Open container violation justified a search incident to the arrest. State v. Gutierrez, 2007 UT App 196, 2007 Utah App. LEXIS 205 (June 7, 2007). (Comment: This is an issue that is state law dependent; i.e., does state law make it a citation offense or a mere violation or is it a misdemeanor?)

Officers were conducting a missing persons and drug investigation involving the defendant as a target. After a few months, the officers decided to do a trash pull on defendant’s house. Searching the trash revealed drug evidence, and that was used to get a search warrant for his house. No reasonable suspicion was required for the trash pull, despite language in another case where there was reasonable suspicion. Defendant failed to show that there was a sufficient privacy interest involved. Trial court’s suppression order reversed. State v. Stevens, 2007 SD 54, 734 N.W.2d 344 (2007), relying on State v. Schwartz, 2004 SD 123, P17, 689 NW2d 430, 435-36 (2004).*

Defendant’s stop in a convenience store was justified. Police received a 911 call about a man with a gun who was wanted, and they were dispatched to the store, and two men were found talking to each other who split up when they saw the officer. The officer believed that one passed a gun to the other, and he ordered them to put their hands on the counter. This was reasonable for officer safety. State v. Hendricks, 213 Ore. App. 360, 160 P.3d 1014 (2007).*

“Under Utah law, the odor of marijuana is enough to create a reasonable articulable suspicion of criminal activity that justifies law enforcement’s brief detention of an individual for investigatory purposes.” Therefore, the defendant’s detention was reasonable. State v. Parkin, 2007 UT App 193, 2007 Utah App. LEXIS 206 (June 7, 2007).*

Two drug cases received today deal with particularity:

A search warrant for drugs and “instrumentalities” of the crime was specific enough. In drug cases, the addition of “instrumentalities” does not make the search warrant overbroad. United States v. Dudley, 2007 U.S. Dist. LEXIS 58208 (D. Utah August 7, 2007).*

Also in a search warrant for drugs, the search warrant sought records: “The search warrant, in relevant part, authorized the seizure of evidence related to drug trafficking, including ‘[a]ny and all address and/or telephone books and records, reflecting names, addresses, and/or telephone numbers, including but not limited to, paper and computer formats.'” The warrant was not overbroad. United States v. Johnson, 2007 U.S. Dist. LEXIS 57894 (W.D. Mo. July 31, 2007)*:

Given the nature of narcotic investigations (as identified in the affidavit in support of the search warrant), the description of the items to be seized from Johnson’s residence was not overbroad. The description of the items to be seized was sufficiently particular to allow officers to recognize and seize the items described from defendant’s residence. The warrant provided a sufficiently particular description of the items to be seized from Johnson’s residence such that a violation of his personal rights in the execution of the warrant was unlikely. See, e.g., United States v. Tyler, 238 F.3d 1036, 1039 (8th Cir. 2001) (drug search warrant which authorized seizure of documents, weapons and personal telephone/address books related to drug activities was sufficiently specific and not overbroad); United States v. Horn, 187 F.3d 781, 788 (8th Cir. 1999) (“words ‘records, documents, receipts, keys or other objects showing access to, and control of, the residence’ were sufficiently particular,” as were words “any and all correspondence, videotapes, published materials, and other objects relating to. …”).

“[H]usband-wife relationships give rise to a presumption of control for most purposes over property. United States v. Rith, 164 F.3d 1323, 1330-31 (10th Cir. 1999) (stating that the presumption may be rebutted by facts showing an agreement or understanding between the defendant and third party that the latter must have permission to enter the defendant’s room).” That is the case here. United States v. Cosby, 2007 U.S. Dist. LEXIS 58203 (D. Utah August 7, 2007).*

Warrantless entry onto the curtilage and the backyard was not shown by the defendant to have been unreasonable because visitors and delivery people could also approach via the backyard, so there was a reduced expectation of privacy there. Heroin was in plain view in the backyard. United States v. Davis, 2007 U.S. Dist. LEXIS 57854 (E.D. Wis. April 16, 2007)*:

Here, the defendant argues that the officers unlawfully entered the curtilage of the residence, that is, the backyard, without a warrant. Thus, according to the defendant, the officers’ observation of the sandwich bag that contained what appeared to be heroin would not fall within the “plain view” doctrine because the police may not violate the Fourth Amendment in arriving at the place where the evidence is in plain view. Yet, even assuming that the backyard in this case was the curtilage of the house, I am persuaded that the officers did not violate the Fourth Amendment when they entered the back yard. This is because, as the Seventh Circuit has recently stated, “[o]fficers may walk up to that part of private property that is open to visitors or delivery people. United States v. LePage, 477 F.3d 485, 488 (7th Cir. 2007). And, the defendant has not presented any evidence indicating that the back yard of the residence was not open to visitors or delivery people. Indeed, there is no evidence establishing that the residence was enclosed by a fence or any type of wall. Nor is there any evidence that the owner of the residence posted any type of no trespassing sign.

Following Tenth Circuit precedent, the District of Utah does not decide probable cause and decides good faith alone finding a “strong basis” for concluding that there was probable cause, essentially holding that probable cause never has to be decided if it is reasonably close. United States v. Olson, 2007 U.S. Dist. LEXIS 58202 (D. Utah August 7, 2007):

Here, Detective Keil’s affidavit presented facts which strongly indicated criminal conduct, and the detective reasonably relied on the judge’s determination that these facts established probable cause. Detective Keil made a good faith effort to comport with the requirements of the Fourth Amendment by applying for a search warrant based on what he perceived to be probable cause. The supporting affidavit was not simply a series of conclusory statements even though–as Mr. Olson points out–the affidavit did not explain why the detectives were investigating either Mr. Olson or the residence, and amphetamine compounds may be legally possessed. See United States v. Rowland, 145 F.3d 1194, 1207 (10th Cir. 1998) (“Despite the affidavit’s failure to demonstrate a sufficient link between the contraband and Rowland’s home for probable cause purposes, the affidavit as a whole was not a bare bones affidavit, containing only conclusory statements and completely devoid of factual support.”); see also United States v. Martinez-Martinez, 25 Fed. Appx. 733, 737 (10th Cir. 2001) (“When determining whether Leon‘s good faith exception applies, the question is not what is absent from the affidavit, but what is present.”).

Comment: As soon as you read that the court is going to decide good faith and not probable cause, you can conclude that the government wins. In the Tenth Circuit, this might as well be known as the “close enough for government work” exception. Clearly, the good faith exception should apply in this case, but the Tenth Circuit’s case law proves the adage that the good faith exception stops any development of the law of probable cause in its tracks. What is or is not probable cause in a search warrant is no longer relevant in the Tenth Circuit. This is like a carnival game where everybody who participates gets a prize, just for paying and trying. But, when Fourth Amendment rights are at stake, that is just plain wrong. The Constitution deserves a higher status in the law than “the government wins just by having a search warrant.” The Fourth Amendment requires probable cause on its face (“… and no Warrants shall issue, but upon probable cause ….”). How can any search warrant without probable cause be sustained? How can any court refuse to even decide whether there was probable cause?

