The four standards of staleness in the Sixth Circuit are:

(1) “the character of the crime (chance encounter in the night or regenerating conspiracy?)”;

(2) “the criminal (nomadic or entrenched?)”;

(3) “the thing to be seized (perishable and easily transferable or of enduring utility to its holder?)”;

(4) “the place to be searched (mere criminal forum of convenience or secure operational base?).”

[United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006)] (quoting, Andresen v. State, 331 A.2d 78, 106 (Md. Ct. Spec. App. 1975). United States v. Hatcher, 2006 U.S. Dist. LEXIS 95196 (E.D. Tenn. April 12, 2006). Thus:

The Sixth Circuit has found that business records are a type of evidence that defy claims of staleness. [citations omitted]

In Martinez, the Court held that the search warrant was valid because it sought information regarding business and financial records, and such records are typically found in either a residence or place of business. Martinez, 1997 WL 26461 at *2. The Court found that it was reasonable for the magistrate judge to infer that evidence of drug trafficking and money laundering would be found in Martinez’s apartment and place of business because two sources had indicated that the defendant used his business as a money laundering operation for his drug profits. Id. Furthermore, there was evidence from several sources that the defendant engaged in illegal activities in his apartment. Id.

Similar to Martinez, the search warrants in this case sought evidence of drug trafficking and money laundering, predominantly in the form of business and financial records [Doc. 69 and Ex. 1-2]. Additionally, the Court finds that the affidavits in this case, like Martinez, present substantial corroborating information that the defendants engaged in marijuana trafficking at their residences. The Court also finds that the affidavits provide information regarding TFO Jerry’s experience and training in investigating drug traffickers and his professional opinion that drug traffickers keep and maintain records of their drug-related activities at their residences, as well as assets purchased with drug proceeds. Accordingly, the Court finds that the magistrate judge was correct in believing that certain documents and assets regarding the defendants’ drug trafficking and money laundering activities would be found at the defendants’ residences. See Jones, 159 F.3d at 975 (“[i]n the case of drug dealers, evidence is likely to be found where the dealers live”).

The affidavits at issue in this case requested the search of the defendants’ residences. The Court finds, as stated in the affidavits, that the marijuana trafficking and money laundering alleged centered around the defendants’ illegal transactions conducted at their residences, specifically located at 2047 Jericho Road and 4323 Horace Taylor Road in Maryville, Tennessee. As noted above, the affiant opined that drug traffickers keep and maintain certain records of their drug-related activities and assets derived from the sale of drugs at their residences. Thus, the Court finds that the defendants’ residences were not “mere criminal forum[s] of convenience,” but rather, they were at the heart of the criminal charge or, in other words, were a “secure operational base” where ongoing criminal activity occurred over a span of at least three (3) to four (4) years.

Accordingly, the Court finds that all factors weigh against a claim of staleness. The Court is especially persuaded by the fact that business and financial records are typically found at either a residence or place of business, and that records of drug trafficking are no exception. Therefore, having found (1) that the defendants were engaged in ongoing criminal activity between 1998 and 2002, (2) that they were entrenched, (3) that the search warrants sought records and assets regarding the defendants’ drug trafficking and money laundering activities, and (4) the places to be searched were secure operational bases, the Court finds that the warrants were not stale.

As to cash, however, the warrant was stale because the time limits within the affidavit showed that the cash would be gone.

Search of a vessel under a 2003 agreement between the U.S. and the country of the ship justified the search for drugs. United States v. McClymont, 216 Fed. Appx. 968 (11th Cir. 2007)* (unpublished).

With probable cause, an officer can search a vehicle and containers found in it, including an oxygen tank. United States v. Malloy, 217 Fed. Appx. 342 (5th Cir. 2007)* (unpublished).

Defendant’s objection to R&R was based on the finding as to his nervousness, which he kept belittling, but it was a fact found against him, and nervousness is a factor in reasonable suspicion. United States v. Zachary, 2007 U.S. Dist. LEXIS 9238 (E.D. Tenn. February 6, 2007).*

The Sixth Circuit holds that the good faith exception does not apply to Title III wiretaps. United States v. Rice, 478 F.3d 704 (6th Cir. 2007).

