Defendant’s purse was lawfully searched under Belton when it was left in the car after the defendant had been removed from it. It matters not whether the purse is in hand or in the car if it is a valid search incident. State v. Mercier, 2007 Ohio 2017, 2007 Ohio App. LEXIS 1837 (1st Dist. April 27, 2007).*

Search warrant for defendant’s property was lawfully issued after a chat between defendant and an investigator for PervertedJustice.com. The officer sought to and did corroborate who the screenname belonged to and its location by subpoenas to internet providers. State v. Andrews, 2007 Ohio 2013, 171 Ohio App. 3d 332, 870 N.E.2d 775 (1st Dist. 2007).*

Officers responded to a shots fired call at a Cleveland bar, which was a common occurrence on some weekend nights, and they found the defendant. An officer shined a flashlight into his car and found a gun. State v. McPherson, 2007 Ohio 1973, 2007 Ohio App. LEXIS 1827 (8th Dist. April 26, 2007).*

“The trial court stated ‘[e]ven if I believe Mr. Johnson, if he had his identification then, and he blurted out to the police officer, and “Guess what, guys, I’ve got a gun,” ***.’ (Tr. 67). This, the court reasoned, provided officers with reasonable suspicion that defendant was armed and dangerous. Id. (‘you darn well bet the police officers are going to stop and frisk for their own protection under those circumstances;). The trial court then denied defendant’s motion to suppress.” The judgment was affirmed based on reasonable suspicion. State v. Johnson, 2007 Ohio 1983, 2007 Ohio App. LEXIS 1831 (8th Dist. April 26, 2007).*

Defendant was seized because he was not free to leave after the officer handed back the paperwork but told him that he was going to ask questions. The officer’s commands communicated that the defendant was not free to leave. (But, there was reasonable suspicion, and the defendant finally validly consented.) State v. Case, 2007 MT 161, 338 Mont. 87, 162 P.3d 849 (2007):

[*P29] Before receiving the traffic ticket, a reasonable person in Case’s shoes would have assumed that the officers were investigating more than just a traffic violation. Case was initially ordered to get back in the car. After he had handed over his license, paperwork, address and phone number, Case was questioned as to whether he knew anything about Ronald Case and was asked to provide his social security number. Case was then ordered to step out of the car and asked if he had any weapons on him.

[*P30] Next, and most importantly for the “free to leave” analysis, when Reid returned Case’s paperwork he said, without pausing, “I do have a question for you before you take off here.” When a police officer states that he has a question before you take off, that means, to the reasonable person, you have to stay and answer the question before you are free to leave, especially when the officer’s patrol car is parked directly behind your car. Further, the series of questions leading up to Case’s consent, the position of the two officers and Officer Tucker’s investigation of Case’s arm were objective signs that the investigation was ongoing and concerned more than mere traffic offenses.

[*P31] Finally, just prior to asking Case if there was anything in his vehicle, Reid gave him a command, “go ahead and put your coat back on,” indicating that Case remained under police control. As such, Case was effectively ordered to stay and was then prevented from leaving until he answered the officer’s questions. In view of all the circumstances surrounding the incident, a reasonable person in Case’s situation would not have felt free to leave.

[*P32] Consequently, we conclude that Case was not involved in a voluntary exchange but was in fact “seized” when he gave Reid consent to search his car. We now turn to whether the officers’ detention of Case was lawful; that is, was there particularized suspicion to continue the investigation.

IRS met its “slight” burden for showing that the summons for the respondent’s tax records should be enforced. United States v. Laguardin, 2007 U.S. Dist. LEXIS 49099 (N.D. Cal. June 29, 2007):

The Supreme Court held in United States v. Powell that to obtain enforcement of a summons, the IRS must first establish its “good faith” by showing that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to that purpose; (3) seeks information not already within the IRS’ possession; and (4) satisfies all administrative steps required by the United States Code. 379 U.S. 48, 57-58 (1964). The government’s burden is “a slight one” and typically is satisfied by the introduction of the sworn declaration of the revenue agent who issued the summons establishing that the Powell requirements have been met. United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993). Once a prima facie case is made, a “heavy” burden is placed on the taxpayer to show an abuse of process or lack of good faith. Id.

An arrest warrant was not required for an arrest on probable cause on business premises, particularly when an employee came in yelling that the police were coming. United States v. Boomer, 2007 U.S. Dist. LEXIS 20815 (M.D. Pa. March 23, 2007):

At approximately 6:00 p.m., a detail of police proceeded to arrest at the business place. An employee apparently recognized their presence and entered the business premises yelling. The police pursued her through the open door and effected the arrest of the defendant. While there may have been time in the interim to secure an arrest warrant for the defendant, the probable cause to arrest remained. The police had every right to enter the business place through an open door in these circumstances. Under both federal and Pennsylvania law, the law enforcement officers did not need a warrant to arrest an individual in a public place, such as an ongoing business, so long as probable cause existed. United States v. McGlory, 968 F.2d 309, 342 (3d Cir. 1992).

Where Fourth Amendment claim would have failed as a matter of law based on reasonable suspicion, defense counsel was not ineffective for not raising the issue. Smith v. Jordan, 220 Fed. Appx. 793 (10th Cir. 2007)* (unpublished).

Man loitering with a pill bottle in his hand was approached by the police, and he discarded it. The patdown of the defendant was lawful. United States v. Ivy, 224 Fed. Appx. 461 (6th Cir. 2007)* (unpublished).

Defendants’ attempted search of plaintiff’s property is not a Fourth Amendment violation. All plaintiff got was a “notice to appear.” Youngblood v. Florida Dep’t of Health, 224 Fed. Appx. 909 (11th Cir. 2007)* (unpublished).

Allegations of striking plaintiff with police baton is an allegation of a seizure. R.A. v. Lacey, 2007 U.S. Dist. LEXIS 23395 (M.D. Ala. March 27, 2007).*

Parole officers could not be sued for their actions in searching plaintiff’s property under his parole agreement, which was valid. Alvarado v. City of New York, 482 F. Supp. 2d 332 (S.D. N.Y. 2007).*

The defendant city acted properly in getting an administrative warrant on a proper showing for a warrant to enter defendant’s property because of a series of code violations. Bodor v. Town of Lowell, 2007 U.S. Dist. LEXIS 23321 (N.D. Ind. March 28, 2007).*

On a motion to dismiss, private actor bank was subject to suit under plaintiff’s allegations that the bank conspired with public officials to cause plaintiff’s false arrest. Muhammad v. Washington Mut. F.A., 2007 U.S. Dist. LEXIS 23377 (N.D. Ga. March 27, 2007).*

Officer was entitled to qualified immunity for arrest of plaintiff for maintaining drug premises because it was reasonable for the officers to believe there was probable cause. Wheeler v. Lawson, 2007 U.S. Dist. LEXIS 23322 (N.D. Ind. March 15, 2007).*

Based on the facts shown, it cannot be said that the officers clearly violated plaintiff’s rights, so they are entitled to qualified immunity. Leaeno v. Pistor, 2007 U.S. Dist. LEXIS 23294 (D. Haw. March 28, 2007).*

(A lot of cases today; more later.)