New Jersey’s appellate court held 22 years ago in State v. Novembrino, 200 N.J. Super. 229, 244, 491 A.2d 37, 45 (1985), aff’d 105 N.J. 95, 519 A.2d 820 (1987), just nine months after Leon:

The Leon good faith exception eliminates any meaningful review of probable cause determinations. Long experience with the suppression rule leaves us with the settled conviction that once the police act under cover of a warrant, even though issued without probable cause, as a practical matter their good faith is immune to attack. The Leon good faith exception contemplates that appellate courts defer to trial courts and trial courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional.

The defendant alleged standing in his motion to suppress, but he carried the burden of proof on that claim, and he failed to prove that he was a guest. Merely spending the night once is not enough. The search warrant, however, named him as a person to be searched, so he had standing as to his own person [essentially as a matter of law]. United States v. Rubio, 2007 U.S. Dist. LEXIS 57570 (D. Idaho August 7, 2007):

The Defendant has failed to establish that he was in fact an overnight guest at the Culdesac home. United States v. Armenta, 69 F.3d 304 (9th Cir. 1995) (“bald assertion that he was an overnight guest … is not sufficient to establish that he had a legitimate expectation of privacy in the house.”). Even if the Defendant did stay one night in the residence, that fact alone is insufficient to demonstrate a legitimate expectation of privacy in the home. Accordingly the Court finds the Defendant has failed to establish that he possessed a legitimate expectation of privacy in the home. The search warrant, however, also directs that officers were allowed to search the person of the Defendant. The Defendant clearly has standing to challenge the search of his own person. As such, the Court will consider the validity of the warrant.

There is no expectation of privacy in information held by an internet provider that is not itself a communication. United States v. Standefer, 2007 U.S. Dist. LEXIS 57768 (S.D. Cal. August 8, 2007):

Therefore, the Court concludes that Plaintiff lacks standing to challenge the evidence collected by the Government from e-gold, including the time and date of Plaintiffs transactions through his e-gold account, his e-gold account number and the account number of the parties with whom he was transacting business, the IP addresses from where the transactions were sent, the amounts paid, and memos documenting the purposes of the transactions, because Plaintiff voluntarily revealed that information to e-gold. See In re Grand Jury Proceedings, 40 F.3d at 962-63 (“Where an individual’s Fourth Amendment rights are not implicated, obtaining the documents does not violate his or her rights, even if the documents lead to indictment.”). Accordingly, the Court denies Plaintiffs motion to suppress the evidence obtained on the basis of evidence the Government received from e-gold.

There was probable cause for issuance of a telephonic search warrant based on the officer’s declaration prepared immediately thereafter. In any event, the good faith exception would save it. United States v. Alvarez-Rodriguez, 2007 U.S. Dist. LEXIS 57664 (D. Nev. March 28, 2007).

Nonspecific information about the color of skin and dress of a suspect did not justify stopping the defendant. Once stopped, reasonable suspicion did not develop from his comments about where he was going which the officer found directionally challenged. “Most importantly, however, mere inconsistency between origin and direction of travel fails to provide reasonable suspicion of involvement in criminal activity.” Consent did not purge the taint. State v. Anguiano, 37 Kan. App. 2d 202, 151 P.3d 857 (2007).*

Inventory policy that requires an inventory of all locked containers was valid. It extended to any situation where the keys of a locked vehicle were being turned over to a towing company. “Further, by requiring officers to complete an inventory search of trunks when the trunk will be accessible to the third-party towing company, Gresham’s policy removes any discretion on the part of the officers and provides the standardized procedures favored by the Supreme Court.” United States v. Williams, 2007 U.S. Dist. LEXIS 11022 (D. Ore. February 15, 2007).*

A § 1983 claim over a traffic ticket not prosecuted that did not mention violation of a constitutional right was dismissed under qualified immunity. Harlow v. Forsythe, 2007 U.S. Dist. LEXIS 10878 (D. S.C. February 12, 2007)* [actually, such a claim is integral to a § 1983 claim for jurisdiction to attach; qualified immunity is a different analysis].

Open container violation on a convenience store parking lot supported an investigative stop that led to seeing a gun and finding a warrant on the defendant. United States v. Brown, 2007 U.S. Dist. LEXIS 10879 (W.D. Tenn. February 12, 2007).*

The defendant was seen operating a vehicle with an expired tag, and he has ticketed. The vehicle was not towed, and the officer “advised Morris that he had to make arrangements to get his vehicle out of the area because it could not be driven on the roadways.” Two weeks later the vehicle was seen again, still with an expired tag, and this time it was parked on a vacant lot. Impounding the car was unnecessary. The inventory produced drugs which were suppressed. Morris v. State, 958 So. 2d 598 (Fla. App. 4th Dist. 2007):

If Flemming was concerned that Morris would operate the vehicle on the public roadways without a valid registration, then she could have immobilized the vehicle or given Morris the option to make his own arrangements to have his vehicle towed. We can find no basis or justification for the impounding of Morris’s vehicle. Flemming’s action of impounding the vehicle and conducting a warrantless inventory search constituted an unreasonable search and seizure. We therefore reverse the trial court’s denial of the motion to suppress and because the motion to suppress is dispositive, we remand, and direct the trial court to vacate Morris’s conviction.

Defendant’s opening his garage door was analogous to opening his front door. He had a reasonable expectation of privacy in the closed area. State v. Jenkins, 2007 Ida. App. LEXIS 65 (February 21, 2007):

The State’s argument unnecessarily expands Santana. Jenkins opened an otherwise enclosed garage to gain access to his home. His exposure of the garage to public view was temporary and is more analogous to the opening of a door to a private home than to the continued, knowing display of a walkway, driveway, or open porch where visitors are expected to go. See State v. Wren, 115 Idaho 618, 623, 768 P.2d 1351, 1356 (1989) (differentiating between a “public” unenclosed porch and an enclosed porch indistinguishable from the attached home). A garage with a large door that exposes much of a garage’s interior when open is admittedly different from a house; nevertheless, an attached, enclosed garage is typically an area where people expect privacy and expect to secure their possessions and perform private activities away from public view. While it is true that there can be no reasonable expectation of privacy as to observations which can be made from a driveway impliedly open to public use, this is limited by the principle that police officers without a warrant are only permitted the same level of intrusion as one would expect from a reasonably respectful citizen. See Christensen, 131 Idaho at 147, 953 P.2d at 587. Moreover, a privacy interest is not destroyed simply because an officer has open view into an area. See State v. Clark, 124 Idaho 308, 313, 859 P.2d 344, 349 (Ct. App. 1993) citing Texas v. Brown, 460 U.S. 730, 738 n. 4, 103 S. Ct. 1535, 1541 n. 4 (1983) (“An open view observation alone, absent exigent circumstances or other Fourth Amendment justification, does not authorize a warrantless seizure or entry into an area where a privacy interest does exist. However, what is seen in open view may furnish probable cause for obtaining a warrant.”) Jenkins’ garage was part and parcel of the structure constituting his home, and was secured with a door closed at the time police arrived at the home. On the facts of this case, Jenkins had a reasonable expectation of privacy in his temporarily opened attached garage, and this space was subject to Fourth Amendment protection.

