Nervous behavior with an expired inspection sticker is not reasonable suspicion for extending a stop. United States v. Mooneyham, 2007 U.S. Dist. LEXIS 58952 (W.D. Tex. August 10, 2007).*

School search of plaintiff was justified at its inception by the fact plaintiff was seen entering an area where an explosion occurred just five seconds before. Plaintiff also had a history of disciplinary problems and had an odor of gunpowder on his hands when confronted. The fact he was not charged with a crime is irrelevant. Richardson v. Bd. of Educ. Ky., 2007 U.S. Dist. LEXIS 58960 (W.D. Ky. August 10, 2007).*

“[E]ven though the warrant did not specifically permit the officers to search the fields on the farm, the officers were entitled to search them without a warrant under the open fields doctrine.” United States v. Brown, 2007 U.S. Dist. LEXIS 58958 (W.D. Ky. August 9, 2007).*

Habeas petitioner loses on IAC claim because defense counsel’s failure to file a suppression motion was objectively reasonable because it could not be won both because of defendant’s consent and inevitable discovery because, without the consent, a search warrant would have issued. Ruiz v. Hall, 2007 U.S. Dist. LEXIS 58728 (N.D. Cal. July 30, 2007).*

The affidavit for the search warrant included justification to search digital media such as a camera for drug related evidence, based on the officer’s experience. United States v. Gocha, 2007 U.S. Dist. LEXIS 58962 (N.D. Iowa August 10, 2007):

In the present case, the deputy’s affidavit contained background information indicating Deputy Beaver is experienced and well-qualified in the investigation of drug-related crimes. The court finds the issuing judge was entitled to rely on the officer’s experienced opinion that it was likely Gocha would maintain records and images relating to his drug activities on his personal computers, cameras, and storage devices. (See paragraphs 4-6 of the affidavit, in which the deputy listed in detail the various types of computer peripherals and storage devices that might contain incriminating evidence.) The fact that the deputy offered additional detail about why evidence might be found on the digital camera and digital storage media is not difficult to comprehend; the reason that someone involved in drug transactions would maintain photographs and videos of their associates and drug-related activities is not as commonly known as is the maintenance of drug notes and transaction records in text form.

Viewing the affidavit as a whole, the court finds the warrant applications provided probable cause for issuance of the warrants to search Gocha’s computers, digital cameras, Palm Pilot, and media storage devices, and it was reasonable for the issuing magistrate to conclude evidence of Gocha’s drug activities would be found in or on those items. Furthermore, the officers’ conduct was exemplary in seeking to obtain the third search warrant for the Palm Pilot, in an abundance of caution to ensure the device was covered by the scope of a search warrant.

Comment: I’ve seen pictures in case files found during searches of clients with money and drugs. Not in many cases, but in some. How prevalent that is to justify it in a search warrant, I personally cannot say, but the fact that it happens some likely would be enough for a search warrant to at least look. Even in a theft by receiving case of a car, I had the prosecutor show me a picture of a woman standing next to a man holding a huge marijuana plant. It was my client’s sister who had been in the car. I’ve also seen pictures of clients in drug cases with them rolling on the floor surrounded by about $500k in cash.

Due process clause provides no more protection to a false arrest claim than the Fourth Amendment, so that claim is dismissed. Plaintiff pled enough to state a Fourth Amendment claim, and qualified immunity is denied. Walters v. Stafford, 2007 U.S. Dist. LEXIS 59079 (S.D. Ohio August 13, 2007)*:

The “Fourth Amendment was tailored explicitly for the criminal justice system, and its balance between individual and public interest always has been thought to define the ‘process that is due’ for seizures of persons or property in criminal cases, including detention of suspects pending trial.” Id., quoting, Gerstein v. Pugh, 420 U.S. 103, 125 n. 27, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). Even though Plaintiffs were not charged criminally, the court finds that, based upon the facts of this case, the Due Process Clause does not mandate any additional safeguards beyond the Fourth Amendment. Id. Therefore, Defendants are entitled to judgment on this claim as a matter of law.

Court adopts the U.S.M.J.’s finding that defendant consented to a search of his backseat during a traffic stop. A soft rifle case was back there, but the seat was not properly in place, and the officer pulled the seat up finding an automatic weapon. United States v. Blankenship, 2007 U.S. Dist. LEXIS 58839 (D. Neb. August 10, 2007).*

Just three days ago, I noted United States v. Camarillo from the District of Oregon wrongly buying into the argument that a dog alert on money was probable cause. It is not probable cause of anything, and cases have been holding that for 20 years, especially since the DEA admitted internally that traces of drugs pass from bill to bill in the money supply by mere contact with money sorting or counting machines or contact with other tainted money. See Andy G. Rickman, Currency Contamination and Drug-sniffing Canines: Should Any Evidentiary Value Be Attached to a Dog’s Alert on Cash?, 85 Ky. L. J. 199, 203-04 (1997) (the Drug Enforcement Administration admitted, first in 1987, that now up to 97% of the United States money supply is tainted by drugs because of the physical and chemical properties of drugs, particularly cocaine, to attach itself to even new money that comes into contact with contaminated money; moreover, once tainted, the money stays tainted, even though it is not drug money at all, and it stays there indefinitely; furthermore, the contamination happens at banks and the Federal Reserve through the mechanized money counting process).

An alternative argument from the UK government was that the neighborhood from which the money came shows it was drug money. A new study there proves that the neighborhood has nothing to do with it.

Law enforcement officials once argued that any trace of illicit substances on seized cash was evidence sufficient to connect a defendant with a drug-related crime. Then, in the mid-1980’s, scientists made it clear that nearly all paper money is contaminated with at least some drug residue. Once that news sunk in, the rules of the game changed. Defense attorneys could argue that a small amount of residue on cash was not sufficient evidence to convict their clients.

In recent trials, people caught with unusually dirty money have tried to wiggle out of trouble by saying that their cash came from a shady neighborhood. They argue that bank notes from bad places are more likely to have a high level of drug residue. Five scientists from Bristol, England, have proven them wrong.

Scientists from Mass Spec Analytical Limited and the University of Bristol traveled all around England, Scotland, and Wales. They collected £10 and £20 notes from areas that are rich and poor, urban and rural, safe and dangerous. Using a machine called a mass spectrometer, the researchers performed a careful chemical analysis of each bill, allowing them to gather statistics on the levels of cocaine, heroin, marijuana, and ecstasy in each bank note and relate those measurements to where it came from.

