an arrest under such circumstances is without probable cause.” Most of the plaintiffs do not have standing because they did not live in the house that was entered. Cooper v. City of Woodville, 2007 U.S. Dist. LEXIS 17199 (E.D. Tex. March 12, 2007).*