Defendant can deny ownership and still have standing. United States v. Dilley, 480 F.3d 747 (5th Cir. 2007):

If a reasonable officer could believe that Dilley had authority to consent to a search of the storage unit, the search was reasonable under the Fourth Amendment. At the time he consented, police had received a tip that he maintained storage unit number sixteen, they had observed him driving into the storage facility, and they had found a receipt and keys for the unit in his possession. With this evidence, a reasonable officer could believe that Dilley had authority to consent to a search, despite his bald denial of ownership.

Dilley maintains that United States v. Vega, 221 F.3d 789 (5th Cir. 2000), compels a different result. There, in response to police questioning, the defendant denied residing at a particular house. We noted that Fourth Amendment rights are not lost by one’s refusal to give incriminating answers to police questioning. Id. at 797. “One does not lose the legitimate expectation of privacy in a residence merely by denying an interest therein. Indeed, a misleading response to an officer’s question is a far cry from consent to search.” Id. (citations omitted).

Vega is not determinative, however, because Dilley’s consent was not gleaned from his denial of ownership, but from his statement, “You can search any of them over there. You are not going to find anything.” Dilley maintained the expectation of privacy in his storage unit even after denying his ownership, then he exercised his property rights by consenting to a search of the location. Vega does not compel a contrary result.

Informant’s tip was sufficient to provide reasonable suspicion for a parolee search. United States v. Foley, 218 Fed. Appx. 139 (3d Cir. 2007)* (unpublished).

Excessive force during an arrest would not make an otherwise valid search of defendant’s briefcase during the arrest invalid, so defense counsel was not ineffective. Dillard v. United States, 2007 U.S. Dist. LEXIS 14293 (N.D. Ohio March 1, 2007).*

Habeas petitioner could not raise claim that his conversations with his brother during jail visitation were unlawfully recorded. Edelbacher v. Galaza, 2007 U.S. Dist. LEXIS 14273 (E.D. Cal. February 28, 2007).*

Defense counsel’s untimely filing of motion to suppress for a failure to knock and announce under 18 U.S.C. § 3109 was not prejudicial because petitioner cannot show that it would have been granted. Langdon v. United States, 2007 U.S. Dist. LEXIS 13935 (M.D. Fla. February 28, 2007).*

The defendant used fictitious names to ship packages, this one a teddy bear full of drugs. The shipping store was suspicious, and they called the police. The police came, took the box away, and searched it without a warrant. The trial court suppressed, and the court of appeals affirmed. The use of a fictitious name is not abandonment when the person otherwise objectively manifests control over it. People v. Pereira, 150 Cal. App. 4th 1106, 58 Cal. Rptr. 3d 847 (1st Dist. 2007):

In U.S. v. Pitts (7th Cir. 2003) 322 F.3d 449 (Pitts), a divided panel of the Seventh Circuit rejected this broad proposition, although upholding the denial of a suppression motion under the totality of circumstances in that case. The court reasoned that there are many legitimate reasons for which persons wish to remain anonymous while sending or receiving mail, such as authors and journalists who use pseudonyms, celebrities who wish to avoid intrusion, and government officials and businessmen with security concerns. (Id. at pp. 457-458.) “There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package, and thus the expectation of privacy for a person using an alias is one that society is prepared to recognize as reasonable.” (Id. at p. 459.) While use of an alias is one factor that may be considered to determine if property has been abandoned, the majority held, it is not dispositive. (Id. at pp. 456-459.) The court upheld the finding of abandonment there because the addressee had expressly refused to accept delivery of the package and by using all fictitious names the defendants had rendered the property irretrievable.

The majority view in Pitts is in accord with the approach in California. “The question whether property is abandoned is an issue of fact, and the court’s finding must be upheld if supported by substantial evidence.” (People v. Daggs, supra, 133 Cal. App. 4th at p. 365.) “[T]he intent to abandon is determined by objective factors, not the defendant’s subjective intent.” (Ibid.) The appropriate test is whether defendant’s words or actions would cause a reasonable person in the searching officer’s position to believe that the property was abandoned. (Id. at pp. 365-366.)