In the current issue of Forensic Science International, the team led by James F. Carter and Richard Sleeman concluded that there is no meaningful relationship between where a bill came from and the type or amount of drug residue on it. [link in original]

By taking one’s computer in for installation of new hardware, the owner of the computer runs the risk that the installer will accidentally find contraband on the computer. Here, defendant took his computer in for installation of a new DVD burner, and the technician installed the software and then searched for a video to test whether the installation worked, and child porn was found and the police called. Defendant relinquished his expectation of privacy in the computer when he took it in. Commonwealth v. Sodomsky, 2007 PA Super 238; 2007 Pa. Super. LEXIS 2235 (August 9, 2007).*

Encounter between a police officer and a parked car in a parking lot qualified as an investigative detention because the defendant would not feel free to leave because the police car parked to shine its headlights into the passenger compartment. Commonwealth v. Collins, 2007 PA Super 236, 2007 Pa. Super. LEXIS 2232 (August 8, 2007):

[*P13] Under these circumstances, a reasonable person would not feel free to drive away or refuse to answer the trooper’s questions. Trooper Walton had not witnessed any violation of the Motor Vehicle Code or any criminal activity. There was no evidence to suggest that the passengers in the vehicle would have expected a police officer to render aid as the vehicle was legally parked and not disabled. Moreover, while the police cruiser did not block the vehicle’s path as in Mulholland, the positioning of the marked cruiser perpendicular to the vehicle so that its headlights were aimed directly into the passenger compartment would make it difficult for a reasonable driver to believe he was free to terminate the encounter and drive away. Finally, when the trooper, in full uniform, alighted from his marked vehicle, as its headlights continued to illuminate the passenger compartment, and walked toward a vehicle that was legally parked, not disabled and had otherwise broken no laws, and asked if everything is okay, a reasonable occupant of the vehicle would not believe they were free to leave.

Comment: We have seen a few of these cases again lately. The whole issue turns on where and how the police car was parked, and whether it blocked the motorist’s route of departure. That is relevant, but not determinative. Here, the police car was parked perpendicular to the car and the headlights were shining in the windows when the officer approached. Would a reasonable person feel free to leave when the officer encounters him? Can any person tell a police officer questioning him that he doesn’t want to talk and just wants to leave? Hardly. These situations, by their nature, are fraught with apparent control and intimidation by the police. Be realistic: these situations are always inherently coercive, and many courts just accept the prosecution’s argument that the motorist was free to leave without critical analysis or application of common sense. The officer is going to have to communicate that fact first, and all we have is their word unless it is on video.

The defendant’s consent was invalid, but the district court finds that inevitable discovery applies because the investigation had progressed to the point that a search warrant would have been sought and the printer used to counterfeit money would have been seized. United States v. Quinney, 2007 U.S. Dist. LEXIS 58129 (N.D. Ohio August 9, 2007):

. . . In order that the “inevitable discovery” doctrine may be applied, it must be demonstrated by the Government that the evidence inevitably would have been acquired through lawful means had the Government’s misconduct not occurred. As noted by the Defendant, “The exception requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred.” United States v. Eng, 971 F.2d 854, 861 (2nd Cir. 1992), cert. denied, 114 S. Ct. 693. The Defendant also cites in his objections to United States v. Johnson, 22 F.3rd 674 (6th Cir. 1994) (“to excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment.”).

The Magistrate Judge distinguishes the case sub judice from other cases, including Johnson, because in the case at bar the agents had obtained independent evidence that the Defendant here was the printer of the counterfeit currency. That testimony appears from the transcript of the hearing as clear and unequivocal; the testimony revealed that the investigation by the Secret Service had located two witnesses, including Quinney’s own brother, who said the Defendant was the printer of the counterfeit currency.

Based upon a review of the case law and the testimony elicited at the suppression hearing, this Court finds that it agrees with the Magistrate Judge with respect to the inevitable discovery doctrine as applicable to this case. Given the significant experience of the agents and the possession by the agency (and therefore by the agents) of the independent evidence concerning the involvement of Quinney in the printing of the bogus bills, a search warrant would ultimately have been obtained. Therefore, the Court finds that the inevitable discovery doctrine is applicable and that it obviates the application of the exclusionary rule which, in the absence of that doctrine, would have required the exclusion of said evidence.

Comment: This form of inevitable discovery (holding that the investigation was far enough along that a search warrant would have been obtained in any event) always troubles me because it is too easy for the police officers to manufacture what they knew and when they knew it. The government, of course, carries the burden of proof on this issue, so it has to show that: the officers had independent knowledge of the thing seized by the police already existed, they were in the process of actively investigating and looking for it when the seizure actually occurred, and they had probable cause to seize what they were looking for. Only if these conditions are met can they legitimately say: “we would have gotten a search warrant if we didn’t already find it.”

False arrest and false imprisonment are separate torts because they have different elements. Reedy v. Twp. of Cranberry, 2007 U.S. Dist. LEXIS 58221 (W.D. Pa. August 9, 2007):

[U]nlawful seizure, also known as false arrest, and false imprisonment are recognized as separate torts with different elements. The elements of unlawful seizure/false arrest are 1) an arrest made without probable cause or 2) one made by someone without privilege to arrest. The elements of false imprisonment are 1) the detention of another where 2) such detention is unlawful. … The basis for false arrest is the arrest itself, whereas the basis for false imprisonment is the detention that follows the false arrest. Because these causes of action require different elements and protect against different harms, defendants’ attempt to dismiss Count Three is misplaced.

Defendant was accused by a young boy of inappropriate sexual contact, showing him child porn, having child porn in his home, and offering him drugs. That was probable cause to believe that child porn would be found in defendant’s house. A discrepancy between the affidavit and a supplemental police report that showed that the boy saw child porn in defendant’s car instead that came out at the suppression hearing was sufficient to warrant a Franks hearing, too. United States v. Cook, 2007 U.S. Dist. LEXIS 58448 (D. Kan. August 7, 2007)*:

Defendant’s motion to suppress does not expressly allege that there are false statements in the affidavit. The motion only states that the reports of the affiant do not support the allegations he made in the affidavit. At the hearing upon the motion to suppress, however, defense counsel did state that the search warrant affidavit was false. While defendant has provided no affidavits to support this position, he has supplied some proof to support his claim that the search warrant affidavit lacks veracity as to the statements linking pornography to defendant’s residence. While the issue is close, we deem the proof sufficient to warrant a Franks hearing to determine whether that aspect of the search warrant affidavit was truthful.

Court finds that, after agonizing somewhat, that reasonable suspicion did not exist for a traffic stop after the lengthy observation of the activities of the defendant at a motel where he paid in cash. Mindful that Arvizu cautioned against a “divide and conquer” analysis, the court went through every factor asserted as reasonable suspicion and found each was consistent with innocent activity, and, added up, did not amount to much. United States v. Lopez, 2007 U.S. Dist. LEXIS 34173 (D. Kan. April 30, 2007)*:

In this case, unlike the cases cited above, the factors relied on by the government in addition to the exchange are simply not enough, even when viewed in totality, to support a finding of reasonable suspicion. Even when considering that Mr. Lopez was from Texas, had a brief stay at the hotel, paid in cash and waited in the parking lot, there is nothing articulable to indicate that criminal activity might be afoot. There is nothing in the record, such as presence in a high crime area, known criminal history, or an informant’s tip, to take the exchange of the cooler out of the realm of innocent activity. In other words, the court finds no “concrete reasons” supporting an interpretation that the innocent factors in this case amounted to a “suspicious conglomeration.” Thus, the court is not satisfied that, at the time the troopers stopped Mr. Lopez, they had developed a reasonable suspicion rather than mere “inchoate suspicions and unparticularized hunches” to link the cooler or Mr. Lopez to criminal activity. Accordingly, because the traffic stop was not justified at its inception as required under Terry, the court grants Mr. Lopez’s motion to suppress.