The District Court erred in suppressing a search of a car parked on the side of the New York State Thruway just because the driver was in custody at a State Police barracks and the vehicle was thus not “readily mobile.” The inherent mobility of the vehicle still exists. Couple that with probable cause, and the police could search under the automobile exception, and a warrant was not required. United States v. Howard, 489 F.3d 484 (2d Cir. 2007):

The district court’s finding that the defendants’ temporary, voluntary presence in the police barracks for questioning pursuant to the ruse meant that the vehicles were not readily mobile, and that searches of them were therefore not within the automobile exception, was in error for two reasons. First, the district court erred in determining that the vehicles were not readily mobile within the meaning of the automobile exception simply on the ground that the drivers and passenger were with police officers at their barracks, undergoing questioning concerning the ruse developed by the officers. Whether a vehicle is “readily mobile” within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search. See Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (distinguishing a car, which is “readily movable,” from a “fixed piece of property”). The district court’s reading of “ready mobility” is in error because the district court appeared to regard the actual ability of a driver or passenger to flee immediately in the car, or the likelihood of him or her doing so, as a requirement for the application of the automobile exception.

We rejected such a reading of “ready mobility” in United States v. Vassiliou, 820 F.2d 28 (2d Cir. 1987). Vassiliou was a contractor working for the United States on a military base. Following a fight with a subcontractor while on the base, the two were led to the military police station to settle the dispute. The subcontractor alleged that Vassiliou had pulled a gun on him and then hid the gun in the car. Based on this information, the military police conducted a warrantless search of Vassiliou’s vehicle and found the gun. Vassiliou sought to suppress the weapon, contending that the automobile exception did not apply “because his car was on a military outpost over which the military police had plenary jurisdiction and therefore was not mobile.” Id. at 30 (internal quotation marks omitted). He argued that, “[b]ecause entry to and exit from the post were controlled by the military police … he could not simply have driven away.” Id. (internal quotation marks omitted). We rejected Vassiliou’s argument and affirmed the district court’s denial of Vassiliou’s suppression motion because, regardless of the military’s plenary control over the base, “Vassiliou could have left the military police station while a warrant was being obtained and disposed of the gun elsewhere on the base.” Id. We determined that the facts presented comprised “precisely the sort of exigent circumstances resulting from the automobile’s inherent mobility that the Supreme Court has recognized as justifying the automobile exception to the warrant requirement.” Id.

Like the defendants in the instant case, Vassiliou effectively claimed that he could not have accessed his car because he was in police custody, and that the vehicle was therefore not “readily mobile” as contemplated by the automobile exception cases. And indeed, like Vassiliou’s detention by military police on the base, the detention of the defendants in this case prevented them from accessing their vehicles. But just as the automobile exception was applicable in Vassiliou’s case, it applies here. Even where there is little practical likelihood that the vehicle will be driven away, the exception applies at least when that possibility exists. In this case, the police could not lawfully have detained the defendants in the police station had they not consented to remain there. Furthermore, the possibility existed that confederates in another car, of whom the police were unaware, might have observed the police intervention and might drive the car away. The district court erred in determining that the relative inaccessibility of the vehicles, occasioned by the defendants’ undergoing questioning at the police barracks, was sufficient to bring this search outside the ambit of the automobile exception.

The Coast Guard boarded and searched a vessel 180 nautical miles south of the Dominican Republic that was dead in the water, riding low, and without markings or a flag after the ship’s master refused to identify it or himself. Inside was found $7.5M in marijuana. The crew was arrested and the ship, crippled anyway, was sunk. The Fourth Amendment was inapplicable. United States v. Bravo, 489 F.3d 1 (1st Cir. 2007):

For purposes of this case, therefore, if there was a constitutional violation of the Fourth Amendment, it occurred solely in international waters, where the search and seizure took place. But the Fourth Amendment does not apply to activities of the United States against aliens in international waters. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The Supreme Court’s holding in Verdugo-Urquidez is clear that the actions of the United States directed against aliens in foreign territory or in international waters are not constrained by the Fourth Amendment. 494 U.S. at 267 (“There is … no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); see also United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) (“In light of the Supreme Court’s holding in Verdugo-Urquidez, it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters.”). Accordingly, the district court was correct in denying Appellants’ motion to suppress because the Fourth Amendment was inapplicable to the USCG’s search of the vessel.

(Update, June 14: This case also appears at 2007 U.S. App. LEXIS 13797.)

The W.D. Ark. holds that a civil action for return of property under Rule 41(g) with a six year limitations period, 28 U.S.C. § 2401(a), must be filed within six years of “the conclusion of criminal proceedings, U.S. v. Sims, 376 F.3d 705 (7th Cir. 2004).” Defendant had to know when his property was seized, and the six years expired August 25, 2006 (six years and ten days after the J&C, from which there was no appeal). His action was filed in December 2005 and was untimely. Only the Seventh and Tenth Circuits have ruled on the issue. United States v. Mendoza, 2006 U.S. Dist. LEXIS 84881 (W.D. Ark. November 21, 2006).

Lack of findings on apparent authority to consent required remand for findings. There was an indication in the record that an objecting co-tenant could have been removed in attempt to avoid denial of consent contrary to Randolph. United States v. Groves, 470 F.3d 311 (7th Cir. November 22, 2006)* (unpublished).

Reasonable suspicion: “suspicious movements (which continued after he was told to stop) together with his extreme nervousness and his close proximity to a street known for illegal drug sales, police officers could reasonably believe their safety or the safety of others was in danger.” United States v. King, 2006 U.S. App. LEXIS 28996 (D.C. Cir. October 2, 2006)* (memorandum opinion).

Informant information that public details could only be corroborated was insufficient for reasonable suspicion. Trial court’s suppression order affirmed. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726 N.W.2d 337 (2006):

P17 To recapitulate, the police were able to corroborate: (1) Kolk’s identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it, possibly on the way to Madison. This information strikes us as both more widely available and less significant than that in (Roosevelt) Williams, in which the informant provided specific information about the drug transactions that she was witnessing, and we hold it insufficient to uphold Kolk’s detention.

Today’s NY Times on the FISA legislation signed into law less than two weeks ago: Concerns Raised on Wider Spying Under New Law:

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include — without court approval — certain types of physical searches on American soil and the collection of Americans’ business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

Once again, Congress adopts something and reads it later. What are we paying you guys for?

I’m not holding my breath, but I’ve got clients who are citizens of Canada, Egypt, Jordan, Mexico, and other countries. What happens when I call their families? Am I presumptively being surveilled because my foreign clients, defendants in a federal criminal case, require me to talk with their families about their cases?

