(More to come later; I’m doing a CLE today, and I have to prepare.)

After police were unable to get DNA from a suspect to tie him to a rape of their mentally challenged daughter, the victim’s family hired a PI who followed the suspect for months. Finally, he saw him spit on the sidewalk, and he gathered the evidence and it was tested by the police linking the defendant to the crime. Spitting on a public street and making no effort to protect the sample from collection by others is an abandonment. Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 866 N.E.2d 429 (2007).

Officers were looking for three Romanians, and two they knew for sure and the third they believe was one of them. After the arrest, they discovered their mistake of identity and released the third man. He was shortly asked for consent, and it was validly granted. The erroneous arrest and then release did not taint the consent under Hill v. California. Borta v. State, 957 So. 2d 1262 (Fla. App. 4th Dist. 2007):

Borta later moved to suppress all the evidence, claiming that all of it resulted from the initial seizure and handcuffing. The trial court denied the motion, holding that the initial handcuffing was a good faith mistake, that Borta had then been released from that seizure, and that his later consents to search were both valid. We agree.

In Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), the Supreme Court held that when police have a warrant to arrest one person but mistakenly arrest another, the arrest is valid if the mistake was reasonable. Subjective good faith alone is not enough; the mistake would be reasonable if the surrounding facts and context made the identification of the suspect sufficiently probable. 401 U.S. at 804. Later the Court held that the reasonableness of the arrest depends on the totality of circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

The trial judge’s factual finding is supported by substantial competent evidence. The agents already had probable cause to arrest Panaipescu and Cerna. They had seen the man they believed was Panaipescu with another known suspect whom they recognized as part of the scheme and who lived in the same complex. They knew the three suspects had all been together in the same apartment, seeing the two leave. Under the circumstances the trial judge could determine that the identification of the third man, Panaipescu, was sufficiently probable. Their mistake was therefore reasonable under the circumstances.

Lack of visibility of back tag on car was cause for stop, and it did not dissipate when the officer walked right up to it (distinguishing cases), because of the excessive tint making the interior of the car invisible to him. United States v. Jackman, 2007 U.S. Dist. LEXIS 35231 (D. Utah May 14, 2007).*

Informants were classic citizen informants who were witnesses to crime, and they are entitled to more credibility as a result. Castella v. State, 2007 Fla. App. LEXIS 7480 (4th Dist. May 16, 2007).*

Local authorities set up a roadblock to ask motorists leaving the area if they knew anything about a burglary occurring 30 minutes earlier. The roadblock was valid under Lidster. State v. Gorneault, 2007 ME 49, 918 A.2d 1207 (2007):

The circumstances of the brief stop of Gorneault’s vehicle and of his subsequent arrest are substantially similar to those in Lidster. Police set up a roadside inquiry of every vehicle passing through an area where a crime had recently been committed for the purpose of obtaining information about the crime and its perpetrator. The stop was of very brief duration and unlikely to cause alarm or anxiety, and the questions were limited to those related to the recently committed burglary. The purpose of the brief stop and the inquiry was not to determine if the drivers themselves committed a crime, nor to conduct general crime investigation, but rather was in response to a specific crime committed at a specific time and in a specific location. Gorneault’s condition was observed during that brief stop. Accordingly, the Superior Court did not err in denying Gorneault’s motion to suppress.

Separating co-tenants and asking one for consent was binding on both. Randolph does not apply to situations like this where co-tenants are separated to talk to them and one consents. There was no showing that the separation occurred because defendant might veto consent. McClelland v. State, 2007 WY 57, 155 P.3d 1013 (2007).*

Violation of Hurrican Ivan curfew led to a detention by a law enforcement officer which led to a frisk that revealed drugs. The curfew was validly adopted by the Governor and the city. State v. Severin, 958 So. 2d 21 (5th Cir. 2007), released for publication July 2, 2007.*

Officer had a factual basis for encountering the defendant about drug interdiction at the Albany NY bus station. Defendant was about to leave in a shared taxi ride. His denial of ownership of the bag was an abandonment. People v. Jennings, 2007 NY Slip Op 3028, 39 A.D.3d 970, 833 N.Y.S.2d 737 (3d Dept. 2007).*

Defendant’s one-room apartment was shared with another, and that person could validly consent. People v Forino, 2007 NY Slip Op 3159, 39 A.D.3d 664, 833 N.Y.S.2d 603 (2d Dept. 2007).*

Driver of a rental car who was not the renter was found to have standing because he was permitted to drive by the renter. This is a fact-bound inquiry, and defendant showed enough to have standing. However, defendant loses on the merits because the officer had reasonable suspicion for the stop and even probable cause based on specific information from a CI. United States v. Dennis, 2007 U.S. Dist. LEXIS 54526 (E.D. Pa. July 26, 2007). On standing:

[After recognizing the split in the circuits:] One court in this Circuit recently considered this standing issue in light of the Third Circuit’s opinion in Baker. In United States v. Kennedy, 2007 WL 1740747, *3-4 (E.D. Pa. Jun. 15, 2007), the court observed that in Baker, the Third Circuit adopted a “fact-bound” inquiry into a driver’s standing. Id. at *4. Accordingly, the Kennedy court held that Baker “may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test.” Id. As to the bright-line approach, the court observed: “Despite the laudable qualities of this standard–including ease of applicability–it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis.” Id. at *3.

This Court agrees with the analysis of the Kennedy court. In Kennedy, citing Baker, the Court predicted that “the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test.” Id. at *4.

In this case, either of these two approaches–the modified bright line rule or the totality of the circumstances test–leads to the conclusion that Dennis has standing to contest the search of the Grand Prix. Dennis had the authorized driver’s permission to use the Grand Prix; he knew the renter and authorized driver, Green, for approximately twenty years; he was alone in the vehicle; he had the keys; and he had been using the car for several hours before the search. Tr. 4/19/07 at 82-83. In addition, there is some evidence that defendant had his driver’s license and paperwork for the vehicle with him at the time of the search. Id. at 84-85.

Officer was pleasant and cordial during the roadside interview that led to consent. His hand gesture was not threatening. Another officer was around but not standing close enough to participate. Nevertheless, the officer had probable cause because of fresh toolmarks around the gas tank. United States v. Villegas, 2007 U.S. Dist. LEXIS 54557 (D. Utah July 27, 2007):

Here, Trooper Bradford’s observations suggested a strong possibility of a hidden compartment underneath the Mercury which concealed contraband. Relying on his extensive experience as an auto mechanic, as well as his experience and training in narcotics interdiction, the trooper noticed that someone had recently tampered with the gas tank. The fresh tool markings and the new rubber fuel lines and hose clamps, as well as the fact that the strap bolts were different lengths, all indicated a recently altered gas tank. And Mr. Villegas told the trooper he had never altered or removed the gas tank, reducing the likelihood of a valid explanation for the tampering. The trooper testified that the tampered gas tank evidenced the presence of a hidden compartment because gas tanks are often used for that purpose.

Plaintiff’s complaint pled the Fourth Amendment but no jurisdictional statute, so the court assumed § 1983. But, the allegations of the complaint were so vague that the defendants were unable to intelligently respond. Even their claim of qualified immunity cannot be determined. Case dismissed with leave to amend [slightly inconsistent; a case needs to be pending to have an amendment]. Sanders v. Aranas, 2007 U.S. Dist. LEXIS 54571 (E.D. Cal. July 27, 2007).*

MethCheck is software for pharmacies that simplifies logging their pseudoephedrine sales. As states with meth lab problems require logs of pseudoephedrine sales, now the cashier can swipe the magnetic strip on the buyer’s driver’s license, and it collects the data on the buyer and the product purchased on the company’s website and e-mails local police about large purchases or a pattern of purchases.