Comment about the defendant’s exercise of Fourth and Fifth Amendment rights in a DUI arrest was here subject to plain error analysis, but it was harmless beyond a reasonable doubt in light of all the other evidence in the case. United States v. Moran, 2007 CAAF LEXIS 827 (C.A. A.F. June 22, 2007).*

The AFOSI had probable cause for issuance of a search warrant for defendant’s computer. His roommate bumped the computer table, and the screen lit up, and Windows Media Player was open. He clicked on recent files opened and saw “14 year old Filipino girl.” Defendant’s claim that it could be innocuous was insufficient to overcome a showing of probable cause. United States v. Leedy, 2007 CAAF LEXIS 828 (C.A. A.F. June 22, 2007):

From a Constitutional perspective, the shortcoming in Appellant’s argument is that he focuses almost exclusively on the title “14 year old Filipino girl” as the predicate for probable cause. It is evident that as is the case with many digital file titles found on the Internet or on one’s personal computer, the title could be innocent. Consider the file name “Lolita,” which on its own could as easily reference an English term paper, a discussion of teacher-student relations, or contain adult or child pornography. Likewise, in a vacuum, the title “Teen Angel” could as likely reference a popular 1960s song as it could be a video file containing child pornography. Similarly, a listing of any number of rap song titles might suggest images of violence and pornography, but not in fact visually convey those images when played. The point certainly is made.

However, in the current case, Appellant’s file title “14 year old Filipino girl,” does not appear in isolation. Consequently, the title alone is not the sole predicate fact. As an initial factor, it is included on a sequential play list alongside titles that A1C Winkler understood to identify sex acts and which the military judge concluded referenced sex acts.

Moreover, and critically, none of these facts are abstract pieces of evidence, but rather are properly viewed in context, through the professional lens in which they were presented to the magistrate. The magistrate had the benefit of the affiant’s professional experience in investigating child pornography, a background which usefully “illuminated” the facts provided. Gates, 462 U.S. at 230.

Sending a car at a border crossing to a secondary inspection area did not require reasonable suspicion. Here, the officer noticed the carpet of the car had been tampered with, and that was reason enough. United States v. Morales, 489 F. Supp. 2d 1250 (D. N.M. 2007):

Border patrol agents have virtually unlimited discretion to refer cars to the secondary inspection area and may do so in the absence of individualized suspicion. Id. (internal quotations omitted). This is “because the public has a substantial interest in protecting the integrity of our national borders, and the intrusion upon one’s right to privacy and personal security by a routine border inspection is minimal ….” United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993). Agents’ “virtually unlimited discretion” is, however, limited in one important respect–the overall detention cannot exceed a routine checkpoint stop if probable cause, consent, or reasonable suspicion does not exist. Rascon-Ortiz, 994 F.2d at 753. Such a limit is necessitated by the Fourth Amendment’s key principle of reasonableness and the Supreme Court’s analysis in Martinez-Fuerte. But “[w]hether the routine checkpoint stop is conducted at primary, secondary, or both is irrelevant to Fourth Amendment concerns.”

Id. Instead, the true focus is the reasonable suspicion that must exist when a detention is prolonged beyond the scope of a routine checkpoint stop. Id. As the Tenth Circuit has stated,

“[o]bviously, if a secondary inspection area is such that it causes the detention to exceed a routine checkpoint stop because it is overly intrusive or lengthy, the secondary inspection becomes relevant in a Fourth Amendment analysis; however, the relevancy would still be based upon the reasonableness of the detention as determined by balancing Fourth Amendment interests, and not merely because the detention occurred at secondary.”

Id. n.8 (emphasis added). Or, as the Fifth Circuit has phrased it, “[t]he constitutionality of a seizure at a checkpoint stop depends on its duration, not its location.” United States v. Machuca-Barrera, 261 F.3d 425, 435 n.35 (5th Cir. 2001).

The government failed in its burden to show consent to search because the situation involved coercion. The search, however, was alternatively valid under the automobile exception because there was probable cause. United States v. Cabrera, 2007 U.S. Dist. LEXIS 39656 (M.D. Pa. May 31, 2007).*

Plaintiff’s decedent was suicidal and potentially homicidal, and police officers entered to arrest him and ended up shooting him. There was cause to enter, and the use of force was reasonable under the circumstances. [This opinion was 100 pages long.] Estate of Bennett v. Wainwright, 2007 U.S. Dist. LEXIS 39631 (D. Me. May 30, 2007).*

Agreeing to get one’s ID is a “thin reed” on which the government can support an entry by the police to follow the person to get it. However, the totality of the circumstances showed consent. As the officers kept walking with her, they could smell raw marijuana. They asked if they could sit down, and she agreed, and scales and paraphernalia were laying around. United States v. Nelson, 489 F. Supp. 2d 309 (S.D. N.Y. 2007):

The facts also do not support any purported claims of coercion. Madden testified that she was “nervous” and “frightened” when she signed the consent-to-search form. (Tr. 142). While such an emotional state is understandable given the events occurring in Madden’s home at the time, it does not rise to coercion and does not place the consent provided by way of her signature into question. See United States v. Watson, 423 U.S. 411, 424 (1976) (finding consent to search voluntarily offered despite formal arrest); see also United States v. Marin, 669 F.2d 73, 82 (2d Cir. 1982) (same); Garcia, 56 F.3d at 423 (finding that the presence of three law enforcement officers does not lend significant support to a claim of coercion). Madden does not claim that she was threatened, physically restrained, or otherwise forced to sign the document; hence, her consent cannot be challenged on the basis of coercion. See United States v. Lavan, 10 F. Supp. 2d 377, 384 (S.D. N.Y. 1998) (listing show of force, use of handcuffs, previous refusal to consent, and threat of more expansive search warrant as factors in determining the voluntariness of consent).

Finally, the Court finds that the timeline [of the consent and the search] put forth by Madden is not credible.

Defendant was stopped and was alleged to have consented to a search. The officer who allegedly received the consent was sitting in the courtroom at the suppression hearing and was not called by the government. The court finds that the consent was not validly given. There was, however, reasonable suspicion, and then a dog alerted and that gave probable cause. United States v. Dyson, 2007 U.S. Dist. LEXIS 30030 (S.D. Ohio April 24, 2007):

The testimony further shows that, subsequent to the canine sniff, when Lyons informed Defendant of the result and requested permission to search the Maxima, Defendant responded to the effect of “I don’t want you to but you’re going to search anyway.” Such statement is akin to an expression of futility in resistance to authority, rather than a knowing, voluntary, and unequivocal consent, as required under United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). The Court finds well-taken Defendant’s position that at this point in time of the investigation, the government has failed to establish Defendant’s consent to a search of his vehicle.