Comment: The District of Kansas is always a source of drug courier stops, and this is the first suppression motion I’ve seen granted from there in a long time. Maybe there has been another, but I don’t remember one. Since a warrantless search gets de novo review, we can expect the government to appeal.

Defendant driving a stolen vehicle was found to have standing. He testified at the suppression hearing that he bought the vehicle just before he was arrested and had paperwork to prove it, including the payment book of the original owner. He did not have to transfer ownership with DMV immediately to have standing. United States v. Garcia-Robledo, 488 F. Supp. 2d 50 (D. P.R. 2007):

Thus, in view of the above, Garcia-Robledo had a legitimate presence in the vehicle, had prior use of the vehicle, was in control of the Ford F-250 the day of the incident, was in possession of the vehicle, and had the ability to exclude others’ use of the property.

In turn, the government contends the vehicle in question was reported stolen in April 2006 and, thus, Garcia-Robledo had no reasonable expectation of privacy. Nonetheless, no credible evidence was presented that Garcia-Robledo had any knowledge at the time he purchased the vehicle that the Ford F-250 vehicle was stolen.

Although the manner in which Garcia-Robledo bought the car may be unconventional, inasmuch as the vehicle’s registration was not promptly transferred to his name, Garcia-Robledo provided a credible explanation as to why this was not done. Garcia-Robledo explained he would not qualify for a loan of the Ford F-250 vehicle or to assume the lease because his credit was not enough. …

Defendant’s effort to conceal a box during a traffic stop justified a patdown. United States v. Valdivia, 2007 U.S. Dist. LEXIS 34187 (D. Neb. May 9, 2007).*

Terry weapons search was admitted by the officer to be for “drugs or weapons” so it was unreasonable. State v. Hackett, 2007 Ohio 1868, 171 Ohio App. 3d 235, 870 N.E.2d 235 (6th Dist. 2007):

… The rationale for a protective search, however, becomes attenuated with successive searches. See Jackson v. State (Ind. App. 2003), 785 N.E. 2d 615, 620. Police are not entitled to “unlimited bites of the apple.” U.S. v. Davis (C.A. 6, 2005), 430 F.3d 345, 357.

Here, the detective testified that the purpose of the search was to “find drugs *** or weapons.” A protective search for weapons during an investigative search is acceptable to a point. When the use of multiple protective searches exceeds the rationale behind a Terry-type investigation it becomes unreasonable. Jackson at 621. Officers exceeded the scope of a protective search under Terry when they conducted multiple warrantless searches of appellant.

Defendant was given her paperwork back after a traffic stop and had her hands on the steering wheel, which suggests that she knew she was free to leave, when the officer asked if he could ask some questions, and she stayed and answered them. Reasonable suspicion then developed. United States v. Loera, 2007 U.S. Dist. LEXIS 29112 (N.D. Ind. April 16, 2007):

He gave Bennett a warning ticket and turned away from the car. According to Carmin, Bennett had her hands on the wheel and was ready to leave, thus suggesting that she thought she was free to go. Carmin then asked for permission to ask some additional questions, and Bennett consented. The second round of questioning, although unrelated to the traffic stop, was permissible and did not unreasonably prolong the stop. More importantly, Bennett voluntarily consented to the further questioning after she believed she was free to leave. See United States v. Finke, 85 F.3d 1275, 1281 (7th Cir. 1996) (encounter becomes consensual when a reasonable person would have believed he was free to go thus permitting questions unrelated to traffic stop); United States v. Rivera, 906 F.2d 319, 323 (7th Cir. 1990) (finding consent was voluntary where defendant was given written warning, identification and cue to leave).

Comment: I’ve said this before, so I’ll keep it short here: I cannot accept that it is objectively reasonable that a person can ignore a police officer talking to him or her during a stop, even if the paperwork has been returned. Our social convention is that we respond, not ignore the officer and drive off, because we would be in fear of either disrepecting the officer or committing a further violation. The blue lights are still on, albeit for safety reasons. No reasonable person could objectively feel free to leave. This is a legal fiction, and the courts might just as well admit it.

Officer’s testimony that defendant admitted to having a gun in the car and that the officer could smell marijuana was credited over the occupants of the car, and that justified the search. United States v. Watson, 2007 U.S. Dist. LEXIS 29074 (D. Neb. April 17, 2007).*

Plaintiff was stopped on a train platform because she resembled a female suspect in an earlier robbery by five youths on a train. The officer making the stop had a still photo from a video of the robbery, and the plaintiff was being viewed on CCTV and was dressed like the female suspect, including a ponytail. She stated a claim for unreasonable detention that was factbound enough to defeat qualified immunity. Williams v. Rosentreter, 2007 U.S. Dist. LEXIS 29106 (D. Ore. April 16, 2007).*

Iowa drug tax administrative search warrant was void because it did not state why there was a need for a jeopardy assessment, following Adams v. State, 762 N.E.2d 737, 744 (Ind. 2002). The defendant succeeded in suppressing the search in the underlying criminal case, and the tax assessment followed. The court did not hold the statute unconstitutional because there was another possible interpretation to save it. State v. Carter, 733 N.W.2d 333 (Iowa Sup. 2007).*

The defendant was stopped before Canadian customs in the Detroit-Windsor tunnel and asked about whether defendant knew of the reporting requirement when taking more than $10,000 in cash without filing a report. Defendant said he was going to the Windsor casino and had only $300 on him. The officer told him again about the reporting requirement, and defendant again denied having more than $10,000 on him. The defendant’s demeanor made the officer send him to secondary inspection, where $171,000 was found. The stop was valid. United States v. Alinj, 2007 U.S. Dist. LEXIS 14054 (E.D. Mich. January 30, 2007).

Smell of marijuana from passenger compartment after an uncorroborated BOLO and a valid traffic stop coupled with furtive movements gave cause to search the interior and the trunk. Kimball v. State, 951 So. 2d 35 (1st Dist. 2007).