MethCheck LE allows on-demand, real-time access to pharmacy logs from across the country via a website accessible from any PC with internet connectivity. Additionally, MethCheck provides automated tools that give law enforcement the ability to monitor suspicious buying patterns and to “watch” specific individuals who exceed the legal limits imposed by state law.

This was on NPR’s Morning Edition a week ago today: U.S. Tracks Suspicious Sudafed Purchases. A law enforcement website has this article: Cops Using ‘Methcheck’; Rights Activists Whine.

In one story which has appeared more than once, officers showed up at a CVS Pharmacy right after the sale was completed, but missed the buyer. All that shows is that they are right on it, but that does not mean they will catch the buyer at the store.

More importantly, what it means for us, however, is that if the officers have matched a vehicle with the buyer through DMV records, is that enough for a traffic stop on reasonable suspicion? Based on the cases of “Wal-Mart reasonable suspicion” and the stops in Wal-Mart parking lots based on over possession of pseudoephedrine, I think so, as long as the information really does show a pattern of “smurfing.”

In a rare admission, the Deputy Secretary of the Transportation Security Administration recognized that the prohibition on small butane lighters did nothing to enhance airline security, and even called it “security theater.” See AP, Officials Lift Airplane Ban on Lighters on NYTimes.com this afternoon. The ban on lighters was in response to Richard C. Reid, the convicted [attempted] shoe bomber. TSA allows matches onboard airplanes, and it admitted that most bombs could be ignited by batteries. Reid was trying to use a match which the flight attendant smelled burning.

In December, a woman lit a match to cover her passing gas on an American flight which caused the plane to be diverted to Nashville. The smell of burning matches makes everybody justifiably nervous on an airplane.

What TSA is in charge of is the “illusion of security.” I’m not so sure the x-ray screenings are really proving a lot. They deter somewhat, but I still expect something. At Christmas time, expensive bottles of champagne and wine were in the Rubbermaid barrels waiting to be disposed of. Those who fly once or twice a year don’t get it or pay attention to airport security rules. Atter all, they don’t understand or learn all the rules until they get to the airport and have their hair shampoo or expensive perfume confiscated.

About December 30, 2001, when the National Guard was still standing “guard” at airports [thank God with empty weapons], we flew back from Anchorage, and a poor soul was arguing with security about their taking an expensive Swiss Army knife he got for Christmas. What planet had he been on for the last four months that he did not know about that rule?

The TSA at least uses bomb sniffing mechanical screening machines in most significant airports, and that is probably our safest bet. A hijacking just is not going to occur, no matter what the weapon, because the passengers simply will not let it happen, and any potential hijacker with more than five brain cells should know that by now. So, other forms of destruction of passenger aircraft are the real risk.

So, back to the “illusion of security”: I joined Fly Clear for “trusted travelers,” since it comes to Little Rock in August. They check the criminal records of purported “frequent fliers” so those willing to pay for Fly Clear get a separate security line that is faster and less intensive. Still have to take your shoes off, I understand.

I had to sign up for Fly Clear in another city when on the road because the guys from Fly Clear are not yet in LIT. They come in in about a month. When I flew to NYC this weekend, the LIT security line, with four lanes open (instead of the normal two), was over 100 people long at 5 a.m., which is normal, since there are 13 flights out in the first 90 minutes of the day. That takes about 30 minutes to get through.

Yes, I, the civil libertarian, had to give Fly Clear my fingerprints and a scan of my passport and driver’s license and submit to a criminal records check (they say you are “vetted by TSA”). Don’t they do that all the time anyway? Since I handled an accused terrorist case last year, didn’t the feds already check me out? Nothing secret, but I had the uneasy feeling of having been checked out since my client and his wife were on a no fly list, even after he was acquitted of the terrorism count. He’s in jail on something else, but she still can’t fly. TSA can’t get her off the list so she can go see him in prison. I had to be fingerprinted for two states I got licensed in anyway. My passport gets checked whenever I cross the border coming back. What don’t they already know about me? An [illegal] NSL to my credit card company or airline will tell them everywhere I’ve been, forever. Fly Clear promises to dump the information every 48 hours anyway so it cannot be subpoenaed except in a true emergency, and then only immediately after the fact.

They did allow me to use both my middle fingers as the “passcode” finger on the biometric chip on the card we must use to go through a Fly Clear security post. Fly Clear, at least, appears to have a sense of humor.

Nah. Since TSA recognizes “security theater,” maybe they will get one, too. “No jokes” at security; the government’s been telling us that for three decades.

Broad search warrant in a tax preparation fraud case did not violate the particularity requirement. While the list was significantly long and covered nearly every record in the business, there was no “catch-all” phrase at the end that would make it overbroad under circuit case law. United States v. Smith, 2007 U.S. Dist. LEXIS 52377 (W.D. N.Y. July 19, 2007):

The Second Circuit, in upholding broadly worded categories of items available for seizure, has expressly noted that “the language of the warrant is to be construed in light of an illustrative list of seizable items.” United States v. Riley, 906 F.2d 841, 844 (2d Cir. 1990) (citations omitted). In upholding the validity of the warrant in Riley, the Court observed:

[T]he warrant supplied sufficient examples of the type of records that could be seized – bank records, business records, and safe deposit box records. No doubt the description, even with illustrations, did not eliminate all discretion of the officers executing the warrant, as might have occurred, for example, if the warrant authorized seizure of the records of defendant’s account at a named bank. But the particularity requirement is not so exacting. Once a category of seizable papers has been adequately described, with the description delineated in part by an illustrative list of seizable items, the Fourth Amendment is not violated because the officers executing the warrant must exercise some minimal judgment as to whether a particular document falls within the described category.

It is true that a warrant authorizing seizure of records of criminal activity permits officers to examine many papers in a suspect’s possession to determine if they are within the described category. But allowing some latitude in this regard simply recognizes the reality that few people keep documents of their criminal transactions in a folder marked “drug records.”
United States v. Riley, 906 F.2d at 844-845. Riley recognizes that the realities of a complex criminal investigation often necessitate that law enforcement officials involved in such investigations be permitted some latitude in fulfilling the particularity requirement of the Fourth Amendment.

Alternatively, the warrant was valid under the “business permeated by fraud exception” for a wholesale seizure of records:

Even if it were assumed arguendo that the search warrant in this case constituted a “general” or so-called “all-records” warrant, it would still be valid under the facts and circumstances present here. Although the particularity requirement of the Fourth Amendment creates a general presumption against “general” or “all-records” warrants, courts, including the Second Circuit, have recognized an exception where there is probable cause to believe that criminal activity permeates the business to be searched. [citations omitted]

In this case, the Court finds that the search warrant application provided probable cause to believe that the defendant’s business enterprises were permeated by fraud. Defendant used a variety of similar sounding names for his business premises, including The Auto Store, American Direct Services, 24 Hour Towing and Auto, ABC Services, etc. The business, as described by former employees and customers, was a combination of a used car sales operation and an income tax preparation business, as well as providing insurance for the vehicles. Defendant used an employee’s name on car titles, registration forms, and the business certificate. Defendant had also been overheard using a false name on the telephone in the business.