Warrant for seizure of “electronic equipment” included a tape recorder and the tape in it. United States v. Freeman, 2007 U.S. Dist. LEXIS 29987 (D. Kan. April 23, 2007):

The court also finds that the seizure of the tape itself was authorized under the warrant because the tape bore a “reasonable relation to the item[s] named in the warrant.” United States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981). “When a logical nexus exists between seized but unnamed items and those items listed in the warrant, the unnamed items are admissible.” Id. at 387 (citing Mesmer v. United States, 405 F.2d 316 (10th Cir. 1969)) (further citations omitted). The warrant in this case specifically authorized the seizure of items which could contain records of drug transactions, namely: paperwork, tax records, computer hardware, software, storage components, disks, CD ROM, photos, and video tapes. Certainly there is a logical nexus, as described in Gentry, between these items and a microcassette tape, which is reasonably related to records of drug transactions.

Officer’s hunch that something was amiss with the defendant parking his car near parking lot exit and hearing a thud which could have been a dropped weapon turned out to be right, but it was still a hunch that the defendant was up to no good. People v. Perrusquia, 150 Cal. App. 4th 228, 58 Cal. Rptr. 3d 485 (4th Dist. 2007):

The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention. As the trial court noted at the hearing’s conclusion: “[T]his is why police work is difficult, complex and challenging[,] because it’s difficult from a moral or practical standpoint to criticize the officer’s actions.” We agree, yet at the same time we also agree with the trial court that the facts did not meet the legal standard for a detention. The officer must have “specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity.” (In re Tony C., supra, 21 Cal.3d at p. 893.)

Evidence supported trial court’s conclusion that the defendant consented to officers’ entry during a knock-and-talk. There was a plain view. While the officers conducted a protective sweep that was apparently unjustified, the protective sweep did not lead to the plain view, so it was not relevant. State v. Nicholas, 958 So. 2d 682 (La. App. 5th Cir. 2007), released for publication July 2, 2007.*

In West Virginia, the question of exigent circumstances for an entry into the home is an issue that, even in criminal cases, is to be decided by a jury. State v. Kendall, 219 W. Va. 686; 639 S.E.2d 778 (2006):

In the case sub judice, the Appellant asserts that the lower court abused its discretion by deciding the question of whether exigent circumstances existed, by removing that factual decision from the jury, and by explicitly instructing the jury that neither exigent circumstances nor hot pursuit existed. Courts addressing the issue of the proper entity to decide the question of exigent circumstances have recognized that the issue involves a mixed question of law and fact. United States v. Russell, 436 F.3d 1086, 1089 n. 2 (9th Cir. 2006); United States v. Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Zermeno, 66 F.3d 1058, 1063, n. 2 (9th Cir. 1995). Other courts have expressly stated that the “presence of exigent circumstances is a question of fact within the province of the Jury. …” Richmond v. City of Brooklyn Center, 2005 WL 1843332, *8 (D. Minn. 2005); see also Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002) (holding that the determination of exigent circumstances is “normally a question for the jury. …”).

Officers had cause for stopping defendant’s car for following too close and reasonable suspicion from the totality of circumstances, which are not given us, developed, and defendant then confessed. United States v. Osuna-Samaniego, 208 Fed. Appx. 554 (9th Cir. 2006)* (unpublished).

Giving the plaintiff the benefit of inferences from his complaint, he stated enough to get to trial. He admittedly shoved officers, but he alleged excessive force used against him in response. Nail v. Gutierrez, 2006 U.S. Dist. LEXIS 86728 (N.D. Ind. November 29, 2006).*

Defendant’s guilty plea to an offense involving an alleged search and seizure cut off any Fourth Amendment civil suit over the search and seizure under Heck v. Humphrey because it implied the invalidity of the conviction. Bailey v. Duesler, 2006 U.S. Dist. LEXIS 86722 (S.D. Cal. November 28, 2006).*

Defendant called the Sheriff in Arkansas about a prowler and ended up getting arrested. His mailing address was in Arkansas, but he contended that his house was physically in Oklahoma. An arrest without statutory legal jurisdiction does not equate with a Fourth Amendment violation. Engleman v. Ferguson, 2007 U.S. Dist. LEXIS 27439 (W.D. Ark. March 5, 2007).

Without reason to believe that others are present who might pose a danger, a protective sweep is not permissible, particularly before the arrest. The officer could articulate no reason for the protective sweep. State v. Lemons, 37 Kan. App. 2d 641, 155 P.3d 732 (2007).

It was reasonable for officers to seize the defendant who had just left what police believed his house when they arrived with a search warrant. The defendant had sufficient connection with the premises to be detained under Summers. “In this regard, the record in the present case reflects that the police believed Williamson to be an occupant of the residence at 8016 Wynbrook Road. Detective Ward testified at the suppression hearing that he had witnessed Williamson entering and leaving the house several times during pre-warrant surveillance, and that a confidential informant had told him that Williamson lived at the house with Hubbard.” Williamson v. State, 398 Md. 489, 921 A.2d 221 (2007).

Prisoner complaint stated a claim because his telephone calls were recorded in detention without any warnings. Tittle v. Carver, 2007 U.S. Dist. LEXIS 27452 (E.D. Wis. April 11, 2007).

Police dog bites are not per se unreasonable, even when they are trained to attack and the handler has knowledge of the dog’s propensity. The plaintiff here did not respond to commands to surrender and had hidden under a car. He finally showed his hands from under the car and the dog bit him when his hands came out to surrender. The dog bite was not unreasonable force. Gonzales v. Phoenix Police Dep’t, 2007 U.S. Dist. LEXIS 47949 (D. Ariz. June 28, 2007):

The use of a police dog can constitute excessive force. See Smith v. City of Helmet, 394 F.3d 689, 704 n. 7 (9th Cir.), cert. denied, 545 U.S. 1128 (2005); see also Mendoza v. Block, 27 F.3d 1357, 1361-62 (9th Cir. 1994). However, no evidence in this case supports that the force exerted by Jake and his handler was excessive. The undisputed evidence establishes the following facts. Plaintiff evaded the police, and Defendants did not know whether Plaintiff was armed. Norton and Jake walked through the carport with the intent of accessing the backyard. Norton was unaware of Plaintiff’s presence under the car in the carport. Before entering the carport, Norton announced their approach and that he had a dog who might bite if Plaintiff failed to make himself known. And while walking through the carport, Norton held Jake close by his lead. Plaintiff, thus alerted to Jake’s presence, decided to surrender and stuck his arms out from under the car. Regardless of whether Plaintiff first announced his presence, the undisputed evidence proves that Jake was startled when Plaintiff thrust his hands out from under the car and Jake reacted by unexpectedly and suddenly biting Plaintiff. Norton immediately pulled Jake off Plaintiff and stepped away to control Jake.