Affidavit for search warrant justified a search of two residences owned by defendant next to each other for computers with child pornography on them. They were easily transportable and could have been in either or both buildings. State v. Samson, 2007 ME 33, 916 A.2d 977 (2007):

[*P18] Here, as the trial court observed, it would have been better practice had the detective clarified in the affidavit how the events were connected to each of Samson’s residences, described why he believed the computers and other electronics might be found in both homes, and articulated that Samson had control over both residences. However, the evidence and instrumentalities sought were easily transportable, the residences to be searched were close enough to facilitate transfer of evidence from one place to the other, and the suspect was alleged to have owned both buildings. A common sense reading of the affidavit supports the inference that the police were likely to find evidence of the collection and production of sexually explicit images of minors in both buildings. Thus, when viewed under the totality of the circumstances, the affidavit sets forth sufficient probable cause to justify the searches of both residences. Therefore, we affirm the trial court’s denial of Samson’s first motion to suppress.

Defendant consented to a search after a traffic stop, and that consent permitted officer to remove a hidden panel he discovered. United States v. Dillon, 223 Fed. Appx. 687 (9th Cir. 2007)* (unpublished).

Prevailing officers in § 1983 jury trial over an alleged illegal search were not entitled to attorneys fees under 42 U.S.C. § 1988. Miller v. City of Tooele, 2007 U.S. Dist. LEXIS 14673 (D. Utah March 1, 2007):

Similarly, Defendant Hewitt’s directed verdict does not justify awarding attorneys’ fees. Joining Defendant Niesporek arguments, Defendant Hewitt has previously moved for summary judgment and the court denied the motions. (July 27, 2005 Order & Mem. Dec. (dkt. # 38); Aug. 14, 2006 Am. Order & Mem. Dec. (dkt. # 104).) During trial, the court granted Defendant Hewitt’s motion for a directed verdict because Mr. Miller did not offer evidence that Defendant Hewitt personally violated the Fourth Amendment. But a directed verdict does not establish that Mr. Miller’s claims qualify as “vexatious, frivolous, or brought to harass.” Hensley, 461 U.S. at 429 n.2. The court finds that Defendant Hewitt does not satisfy the substantial burden to merit attorneys’ fees.

The right to file a motion to reconsider does not give the parties the right to seek new grounds for relief. United States v. Loya, 2007 U.S. Dist. LEXIS 14704 (D. Neb. February 28, 2007):

My order denying the defendants’ motion to suppress is not a final judgment, and therefore I am free to reconsider it. See, e.g., Thomas v. Arn, 474 U.S. 140, 154 (1985); United States v. Torres-Luna, No. 06-CR-72-LRR, 2006 WL 3254538, at *2 (N.D. Iowa 2006); Rouse v. United States, 359 F.2d 1014, 1015-16 (D.C. Cir. 1966) (“A pre-trial ruling on a motion to suppress does not bind the trial judge in all circumstances.”). However, the fact that I have the authority to reconsider a motion to suppress does not mean that the parties have unfettered leave to raise untimely arguments concerning the motion. On the contrary, the Federal Rules of Criminal Procedure provide,

“A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver.”

Fed. R. Crim. P. 12(e). See also Fed. R. Crim. P. 12(b)(3)(C) (listing “a motion to suppress evidence”); United States v. Looking, 156 F.3d 803, 809-10 (8th Cir. 1998) (holding that “the district court did not abuse its discretion in denying defendant’s [untimely] motion to amend [his motion to suppress] and deem[ing] defendant’s involuntariness argument waived”). Nor are parties given unlimited time to file objections to a magistrate judge’s report and recommendation. See 28 U.S.C. § 636(b)(1) (providing that parties are given ten days to object to a magistrate judge’s recommendation); NeCrimR. 57.3 (same); Fed. R. Crim. P. 59(b)(2) (“Failure to object in accordance with this rule waives a party’s right to review.”). In short, a party seeking to reopen argument on a motion to suppress must present me with a good reason for exercising my discretion to do so.

The scope of a warrantless search based on consent, express or implied, is controlled by the suspect. If the officers exceed the scope of the consent, that part is invalid. State v. Poulton, 37 Kan. App. 2d 299, 152 P.3d 678 (2007).

“[W]here an officer smells a strong odor of burnt marijuana coming from inside a stopped automobile; the driver admitted that his passenger had smoked marijuana in the car; and marijuana was found in the possession of the passenger, the officer had probable cause to search the driver for possession of drugs. When these facts are coupled with the exigencies of being alone with two suspects and confronted with the real possibility of the loss of evidence, the circumstances of this case support the warrantless search performed, and the district court properly denied the motion to suppress.” [syllabus by the court] State v. Fewell, 37 Kan. App. 2d 283, 152 P.3d 1249 (2007).*

Police asked for consent three times to search defendant’s home while investigating odor of marijuana and they were refused by the defendant, but he finally relented because they said they would get a search warrant if he did not cooperate. That made the consent invalid. But, because there was probable cause, inevitable discovery allowed its admission into evidence. State v. Thompson, 37 Kan. App. 2d 589, 155 P.3d 724 (2007):

In Brown, the Kansas Supreme Court upheld the admission of evidence obtained without a warrant. The court held that Brown’s consent was not coerced when officers gave him the option of consenting and being searched at that time or waiting for a warrant, because the officers had sufficient probable cause to obtain the warrant. Brown, 245 Kan. at 613. The court appears to have upheld the admission of the evidence on both grounds. Because there was sufficient probable cause for the police to secure a warrant and they were in the process of obtaining the warrant, the evidence discovered on Brown would have inevitably been discovered. Additionally, because the police had sufficient probable cause to obtain a warrant, they did not impermissibly threaten him by stating they were applying for a warrant. 245 Kan. at 612-13.

The essential facts in the instant case are similar and require the same result as Brown as regards to inevitable discovery. There was enough probable cause to obtain a search warrant which would have led to the inevitable discovery of the evidence.

Comment: This is a screwy case that is just wrong. In the mind of this court, the fact they had probable cause and could have obtained a warrant excuses the fact that they did not obtain a warrant. The outcome here, then, nullifies the warrant requirement because the police can, at least in Kansas, argue that they could have gotten a warrant, therefore, their illegal entry into the house is excused under inevitable discovery. Therefore, is there no need to procure search warrants in Kansas if there is only probable cause? It also misapplies the inevitable discovery exception because there was no showing that the police where actively doing what they were supposed to do.

The affidavit failed to show a nexus between the crime and the place to be searched, so the warrant was invalid. But, it was saved by the good faith exception because none of the four exceptions applied. State v. Malm, 37 Kan. App. 2d 532, 154 P.3d 1154 (2007).*

Search of the trunk of defendant’s car was valid under search incident. United States v. Brown, 223 Fed. Appx. 245 (4th Cir. 2007)* (unpublished) (An Anders brief was filed, and defendant raised this issue himself.)