The adoption of the August 2007 FISA amendments were pushed through Congress in typical Administration scare tactic style, just like the USA PATRIOT Act. Responding to a an alarmist push from the White House claiming some unknown and undefined threat to the United States, Congress approved amendments to the Foreign Intelligence Surveillance Act (FISA), the “Protect America Act of 2007,” with a sunset section for 180 days, that permits surveillance of any telephone call with one end of the call outside of the United States, increasing executive power and reducing judicial oversight over warrants.

The best source I have found for information about FISA is the Electronic Privacy Information Center, www.epic.org, which has a section devoted to FISA surveillance, with a history of national security wiretaps, going back to the 1972 case of United States v. United States District Court.

The NY Times two weeks ago said that the Protect America Act of 2007 broadened the law beyond the need proffered by the White House.

President Bush signed into law on Sunday legislation that broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government’s ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

The White House, of course, denied it:

Today’s New York Times story by James Risen makes the unfounded claim that new FISA legislation has “broadly expanded the government’s authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.” This is highly misleading.

Revolutionary changes in technology have occurred since FISA was enacted in 1978, and those changes have resulted in FISA–contrary to the intent of Congress in 1978–often requiring the government to get a court order to collect information on foreign terrorists and other foreign targets located overseas. The new law makes clear that a court order is not required to conduct surveillance of foreign intelligence targets located overseas.

But under FISA, court approval is required for the government to target an individual located in the United States, and nothing in the new law changes that.

Under the Protect America Act, the so-called judicial approval can be obtained after the fact, if the circumstances do not permit applying in advance, something likely to become a self-fulfilling prophecy. When an application is filed, it is under seal and in secret, so the only time anyone would know is if a legal challenge somehow unearthed the papers.

Those lawyers representing terrorism defendants that filed the case the Sixth Circuit reversed on July 6th who had no standing? Don’t they now have standing if any call out of or into the United States is subject to monitoring as a matter of course?

And who really thinks that it won’t be re-upped in 180 days? The same “there hasn’t been another 9/11” will be used as justification. I predict it will be readopted with a year or longer sunset clause, to at least get past the Bush Presidency, without any proof that any plot was thwarted or alleged terrorist arrested, unless, of course, they can arrest somebody and keep him or her detained indefinitely without trial or habeas to prove the truth of the allegations.

[cross-posted to www.talkleft.com]

In a post from October 2006, a Wisconsin sheriff used a Google Earth or Google Maps satellite photograph as probable cause in a marijuana grow operation.

Be cautioned that Google’s satellite images can be really dated. I looked at a crime location on Google last weekend, trying to get an overview of nearby buildings and streets, and it said it was “copyright 2007.” This is a useful tool for any lawyer or investigator in investigating a crime or defending or prosecuting a case.

It was easy to move the image to my house, and I can tell from the image of my own house that the image was at least two years old because of a certain car parked in the driveway. Then I moved the image over a construction site about a mile away, and that confirmed it was two years old because the construction of the existing building had not even started. Also, the city maps are taken in winter to avoid foliage that would block views of streets and buildings, as if it is not obvious from the length of shadows.

If a Google satellite image is used in an affidavit for probable cause for what it shows, it should be presumptively stale.

Update: August 25: In United States v. Stewart, 2007 U.S. Dist. LEXIS 61715 (E.D. Va. August 22, 2007), the court cited Google Maps in its opinion.

Search incident in a different hotel room from the one defendant was arrested in was invalid. Holloman v. State, 959 So. 2d 403 (2d Dist. 2007).

State appeals court decided appeal on lack of probable cause when neither party briefed it, and this was error. Defense counsel’s expressly declining to raise a pretext issue because it had been recently addressed by the state supreme court was a waiver of the issue. State v. Dalzell, 282 Conn. 709 924 A.2d 809 (2007).*

In Mays v. State, 959 So. 2d 216 (2007), posted here, a regular correspondent sent me the dissent (and even came up with the title of this post). I admit that I do not always read the dissents because it just takes too much time. But this dissent needs to be shared. The case held that no reasonable suspicion is required to run wants or warrants during a stop. The concurring opinion of Justice Pariente is concerned with the loss of rights:

Indeed, I expressed my view in Golphin that an individual’s consent to provide an officer with identification does not necessarily include consent for the officer to retain the identification to run a warrants check. See id. at 1201 n.18. This is consistent with the United States Supreme Court’s pronouncement that “in the absence of any basis for suspecting a person of misconduct, the balance between the public interest and the right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Texas, 443 U.S. 47, 52 (1979).

I also reiterate my concern “about our freedom as Americans to lawfully move about without attracting the unwanted and coercive attention of the authorities.” Golphin, 945 So. 2d at 1202 (Pariente J., concurring in result only). Troubling statistics released by the New York City Police Department show that the number of people stopped on the streets in that city increased from 97,296 in 2002 to 508,540 in 2006. See Al Baker, 6-Month Study to Review “Stop and Frisks” by New York Police, N.Y. Times, March 1, 2007, at B1.fn1 A special report recently released by the Department of Justice shows that 43.5 million United States residents had face-to-face contact with the police in 2005. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Contacts between Police and the Public, 2005 1 (2007).

I remain concerned that little by little we continue to chip away at the protections of the Fourth Amendment that are designed to protect our citizens from unreasonable searches and seizures. This is not a theoretical problem but rather a tangible issue that goes to the core of the constitutional rights we as a country hold so dear. (ANSTEAD and QUINCE, JJ., concur.)

fn1 The New York City Police Department has commissioned an independent study of the way it stops people on the street that will focus on the role that race plays in these police-citizen encounters. See id. I previously noted that “one of the most disturbing features of suspicionless warrants checks is that the intrusion tends to fall disproportionately on particular ethnic and racial groups.” Golphin, 945 So. 2d at 1202 n.20 (Pariente, J., concurring in result only).

Another reader sent me a quote from NBC’s Law & Order (official site; imdb link), a judge to ADA McCoy: “It’s the Fourth amendment, Mr. McCoy, not the three and three-quarters.”

We are enduring the boiling frog phenomenon: a frog placed in hot or boiling water will try to escape. If the frog is in water that is warming, the frog will not notice the temperature change and will be boiled alive. Such is the development of the Fourth Amendment.

One of my favorites, which I stumbled on in researching a brief years ago, stays on the margin of this site from United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989):

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

Now, read the following post.