The manner in which defendant sold cars also suggests pervasive illegality. The customers signed documents in blank or were not allowed to see what they signed. Nor did they get copies of the documents they signed. Customers also complained that the defendant refused to provide them with receipts for any payments they made.

Defendant lived with his mother, and they shared a computer. There were two user profiles on the computer and both were password protected. Defendant’s child’s mother called her and told her that she found child porn on her computer after the defendant stayed there. His mother tried to get into his user files and could not. She then consented to delivering the computer to the police and to searching it. He had a reasonable expectation of privacy in the password protected files. She consented to a search of the computer because she owned it and could deliver it to the police, but the court requires a hearing on whether the expectation of privacy in the password protected files protects the defendant’s files from her consent. United States v. Robson, 2007 U.S. Dist. LEXIS 53627 (E.D. Mich. July 24, 2007).

Comment: The case law is finally starting to recognize that password protection of a computer or files in a computer is equal to locking a door or a briefcase. This case is one of several this year respecting a password as an expectation of privacy. A hearing is required in this case for the defendant to develop more proof on the issue.

Defendant’s guilty plea to a possession charge foreclosed his civil case under Heck. He could have contested his search in the state proceeding. Richard v. Macomb County Sheriff Dep’t, 2007 U.S. Dist. LEXIS 53648 (E.D. Mich. July 18, 2007).*

An officer with reasonable suspicion who sees a scale with drug residue on it and other evidence of drug trafficking has, under the totality of circumstances, justification for seizure. That led to a search warrant and finding a gun. United States v. Armstrong, 2007 U.S. Dist. LEXIS 53603 (D. Minn. June 11, 2007):

Electronic gram scales of the type seized in the investigation in this matter (Second Hearing Exh. No. 1) are commonly used to weigh drugs and to repackage into smaller quantities for resale, and indeed, Mr. Boulger has previously seen this kind of scales in drug trafficking investigations. While discovery of individual evidentiary items, considered separately and in isolation, would not necessarily support a police officer’s belief that a drug trafficking offense was occurring, the discovery of such items, including an electronic gram scale, a razor blade, and drug residue, located in proximity to one another, and considered in their totality, constitutes evidence to support the belief that the scale was being use to weigh drugs and to facilitate their redistribution.

The “fugitive disentitlement doctrine” within the forfeiture statute at 28 U.S.C. § 2466, the same as the rule that a fugitive forfeits his appeal, applies to a civil forfeiture action involving the home of the potential claimant. The affidavits from the government, however, do not show that the claimant fled knowing that there were warrants and a forfeiture pending. The government’s motion for immediate forfeiture is overruled without prejudice to refile it if they can prove it. United States v. Real Property Known as 3678 Waynesville Road, Spring Valley, Greene County, Ohio, 2006 U.S. Dist. LEXIS 96539 (S.D. Ohio March 7, 2006).*

Under Texas statute excluding evidence obtained in violation of the law, Tex. Code Crim. Proc. Ann. art. 38.23(a) (“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.”), a civil or common law trespass does not constitute a violation of the law within the meaning of article 38.23(a). Crowell v. State, 147 Tex. Crim. 299, 180 S.W.2d 343, 347 (Tex. Crim. App. 1944) (applying predecessor statute); Carroll v. State, 911 S.W.2d 210, 221 (Tex. App.–Austin 1995, no pet.); Delosreyes v. State, 853 S.W.2d 684, 689 (Tex. App.–Houston [1st Dist.] 1993, pet. ref’d). Doss v. State, 2007 Tex. App. LEXIS 5822 (Tex. App. – Austin July 24, 2007).

Officers conducted a traffic stop for no turn signal when defendant pulled into a convenince store. Because of his nervousness, they had him get out of the car for a patdown. Officers then noticed a small packet of crack where the tire would have rolled, but it was intact. The defendant’s conviction for possession was affirmed, and the evidence of possession was sufficient. Johnson v. State, 2007 Tex. App. LEXIS 5824 (Tex. App. – Tyler July 25, 2007).*

Trial court’s finding of voluntariness of consent was not clearly erroneous, so defense counsel could not be ineffective for not arguing that the statement was the product of an involuntary consent. State v. Brazil, 2007 Wisc. App. LEXIS 656 (July 24, 2007).*

A defendant who had an IQ of 67 and “was schizophrenic and evinced a mixed personality disorder with passive-aggressive, dependent, and depressive features,” as testified to in the case in chief, could still consent to a search. “In the present case, despite the evidence of the defendant’s mental disorders, no evidence really contradicts the trial court’s finding that the defendant freely and knowingly consented to the search of his home. Accordingly, we hold that the trial court did not err in denying the motion to suppress the evidence seized from the defendant’s home.” State v. Shelton, 2007 Tenn. Crim. App. LEXIS 598 (July 26, 2007).*

The Tennessee Court of Criminal Appeals held that while there was justification for pulling the defendant over, there was no justification for running a dog around the car as a part of a routine traffic stop. The stop was complete, and the defendant was asked for consent and refused. Then the dog was brought out, and it was unconstitutional. The fact it was done “real quickly” is not significant. The defendant’s nervousness that led to a frisk of his person was a product of the unlawfulness of the detention. The conviction is reversed and dismissed. State v. Fly, 2007 Tenn. Crim. App. LEXIS 599 (July 26, 2007):

(1) Accommodation by the duration and scope of the traffic stop

First, we determine whether any independent factual justification for the canine sweep was even constitutionally necessary. The inquiry is whether the use of the drug-sniffing dog was conducted within the reasonable scope and duration of the detention. See generally Caballes.

Officer Carter testified that “[a]fter [he] wrote [the defendant] the citation,” he “asked for consent to search the vehicle.” Consent was denied. The officer then “asked [the defendant] to step out of the vehicle” and told him that he was going to “run [his dog] around the vehicle real quickly.” The officer noticed at this time that the defendant, who had emerged from the car as requested, was moving his hands around in his pockets.

Our review of caselaw involving the use of a drug-sniffing dog on a stopped vehicle yields a rather simple rule: The officer needs no suspicion or cause to “run the dog around” the stopped vehicle if he does it contemporaneously with the legitimate activities associated with the traffic violation. See Caballes, 543 U.S. at 409, 125 S. Ct. at 837-38 (upholding constitutionality of dog sniff conducted by an officer “[w]hile [a second officer] was in the process of writing a warning ticket, [the second officer] walked his dog around [Caballes’] car” and stating that the use of the dog during Caballes’ traffic stop “[did] not implicate legitimate privacy interests” because “the dog sniff was performed on the exterior of [Caballes’] car while he was lawfully seized for a traffic violation”) (emphasis added); England, 19 S.W.3d at 767-68 (upholding constitutionality of a dog sniff while the officer waited for a reply to a records check following a stop for a license-plate-lighting violation, stating that “the canine sweep did not constitute a search under the Fourth Amendment and therefore required neither probable cause nor reasonable suspicion”). If the officer conducts the dog sniff after these activities are–or should have been–completed, see generally Justin Earl Bruce, he is engaging the motorist in an unconstitutional detention, unless an independent basis for suspicion has legitimately evolved. State v. Morelock, 851 S.W.2d 838, 840 (Tenn. Crim. App. 1992) (holding that a constitutional violation occurred when the officer issued the motorist a citation, was denied permission to search the trunk of the motorist’s vehicle, sent for a drug sniffing dog, and used the dog to detect drugs in the trunk).