The summary judgment evidence proves that a reasonable jury could not conclude that Norton used excessive force. Norton exercised control over Jake during the search but Jake bit Plaintiff after he was startled by Plaintiff. Norton never ordered Jake to attack Plaintiff and pulled Jake away from Plaintiff to prevent further bites. There is simply no evidence that Norton failed to act reasonably in handling Jake under the circumstances. Norton will be granted summary judgment as to Plaintiff’s claim that Norton used excessive force by not preventing Jake from biting Plaintiff.

Hiibel finally applied: The defendant was convicted of five counts of assault. When he was stopped by the officer, he refused to identify himself. At trial, a DVD of the stop and defendant’s refusal to identify himself was admitted into evidence, and this was not a constitutional error. State v. Stratton, 161 P.3d 448 (Wash. App. 2007):

Although Mr. Stratton argues he was prejudiced because his refusal to identify himself raised an inference that he had something to hide, given the Hiibel holding, any error is non-constitutional. Defense counsel also argued the evidence was cumulative, but the trial court acted within its discretion to admit the DVD. See State v. French, 157 Wn.2d 593, 605, 141 P.3d 54 (2006). The 40-minute DVD covered about four minutes of three intermittent and unclear refusals. Moreover, the related factual issue was not whether Mr. Stratton was with the shooters at the party, but whether he carried and fired one of the guns. Because the jury found he was an accomplice but not armed, Mr. Stratton cannot show prejudice. In sum, Mr. Stratton fails to show either constitutional or non-constitutional error.

Departing from some recent cases in other circuits, the District of New Mexico, following Tenth Circuit law, held that the driver of a rental car rented by another, but with permission of the renter, has no standing to challenge it search. United States v. Fox, 2006 U.S. Dist. LEXIS 95233 (D. N.M. October 29, 2006):

With respect to a defendant attempting to invoke the Fourth Amendment, who was in sole possession and control of a car rented by a third party at the time of search, the United States Court of Appeals for the Tenth Circuit has held that such a defendant does not have standing to challenge search or seizure of the car. See United States v. Jones, 44 F.3d 871 (citing United States v. Obregon, 748 F.2d 1371, 1374-75 (10th Cir. 1984)). In United States v. Obregon, the Tenth Circuit included the following district court language in its holding:

“Defendant had the keys to the car and may have had permission from the renter of the car to use it, but this is not determinative of the standing inquiry in this case. Defendant was driving a rented vehicle and was not named on the rental agreement or any other documents, either as the renter or as an authorized driver. Defendant made no showing that any arrangement had been made with the rental car company that would have allowed him to drive the car legitimately. Indeed, the defendant testified that he waited outside of Miami airport while an unrelated third party arranged the rental of the car. Defendant’s relationship to the rented car is too attenuated to support a claim of standing.”

748 F.2d at 1374. See United States v. Roper, 918 F.2d 885, 886-87 (10th Cir. 1990)(quoting the same district court passage approvingly and relying on it to hold that a defendant, who it was established at a hearing on a motion to suppress borrowed the rental car in question from the lessee, his common-law wife, and who the rental car company had not authorized to drive the car, had no standing to invoke the Fourth Amendment).

Comment: There is a split in the circuits on this issue, so don’t be surprised if the Supreme Court takes this issue in the next couple of years.

It was necessary to handcuff plaintiff during his arrest, but he would not submit. “By [plaintiff’s] own admission, [the officer] was unable to put the handcuffs on him while [plaintiff] remained upright, and thus, it was both reasonable and necessary to take [him] to the ground in order to secure him.” Summary judgment granted. Moore v. Vangelo, 222 Fed. Appx. 167 (3d Cir. 2007)* (unpublished).

“A reasonably competent police officer might rely without investigation on information from a trustworthy source. … Scott reasonably relied on a trustworthy source. Thus, when Scallion was initially handcuffed, defendant had probable cause to arrest Scallion. In other words, it was reasonable for Scott and his fellow Red River Parish Deputies to conclude that Scallion had committed or was committing an offense.” Scallion v. Red River Parish, 2007 U.S. Dist. LEXIS 9796 (W.D. La. February 12, 2007).*

Patdown during traffic stop was consented to by defendant, and a marijuana pipe was found. One officer testified to consent at the suppression hearing, and the other officer testified he could not hear the answer [how refreshing: an officer who did not automatically confirm the other]. The finding of consent was supported by the record. State v. Chidester, 2007 Iowa App. LEXIS 61 (January 31, 2007).*

Officers had reasonable suspicion to stop defendant who was in the only car around that matched the description of the car given by a forgery victim who called 911. The car had not yet left the parking lot of the business. State v. Funderburg, 2007 NMCA 21, 151 P.3d 911 (December 11, 2006), certiorari granted, 2007 N.M. LEXIS 18 (January 30, 2007).*

The Mansfield Amendment, 22 U.S.C. § 2291(c), prohibiting U.S. officers from directing arrests in foreign countries, was not violated where the defendant was arrested in El Savador by police there and flown back to the United States in a DEA airplane. United States v. Bourdet, 477 F. Supp. 2d 164 (D. D.C. 2007):

Defendants contend that their statements must be suppressed because they were the fruit of an arrest that violated the Mansfield Amendment, Pub. L. No. 94-329, § 504(b), 90 Stat. 729, 764 (1976) (codified as amended at 22 U.S.C. § 2291(c) (2000)). The Mansfield Amendment provides that “No officer or employee of the United States may directly effect an arrest in any foreign country as part of any foreign police action with respect to narcotics control efforts, notwithstanding any other provision of law.” § 2291(c)(1). As the D.C. Circuit has emphasized, the Mansfield Amendment only prohibits United States officers from “directly effect[ing]” an arrest. United States v. Mejia, 448 F.3d 436,443 (D.C. Cir. 2006). Defendants’ arrests were not directly effected by United States officers; rather, the Salvador-an police exercised complete control and authority over the direct police action in which defendants were taken into custody. The Mansfield Amendment simply does not apply.

Defendants concede that defendants’ arrests were carried out by Salvador-an officials, but they argue that the Mansfield Amendment was nonetheless violated in two ways. First, they contend that United States officers directly effected the arrest of defendants when they took custody of defendants at the airport in El Salvador. Defendants acknowledge that the logical result of their argument would require any transfer of custody to occur either in the United States or in international territory. Regardless, their argument is foreclosed by Mejia, in which the defendants were arrested in Panama by Panamanian authorities and then transferred into DEA custody at an airport in Panama City. 448 F.3d at 439. The court of appeals held that the defendants’ “claim that the Mansfield Amendment was violated fails on its face” because “the Panamanian authorities conducted the direct police action during which the defendants made a transition from liberty to custody.” Id. at 443 (internal quotation marks omitted). It can therefore be inferred that the later transfer of the Mejia defendants from Panamanian to American custody did not implicate the Amendment. Accordingly, the post-arrest transfers of defendants in this case from Salvadoran to American custody did not constitute “directly effect[ed] arrest[s]” under the terms of the Mansfield Amendment.