NJ holds, recognizing contrary authority, that there is no constitutional reason to justify a rule that limits search incident to custodial offenses. They can occur on citable offenses, too. This is an interesting opinion, decided under the Fourth Amendment and the state constitution, leaving open SCOTUS review. State v. Daniels, 393 N.J. Super. 476, 924 A.2d 582 (2007):

It is true that other states have limited searches incident to arrest to Terry-type frisks, State v. Paul T., 1999 NMSC 37, 128 N.M. 360, 993 P.2d 74, 78-79 (N.M. 1999) (violation of juvenile curfew ordinance); People v. Maher, 17 Cal. 3d 196, 550 P.2d 1044, 130 Cal. Rptr. 508 (Cal. 1976) (arrest for public intoxication); Hawaii v. Rosborough, 62 Haw. 238, 62 Haw. 689, 615 P.2d 84 (Haw. 1980) (arrest for marijuana possession); see also Middleton v. State, 577 P.2d 1050, 1055 (Alas. 1978). Others, however, have adopted the more expansive position espoused herein. State v. Florance, 270 Ore. 169, 527 P.2d 1202 (Ore. 1974) (arrest for menacing an officer); Hughes v. State, 1974 OK CR 98, 522 P.2d 1331 (Okla. App. 1974) (arrest for reckless driving and driving without valid license); People v. Weintraub, 35 N.Y.2d 351, 320 N.E.2d 636, 361 N.Y.S.2d 897 (N.Y. 1974) (arrest for criminal trespass).

The only question is whether the very minor nature of this offense, being the lowest on the scale of violations covered by the Code, should invoke a different rule. We think not. It would simply be too impracticable to differentiate the scope of a search incident to arrest depending on the degree of the violation, other than motor vehicle offenses or, possibly, municipal ordinance violations. Cf. State v. Hurtado, 219 N.J. Super. 12, 23-28, 529 A.2d 1000 (App. Div. 1987) (Skillman, J.A.D., dissenting), rev’d o.b. on dissent, 113 N.J. 1, 549 A.2d 428 (1988) (discussing authority of police to arrest for municipal ordinance violation). We consider it unlikely that the police will decide to take more people arrested for minor offenses into custody in order to search them than would otherwise be the case. The police power to arrest in the first instance for these minor offenses is restricted to non-pretextual arrests, Dangerfield, supra, 171 N.J. at 463, 795 A.2d 250, but once the decision is made to take the person into custody and transport him to police headquarters, a full search should be permitted.

Applied to the facts of this case, there is no doubt that the search of defendant’s person was permissible. Indeed, even if a Terry frisk limitation were imposed, the patdown here went no further than permitted under that rationale. The officer felt a hard object in defendant’s pocket that he felt might be a knife. Even putting aside the officer’s subjective belief, he had the right to examine the object to determine if it might be a weapon, regardless of what type of weapon. In retrieving the item, which turned out to be a lighter, the plastic bag came into view. There is no basis to conclude, given these facts, that defendant’s rights, under either the Fourth Amendment or our State Constitution, N.J. Const. art. I § 7, were violated.

Montana holds that an arrest for truancy justified a search incident. In re Z.M., 2007 MT 122, 337 Mont. 278, 160 P.3d 490 (2007).

A fire scene search was valid where the senior fireman on the scene allowed his Captain to enter as well. The fire appeared to be out, but they were looking for the cause of the fire. At one point, the firemen invited a police officer in because they saw marijuana seeds in the house. The fire scene search was valid, and the defendant did not separately challenge the officer’s entry. State v. Smith, 2007 Ida. App. LEXIS 45 (May 25, 2007).*

Officers had probable cause for issuance of search warrant, and the owner alternatively consented to the search. State v. Hendrickson, 138 Wn. App. 827, 158 P.3d 1257 (2007).*

Defendant’s 26-minute roadside investigation did not violate the Fourth Amendment where it was expanded beyond the initial reason for the stop when the nervous defendant driver failed to produce a license or insurance card and did not know who owned the car. Reasonable suspicion developed. State v. Baum, 393 N.J. Super. 275, 923 A.2d 276 (2007).*

Officers had information from a confidential informant that defendant was manufacturing illegal DVDs in his attic. The information about the premises was the same that could be seen by any passerby. The officers entered without a warrant and went to the attic to conduct a protective sweep. The court found that there was no exigency for the entry and no cause for a protective sweep. On the search warrant that had been issued, the court finds that there was no probable cause for the search warrant–it was nothing more than conclusions. The lack of probable cause was so obvious that the good faith exception did not apply. United States v. Pinder, 2007 U.S. Dist. LEXIS 40061 (E.D. Va. June 1, 2007):

Similar to Wilhelm, the Court finds that it was not objectively reasonable for the officers in this case to rely on an informant that simply told them that illegal DVDs and DVD manufacturing equipment was being produced out of the Defendant’s attic without prior corroboration. The government contends, however, that Leon applies and cites United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). The government’s reliance on Hyppolite is misplaced. The key distinction between Hyppolite and the present case is that, in addition to what was contained in the affidavit, the magistrate in Hyppolite was presented with and considered other factors in his determination of probable cause. The court in Hyppolite explained that the magistrate also considered the defendant’s refusal to answer questions, his nervousness and aggressive behavior while he asserted his rights, etc. These facts, together with the affidavit, were not so lacking in indicia of probable cause as to render reliance unreasonable. In the instant case, there is no evidence on the record that the magistrate was presented with any additional information other than that contained in what this Court has determined is a “bare bones” affidavit.

One additional point bears on the Court’s determination of the officers’ reasonable reliance. It is uncontroverted that the entire chain of command had serious concerns that, given the facts and the information Officer Knorowski had received prior to arriving at the Defendant’s residence, probable cause was lacking to conduct a search. It was precisely this “bare bones” information which was presented to the magistrate and served as the basis for the warrant. No other information was presented to the magistrate. The Court is not persuaded that given the officers’ own doubts of the sufficiency of the basis for the protective sweep, it was objectively reasonable for the officers to then seek a warrant based on even less information, and then to rely on that warrant. Accordingly, the third exception to Leon applies-the affidavit was so facially deficient that the officers’ reliance was unreasonable. The Court also finds that the magistrate acted as a “rubber stamp” in authorizing the warrant. Wilhelm, 80 F.3d 116 at 123. Defendant’s motion to suppress the items recovered pursuant to the warrant is GRANTED.

Plaintiff was an armed IRS agent boarding a Southwest flight from Louisville, and he was removed from the plane because he got in a verbal altercation with a female passenger over his luggage not fitting overhead. Telling another passenger to “fuck off” apparently is reason to be removed from a flight in the pilot’s discretion. He was. In the terminal, he refused to talk to anyone but Southwest’s Ground Security Coordinator for Louisville. A heated exchange started in the gate area, and, when the Ground Security Coordinator reached for his arm to move to a different area away from the crowd, he reached for his right side, allegedly for his ID which he had declined to show. He also had his gun there. A police officer took him down. He loses on summary judgment over the seizure and qualified immunity. Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007).*

Moving defendant’s car during a stop was a separate seizure that was unreasonable under the circumstances. United States v. Virden, 488 F.3d 1317 (11th Cir. 2007):

The seizure here was unreasonable absent probable cause because of its scope and intrusiveness. While not unduly lengthy, the seizure was accomplished by the taking of Virden’s vehicle to a new location for the purposes of investigation. We have frowned upon the movement of individuals for such purposes. [citations omitted] Furthermore, to effectuate this seizure the officers handcuffed Virden, and without formally arresting him, drove him to another location. Such a seizure exceeds the boundaries of a Terry stop.