Because Officer Carter had already issued the citations to the defendant, the time frame for “running the dog around” the vehicle without any suspicion or cause had expired. We turn now to the issue whether a suspicion independent of the reason for the stop justified the use of the dog.

(2) Independent factual basis justifying a canine sweep

In the present case, we discern no facts from the officer’s initial observations of an encounter with the defendant that suggest a reasonable suspicion that a drug crime was being committed. Cf. United States v. French, 974 F.2d 687, 690 (6th Cir. 1992) (explaining that, after truck was stopped for weaving, officers smelled odor of marijuana emanating from rear of truck and then had reasonable suspicion to investigate, reasonably waiting on a narcotics-detection dog that was 50 miles away at the time of the call), overruled in part on other grounds by United States v. Ferguson, 8 F.3d 385 (6th Cir. 1993). Rico, Officer Carter’s dog, was trained to detect the presence of drugs, not items such as bolt-cutters or stolen lawn mowers. Moreover, the officer’s initial concerns about the defendant’s being intoxicated apparently were quickly dispelled following the officer’s face-to-face encounter with the defendant.

Furthermore, no facts developed after the officer’s approach of the defendant’s vehicle that independently supported conducting a canine sweep of the vehicle. We know that Officer Carter testified that the defendant, who was still seated in his car, became “nervous” when the officer asked him for consent to search the vehicle; however, we reject this observation as a sole, independent basis for conducting the dog’s sweep. First, we note that Officer Carter admitted that, in his experience, people who were committing no offenses could become nervous when asked by a police officer for consent to search. We have no doubt that such is true. Second, this court has opined that a Terry-type frisk may not be merely based upon the “standardless” perception that the detained motorist was “nervous.” State v. Eric Berrios, No. W2005-01179-CCA-R9-CD, slip op. at 13 (Tenn. Crim. App., Jackson, Mar. 3, 2006), perm. app. granted (Tenn. 2006).

Consequently, we fail to discern any justification for delaying the detention for the purposes of using the drug dog, even if it was done “real quickly.” When the officer gave the defendant the citations, the legitimacy of the detention ended.

Comment: Some courts find the delay of one or two minutes for the dog sniff to be conducted “de minimus” under the Fourth Amendment. See the Eighth Circuit’s opinion in United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 648 (8th Cir. 1999). Tennessee has the proper approach. When dealing with police citizen interactions on the highway where everything turns on the officer’s credibility (they almost always get the benefit of the doubt) the Fourth Amendment should not be subject to parsing by “is this de minimus?” There is, of course the warrant execution issue of prejudice to the accused, and de minimus might and often does play a role there, but that is a part of the constitutional preference for a search warrant, and that changes the entire calculus. See my Comment with this prior post.

The defendant sought the officer’s confidential personnel file for the purposes of a Pitchess to challenge the officer’s credibility, but he could not make a sufficient showing to get it since the undisputed facts showed probable cause for arrest. Giovanni B. v. Superior Court, 152 Cal. App. 4th 312, 60 Cal. Rptr. 3d 469 (4th Dist. 2007):

To show good cause for discovery of confidential officer information, a Pitchess motion must (among other things) explain the proposed defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense. (Warrick v. Superior Court, supra, 35 Cal. 4th at p. 1024.) Here, Giovanni explained the proposed defense, and the relevance of the requested information, was a potential suppression motion that would assert “Trampus and Murgia wrote false information in their police report to justify their detention and pat[-]down of Giovanni [and] [w]ithout the false information, the officers [would] not have been justified in detaining and patting down Giovanni.”

However, Giovanni was detained and placed into temporary custody based in part on his appearing to be underage and on the streets after midnight. Because the officers had (and Giovanni does not contest) this objectively reasonable basis on which to detain and place Giovanni in temporary custody for suspected violation of Chula Vista’s curfew ordinance (see In re Charles C. (1999) 76 Cal. App. 4th 420, 424 [police may place minor in custody for violating curfew]; In re Ian C., supra, 87 Cal. App. 4th at pp. 859-860 [police may place minor in temporary custody for violating curfew and conduct search incident to arrest]), Giovanni cannot contest the validity of the stop and search by asserting the officers’ other observations concerning suspected criminal activity were false and a subterfuge to support the stop. (People v. Woods, supra, 21 Cal.4th at pp. 679-681.) Giovanni’s Pitchess motion did not claim it might reveal information calling into question the accuracy of the officers’ observations that Giovanni was a minor on the streets in violation of curfew, or any information suggesting the officers improperly relied on their observations of his youthful appearance to support the stop. (See In re James D. (1987) 43 Cal.3d 903, 916-917.) Giovanni’s Pitchess motion did not articulate how the officers’ veracity would be admissible on whether, after Giovanni was properly stopped and placed in temporary custody for curfew violation, the officers were permitted to conduct the pat-down search that revealed the screwdriver.

Consent to search was voluntary on totality. The fact that the officer had his gun drawn for just 10 seconds and reholstered when any apparent threat was nonexistent was significant. So was his prior criminal history. United States v. Mendoza, 2007 U.S. Dist. LEXIS 44647 (W.D. Pa. June 20, 2007):

The length of time of the encounter between defendant and the officers at the time of the consent to search defendant’s person was less than five minutes, and the questioning of defendant was not prolonged or repeated. Defendant exhibited a calm demeanor and was cooperative with the officers. Defendant did not exhibit any mental or physical handicaps that would effect his ability to consent to the search of his person and defendant’s age was not such that it would effect his ability to consent to the search of his person. Finally, defendant’s background includes a prior arrest and conviction on drug charges.

911 call from a six year old child justified officers’ warrantless entry into plaintiff’s home, and they were entitled to qualified immunity. Morton v. Lunde, 2007 U.S. Dist. LEXIS 44523 (D. Idaho June 19, 2007).*

Plaintiff’s version of the facts of her arrest showed it was without probable cause and with excessive force, and she stated a claim for relief. Hayhurst v. Upper Makefield Twp., 2007 U.S. Dist. LEXIS 44762 (E.D. Pa. June 19, 2007).*

In an excessive force claim, an officer’s pointing a gun and shooting (without hitting) was not excessive force under all the circumstances because of the risk of violence by the plaintiff. Hendricks v. Governor’s Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 16322 (E.D. Tenn. March 7, 2007):

Considering the totality of the circumstances, the Court does not believe that the force used against plaintiff by defendants Poore and Rodriguez was unreasonable. As noted by the Government Task Force defendants in their brief in support of their motion for summary judgment, the Supreme Court has held that it is not unconstitutionally unreasonable for a law enforcement officer to use deadly force where that officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Even viewing all of the facts in the light most favorable to plaintiff, defendant Rodriguez did not act unreasonably in using deadly force against him. Given that plaintiff had fired four shots in the air and brandished a .22-caliber rifle for the express purpose of “wanting to let them know that I was also armed,” [Doc. 1 at 5], both defendants Poore and Rodriguez had probable cause to believe that plaintiff posed a threat of serious physical harm to them. As they admit in their brief in support of their motion for summary judgment, defendants Poore and Rodriguez “reasonably believed that plaintiff would shoot at them again.” [Doc. 42 at 9.] All of the evidence suggests that defendant Rodriguez shot at plaintiff out of self-defense. See Garner, 471 U.S. at 11. Thus, because defendant Rodriguez’s actions were motivated by a concern for protecting and preserving his own life and that of his fellow officers, the shot he fired at plaintiff was not unreasonable. Sargent v. City of Toledo Police Dept., 150 Fed. Appx. 470, 475 (6th Cir. 2005).