Eviction pursuant to a valid state court order was not an unlawful search and seizure. Sinclair v. United States, 2007 U.S. Dist. LEXIS 25583 (W.D. Mich. April 5, 2007).*

COA denied on a habeas claim which sought to raise a search and seizure claim that had been litigated to conclusion at every level of the state court proceedings. Hyde v. Brokofsky, 2007 U.S. Dist. LEXIS 25640 (D. Neb. April 5, 2007).*

Defendant’s argument that the state traffic law on readability of license plates that was used for his stop was so vague as to be unconstitutional and that officers could arbitrarily arrest did not have any effect on the legality of his stop and search under the Fourth Amendment. The question under Krull v. Illinois is whether the officers acted in good faith reliance on the statute. United States v. Cardenas-Alatorre, 485 F.3d 1111 (10th Cir. 2007):

The Supreme Court has repeatedly instructed that the exclusionary rule ought not to be deployed when officers act in good faith–that is, in “objectively reasonable reliance” upon a statute–even though the statute ultimately may be found unconstitutional. Krull, 480 U.S. at 355; see also United States v. Leon, 468 U.S. 897 (1984). The rationale animating the good faith exception is, we are told, in harmony with the underlying purpose of the exclusionary rule, for if “the officer is acting as a reasonable officer would and should act in similar circumstances[, e]xcluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty.” Leon, 468 U.S. at 920 (internal quotation omitted).

We find this exception applicable and dispositive here. Even assuming (without deciding) that Mr. Cardenas-Alatorre is correct that the New Mexico statute is unconstitutional as applied to him, we are unable to conclude that Deputy Roth acted in an objectively unreasonable manner. …

Defendant was driving a convertible with the top down on a cold December day and he accelerated away from the police officer as he passed him. Various other factors led to reasonable suspicion. Morris v. Dean, 223 Fed. Appx. 937 (11th Cir. 2007)* (unpublished).

Plaintiffs’ motion for new trial in an illegal search case is granted because of likely jury confusion on the instructions concerning the search of plaintiffs’ home. Reasonableness of the method of search did not equate with whether it was reasonable at its inception. Goff v. Carpenter, 2007 U.S. Dist. LEXIS 33178 (W.D. Ark. May 4, 2007)*:

Given the pervasive focus on reasonableness in the Instructions, the Court agrees with plaintiffs that Instruction 10a had the potential to create confusion in the minds of the jurors. The only liability issue in the Interrogatories on the Verdict was whether the defendants violated the right to be secure against “unreasonable searches.” Instruction 10 told the jury that plaintiffs had the burden of proving that a search of their home occurred, but also stated that it was not plaintiffs’ burden to prove that any such search was unreasonable–because the search of a person’s home without a warrant is presumed to be unreasonable. Thus, Instruction 10 incorporated a legal proposition based on what the evidence indisputably showed–that there was no warrant associated with the events alleged by plaintiffs to have constituted a search of their home.

The immediately following Instruction 10a then told the jury that there were things they could not consider when deciding whether the defendants’ conduct was reasonable. This instruction could reasonably have implied to the jury–or permitted them to reasonably infer–that in determining whether a search of plaintiffs’ home had occurred, they should evaluate the reasonableness of defendants’ actions at the time of the alleged search. Such an implication and/or inference would be erroneous and could be unfairly prejudicial to plaintiffs.

The police made an exigent circumstances based entry which the Magistrate found wanting, and, even if there was some exigency, the police overstayed the need for any entry. While inside, they saw a computer which they seized after re-entering. The District Judge affirmed the suppression order. United States v. Sikut, 488 F. Supp. 2d 291 (W.D. N.Y. 2007):

Even if the Court were to assume arguendo that exigent circumstances were present making the officers’ initial entry into the apartment legal and that the officers’ arrest of the defendant based on both his harassing conduct towards them and his outstanding warrants was proper, suppression would still be required because there was no legal justification for the officers to re-enter the apartment after the arrest for the purpose of conducting a warrantless search of defendant’s brief case, computer case or computer. At that point, any exigency had dissipated. The defendant had been arrested and removed from the apartment. If the officers then had probable cause to believe there was evidence of a crime remaining in the apartment, they should have made an application for a search warrant. Having failed to do so, they violated defendant’s Fourth Amendment right against unreasonable search and seizure, the remedy for which is suppression.

First time confidential informant provided sufficient information that was corroborated to create a fair probability that evidence would be found in the place to be searched. United States v. Montes-Medina, 2007 U.S. Dist. LEXIS 36105 (D. Neb. May 16, 2007).*

Entry onto land was supported by reasonable suspicion developed during surveillance, and defendant consented after that. United States v. Del Val, 223 Fed. Appx. 963 (11th Cir. 2007)* (unpublished).

Plaintiff showed a sufficient fact dispute that the officer used excessive force in striking her decedent with a blunt object while he was unarmed and being attacked by a trained police dog. Taylor v. Dean, 2007 U.S. Dist. LEXIS 36089 (M.D. Fla. May 17, 2007).*

In a case where the plaintiff was able to keep one defendant in the case because of false arrest, the county was able to get out because the plaintiff failed to show a policy led to the incarceration. Wolk v. Seminole County, 2007 U.S. Dist. LEXIS 36203 (M.D. Fla. May 17, 2007).*

Reliance on an ADA who said that the use of a drug dog on money that ended up being seized was objectively reasonable and gave qualified immunity. Leventry v. Watts, 2007 U.S. Dist. LEXIS 36256 (W.D. Pa. May 17, 2007).*

Preliminary injunction granted against obtaining e-mail records without notice to the subscriber under the Stored Communications Act. Warshak v. United States, 2006 U.S. Dist. LEXIS 96390 (S.D. Ohio July 21, 2006):

While emails sent through and stored on the servers of commercial ISPs are obviously distinguishable in many respects from both sealed letters and postcards physically mailed via public or private carrier, the letter analogy appears — on the limited evidence presently before the Court — to be more apt. As Warshak persuasively argues:

[I]n the case of email, the subscriber perhaps maintains more control over the email lettter than in any other traditional third party carrier context. In the latter scenarios, the sender or receiver of a closed letter or package actually relinquishes control of the container and cannot immediately repossess the letter or package — it is in the physical possession of the postal carrier and/or common carrier outside the dominion and control of the sender or recipient. In the email context, the owner of the email can repossess a read-and-then-closed email at any moment, without any notice or permission from the ISP, can retake the email, delete the email from his mailbox, or do what she wants to do with the email ….

(Doc. # 11 at 10 (emphasis added).) The United States has asserted in its papers and at oral argument that the privacy expectations attributed to letters entrusted to third-party carriers are inapposite to emails entrusted to commercial ISPs, because ISPs and individual account holders routinely both reserve and exercise rights to open, delete, or turn over personal emails to law enforcement. As the parties noted at oral argument, however, the terms of service governing email accounts can vary from ISP to ISP. At oral argument, Warshak also challenged the United States’ assertion that ISPs routinely “access” the emails in their subscribers’ individual accounts in any meaningful Fourth Amendment sense. Although Warshak did not appear to contest the United States’ more specific assertion that ISPs can and do screen emails for objectively damaging or illegal content such as viruses or child pornography, 10 he strenuously disputed the presumption that employees of commercial ISPs open and read — or their subscribers reasonably expect them to open and read — individual subscriber emails as a matter of course.