. . . [If probable cause existed, a seizure would be appropriate.]

The officers lacked the requisite probable cause to seize Virden’s car while at the gas station. At the time of the seizure, the officers were aware of the following suspicious facts about Virden: (1) he left a location of suspected drug activity, (2) he appeared to have control over the garage because the garage door closed without anyone else being seen, and (3) he misstated exactly where he had been to the police. However, neither Virden nor his vehicle were known to the investigation, despite more than year of detective work. Cf. United States v. Tamari, 454 F.3d 1259, 1262-64 (11th Cir. 2006) (finding probable cause exists where driver arrives on rural scene of drug activity driving a vehicle associated with the head of the drug conspiracy). Additionally, we have consistently held that mere presence at a crime scene without more is insufficient to establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1081 (11th Cir. 2003). Without more, the facts in the officers’ knowledge at the time of seizure were insufficient to give rise to probable cause.

. . .

Here, the prosecution cannot evade the suppression of the evidence by utilizing the inevitable discovery exception to the exclusionary rule, because it cannot show that officers were actively pursuing any lawful means at the time of the illegal conduct. . . .

Officer’s probable cause to arrest plaintiff for DUI entitled him to qualified immunity in § 1983 suit. Wilder v. Turner, 490 F.3d 810 (10th Cir. 2007).*

Defense counsel’s failure to file a suppression motion that certainly would fail was not IAC. Till v. United States, 2007 U.S. Dist. LEXIS 42219 (W.D. Mich. June 11, 2007).*

The government established consent by the preponderance of the evidence, the court reciting 13 findings of fact supporting consent. United States v. Plugh, 2007 U.S. Dist. LEXIS 42199 (W.D. N.Y. June 11, 2007).*

The Sixth Circuit holds that there is a reasonable expectation of privacy in stored e-mails, and an e-mail user has standing to challenge overbroad subpoenas to ISPs for the e-mails. The case involved suit under the Stored Communications Act, 18 U.S.C. §§ 2701-12, distinguishing holders of e-mail and recipients who have already received e-mail. This is a significant case, and it extends established law about mail in transit to e-mails in transit. The District Court’s preliminary injunction is affirmed as modified. Warshak v. United States, 490 F.3d 455, 2007 FED App. 0225P (6th Cir. 2007):

2. Reasonable expectation of privacy in e-mail content

Two amici curiae convincingly analogize the privacy interest that e-mail users hold in the content of their e-mails to the privacy interest in the content of telephone calls, recognized by the Supreme Court in its line of cases involving government eavesdropping on telephone conversations. See Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). In Berger and Katz, telephone surveillance that intercepted the content of a conversation was held to constitute a search, because the caller “is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world,” and therefore cannot be said to have forfeited his privacy right in the conversation. Katz, 389 U.S. at 352. This is so even though “[t]he telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment.” Smith, 442 U.S. at 746 (Stewart, J., dissenting). On the other hand, in Smith, the Court ruled that the use of pen register, installed at the phone company’s facility to record the numbers dialed by the telephone user, did not amount to a search. This distinction was due to the fact that “a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications.” 442 U.S. at 741 (emphasis in original).

The distinction between Katz and Miller makes clear that the reasonable expectation of privacy inquiry in the context of shared communications must necessarily focus on two narrower questions than the general fact that the communication was shared with another. First, we must specifically identify the party with whom the communication is shared, as well as the parties from whom disclosure is shielded. Clearly, under Katz, the mere fact that a communication is shared with another person does not entirely erode all expectations of privacy, because otherwise eavesdropping would never amount to a search. It is true, however, that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person. See Miller, 425 U.S. at 443 (“[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities.”). The same does not necessarily apply, however, to an intermediary that merely has the ability to access the information sought by the government. Otherwise phone conversations would never be protected, merely because the telephone company can access them; letters would never be protected, by virtue of the Postal Service’s ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company’s ability to access them.

The second necessary inquiry pertains to the precise information actually conveyed to the party through whom disclosure is sought or obtained. This distinction provides the obvious crux for the different results in Katz and Smith, because although the conduct of the telephone user in Smith “may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed.” 442 U.S. at 743. Like the depositor in Miller, the caller in Smith “assumed the risk” of the phone company disclosing the records that he conveyed to it. Id. Yet this assumption of the risk is limited to the specific information conveyed to the service provider, which in the telephone context excludes the content of the conversation. It is apparent, therefore, that although the government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access. It cannot, on the other hand, bootstrap an intermediary’s limited access to one part of the communication (e.g. the phone number) to allow it access to another part (the content of the conversation).

This focus on the specific information shared with the subject of compelled disclosure applies with equal force in the e-mail context. Compelled disclosure of subscriber information and related records through the ISP might not undermine the e-mail subscriber’s Fourth Amendment interest under Smith, because like the information obtained through the pen register in Smith and like the bank records in Miller, subscriber information and related records are records of the service provider as well, and may likely be accessed by ISP employees in the normal course of their employment. Consequently, the user does not maintain the same expectation of privacy in them vis-a-vis the service provider, and a third party subpoena to the service provider to access information that is shared with it likely creates no Fourth Amendment problems. n3 The combined precedents of Katz and Smith, however, recognize a heightened protection for the content of the communications. Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.n4

n4 As the Supreme Court explained in Smith, the reasonable expectation of privacy inquiry “embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,–whether, in the words of the Katz majority, the individual has shown that he seeks to preserve [something] as private. The second question is whether the individual’s subjective expectation of privacy is one that society is prepared to recognize as reasonable, — whether, in the words of the Katz majority, the individual’s expectation, viewed objectively, is justifiable under the circumstances.” 442 U.S. at 740 (internal citations and quotation marks omitted).

Similarly, under both Miller and Katz, if the government in this case had received the content of Warshak’s e-mails by subpoenaing the person with whom Warshak was e-mailing, a Fourth Amendment challenge brought by Warshak would fail, because he would not have maintained a reasonable expectation of privacy vis-a-vis his e-mailing partners. See Phibbs, 999 F.2d at 1077. But this rationale is inapplicable where the party subpoenaed is not expected to access the content of the documents, much like the phone company in Katz. Thus, as Warshak argues, the government could not get around the privacy interest attached to a private letter by simply subpoenaing the postal service with no showing of probable cause, because unlike in Phibbs, postal workers would not be expected to read the letter in the normal course of business. See Ex Parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) (“No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution.”). Similarly, a bank customer maintains an expectation of privacy in a safe deposit box to which the bank lacks access (as opposed to bank records, like checks or account statements) and the government could not compel disclosure of the contents of the safe deposit box only by subpoenaing the bank.