Petitioner’s defense counsel was not ineffective for not filing a suppression motion that would have lost. Brown v. United States, 219 Fed. Appx. 917 (11th Cir. 2007)* (unpublished).

Defendant’s stop and patdown was with reasonable suspicion where he was walking through a muddy lot with his hands in his pockets and continually looking back at a police car. He went up onto a porch and “odd[ly] pantomime[d]” knocking on the door. United States v. Harris, 218 Fed. Appx. 916 (7th Cir. 2007).*

In a § 1983 case challenging a drug stop, “[d]efendants’ contention that they acted reasonably under the circumstances goes uncontradicted” in the summary judgment papers so plaintiff loses. Lee v. Matthews, 2007 U.S. Dist. LEXIS 16343 (E.D. Mich. March 8, 2007).*

Officers surveilled defendant from Chicago into Indiana where he dropped off a duffle bag and returned to Chicago, and the officers, based on experience, thought it was a drug deal. He was stopped back in Chicago, and he validly consented to a search of his backpack at his home. United States v. Dang, 2007 U.S. Dist. LEXIS 16642 (N.D. Ill. March 7, 2007).*

For a “reasonable belief” under Payton, it is not required that officers actually see the suspect. Actions of others can create such a belief. United States v. Foutch, 219 Fed. Appx. 774 (10th Cir. 2007) (unpublished):

The first prong is satisfied because there is no dispute that the trailer was Mr. Foutch’s home. The second prong is also satisfied because the deputies had a “reasonable belief” that Mr. Foutch was in the residence. Id. In Valdez, this court concluded that officers entering a suspect’s dwelling with an arrest warrant need not have actual knowledge that he is home; rather, they must have an “objectively reasonable” belief that he is present. Id. The court emphasized that “actual viewing of the suspect on the premises is not required. Indeed, the officers may take into account the fact that a person involved in criminal activity may be attempting to conceal his whereabouts.” Id. at 1226 (citation omitted).

Here, the district court found that Ms. Shatto’s equivocating responses to the deputies’ questions about Mr. Foutch’s whereabouts gave them a reasonable basis to believe he was lurking in the trailer.

In a similar case, the C.D. Ill. holds that the standard for entry of a third person’s home with a warrant is reasonable suspicion and not probable cause. Covington v. United States Department of Justice, 2007 U.S. Dist. LEXIS 16872 (C.D. Ill. March 8, 2007).

Prison search and strip search claims fail. Monroe v. Beard, 2007 U.S. Dist. LEXIS 16943 (E.D. Pa. March 7, 2007):

During the search of their cells, prison officers strip searched plaintiffs in their cells, ordered them to dress, handcuffed them and made them stand outside the cells while the officers searched inside. Plaintiff Collins states that an officer inserted a finger in his rectum during the search. These allegations do not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Eighth Amendment forbids the unnecessary and wanton infliction of pain that is without penological justification. Hope v. Pelzer, 536 U.S. 730, 737-738 (2002) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Plaintiffs’ pleadings do not establish that they were subjected to unnecessary pain during the August 4, 2005 search of their cells. The methods used by SCI-Graterford to conduct the search fall into well-established parameters. The Eighth Amendment excludes de minimus uses of physical force. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (not “every malevolent touch by a prison guard gives rise to a federal cause of action.”). The type of search conducted here–handcuffing a prisoner, removing him from his cell, and strip-searching him–is a de minimus intrusion that does not violate the Eighth Amendment. Ostrander v. Horn, 145 F. Supp. 2d 614, 618-19 (M.D. Pa. 2001) aff’d 49 Fed. Appx. 391 (3d Cir. 2002); see also Hill v. Blum, 916 F. Supp. 470, 473 (E.D. Pa. 1996) (pat search of the genital area does not implicate the Eighth Amendment).

Plaintiffs cannot claim any violation of their Fourth Amendment rights. The Supreme Court has determined that a prisoner does not have a legitimate expectation of privacy in his cell and therefore “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Hudson v. Palmer, 468 U.S. 517, 526 (1984). Searches of inmates and their cells are necessary to ensure the security of the prison and the safety of all inmates. Id. at 529. Accordingly, the Fourth Amendment does not protect an inmate from seizures of his property. Id. at 528-29. Nor does it protect inmates from visual cavity searches. Bell v. Wolfish, 441 U.S. 520, 558 (1979) (affirming the use of post-visitation body cavity searches that required male inmates to lift their genitals and bend over and spread their buttocks for visual inspection).

Off-duty California officers have the authority to arrest. United States v. Fay, 2007 U.S. Dist. LEXIS 16947 (E.D. Cal. February 23, 2007).

Informant may be corroborated by information that is not itself criminal. United States v. Quezada-Enriquez, 2007 U.S. Dist. LEXIS 16846 (D. N.M. February 5, 2007).

Brief inspections of housing units under HUD regulations written into a lease were not an unreasonable search nor was it alleged that any inspections were unreasonably done. Therefore, the Fourth Amendment was not violated. Echemendia v. Gene B. Glick Management Corporation, 2007 U.S. Dist. LEXIS 20118 (N.D. Ind. March 20, 2007).*

Defendant had no standing to challenge the seizure of a disposable camera from a vehicle that was not his and he was not around that was accidentally left there by his father. United States v. Fischer, 2007 U.S. Dist. LEXIS 20149 (D. Minn. March 20, 2007):

At the suppression hearing, Cruze testified that the disposable camera was on the floor of the Suburban’s cargo area and had no markings to identify an owner. Defendant testified that he left the camera in an overnight bag in the Suburban and that he expected his father to take the bag home. It is undisputed that the camera belonged to defendant. Defendant argues that he had a possessory interest in the camera and an expectation of privacy in the undeveloped film because he purposefully left the camera in his father’s Suburban. He claims that the warrantless search for the camera and the development of the film constituted violations of his Fourth Amendment right to be free from unlawful search and seizure. The magistrate judge rejected defendant’s arguments and concluded that he does not have standing to challenge the seizure.

To have standing under the Fourth Amendment to challenge the lawfulness of a seizure, a defendant bears the burden to prove that he had a legitimate expectation of privacy that was violated by the challenged search. Rakas v. Illinois, 439 U.S. 128, 134 (1978); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). Specifically, a defendant must demonstrate that he had a subjective expectation of privacy that “society is prepared to recognize as objectively reasonable.” Muhammad, 58 F.3d at 355. In rejecting defendant’s argument, the magistrate judge considered the factors enunciated in United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), and concluded that defendant lacked a subjective expectation of privacy because his “lack of possessory interest and failure to regulate access to the camera outweigh his ownership and historical use of the camera.” (R&R at 8.) Nonetheless assuming a subjective possessory interest, the magistrate judge further concluded such a possessory interest is not one society would accept as objectively reasonable. The court agrees.