. . .

While the Court is prepared to reconsider its views upon the presentation of further evidence on these points, it is not persuaded — as an initial matter — that an individual surrenders his reasonable expectation of privacy in his personal emails once he allows those emails (or electronic copies thereof) to be stored on a subscriber account maintained on the server of a commercial ISP. 11 As such, the Court finds that Warshak has shown a substantial likelihood of success on the merits of his Fourth Amendment claim. The first factor of the preliminary injunction test thus weighs in favor of relief. Deja Vu, 274 F.3d at 400.

Taxicab that defendant was riding in was not validly stopped. There was neither a traffic offense nor reasonable suspicion justifying a stop. Also, the officers claimed there was a “TRIP” decal in the rear window that the taxicab was subject to random stops. Being in the back window does not put a passenger on notice. United States v. Stewart, 2007 U.S. Dist. LEXIS 45883 (S.D. N.Y. June 13, 2007):

Taxicabs approach customers from significant distances, at significant speeds, at different times of day and night, and in different neighborhoods, with different apprehensions of danger. Passengers do not have time to reflect on the decals adorning the taxicab.

There was no proof that Stewart saw the decals or otherwise surrendered his reasonable expectation of privacy given to him by state and federal law when he entered Jimenez’s taxicab. Again, there was no proof that Officers Torres and Regnier were aware of, or saw, any TRIP decals. Nor was there proof that the owner of Jimenez’s taxicab, or Jimenez, had enrolled in the program or, if either had enrolled, that he had maintained his enrollment. Thus, the two cases that uphold a TRIP stop do not apply. See Woodrum, 202 F.3d at 5(police “aware of the decals” affixed to taxicab); Abad, 98 N.Y.2d at 15 (officers “saw a TRIP decal on [the] vehicle” before commencing stop); United States v. Harrell, 268 F.3d 141, 149 n.3 (2d Cir. 2001) (justification based upon observation of traffic violation would turn upon whether the officer “noticed … the [violation] before he stopped the car”). After-the-fact justifications cannot justify an unauthorized stop. See Swindle, 407 F.3d at 569; United States v. Como, 340 F.2d 891, 893 (2d Cir. 1965).

A civil claim for false arrest under § 1983 can be defeated by actual probable cause or “arguable probable cause.” “Furthermore, in the context of qualified immunity analysis, the issue is not whether actual probable cause existed but instead whether there was ‘arguable probable cause’ for the plaintiffs arrest. See Davis v. Williams, 451 F.3d 759, 762-63 (11th Cir. 2006)(stating that in the context of a claim for false arrest, an officer is entitled to qualified immunity where that officer had ‘arguable probable cause’ to effectuate the arrest).” Whittington v. Town of Surfside, 490 F. Supp. 2d 1239 (S.D. Fla. 2007).*

An arrest in Oklahoma by Arkansas officials on an Arkansas arrest warrant violated the laws of both states, and, while a violation of state law may not be a constitutional violation, it could still be unreasonable, and that would make it violate the Fourth Amendment. Therefore, plaintiff’s case should proceed to trial. Engleman v. Ferguson, 2007 U.S. Dist. LEXIS 23287 (W.D. Ark. March 28, 2007).

Officers had no reasonable suspicion when they approached defendant and ordered him to take his hands out of his pockets. They could articulate no reason other than officer safety, but having one’s hands in pockets is not suspicious conduct. State v. Hamilton, 2007 Tenn. Crim. App. LEXIS 278 (March 29, 2007).*

Defendant’s removal from a Greyhound bus in New Mexico was by consent. The officer got on the bus and asked about citizenship, and defendant said he was naturalized, and he began to sweat profusely. The officer asked or told him to get off the bus so they could talk, and the district court credited the officer’s version that it was consensual. Reasonable suspicion developed for a patdown which produced drugs taped to defendant’s body. United States v. Rodriguez-Lopez, 222 Fed. Appx. 784 (10th Cir. 2007)* (unpublished).

Defendant signed a Fourth Amendment waiver after conviction in state court. Then, he was investigated for a drug offense. The court never had to reach the blanket waiver issue because the district court found that the search was by consent that day and that the finding was not clearly erroneous. United States v. Brown, 223 Fed. Appx. 875 (11th Cir. 2007)* (unpublished).

There is no reasonable expectation of privacy in not having a law enforcement officer look through a car’s windows while it is parked on a hotel parking lot. The officer used a flashlight to see through the tinting and saw crack cocaine in baggies on the seat. State v. Battle, 2007 Tenn. Crim. App. LEXIS 276 (March 29, 2007).*

The Eighth Circuit clarifies its cases, not in an en banc opinion, and holds that three brief questions during a valid traffic stop is not unreasonable, even though one of them was about carrying drugs. Dog sniff while waiting for a response from the dispatcher was not unreasonable. Even Hudson is invoked. United States v. Olivera-Mendez, 2007 U.S. App. LEXIS 10492 (8th Cir. May 4, 2007):

Some of our cases appear to say that merely asking an off-topic question during an otherwise lawful traffic stop violates the Fourth Amendment, United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994); United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993), but this view does not survive Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). In Muehler, the Supreme Court reiterated that “mere police questioning does not constitute a seizure,” id. at 101 (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)), and rejected the suggestion that questioning on a matter unrelated to the purpose of a detention constituted a “discrete Fourth Amendment event.” Id. at 100-01. Where the initial detention was not prolonged by questioning on unrelated matters, “there was no additional seizure within the meaning of the Fourth Amendment.” Id. at 101. See also United States v. Shabazz, 993 F.2d 431, 436-437 (5th Cir. 1993).

Muehler does not address whether questions unrelated to the initial purpose of a detention may constitute an unlawful seizure if they extend the length of the detention. Three circuits have held that where a seizure of a person is based on probable cause to believe that a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc); but cf. United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir. 1999). The rationale for this conclusion was stated most thoroughly by the en banc Seventh Circuit, which reasoned that in contrast to the constraints applicable to a stop based merely on reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Fourth Amendment does not require the release of a person seized with probable cause “at the earliest moment that step can be accomplished,” and that “[q]uestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention.” Childs, 277 F.3d at 953-54. See Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) (“We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop.”). The police here had probable cause to seize Olivera-Mendez for driving at an excessive speed, and we do not think Kolz effected an unreasonable seizure simply by asking three brief questions related to possible drug trafficking amidst his other traffic-related inquiries and tasks.