This analysis is consistent with other decisions that have addressed an individual’s expectation of privacy in particular electronic communications. In Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2007), we concluded that users of electronic bulletin boards lacked an expectation of privacy in material posted on the bulletin board, as such materials were “intended for publication or public posting. “Of course the public disclosure of material to an untold number of readers distinguishes bulletin board postings from e-mails, which typically have a limited, select number of recipients. See also Jackson, 96 U.S. at 733 (“[A] distinction is to be made between different kinds of mail matter, — between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined.”). Although we stated that an e-mail sender would “lose a legitimate expectation of privacy in an e-mail that had already reached its recipient,” analogizing such an e-mailer to “a letter-writer,” this diminished privacy is only relevant with respect to the recipient, as the sender has assumed the risk of disclosure by or through the recipient. Id. at 333 (citing United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)). n6 Guest did not hold that the mere use of an intermediary such as an ISP to send and receive e-mails amounted to a waiver of a legitimate expectation of privacy.

Before getting to this question, the court had to determine what standard applied for subpoenas for e-mail. If the e-mail sender or recipient had a reasonable expectation of privacy, the government’s burden to obtain them was higher:

Phibbs makes explicit, however, a necessary Fourth Amendment caveat to the rule regarding third-party subpoenas: the party challenging the subpoena has “standing to dispute [its] issuance on Fourth Amendment grounds” if he can “demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” Id.; see also United States v. Miller, 425 U.S. 435, 444, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) (“Since no Fourth Amendment interests of the depositor are implicated here, 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 a defendant.” (emphasis added)). This language reflects the rule that where the party challenging the disclosure has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure vis-a-vis that individual, and assumes the risk of that person disclosing (or being compelled to disclose) the shared information to the authorities. See, e.g., United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) (“[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.”).

Combining this disclosure to a third party with the government’s ability to subpoena the third party alleviates any need for the third-party subpoena to meet the probable cause requirement, if the challenger has not maintained an expectation of privacy with respect to the individual being compelled to make the disclosure. For example, in Phibbs, the documents in question were credit card and phone records that were “readily accessible to employees during the normal course of business.” 999 F.2d at 1078. A similar rationale was employed by the Supreme Court in Miller. 425 U.S. at 442 (“The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.”). See also SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984) (“When a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities.”). The government’s compelled disclosure argument, while relevant, therefore begs the critical question of whether an e-mail user maintains a reasonable expectation of privacy in his e-mails vis-a-vis the party who is subject to compelled disclosure — in this instance, the ISPs. If he does not, as in Phibbs or Miller, then the government must meet only the reasonableness standard applicable to compelled disclosures to obtain the material. If, on the other hand, the e-mail user does maintain a reasonable expectation of privacy in the content of the e-mails with respect to the ISP, then the Fourth Amendment’s probable cause standard controls the e-mail seizure.

Comment: It could be said that the government came into this case having already shot itself in the foot over the abuse of NSLs and lost credibility about its admitted inability to comply with the law in collecting this type of information.

Defendant stopped his vehicle on his own while an officer was following, but the officer did not stop immedidately, instead making a U-turn and coming back. The officer asked the defendant if he was lost and where he was going, and defendant said he was looking for a girlfriend’s house but he couldn’t find it. He picked up a stick from the backseat, and the officer decided to do a patdown. “During the pat-down, Officer Boyle discovered a knife in appellant’s left pocket, and felt a large bulge in a plastic bag in his jacket pocket. Officer Boyle could see the bulge without taking it out of appellant’s pocket, and observed it to be a white substance that the officer believed to be cocaine. Officer Boyle then arrested appellant.” This was not a stop, and the patdown was for officer safety, and the object was determined by plain feel. State v. Potter, 2007 Ohio 4216, 2007 Ohio App. LEXIS 3815 (12th Dist. August 20, 2007).*

Inmates in a Pennsylvania prison were involved in a UCC redemption scam where liens were filed against prison officials for perceived wrongs. The prison officials conducted cell searches in the interest of prison security when it was discoverd that they\ same scam seen in New Jersey had moved to a Pennsylvania prison. The case proceeded as a due process and First Amendment claim, and the prison officials had the power to search and seize to prevent future crime, and the UCC scam qualified as a crime. Monroe v. Beard, 2007 U.S. Dist. LEXIS 60432 (E.D. Pa. August 16, 2007).*

Plaintiff’s conspiracy claim about his incarceration for intimidation of him as an inmate by moving him from protective custody to general population did not state a claim. Gonzalez v. City of Fresno, 2007 U.S. Dist. LEXIS 60630 (E.D. Cal. August 7, 2007).*

The defendants were targets of audio and silent video surveillance in a terrorism investigation. The audio surveillance was governed by Title III, and the silent video was analyzed under Title III, although the warrant was issued under Rule 41(b), because that was how most courts to have faced the question analyze it. United States v. Batiste, 2007 U.S. Dist. LEXIS 61186 (S.D. Fla. August 21, 2007):

Surveillance conducted pursuant to a Rule 41(b) order must only comply with the Fourth Amendment. E.g., United States v. Nerber, 222 F.3d 597, 603-04 (9th Cir. 2000). Though this issue has not been directly addressed in the Eleventh Circuit, circuits elsewhere conclude that to conduct lawful video surveillance, for Fourth Amendment purposes, the government armed with probable cause must also satisfy the requirements of Title III for analogous audio surveillance:

(1) the judge issuing the warrant must find that “normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous,” 18 U.S.C. § 2518(3)(c); (2) the warrant must contain “a particular description of the type of [activity] sought to be [videotaped], and a statement of the particular offense to which it relates,” id. § 2518(4)(c); (3) the warrant must not allow the period of [surveillance] to be “longer than is necessary to achieve the objective of the authorization, []or in any event longer than thirty days” (though extensions are possible) id. § 2518(5); and (4) the warrant must require that the [surveillance] “be conducted in such a way as to minimize the [videotaping] of [activity] not otherwise subject to [surveillance] …” id.

Falls, 34 F.3d at 680 (internal citation omitted) (and cases cited therein); see also United States v. Williams, 124 F.3d 411, 417 (3rd Cir. 1997) (“every court of appeals that has addressed video surveillance has held that video surveillance conforming to the standards set out in Title III is constitutional”); Koyomejian, 970 F.2d at 542 (court looked to substantive requirements in Title III for guidance in determining whether silent video surveillance comported with Fourth Amendment requirements); Nerber, 222 F.3d at 605 (“Although no federal statute regulates the government’s use of video surveillance, the existence of a law which prohibits the warrantless use of audio surveillance on a citizen … is strong evidence that society is not prepared to accept the warrantless use of an even more intrusive investigative tool in the same situation.”); United States v. Cuevas-Sanchez, 821 F.2d 248, 252 (5th Cir. 1987) (“We accept these as the standards under which an order for video surveillance may issue. We cannot add the other technical requirements of Title III because Title III does not cover video surveillance. We are not a legislature; we can mandate only those protections required by the Constitution. The above requirements protect the constitutional rights of those under surveillance as they have been announced by the Supreme Court.”).