The unmarked, disposable camera was seized from a vehicle that did not belong to defendant, defendant was not present when it was seized and there is no evidence that he made any efforts to identify the camera as belonging to him or inform law enforcement officials that he was claiming ownership. There was no testimony that anyone present the night the Suburban was seized identified defendant as having been present or having a connection to any of the items located within the vehicle. Had defendant desired to stake a possessory interest in the camera, he had eight months to make an attempt to do so. The film was ultimately developed in preparation for the separate criminal trial of the owner of the vehicle, his father. Although defendant emphasizes his personal relationship with the vehicle’s owner, even as a passenger “a person has no reasonable expectation of privacy in an automobile belonging to another.” United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001). Therefore, the court adopts the magistrate judge’s recommendation and denies defendant’s motion to suppress evidence.

Defendant did not consent to his continued detention, but it was based on reasonable suspicion. United States v. Robinson, 221 Fed. Appx. 236 (4th Cir. 2007)* (unpublished).

Plaintiff showed sufficient facts to survive summary judgment that deadly force was not justified in killing plaintiff’s decedent. Also, the factbound inquiry defeats defendants’ qualified immunity claim. Estate of Smith v. City of Wilmington, 2007 U.S. Dist. LEXIS 20314 (D. Del. March 22, 2007).*

Defendant’s staleness argument fails because the information in the affidavit showed a continuous pattern of behavior. The good faith exception would have saved the search anyway. Defendant’s claim that the timestamp on the faxed copy of the warrant being 9 minutes earlier than the judge signed it doesn’t seem to prove much. There was no indication that the judge did not review the information in support of the warrant. United States v. Anton, 2007 U.S. Dist. LEXIS 20420 (N.D. Fla. March 22, 2007).

Police were on a “manhunt” for a bank robber on a bicycle and narrowed the search to a motel. They entered the motel room that defendant was supposed to be in, and he fled out a window and was captured. The warrantless entry was invalid because there were no exigent circumstances to dispense with announcement. The mere possibility of a gun is not enough under Richards. “We are persuaded, however, that Payton still governs non-parolee cases (such as this one) involving a failure of knock and announce without a search warrant. We conclude that the wad of money, the knives, and the glass pipe should have been suppressed as fruit of the knock and announce violation.” The arrest, however, was not invalid. Finally, Hudson did not apply to a case without a search warrant. State v. Gibbs, 224 S.W.3d 126 (Mo. App. W.D. 2007).

Police did not violate the common law right of inquiry of a citizen by stopping and talking to him. He validly consented to a search. People v Casimey, 2007 NY Slip Op 2807, 2007 N.Y. App. Div. LEXIS 4123 (1st Dept. April 3, 2007).*

Officers arresting defendant on his porch were permitted to follow him into his house under Chrisman when he went in to tell his girlfriend he was arrested. Once inside, he validly consented to a search of the basement living area. United States v. Varner, 481 F.3d 569 (8th Cir. 2007).*

Third party consent was valid, and police did not have to find a potentially objecting co-tenant to secure his approval, too. United States v. Patterson, 481 F.3d 1029 (8th Cir. 2007):

On appeal, Patterson argues that the district court violated the Supreme Court’s recent decision that “a warrantless search of a shared dwelling … over the express refusal of consent by a physically present resident cannot be justified … on the basis of consent given to the police by another resident.” Georgia v. Randolph, 126 S. Ct. 1515, 1526 (2006). Here, had the district court credited Patterson’s testimony that Officer Cartwright avoided asking Patterson for consent until after the closet search, we would need to construe and apply the Supreme Court’s caveat that the police have no obligation “to take affirmative steps to find a potentially objecting co-tenant” when one co-tenant has consented to the search. Randolph, 126 S. Ct. at 1527. But the district court did not credit Patterson’s testimony, instead finding that Patterson expressly consented to a search of the closet. As that credibility finding is not clearly erroneous, Cartwright searched the closet with the consent of both Fletcher and Patterson, uncovering probable cause to arrest them both and to obtain a warrant to search the remainder of their residence. The motion to suppress was properly denied.

Recording conversations by one party consent in the defendant’s home did not violate the Washington Constitution’s privacy provision. State v. Barron, 160 P.3d 1077 (Wash. App. 2007):

There is no expectation of privacy in selling illegal drugs to an undercover police officer, even if the sale occurs in the defendant’s home. And recording a conversation with the consent of only one party does not implicate article I, section 7’s privacy concerns. Thus, OHPD’s actions in this case do not give rise to a violation of article I, section 7 ….

Building code ordinance that required owner to submit floor plans to city for approval did not violate, inter alia, the Fourth Amendment because it was not a search. Berwick Area Landlord Ass’n v. Borough of Berwick, 2007 U.S. Dist. LEXIS 51207 (M.D. Pa. July 16, 2007):

Finally, as to the requirement that an owner submit a floor plan in order to obtain a license, we also believe that plaintiff fails to state a claim upon which relief can be granted. The Fourth Amendment protects against “unreasonable searches.” (emphasis added). The Supreme Court has held that in order to constitute a search, an individual must have a “reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). In order to determine whether an individual had a reasonable expectation of privacy, we must determine whether the individual had a subjective expectation of privacy and whether that expectation is objectively reasonable. Smith v. Maryland, 442 U.S. 735, 740 (1979) (citing Katz, 389 U.S. at 351, 361). Applying these standards to the requirement that owners submit floor plans of each rental unit in order to obtain a license, we do not find that this requirement constitutes a search. Even if any of the owners did hold a subjective expectation of privacy in the layout of their rental units, we find that such an expectation is not objectively reasonable. The submission of a floor plan is much less intrusive than allowing an individual to actually enter a rental unit. Furthermore, the owner is submitting the floor plan of a rental unit that he or she has chosen to rent to a tenant in a commercial enterprise, not his or her own private residence. Finally, as defendant correctly points out, if we were to accept plaintiffs’ argument, a requirement that a builder submit his or her building plans to the local government for approval in order to obtain a building permit would constitute a search, which is a result that we cannot accept. (Rec. Doc. No. 23, at 10.) Therefore, we find that the requirement that owners submit floor plans of each unit is not a search and therefore does not violate the Fourth Amendment. Therefore, having rejected all of plaintiffs’ Fourth Amendment claims, we will dismiss Count IV of the complaint.

Warrantless entry to secure the premises and protect potential evidence while police were off getting a warrant did not affect the procuring the warrant. The independent source rule saved the search warrant. United States v. Davis, 2007 U.S. Dist. LEXIS 51209 (M.D. Pa. July 16, 2007).*

Female corrections officer patdown of male detainees did not violate the Fourth Amendment. Guillory v. Snohomish County Jail, 2007 U.S. Dist. LEXIS 51190 (W.D. Wash. July 16, 2007), relying on Grummet v. Rushen, 770 F.2d 491, 495 (9th Cir. 1985).*

Search incident includes the area in defendant’s “immediate presence,” and this search finding drugs was lawful. The fact it was not under defendant’s “immediate control” [per the dissent] at the time is not relevant. State v. Venzen, 2007 Ga. App. LEXIS 839 (July 16, 2007).