Assuming for the sake of argument, however, that it was unreasonable for Kolz to extend the stop by twenty-five seconds unless he had reasonable suspicion to ask questions about drug-related activity, we hold alternatively that evidence seized from Olivera-Mendez should not be suppressed. Evidence should not be excluded from trial based on a constitutional violation unless the illegality is at least a but-for cause of obtaining the evidence. Hudson v. Michigan, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56 (2006); Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). There is no basis on this record to conclude that Kolz’s brief and fruitless inquiries about drugs during the course of an otherwise lawful traffic stop led to discovery of the cocaine.

Third Circuit belittles motions to suppress search warrants holding that the good faith exception will ordinary cure any problem with a warrant, and the reviewing court should consider good faith and not bother with the merits. United States v. Primo, 223 Fed. Appx. 187 (3d Cir. 2007) (unpublished):

In a case such as this, where “a suppression motion poses no Fourth Amendment question of broad import,” it is “prudent [*5] for a reviewing court to immediately turn to the question of whether the officers acted in good faith.” Gates, 462 U.S. at 265 (White, J., concurring in the judgment); see United States v. $92,422.57, 307 F.3d 137, 145 (3d Cir. 2002); see also United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) (“Principles of judicial restraint … dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter.”). We will therefore limit our analysis to the dispositive question of “whether a reasonably well trained officer would have known that the search[es] [were] illegal despite the magistrate’s authorization.” Loy, 191 F.3d at 367.

Under our cases, the mere “fact that an officer executes a search pursuant to a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception.” $92,422.57, 307 F.3d at 146 (internal quotation omitted). Indeed, we have identified only “four narrow situations,” id., in which suppression is appropriate:

“(1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit.

(2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function.

(3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

(4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.”

Williams, 3 F.3d at 74 n.4 (citations omitted).

Primo does not specifically argue that any of these “narrow situations” applies here. In fact, his brief does not mention Leon’s good-faith exception. Our own independent review of the record confirms that the Somerset police officers acted in good-faith reliance on the District Justice’s issuance of the four warrants in question. The record contains no indicia of deliberate or reckless falsities in the affidavits. The District Justice appears to have performed his neutral and detached function. The affidavits contain sufficient indicia of probable cause. And none of the four warrants is “so facially deficient that it failed to particularize the place to be searched or the things to be seized.” See id. In short, the Somerset police reasonably relied on the authority of the four search warrants, and the District Court’s denial of Primo’s suppression motion was proper.

The officer in this case followed the defendant to his home suspecting that the defendant was DUI. The defendant pulled into his garage and went into his home as the officer pulled up behind him. The officer entered without seeking a telephone or radio warrant, which was possible under state law. The officer was not in hot pursuit, and the mere dissipation of alcohol is not exigent circumstances without hot pursuit. Sapen v. State, 869 N.E.2d 1273 (Ind. App. 2007):

In this case, Sapen walked into his home with permission. Captain Holmes did not order him to stop. Thus, Captain Holmes was not in “hot pursuit” that might have justified his warrantless entry to Sapen’s home. It is also clear that Captain Holmes could have obtained a telephonic warrant prior to entering Sapen’s home, but he did not. Indiana Code Section 35-33-5-8(a)(2) allows for the issuance of a search warrant “orally by telephone or radio.” In Timmons, we observed that the “telephonic warrant statute was intended to encourage the procurement of warrants in situations involving exigent circumstances, when a warrant might not otherwise be sought.” 723 N.E.2d at 920. And, although dissipation of alcohol without more does not constitute exigent circumstances to support a warrantless home entry, see Straub, 749 N.E.2d at 593 (involving alcohol dissipation plus flight), we think the provisions of our telephonic warrant statute might nevertheless be useful and lessen the need for warrantless searches in some instances when the metabolic destruction of evidence is at issue.

Comment: The most and highly significant part of this case is the last quoted sentence: The availability of a telephonic or radio warrant for entry into the home apparently increases the burden on the police to avail themselves of that procedure. Defense counsel have yet another case to support the proposition that a telephonic warrants statute puts the burden on the police to get a warrant, particularly since the Fourth Amendment has a clear preference for searches with a warrant. See United States v. Ventresca, 380 U.S. 102, 106 (1965):

In Jones v. United States, 362 U.S. 257, 270, this Court, strongly supporting the preference to be accorded searches under a warrant, indicated that in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall. In Johnson v. United States, 333 U.S. 10, and Chapman v. United States, 365 U.S. 610, the Court, in condemning searches by officers who invaded premises without a warrant, plainly intimated that had the proper course of obtaining a warrant from a magistrate been followed and had the magistrate on the same evidence available to the police made a finding of probable cause, the search under the warrant would have been sustained. Mr. Justice Jackson stated for the Court in Johnson:

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” Johnson v. United States, supra, at 13-14.

Police SWAT drug raid on wrong house first and handcuffing occupants stated a claim for relief and overcame summary judgment claim because reasonableness was partially a question of fact. Smith v. City of Jacksonville, 2007 U.S. Dist. LEXIS 35640 (E.D. Ark. May 15, 2007):

The Eighth Circuit Court of Appeals has cautioned in a case involving the mistaken execution of a valid warrant on the wrong premises, “the Fourth Amendment’s allowance for officers’ honest mistakes is limited to mistakes that are objectively reasonable.” Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995) citing, Maryland v. Garrison, 480 U.S. 79, 87 & n. 11, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). In Dawkins, the Court concluded that “the execution of a valid warrant on the wrong premises violates the Fourth Amendment if the officers should know the premises searched are not the premises described in the warrant, i.e., the officers’ mistake is not objectively reasonable.” Id.

The Court finds that a question of fact exists as to whether the officers’ mistake was objectively reasonable in this case. Officers Slash, Erickson, Keefer and Corben entered Plaintiffs’ home after a briefing in which the target home at 104 Overland was described. As set forth above, the residence at 104 and 108 were distinctly different. Further, Plaintiffs present evidence that as the officers approached the residence other officers recognized the mistake and yelled out “wrong house.” Detective Hibbs also entered Plaintiffs’ home after his participation in the detention of Brian Smith and Todd Conley. Hibbs wrote in his statement that he “noticed the house had a carport, not supposed to” and still walked in. Officers Lett and Chapman did not enter Plaintiffs’ home, but Plaintiffs argue that their conduct in recognizing that the other officers were entering the wrong home, yet not stopping or warning them, caused the Plaintiffs to be subjected to a violation of their constitutional rights. The Court finds that questions of fact exist as to whether Lett and Chapman violated Plaintiffs’ constitutional rights by their failure to intervene. Considering the evidence in the light most favorable to the Plaintiffs, the Court concludes that the Plaintiffs have presented sufficient evidence to create a genuine issue of material fact as to their unreasonable search claims.