The LA SWAT team entered defendant’s house to execute an arrest warrant. After defendant was handcuffed and in custody, he consented to a search of the house, and the trial judge’s ruling it was by consent was not clearly erroneous. United States v. Gonzalez, 222 Fed. Appx. 238 (4th Cir. 2007)* (unpublished).

Defendant was stopped for a traffic offense, and he volunteered a search of his vehicle. The officer lawfully could do a patdown of the defendant before the search of the vehicle. United States v. Oriach, 222 Fed. Appx. 312 (4th Cir. 2007)* (unpublished).

Defendant’s claim that he was not “officially” on probation was unavailing because he was on probation and there was reasonable suspicion for a probation search under Knights. United States v. Albertson, 2007 U.S. Dist. LEXIS 17628 (M.D. Pa. March 14, 2007):

We find Albertson’s argument, that he was not “officially” on probation as of September 18, 2005, unavailing. We so conclude because this Court is intimately familiar with Pennsylvania’s probation system. Defendant is interposing an argument that assumes he must sign some type of receipt to be “officially” on probation. We suspect he knows better. In this case, Defendant was clearly informed, both in open court and by a written order of the Court of Common Pleas of Columbia County that issued on July 14, 2003, that his 24 month term of probation would begin upon his release from the incarceration term to which he was also sentenced that day. Because of his own parole violation, Defendant was not released from that prison term until his maximum date of December 7, 2004, and, consequently, his probation term commenced on said date.

Moreover, Defendant’s violation of parole and resulting re-incarceration render unpersuasive Defendant’s argument that he was not familiar with the terms and conditions surrounding probation and parole. Defendant would have been apprised thereof at the time of his parole, and, indeed, his violation of such terms and conditions provided practical experience with the application thereof. As a result, the contention that Defendant was unfamiliar with Pennsylvania’s probation system and his responsibilities thereunder is again simply not credible.

Having concluded that Defendant was on probation at the time his residence was searched on September 18, 2005, we turn to consideration of whether the probation officers that conducted the search had reasonable suspicion to do so. As Albertson accurately notes, in determining whether reasonable suspicion exists, courts “consider the totality of the circumstances to determine whether the ‘officer has a particularized and objective basis for suspecting legal wrongdoing.'” United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005) (quoting United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)). The Pennsylvania statute governing probation officers’ searches also outlines eight different factors that may be taken into account. See 61 P.S. § 331.27b(d)(6). Those relevant to our determination include: “[i]nformation provided by others,” “[t]he activities of the offender,” “[t]he experience of the officers with the offender,” “[t]he prior criminal and supervisory history of the offender.”

Defendant’s computer was seized with a search warrant, and he filed an action before the issuing Magistrate Judge to challenge the search of the computer before it occurred. The court holds that he has no such right; his remedy is after the execution of the warrant. United States v. Stoufflet, 2007 U.S. Dist. LEXIS 56346 (N.D. Ga. August 1, 2007):

The Court is unaware of, and has not been directed to, any authority supporting the right of a defendant or one who arguably has standing to challenge the use of evidence obtained via a search warrant to challenge the validity of the warrant before it is executed. The opinion in [In the Matter of the Search of: 3817 W. West End, First Floor Chicago, Ill. 60621] supplies no such support, because in that case, the government moved ex parte to remove certain limitations imposed upon its agents in conducting a computer search pursuant to a warrant. After the court orally denied the relief requested, the court issued a written order. See 3817 W. West End, 321 F. Supp. 2d at 954. The target of the search did not participate in that hearing.

Instead, analogous to the former Fifth Circuit’s statement in United States v. Payne, 508 F.2d 1391, 1394 (5th Cir. 1975) (citation omitted), that “[a] homeowner has no right to prevent officers armed with a warrant from entering his home,” Stoufflet has no right to prevent agents armed with a warrant from searching his computer. There are safeguards to protect Stoufflet from law enforcement abuses:

[t]he statutory requirements of judicial supervision based on probable cause, the requisites of specificity in describing the premises and the items to be seized, and the delivery of a written inventory of the items taken to the occupant or other competent person provide adequate safeguards against potential abuse and sufficiently limit police discretion.

Payne, 508 F.2d at 1394 (footnote omitted). Stoufflet’s interests are sufficiently protected by his ability to attempt to exclude any evidence at trial obtained as a result of the search of the computer or by a Bivens civil action.

Additionally, the relief that Stoufflet seeks would seriously disrupt the efficient administration of justice. Acceding to Stoufflet’s position would require courts to hold an adversary hearing whenever a computer was seized in advance of the computer search, in order to address such questions as whether there was a Franks violation, whether there was probable cause to search specific files, or whether confidential communications were contained on the computer. Neither the Fourth Amendment nor any rule of criminal procedure mandates this action in advance of a search.

Defendants had objective probable cause for plaintiff’s arrest and qualified immunity. Dampier v. King County, 2007 U.S. Dist. LEXIS 56404 (W.D. Wash. August 2, 2007).*

Valid stop led to the officer having reasonable suspicion to believe that the defendant was carrying a load of drugs in the car. Defendant was excessively nervous and would not look the officer in the eye. After the papers were handed over and the defendant was told he could go, he got out of the patrol car, but the officer headed him off and stopped him and asked for consent to search the car which the court found was valid. It was all on video. United States v. Gamez, 2007 U.S. Dist. LEXIS 56261 (D. Utah August 1, 2007).* (Comment: I was with the court on this one, right up to the time the officer headed the defendant off and asked for consent seven times and then the court rationalizes its justification by saying that the defendant “was not surprised” by the search. Why should he be surprised? It was obvious what was going down after being asked seven times.)

Defendant showed up in the parking lot of a motel where a known drug dealer was staying, and the officers walked up to his car to talk to him. That was not a seizure. Defendant’s evasion led to reasonable suspicion. United States v. Barton, 2007 U.S. Dist. LEXIS 56365 (D. Vt. August 1, 2007).*

The affidavit for the search warrant failed to show any nexus and lacked probable. The court virtually decides this question, but then disavowed deciding it [which is the wrong way to do it] and found that the search was saved by the good faith exception. United States v. Kennedy, 2007 U.S. Dist. LEXIS 54208 (E.D. Va. July 25, 2007):

The affidavit itself does specifically identify the place to be searched and the items to be seized, but is lacking in providing a real nexus to the crime committed. The affidavit explains merely that such items were likely to be found at the home because “persons who commit crimes keep the fruits and instrumentalities of their crimes in their primary residences.” On its own, this is not a sufficient ground for probable cause to believe that contraband or evidence of a shooting will be found there. Furthermore, the Court is troubled by the Government’s explanation that “answers concerning accomplices or other coordinated attacks would have been delayed” if the search was not authorized. (Gov.’s Opp. at 10). The affidavit is devoid of any indication that others may have been involved in the crime or indicating other attacks. Thus, this assertion could not have been the basis for probable cause, leaving the Court to decide if the “nature of the item[s] and the normal inferences of where one would likely keep such evidence” were sufficient to support a showing of probable cause. However, due to the applicability of the good faith exception, the Court need not resolve this issue.