Alaska holds that there is no reasonable expectation of privacy in trash left out for collection under the State Constitution. The court relied on a police dumpster diving case, Smith v. State, 510 P.2d 793 (Alaska 1973), cert. denied, 414 U.S. 1086 (1973), for authority. State v. Beltz, 160 P.3d 154 (Alas. App. 2007).*

Ohio court goes straight to good faith exception and does not bother to determine the question of probable cause. Instead, [like a scoring game of darts where the wall counts as well as the target and hitting the wall is good enough to win,] the showing of probable cause is “not so lacking” as to render reliance unreasonable so the good faith exception would save the search in any event. State v. Frankenhoff, 2007 Ohio App. LEXIS 2604 (5th Dist. June 1, 2007). (Comment: Anybody who has been reading this blog for more than a few months has seen the rants against courts too lazy to decide probable cause for posterity or even for the officers’ edification. This court can now be included as one of the lazy ones.)

On review of a USMJ’s R&R, the court finds that there was overwhelming probable cause for the search warrant and states that the defense misstated the evidence. United States v. Sprague, 2007 U.S. Dist. LEXIS 41303 (E.D. Tenn. June 6, 2007).*

Plaintiff, a frequent courthouse visitor for disorderly conduct charges, was removed from a NYC courtroom because of a bulge in his sock, and officers thought he might have a weapon or a recording device. Plaintiff claimed he was slammed into a wall while being searched. While “not every push or shove” is unreasonable, fact questions remained on whether excessive force was used on him. Lederman v. Giuliani, 2007 U.S. Dist. LEXIS 41490 (S.D. N.Y. June 4, 2007).*

Defendant consented to extension of the traffic stop for a drug dog. “The testimony of Officer Bradish revealed that although he made no specific request to do so, Mr. Davis encouraged Officer Bradish to ‘go ahead and use your dog’ well within the time limits of the traffic stop. Consequently, Mr. Davis consented to an extension of the traffic stop for the canine sniff before the purposes of the stop had been completed. Therefore, the canine alert and subsequent search were lawful.” Davis v. State, 2007 Ark. App. LEXIS 436 (June 6, 2007).*

Defendant’s vehicle was impounded after he came to his ex-wife’s apartment and got into an altercation. They impounded the vehicle essentially to deny him transportation to come back. That was sufficient “other good cause” under the Arkansas rule for impoundment of a vehicle which led to an inventory finding crack. Pittman v. State, 2007 Ark. App. LEXIS 434 (June 6, 2007) (4-2).*

Defendant passenger in a car owned by another, which he claimed, but failed to prove, he otherwise had access to as a driver by the owner, had no standing to challenge a search of the trunk. Campos v. State, 867 N.E.2d 76 (Ind. App. 2007).*

A custodial arrest for a misdemeanor traffic violation supports a search incident. State v. McKiry, 2007 Ohio 2762, 2007 Ohio App. LEXIS 2555 (8th Dist. June 7, 2007).

Plaintiff stated a claim that police officers knowingly fed false information to an alleged witness to get the witness to implicate him in a double murder from which he was ultimately exonerated. Blake v. Race, 487 F. Supp. 2d 187 (E.D. N.Y. 2007).

Wallace v. Kato required court to reconsider prior holding when elements came together after a prior appeal in the case. Gibson v. Superintendent of New Jersey Dep’t of Law & Pub. Safety-Division of State Police, 2007 U.S. Dist. LEXIS 22871 (D. N.J. March 29, 2007):

While the Third Circuit’s ruling would seem to bind this Court in the instant matter, the Supreme Court has since issued a ruling which appears to contradict the Third Circuit’s recent holding. In Wallace v. Kato, 127 S. Ct. 1091 (2007), the Supreme Court held that “the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” Id. at 1100. In so holding, the Court characterized Heck as delaying “what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that tort action would impugn.” Id. at 1098. Regarding false arrest cases, the Court stated that in order to defer accrual of the claim, it would need to extend the Heck principle to state “that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside.” Id. (emphasis original). Finding such a principle to be impracticable, the Court stated that it was “not disposed to embrace this bizarre extension of Heck.” Id.

Taking a student out of class by school officials and their lawyer investigating a racial incident at school was not an unreasonable seizure under the Fourth Amendment or T.L.O. It was constitutionally insignificant. Mislin v. City of Tonawanda Sch. Dist., 2007 U.S. Dist. LEXIS 23199 (W.D. N.Y. March 28, 2007).*

Search warrant violated the particularity requirement when it failed to specify the crime believed to have occurred to limit the search. It permitted a general exploratory search, and it was so defective that the good faith exception could not be relied upon. United States v. Denton, 487 F. Supp. 2d 1180 (D. Ore. 2007):

Here, the search warrant makes no reference to the crime being investigated. Instead, the warrant only lists, in broad terms, the items to be searched for. The government claims that the reference to “controlled substances” adequately limits the scope of the search warrant and identifies what conduct is being investigated. However, without either (1) a more definite and limited statement of what the officers were authorized to search for, or (2) a description of the criminal activity being investigated, the search warrant lacks sufficient particularity. While specific categories of evidence are identified by the search warrant, including items commonly associated with drug-trafficking, other categories are overbroad. For example, under number four, the search warrant includes: “[a]ny and all diaries, notebooks, notes, and any other records and receipts.” Govt’s Ex. B. This category could reasonably include all records and files maintained by any tenant of the residence in question, and without any statement of what crimes are being investigated to narrow the search, leaves the warrant woefully lacking the necessary particularity.

Further, the search warrant includes the disapproved term “including but not limited to” when describing what items are sought. In Bridges, the court found the phrase “including but not limited to” especially offensive to the particularity requirement of warrants because “if the scope of the warrant is ‘not limited to’ the specific records listed on the warrant, it is unclear what is its precise scope or what exactly it is the agents are expected to be looking for during the search.” 344 F.3d at 1017-18.

No crime is stated in the warrant, and the scope of what could be seized by the officers was not restricted to contraband. Indeed, the scope was not limited at all, given the use of the disapproved language “including but not limited to.” See Bridges, 344 F.3d at 1017-18. Based on Kow and Bridges, the warrant was facially invalid and the evidence obtained pursuant to it must be suppressed.

The fact that the affidavit in support of the warrant had additional facts concerning suspected crimes cannot save the warrant.

While defendant was on pretrial release, U.S. Marshals were looking for him to arrest him for a violation or terms of release. His adult child consented to a search but he was not found but drugs were. He arrived later and was arrested. The consent search was valid. United States v. Alama, 486 F.3d 1062 (8th Cir. 2007).*

Border Patrol officers did a knock and talk looking for an illegal alien, and they gained entry into the apartment but the alien was not there. While the officers were there, they did a “security sweep” and kept people separate. In the course of that, defendant admitted that he was an illegal. The officers’ testimony was credited. “Therefore, the court finds that neither the entry into nor the search of Defendant’s apartment constituted a violation of Defendant’s Fourth Amendment rights. Moreover, neither asking for identification from Defendant nor requesting Defendant to remain seated during the search constituted an unlawful seizure.” United States v. Maino, 2007 U.S. Dist. LEXIS 37189 (S.D. Cal. May 22, 2007).*

Man with a gun report brought officers to plaintiff’s house where a young man was ordered to the ground at gunpoint. The gun turned out to be a toy gun, and the matter ended. The officers were entitled to summary judgment in a § 1983 case against them because they had reasonable suspicion for the stop and entry onto the driveway of the house. Murray v. Metro. Gov’t of Nashville, 2007 U.S. Dist. LEXIS 37071 (M.D. Tenn. May 21, 2007):

In this case, the totality of the circumstances supports the propriety of the officers conducting a Terry stop. Officers had received a dispatch regarding a “person with a weapon call.” The description of the subject was a 16 or 17-year old black male wearing a gray top, white sweatshirt, and black pants. Upon arrival at the scene, the caller confirmed to the officers that she had seen a 16 or 17-year old black male pointing a gun at his sister. The caller’s daughter stated that she too saw what she thought to be a gun.