ICE officers stopped car with a boat on a trailer in Northwest Washington with reasonable suspicion that the boat had crossed the border without having checked in, and that justified their stop. The basic questions added to reasonable suspicion. United States v. Wong, 2007 U.S. Dist. LEXIS 35839 (W.D. Wash. May 16, 2007)*:

The boat’s driver, Defendant Ho, did not enter the United States at the port of entry at Port Angeles, but instead made entry at the Freshwater Bay Marina without making the required contact with immigration officials prior to landing in the United States. The earlier surveillance of the defendants as described at the suppression hearing, the defendants’ entry into the United States without reporting at an area other than a port of entry, the defendants’ conflicting stories about what they were doing, together with the experience of the agents involved is sufficient to conclude that under the totality of the circumstances, the agents had a reasonable suspicion of criminal activity sufficient to conduct a border search.

Officers’ arrest of the plaintiff was with probable cause, although he was not the bank robber they were looking for, and that defeats his claim for summary judgment. Godette v. Stanley, 490 F. Supp. 2d 72 (D. Mass. 2007).*

Officers’ having a list of items to be seized which came from the warrant satisfied reasonableness of the warrant. They also made an inventory for defendant. United States v. Makki, 2007 U.S. Dist. LEXIS 35678 (E.D. Mich. May 16, 2007).*

NYPD officers had reasonable suspicion for drug stop after surveillance in Queens, and that gives them qualified immunity. Sutton v. Duguid, 2007 U.S. Dist. LEXIS 35853 (E.D. N.Y. May 16, 2007).*

Defendant’s prior history of arrests shows familiarity with the criminal justice system, and it weighs in favor of the voluntariness of his consent to search. State v. Riels, 2007 Tenn. LEXIS 358 (March 1, 2007).*

Plaintiff’s subjective belief that he was restrained was not the question; rather, what do the objective facts show. Monroe v. City of Charlottesville, 2007 U.S. Dist. LEXIS 28231 (W.D. Va. April 17, 2007).*

Classroom searches for stolen money was valid, but strip searches in bathrooms for the money were not. H.Y. v. Russell County Bd. Of Educ., 490 F. Supp. 2d 1174 (M.D. Ala. 2007).*

Plain view of crack after a traffic stop was valid. United States v. Gill, 2007 U.S. Dist. LEXIS 28019 (W.D. Mo. April 16, 2007).*

Defendant’s conduct was more than mere nervousness and that was reasonable suspicion. United States v. Davis, 2007 U.S. Dist. LEXIS 27935 (E.D. La. April 13, 2007)*:

Beyond the mere nervousness and travel plan inconsistencies in Dortch, and the inconsistent statements and prior arrest in Jones, the present case involves a confluence of factors that, as in Gonzales and Powell, gave rise to reasonable suspicion and a proper tailored inquiry regarding possible drug trafficking activity. Based on the officer’s knowledge and experience n9 and in light of the totality of the circumstances, the Court finds that the numerous facts articulated by Neihaus gave rise to a reasonable suspicion that Davis may have been involved in drug trafficking. While 40 minutes elapsed before the canine unit arrived, “There is … no constitutional stopwatch on traffic stops.” Brigham, 382 F.3d at 511. The Court concludes that Davis’s continued detention did not violate the Fourth Amendment.

Defendant was arrested at his house after police entered. They saw him at the top of the stairs and ordered him to come down the stairs, which he did. Officers then went upstairs and searched. The upstairs could not be searched incident to his arrest because he left the area, and no justification was shown for a need for a protective sweep of the upstairs (which one deputy admitted in his testimony). State v. McGrane, 733 N.W.2d 671 (Iowa Sup. 2007).

Defendant was being watched by the police and had traveled from California to Arkansas and was believed to be collecting drug debts. They had reasonable suspicion for his stop based on several factors about money movements, and the incriminating nature of a wad of money ($11k) in his pocket was immediately apparent. United States v. Collins, 2007 U.S. App. LEXIS 14134 (8th Cir. June 14, 2007)* (unpublished).

Stop did not occur when officers got out of their police car to talk to the defendant. Over the course of the brief discussion, however, they reasonably suspected that he might have a gun on him, and he was patted down. The frisk constituted a seizure, but it was reasonable. While carrying a concealed weapon is not a crime in Massachusetts, various factors may indicate a crime in the making. “Here the Officers relied on additional factors to form their reasonable suspicion that the defendant was carrying an illegal gun. The defendant was in a high crime area shortly after midnight and walking with a ‘straight arm’ gait. Most persuasively, the defendant continually attempted to hide his pocket from the officers’ view. When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop.” Commonwealth v. Depeiza, 449 Mass. 367, 868 N.E.2d 90 (2007).* (Comment: Apparently “acting funny” in a high crime area is reasonable suspicion in Massachusetts, which is overrationalization to get out from under the fact that a mere concealed weapon is not a crime; it is the potential intent to use it, e.g., being seen loading one in a high crime area at 2 a.m. as stated in one of the cases relied upon by the court.)

Officers had a search warrant for drugs and found a safe in the premises. They induced the defendant to open it under threat of breaking into it. Consent is not an issue because the warrant authorized entry. United States v. Carlisle, 2007 U.S. Dist. LEXIS 46692 (N.D. Ind. June 26, 2007).

Police surveilled the defendant and had probable cause to believe that defendant and his car were involved in a crime. On his arrest, a search incident of the car validly led to seizure of a piece of paper with handwritten notations and a cellular phone SIM card. United States v. Tribble, 2007 U.S. Dist. LEXIS 46920 (E.D. N.Y. June 28, 2007).

Defendant’s guilty plea and fact he would lose on merits cut off ineffective assistance claim. Washington v. United States, 2007 U.S. Dist. LEXIS 46917 (W.D. Tex. June 28, 2007).*

Plaintiff’s arrest for breach of the peace after a neighbor’s 911 call about the occupants of his house being highly intoxicated and arguing was justified and summary judgment was granted. Engwer v. Sims, 2007 U.S. Dist. LEXIS 46826 (D. S.C. June 26, 2007).*

Plaintiff’s delay in bringing his search claim until after his conviction was set aside was time barred because it was not facially barred by Heck. D’Angelo v. Kirschner, 2007 U.S. Dist. LEXIS 46698 (D. Conn. June 26, 2007).*

The USMJ found that reasonable suspicion developed before the traffic ticket was issued, and defendant’s summary objection was insufficient to prevent adoption of the finding. United States v. Gooden, 2007 U.S. Dist. LEXIS 46806 (E.D. N.C. June 26, 2007).*

Police called defendant’s probation officer who arrived at the scene of the arrest, and the probation officer conducted a valid search. Everett v. State, 2007 Del. LEXIS 282 (June 28, 2007).*

The police exceeded the permissible scope of a Terry search when, after searching and restraining the defendant, searching the vehicle he was driving, and calling a drug-sniffing dog to the scene to search for illegal drugs, they returned to the vehicle and conducted another search based on the same suspicion that justified the initial searches. The trial court erred when it failed to suppress as evidence a gun the police found during their last search of the vehicle. State v. Flowers, 734 N.W.2d 239 (Minn. 2007).