Accordingly, because of the weight of persuasive authority that requires it, this Court’s analysis of the Rule 41(b) orders is the same as its analysis of the Title III wiretap orders. The Court’s discussion will thus refer to both the Title III and Rule 41(b) video surveillance orders except where differentiation is appropriate.

Going to the merits, the court concludes that the surveillance was necessary because the government was able to show that other forms of investigation were inadequate.

The affidavits further detail that search warrants were unlikely to produce sufficient evidence to determine the full scope and nature of the conspiracy; would inform the targets of the investigation; and would be premature and of marginal assistance. Id., P 76. Moreover, the FBI was not aware, on the date the affidavits were submitted, of residence locations for any of the targets except Batiste. Id.

The Court thus finds that the conventional techniques suggested by the Defendants would have done little to expose the entire workings of an organization that was allegedly plotting to commit terrorist acts in the United States.

. . .

The wiretap statute does not require a piecemeal, uncoordinated approach to the investigation of this alleged conspiracy, in which agents rely on good fortune to uncover small pieces of the enterprise. Rather, the statute simply requires that the affiant explain to the issuing judge the difficulties surrounding conventional techniques that already had been taken, or been contemplated to have been taken. This was done in this case, and the issuing judges did not err in assessing those difficulties and signing the orders to intercept. This Court finds that the government complied with the necessity requirement of 18 U.S.C. § 2518(1)(c) and no basis to suppress on this ground exists as to either the wiretape evidence or the video surveillance.

It was revealed yesterday that the FISA overhaul, previously referred to here, was necessited by the FISA Court holding the government’s previous surveillance activities unconstitutional. That necessitated a quick fix, according to the NYTimes.com posted at 10 last night. From the L.A. Times today: Spy chief reveals details of operations / The intelligence director confirms the FISA court ruling and defends wiretapping as a ‘surgical’ process:

The nation’s top intelligence official has confirmed that a federal court did rule the Bush administration’s warrantless wiretapping program was in violation of the law, prompting the mad rush in Congress this month to overhaul key espionage provisions.

In an interview with a Texas newspaper, Director of National Intelligence J. Michael McConnell also disclosed that the number of people in the United States who are under surveillance by the nation’s spy services is “100 or less,” a figure he said showed that the government was not engaged in widespread spying on Americans.

His comments represent an exceedingly rare public description of one of the nation’s most closely guarded and controversial espionage operations. Many of the details he described — such as the deliberations of the special intelligence court and the scope of the surveillance operation — are usually considered classified.

. . .

The Foreign Intelligence Surveillance Court’s adverse ruling earlier this year delivered a major blow to U.S. spying operations, McConnell said, even as intelligence analysts were expressing growing alarm that the Al Qaeda terrorist network was regrouping.

. . .

The government obtained a temporary stay allowing it to continue intercepting e-mails and phone calls without individual warrants through May 31, McConnell said, as he began sounding alarms on Capitol Hill that a key piece of the nation’s counter-terrorism capabilities was about to be crippled.

Those warnings fueled a frantic, end-of-summer push in Congress to rewrite laws passed three decades ago, after U.S. intelligence agencies had been caught spying on student groups and other domestic targets. The emergency legislation, which is set to expire in six months, allowed the government to resume its eavesdropping operations without individual warrants.

. . .

Because so many of these calls travel through networks in the United States, McConnell said, the FISA court ruling created a significant new burden: Putting together a FISA warrant required “about 200 man-hours to do one telephone number.”

What is unclear is whether Congress ever knew about this justification for the rush to amend the FISA law.

Heck bar does not apply where the plaintiff was never able to file a habeas case because he was not sentenced to imprisonment. Pethtel v. Washington County Sheriff’s Office, 2007 U.S. Dist. LEXIS 60105 (S.D. Ohio August 16, 2007):

Because, as discussed in greater detail below, Plaintiff’s § 1983 and Bivens claims accrued prior to the date he pleaded no contest to the reduced charge of disorderly conduct, the Heck bar does not apply. Moreover, because Plaintiff’s sentence consisted of a fine rather than imprisonment, a habeas remedy was never available to him. As the Sixth Circuit has noted, five justices of the Supreme Court are of the belief that the Heck bar, requiring a plaintiff to have his sentence or conviction invalidated before filing a § 1983 suit, does not apply when the plaintiff has not been sentenced to a term of imprisonment. See Fox v. VanOosterum, 176 F.3d 342, 352 n.8 (6th Cir. 1999). See also Johnson v. Freeburn, 144 F. Supp. 2d 817, 827 (E.D. Mich. 2001). For all of these reasons, the Court rejects Defendants’ argument that Plaintiff’s claims are barred by Heck.

Entry and search was by private individual without any assistance or knowledge of the government, so it did not violate Fourth Amendment, despite a motive to help the government. United States v. Sheridan, 2007 U.S. Dist. LEXIS 60115 (N.D. Iowa August 15, 2007):

In the present case, there is no evidence whatsoever that (1) the government knew of and acquiesced in Travis’s conduct in entering Sheridan’s room; (2) Travis intended to assist law enforcement agents; (3) Travis acted at the government’s request; or (4) there was any reward or other benefit Travis was seeking when he entered the room. The court finds Travis acted solely on his own behalf for the purpose of locating his favorite uncle to have a chat with him. Although Travis’s decision to report Sheridan’s activities “may have been motivated, to some extent, by an urge to help the government, either as a means of protecting [himself] … or by the ‘simple but often powerful convention of openness and honesty[,]’ … this is not enough to make [him] a government agent.” Huber, 404 F.3d at 1054 (citing Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 2049, 29 L. Ed. 2d 564 (1971); Malbrough, 922 F.2d at 462).

Plaintiff’s false arrest claim, 20 years old, that he was falsely arrested for a crime that he did not commit, stated a claim. The State also waived its statute of limitations defense by not timely pleading it. Laughman v. Pennsylvania, 2007 U.S. Dist. LEXIS 60079 (M.D. Pa. August 16, 2007)*:

The facts surrounding Laughman’s attributed confession are very much in dispute to this day. Laughman testified at his trial that he did not confess and he has proffered expert reports calling into doubt the legitimacy of the confession, in light of his innocence. Furthermore, while Defendants insist that Laughman’s innocence should not bear on the fact of his confession, the Court finds that a reasonable juror could find from the facts in dispute that Defendants knew that no confession occurred and thus arrested Laughman without probable cause. The ultimate question of probable cause cannot be answered until the underlying historical facts surrounding Laughman’s purported confession can be resolved. Thus, genuine issues of material fact remain in dispute and summary judgment must be denied on this ground.