With this information, it was reasonable to proceed to the suspect’s house and walk up the driveway with guns drawn. “This Circuit permits the use of force, such as handcuffs and guns, to effect a stop when such a show of force is reasonable under the circumstances of the stop.” United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001). This is in keeping with the Supreme Court’s statement in Terry that police officers are not “required to take unnecessary risks in the performance of their duties.” Terry, 392 U.S. at 23. “Indeed, police officers may use reasonable means to protect themselves when conducting a Terry stop, including drawing weapons if the officers believe the suspect may be armed.” United States v. Lindsey, 114 Fed.Appx. 718, 721-722 (6th Cir. 2004)(citing, United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986)).

Service member’s roommate had sufficient common access to his computer that he could consent to a search of it, even though the files at issue were encrypted (and contained child porn). United States v. Rader, 65 M.J. 30 (C.A. A.F. 2007):

Appellant nonetheless contends that A1C Davis could not consent to the search of Appellant’s computer because he had only limited use and access to it. Consequently, his argument goes, the search was illegal, the images derived from it inadmissible, and the findings and sentence should be set aside. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963); M.R.E. 311(a).

The control a third party exercises over property or effects is a question of fact. See, e.g., Rodriguez, 497 U.S. at 180 (detailing record facts evidencing control over the premises, and lack thereof). We will not disturb the military judge’s findings of fact unless they are clearly erroneous or unsupported by the record. Reister, 44 M.J. at 413.

In this case, the findings of fact include the following: (1) Appellant’s computer was physically “located in [A1C] Davis’ bedroom”; (2) “[N]either the accused’s computer nor the My Music folder on the accused’s computer was protected by a password”; (3) “[T]he accused never told Davis not to access his computer or any files within the computer”; (4) A1C Davis and Airman Thacker “used the accused’s computer to play computer games” with Appellant’s “knowledge and consent”; (5) A1C Davis “accessed the accused’s computer approximately every two week[s] to perform routine maintenance on that computer”; and (6) Appellant “never told Davis not to access his computer or any files within the computer.”

We agree with the lower court that the military judge’s findings of fact “were well-grounded in the facts developed on the record,” Rader, 2006 CCA LEXIS 164, at *4, 2006 WL 1976603, at *2, and Appellant has not demonstrated that they are clearly erroneous. See United States v. Springer, 58 M.J. 164, 167 (C.A.A.F. 2003) (“If the military judge makes findings of fact, we review the findings under a clearly erroneous standard of review.”); United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999) (“We review a military judge’s evidentiary ruling for abuse of discretion.”). Whether these facts rise to the level of “‘joint access or control for most purposes,'” is a question of law. Reister, 44 M.J. at 415 (citation omitted). In this case, the military judge concluded that A1C Davis’ consent was valid; that it would be “difficult to imagine how there could have been a greater degree of joint access, mutual use, or control.” We agree.

We reject Appellant’s argument that A1C Davis did not have control over or authority to consent to a search of the “My Music” files within the computer because he only had permission to use the computer to play games or conduct maintenance. First, the military judge’s finding that Appellant did nothing to communicate a restriction regarding access to his computer files to anyone is amply supported by the record. Second, to the extent there was an understanding regarding restricted access to Appellant’s computer it was tacit and unclear, as evidenced by A1C Davis and Airman Thacker’s use of the computer. This is further illustrated by Appellant’s response to A1C Davis’ phone call to him.

Comment: This is not the first case to find common authority over a computer with encrypted files that only the encrypter can access. The issue as it deveops is access to the computer, not just the files.

Officers had exigent circumstances for opening a padlocked dufflebag when they were searching defendant’s premises for a meth lab on consent of the landlord. When the bag was picked up, it made noises that indicated that the contents may be parts of a meth lab. (The defendant waived the landlord consent issue by not raising it in the trial court.) State v. Gomez, 2007 MT 111, 337 Mont. 219, 158 P.3d 442 (2007).*

Officer’s entry into property under foreclosure and occupied by repairmen and boxes of defendant’s property was unreasonable. His later spontanous statement to the officer would be admitted. People v. Kunz, 2007 NY Slip Op 27183, 16 Misc. 3d 312 (Erie Co. 2007).*

The fact the trial court may have used the wrong burden of proof in suppressing a search does not mandate reversal for the state because the appellate court is obligated to review the suppression order de novo. State v. Labine, 2007 SD 48, 733 N.W.2d 265 (2007).

Animal control officers entered the curtilage without a warrant claiming plain view. Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745 (2007):

(a) The Curtilage. Morgan contends that the trial court erred in concluding that the warrantless search of the curtilage surrounding his home was justified under the plain view doctrine. We agree that the plain view doctrine, standing alone, did not provide a sufficient basis for the search of the curtilage.

It is true that the deputy’s initial observations of malnourished and mistreated animals occurred while he was standing in the driveway and on the public road, a vantage point that “breached no right of privacy of [Morgan].” State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981). See Sirmans v. State, 244 Ga. App. 252, 254-255 (2) (b) (534 SE2d 862) (2000) (officer’s observations of mistreated animals from public roadway did not violate defendant’s Fourth Amendment rights); Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986) (officer’s observations made while on driveway did not violate defendant’s Fourth Amendment rights since officer had taken “the same route as would any guest, deliveryman, postal employee, or other caller”) (citation and punctuation omitted). These initial observations constituted “a lawful, nonsearch plain view situation” supporting a finding of probable cause to suspect that the crime of cruelty to animals was being committed on Morgan’s property. (Punctuation and footnote omitted.) Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006). See Sirmans, 244 Ga. App. at 254-255 (2) (b) (plain view observation of animals in deprived condition supplied officer with probable cause to search defendant’s property).

However, the officer’s initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan’s backyard–a location undisputably within the curtilage surrounding the residence–and take steps culminating in the dogs there being seized and removed from the property.

Consent to enter to look for a suspect was valid consent. Defendant was never in custody, and “Appellant is not a ‘newcomer to the law’, having a prior criminal history.” State v. Boone, 2007 Ohio 2212, 2007 Ohio App. LEXIS 2053 (5th Dist. May 7, 2007).*

Officer lacked reasonable suspicion that the passenger was guilty of anything when he detained her. False name arose, and a violation of a no-contact order arose from that. State v. Allen, 138 Wn. App. 463, 157 P.3d 893 (2007):

¶24 Second, Lowrey did not have a lawful basis for a reasonable suspicion that the passenger was Allen when he asked Peggy to come to the rear of the vehicle. At this point, Lowrey had a reasonable suspicion because the false name Ben Haney did not register on the CAD databases. But this evidence was derived from Allen’s unlawful seizure and inquiry and, therefore, it must be excised from the review of Lowrey’s reasonable suspicion. Without knowledge that the passenger provided a false name, Lowrey did not possess reasonable articulable facts to believe that the no-contact order referred to the passenger. For these reasons, the identifying information Lowrey obtained from Peggy does not qualify as a lawful independent source of evidence that gave rise to the probable cause needed to arrest Allen.