. . .

The Court cannot conclude that the affidavit provided was “bare bones” or so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. While the Court agrees that the four corners of the affidavit leaves a bit to be desired, it names Michael Kennedy, states his exact address and grounds for verification, describes the items to be searched and seized, and states a reason for the search. While the connection between the Kennedy home and the shooting of the officers is somewhat tenuous, the Court cannot conclude that it was so facially deficient as to preclude reasonable reliance upon in it. See United States v. Dickerson, 166 F.3d 667, 694-95 (4th Cir. 1999). Good faith reliance is further strengthened by the fact that the affidavit was reviewed by a Commonwealth’s Attorney prior to submission to the magistrate.

Therefore, the Court finds that it was entirely reasonable for the officers executing the warrant to presume its validity. Accordingly, the Court finds the good faith exception to apply in this instance, and Defendant’s motion will be denied.

Plaintiff’s civil claim for unlawful entry in the face of a consent to enter defense was permitted to go forward because of the factual dispute. It also denied defendant qualified immunity. Also, the backyard qualified as curtilage. Oliver v. Reynolds, 2007 U.S. Dist. LEXIS 54139 (W.D. Ky. July 25, 2007):

In reviewing all four (4) factors collectively, the Court finds that the Plaintiff had a reasonable expectation of privacy in the backyard area of her home, including the back driveway, and therefore, that area is curtilage and is entitled to Fourth Amendment protection. See Daughenbaugh, 150 F.3d at 601 (quoting Dow Chemical Co. v. United States, 749 F.2d 307 (6th Cir.1984), aff’d, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986)) (holding that “‘[t]he backyard and area immediately surrounding the home are really extensions of the dwelling itself,'” and therefore, an officer’s entrance into the backyard constituted a search in violation of the Fourth Amendment). This finding is consistent with the conclusion of law reached by the McCracken District Court, where the Court in that matter noted that the backyard of the Oliver home “is not impliedly open to the public.”

If you know why you should read about John Wilkes, you may skip this paragraph. If you think that John Wilkes shot Abraham Lincoln, you may not. If you think a violent street mob cannot contribute to civil liberty or that a nobleman in a carriage drawn by four horses cannot be part of a protest march this story may surprise you. If you think that sexual politics is a modern invention, you may learn something here. If you think newspapers always have been free to report what goes on in government, you need this book. If you think the founding fathers of America had no support from England, this is required reading. If you believe dirty books should be burned, pause to think before you continue. If you think that blue-collar workers should not be allowed to vote, this book is not for you. If you think the police have the right to arrest forty-nine people when they are looking for three, shut it now. If you think that people should be imprisoned for writing essays against the government, I have nothing to say to you.

A biography from 2006, released in paperback about two months ago, hopefully will be a significant contribution to the understanding of the people who created our national desire for the Bill of Rights. The plaintiff in Wilkes v. Wood, 19 Howell’s St. Tr. 1153, 98 Eng. Rep. 489 (K.B. 1763), was John Wilkes, the subject of Arthur H. Cash’s, John Wilkes, The Scandalous Father of Civil Liberty. Wilkes never came to America, but he was a force in the creation of the Bill of Rights. Wilkes v. Wood then Entick v Carrington, 19 Howell’s St. Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765), are discussed in § 1:4 of the treatise:

Just after the litigation over the writs of assistance in the Massachusetts Bay colony was resolved, back in England, John Wilkes, a member of Parliament, anonymously published North Briton, a series of pamphlets criticizing the policies of the British government. In 1763, one pamphlet was unusually critical, and the government decided to prosecute him for sedition. Lord Halifax, the Secretary of State, issued a general warrant to four messengers to “search for the authors, printers, and publishers of seditious and treasonable paper.” “Under this ‘roving commission,’ they proceeded to arrest upon suspicion no less than forty-nine persons in three days, even taking them from their beds in the middle of the night.” The actual printer was arrested, and he snitched on Wilkes. Wilkes was waiting for the King’s messengers, and he refused to submit to the warrant. The messengers forcibly removed Wilkes, and then they searched his house.

Wilkes sued one Wood, the undersecretary who supervised the execution of the warrant. Chief Justice Pratt held that the warrant was illegal “as totally subversive of the liberty [and] the person and property of every man in this kingdom.” Wilkes thus obtained a judgment for damages, and it was affirmed on appeal.

Before the warrant for Wilkes’ papers was ever issued, Lord Halifax issued a warrant for John Entick to seize all his papers. When Entick saw Wilkes’ success, he sued, and he too obtained a verdict. The case came before the Court of Common Pleas, and Judge Pratt, now known as Lord Camden, was presiding. [Entick v. Carrington.]

Plaintiff in § 1983 search case got it to the jury as to one defendant of ten solely on a protective sweep claim. He asked the jury for $100,000 but the jury awarded $1 which was affirmed on appeal. Attorneys fees were denied. Greer v. Yavapai County, 2007 U.S. Dist. LEXIS 54439 (D. Ariz. July 26, 2007):

A technical violation by Deputy Morgan of a complex constitutional right while under the fear of “a man with a gun,” which a jury determined entitled Plaintiff to nominal damages, falls short of significant benefits to Plaintiff or society in general. Plaintiff has failed to outline any specific nonmonetary benefits that were achieved, but instead erroneously rests on the general assertion that a significant public policy interest was served in the award of nominal damages in this litigation.

“Where the only reasonable fee is no fee, an award of fees would be unjust; conversely where a fee award would be unjust, the reasonable fee is no fee at all.” Farrar, 506 U.S. at 118. (O’Connor, J., concurring). Upon an analysis of the extent of relief, public purpose served, and significance of the legal issues, the Court concludes that Plaintiff received a purely technical victory when he was awarded a nominal damages award that resulted in no significant nonmonetary benefits to him or society.