A drug dog’s alert to cash was held by the Northern District of Illinois to be a sufficient basis to seize it and start forfeiture proceedings, at least in the Seventh Circuit. The claimant was targetted after the DEA reviewed an Amtrak manifest, and when questioned on the train, he admitted having cash and said he was in construction and traveling to Austin, Texas, to buy property for construction purposes. This was on a motion to dismiss filed by the claimant. United States v. Funds in the Amount of Forty-Five Thousand Fifty Dollars, 2007 U.S. Dist. LEXIS 58602 (N.D. Ill. August 9, 2007):

Contrary to Claimants’ assertion that “the probative value of a dog sniff is at most minimal,” (Motion to Dismiss P 5 (citing United States v. $506,231 in United States Currency, 125 F.3d 442, 453 (7th Cir. 1997))), dog sniff evidence is entitled to significant weight in the Seventh Circuit. In the case relied upon by Claimants, the Seventh Circuit overturned a grant of summary judgment to the United States in a case where the government sought forfeiture of $ 500,000 found hidden in a pizzeria. $506,231, 125 F.3d at 444. In its ruling, the court noted that none of the evidence offered by the government was sufficient to establish that the money was subject to seizure. Id. at 452-53. Specifically, the court stated that it was “unwilling to take seriously” the evidence of a drug dog’s positive reaction to the currency. Id. at 453. This conclusion was guided by the court’s understanding that “… no one can place much stock in the results of dog sniffs because at least one-third of the currency in the United States is contaminated with cocaine in any event.” Id.

If this ruling still represented the law in the Seventh Circuit, Claimants might be correct in their assertion that the government’s allegations of a positive dog sniff by themselves are not sufficient to state a “substantial connection” between the seized currency and narcotics under 18 U.S.C. § 983. The ruling in $506,231, however, was called into question, if not overturned, by the ruling in a more recent Seventh Circuit case. In Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars, the Seventh Circuit upheld a district court’s grant of summary judgment to the government in a forfeiture action, where a positive dog sniff was the most important evidence offered to establish a “substantial connection” between the seized currency and illegal narcotics. 403 F.3d at 467. In its ruling, the court rejected its earlier position that dog sniff evidence was not entitled to probative weight, id. at 459, and engaged in a lengthy discussion of the scientific evidence supporting the validity of such evidence. Specifically, the court found persuasive the findings of several scientists who concluded that drug dogs react not to the smell of cocaine itself (which they acknowledged does contaminate much of the county’s currency), but to the smell of a chemical that is released by cocaine. Id. at 458-60. This chemical is only found on bills that have recently been in the proximity of cocaine. Id. As a result, the court concluded, “the totality of the circumstances, especially [the dog’s] alert to Calhoun’s cash, leads us to conclude that reasonable jurors would agree that it is more likely than not that Calhoun’s cash is subject to forfeiture.” Id. at 455.

In light of the holding in Funds in the Amount of Thirty Thousand Six Hundred Seventy Dollars, this court rejects Haltiwanger’s contention that [the dog’s] alert to the seized currency does not sufficiently allege a “substantial connection” between the currency and narcotics. While these allegations alone may not be enough to conclusively establish such a connection, when taken as true, they are sufficient to survive a motion to dismiss.

Plaintiff’s allegation that an officer “detained and arrested him simply because he was attempting to call the police department and report the alleged intimidation and harassment by” that officer and two others stated a claim for relief under § 1983 and the Fourth Amendment. Alattiyat v. City of Memphis, 2007 U.S. Dist. LEXIS 58488 (W.D. Tenn. August 9, 2007).*

Defendant officers stopped plaintiff on reasonable suspicion when they received a 911 call of an alleged drunk driver, and their observations gave probable cause, so the plaintiff’s case fails. Andreozzi v. Brooke County Comm’n & Brooke County Sheriff’s Dep’t, 2007 U.S. Dist. LEXIS 58497 (N.D. W.Va. August 8, 2007).*

An entry to look for a shooting victim and secure the premises was valid under the community caretaking function as a bona fide emergency. The fact there was an ancillary criminal investigative motive does not invalidate the entry. Also, the officer does not have to accept as true the purported victim’s statement that nobody else was there. United States v. Davis, 2007 U.S. Dist. LEXIS 57856 (W.D. Va. August 9, 2007):

The Defendant argued that the officers had no probable cause to believe that an assailant or other victims were in the house because Payne had called the police to his house, explained how the wounded man had shown up and why blood was leading to the house, and told the arriving officers that no one else was inside. The Defendant’s suggestion that the responding officers should rely on the statements of a person present at the scene of the crime is grounded on the flawed assumption that crime scene witnesses are rarely mistaken or dishonest. While I have no reason to doubt Payne’s veracity, I also cannot second guess the officers’ assessment at the scene that Payne may not have known or revealed the whole truth. Indeed, Payne testified that he did not know for sure whether anyone else was in the house because he was sleeping on the second floor when Dixon’s pleas for help woke him up. This admission demonstrates the potential for error in relying solely on the statements from a witness at a crime scene in determining whether the scene is secure.

The emergency doctrine is similar to, but distinct from, the “community caretaker” doctrine described by the Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973). … Under the community caretaker exception, as opposed to the emergency exception, officers may make warrantless searches provided that such searches are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Id. The community caretaker exception is most often used to justify searches of automobiles, and in the rare cases where it has been applied to homes, the entry was unrelated to the investigation of a crime. Gillespie, 332 F. Supp. 2d at 929.

Community caretaking function permitted officers to stop and question a person with reportedly bizarre behavior who likely was on drugs and threatened to get a gun. Indeed, the officer would have been derelict in his duty not to have looked for defendant with that report. United States v. Luginbyhl, 2007 U.S. Dist. LEXIS 57966 (N.D. Okla. August 8, 2007):

Williams received a call that defendant had walked onto someone’s private property, alarmed the neighbors, might have gone to get a gun 8, and was reported to be under the influence of drugs. Based on these articulable facts, regardless of whether he suspected defendant of criminal activity, Williams was permitted–indeed, expected–to exercise his community caretaking function to ensure the safety of defendant and the members of the community. Because defendant appeared under the influence of drugs or in a psychotic episode, Williams could, consistent with the Fourth Amendment, stop defendant to check on his condition and to determine if he was a danger to himself or others. See United States v. Ridea, 949 F.2d 718, 720 (5th Cir. 1991) (officers stopped defendant for his own safety and the safety of others after observing the defendant standing in the middle of the road and possibly intoxicated), vacated on other grounds, 969 F.2d 580, 582 (5th Cir. 1992) (en banc). At a minimum, Williams was aware that neighbors were concerned by defendant’s bizarre behavior; thus, Williams had an obligation to investigate the situation to ensure the safety of the members of the community. Ultimately, Williams would have been derelict in his duties if he had not stopped defendant to ensure that he was not a hazard to himself and others. Therefore, the Court finds that the encounter was a reasonable exercise of Williams’ community caretaking function, regardless of any suspicion of criminal activity.