Stop of defendant on a bicycle for violation of a local licensing ordinance was justified, and officers could see a knife in his back pocket, and that justified a frisk. United States v. Gomez-Isaguirres, 2007 U.S. Dist. LEXIS 54471 (D. Kan. July 26, 2007):

[W]e believe the case law supports a finding that the officers were justified in conducting a pat-down search of defendant after they saw what looked like a knife in defendant’s back pocket. A knife like the one possessed by defendant is a dangerous weapon whether or not it is illegal under Kansas law. The knife in this case was particularly threatening because it could be opened in a split second. Such a knife observed during a Terry stop justifies an officer taking reasonable protective measures. Those measures include patting down a detainee to determine whether that person has other weapons. The fact that the stop occurred in a high crime area known for drugs, gang activity and violence adds to the reasonableness of the protective action taken by the officers. On the basis of the facts of this case and the above-described case law, the court shall reject defendant’s argument that the pat-down search was illegal.

A book that criminal defense lawyers representing non-citizens or those with a strong cultural upbringing different than the American majority must have in their library is Linda Friedman Ramirez, ed., Cultural Issues in Criminal Defense (2d ed. 2007). Chapter 7 is “Cultural Issues in Fourth Amendment Motions to Suppress,” and the section headings (without subheadings) are as follows:

§ 7.1 Extraterritorial Law Enforcement Activities
§ 7.2 Fourth Amendment Protections for Citizens and Aliens
§ 7.3 Fourth Amendment Protections at the Border and Its Equivalents
§ 7.4 Checkpoint Stops and Searches
§ 7.5 Culture and Consent to Search

§ 7.5 was the most interesting to me because I read cases nearly every week about a non-English speaking defendant being questioned on the side of the road:

Cultural background and lack of familiarity with the American legal system are also important in determining whether consent to search is valid. The Tenth Circuit, however, rejected the claim of a defendant who asserted that his consent was not voluntary due to his “background and attitude toward police, derived from his experiences in his native Mexico.” The Court concluded that “an intangible characteristic such as attitude toward authority is inherently unverifiable and unquantifiable.” [quoting United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993)].

I had a suppression hearing today, with a relatively new AUSA and former career law clerk to a U.S. District Judge, and the same refrain kept coming up: Can you tell us about the consent? What was the defendant’s attitude? How did he answer your questions? Was he compliant? Did he object to the search? My question is: Did he know he could consent to the search once it started? In my limited experience with Mexicans in the U.S. and hearing about Mexican roadblocks for drugs set up without any constitutional safeguards (not to mention police bribery), they fear the police and do not dare question what the police are doing. Therefore, it has to be brought up and it is relevant to the totality of the circumstances, and Zapata is just wrong. Sure, the Tenth Circuit can brush it off 14 years ago, but what about now if somebody makes a decent record on the issue? I think this issue is still open to litigation.

Evidence of defendant being the leaseholder was conflicting. “Bruce Bell cannot adopt the government’s evidence that he leased the front Tyler Street apartment for the limited purpose of establishing standing while challenging the validity of this same evidence. Notwithstanding the government’s evidence to the contrary, Bruce Bell has consistently denied any leasehold or interest in the front Tyler Street apartment, and we thus conclude that the district court’s finding that he lacked a subjective expectation of privacy was not clearly erroneous.” His claim of guest standing was also unavailing. United States v. Bell, 218 Fed. Appx. 885 (11th Cir. 2007) (unpublished).

Denial of qualified immunity in a denial of summary judgment for a police officer that turns on a question of fact is not appealable. The appeals court actually lacks jurisdiction. Martin v. Tipton, 222 Fed. Appx. 366 (5th Cir. 2007)* (unpublished).

It was objectively reasonable for the police to believe that defendant’s girlfriend who called the police on her boyfriend to get him and his firearms out of her house when she gave them the key to go in. United States v. Robinson, 217 Fed. Appx. 503 (6th Cir. 2007)* (unpublished):

Ms. Sampson’s consent was freely and voluntarily given as she had initiated the contact with the police and she gave Officer Golden the key to her house without him having made any such request. (J.A. 45-46, 72, 74, 88.) While the district court found the search lawful, the district court did not make an explicit finding as to the scope of consent as it related to the firearms. (J.A. 90.) By advising the police that defendant had firearms and then providing Officer Golden with a key Ms. Sampson was implicitly consenting to the officers searching for the firearms. If a person advises a police officer that there is a potentially dangerous person in her house, that the person is in possession of firearms and then consents to a search of her house, an objectively reasonable person would expect the officer to search for both the potentially dangerous person and the firearms. This objectively reasonable expectation derives from the threat posed by the potentially dangerous person being increased by that person’s possession of firearms. In consideration of this, the district court’s conclusion that Ms. Sampson consented to the search for the firearms is not clearly erroneous. Given that Ms. Sampson consented to the search for the firearms, the district court properly denied defendant’s motion to suppress the firearms.

Officer’s eviction of plaintiff under a writ of execution, meaning only that the property was to be sold, was a Fourth Amendment violation. Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007):

Revis asserts, in addition to his due process claim, that his eviction violated the Fourth Amendment as an unreasonable seizure of his residence. In light of Soldal, 506 U.S. at 72, and Thomas, 304 F.3d at 576, Deputy Eaton’s actions in physically taking possession of Revis’s house by having the locks changed, retaining a key, and evicting Revis demonstrably effected a seizure within the meaning of the Fourth Amendment. See Soldal, 506 U.S. at 61 (holding that a seizure under the Fourth Amendment had occurred when police “unceremoniously dispossessed” a resident of his trailer home by authorizing its physical removal); cf. Thomas, 304 F.3d at 582 (questioning whether verbally ordering the tenants to leave and escorting them out was a seizure of the residence where the officers did not take physical possession of the property) (Gilman, J., writing for the court on this point separately from the lead opinion).

Deputy Eaton’s reliance on dicta in Soldal is misplaced. There, the Court noted that “had the ejection in this case properly awaited the state court’s judgment it is quite unlikely that the federal court would have bothered with a § 1983 claim alleging a Fourth Amendment violation.” Soldal, 506 U.S. at 71. The “state court’s judgment” that the Court advised waiting for in that case, however, referred to a judgment for possession pursuant to a state-court eviction proceeding pending at the time the trailer home was seized. Id. at 58. Thus, Soldal simply begs the question of whether the court’s writ of execution in this case entitled Eaton to evict Revis.

You have to get hurt to make an excessive force claim: Plaintiff’s excessive force claim failed. He was wrestled to the ground because he did not immediately stop his car and he did not reasonably respond to officer’s orders when he was stopped. He required no medical treatment and complained of no discomfort. The entire occurrence was on the patrol car video. McGee v. City of Cincinnati Police Dept., 2007 U.S. Dist. LEXIS 28665 (S.D. Ohio April 18, 2007).

In a consent search of a vehicle, scarred screwheads gave cause to remove them. United States v. Ferrer-Montoya, 483 F.3d 565 (8th Cir. 2007).*

District court did not err in finding that third party had authority to consent to a search. She rented the apartment for one of the defendants but she made it clear to the manager that she could come and go at will. That gave her apparent authority. United States v. Garcia-Jaimes, 484 F.3d 1311 (11th Cir. 2007).*