Although in this case defendant’s use of a fictitious name is evidence that might have supported a contrary finding, there is nonetheless substantial evidence to support the trial court’s finding that defendant did not abandon the package. There is no evidence that the name or address of the recipient to whom the package was addressed was fictitious. Moreover, defendant obtained a tracking number for the package, which permitted him to retain significant control over it while in transit. Defendant telephoned Ponce four to five times regarding the whereabouts of the package, objectively demonstrating his continuing interest in it. And the fact that defendant gave Ponce his telephone number and that Ponce was able to return his calls further indicates that defendant did not remain completely anonymous. The trial court concluded, “[E]very other thing [other than the fictitious name and false address] concerning the conduct and the-and the contact that Mr. Pereira has with Mr. Ponce, the shipper, is I am very interested about my package with my phony name and phony address. I really care about it getting delivered. I care about it so much, that I’ve left messages that made Mr. Ponce upset. So that’s the totality. “There is thus substantial evidence of objective factors that support the trial court’s finding that defendant did not abandon his package.

Traffic stop by Park Ranger had objective basis, and odor of alcohol and defendant’s comment “I’m okay to drive” aroused his suspicion. United States v. Camacho-Uranda, 2007 U.S. Dist. LEXIS 35023 (D. Nev. May 9, 2007).*

Ordering defendant from his car at gunpoint, when suspected of a drug offense, is reasonable because “[c]ourts throughout the country have recognized that ‘the nature of narcotics trafficking today reasonably warrants the conclusion that a suspected dealer may be armed and dangerous.’ State v. Evans, 67 Ohio St.3d 405, 413, 1993 Ohio 186, 618 N.E.2d 162, quoting United States v. Ceballos (E.D.N.Y. 1989), 719 F.Supp 119, 126.” State v. Wilson, 2007 Ohio 2298, 2007 Ohio App. LEXIS 2152 (12th Dist. May 14, 2007).*

District Court rejects USMJ’s R&R and concludes that the affidavit for the search warrant failed to connect defendant’s property as a place where evidence of a crime would be found. Also, the affidavit was so difficient on the showing of probable cause that no reasonable officer could rely on the resulting warrant, so Leon does not apply. United States v. Davis, 2007 U.S. Dist. LEXIS 11258 (E.D. Mich. February 16, 2007):

Here, the information tying Defendant to Goldwin Street was not only vague and conclusory, but was not independently verified. Although there are cases where the Sixth Circuit found that probable cause did not exist, but applied Leon nonetheless because there was a modicum of evidence, however slight, to connect the criminal activity described in the affidavit to the place to be searched, those cases are inapposite.

. . .

The Government argues that an experienced investigator such as Agent Dosch could reasonably believe, based on his experience, that Defendant, an alleged drug dealer, would keep evidence of drug trafficking in his home. See United States v. Goward, 188 Fed.Appx. 355 (6th Cir. 2006)(unpublished). A search based on this suspicion seriously compromises the Fourth Amendment because the evidence observed by Agent Dosch and relied upon by the Magistrate does not reasonably indicate that Goldwin Street is, in fact, Defendant’s residence. At best, the affidavit indicates that someone driving cars associated with the Defendant visits Goldwin Street. If the Court were to adopt the Government’s reasoning, law enforcement would be free to search any home that a suspected defendant visited – – based on unverified allegations that he resided there, or uncorroborated observations of a car allegedly driven by the suspect, parked in the driveway.

“It is commonly held across the Circuits that there must be a sufficient nexus between drug trafficking, evidence of drug trafficking, and a drug dealer’s residence.” Goward, 188 Fed.Appx. at 359 (citing Wayne R. LaFave, Search and Seizure: A Treatise on Fourth Amendment § 3.7(d)(4th ed. 2004)). This nexus is absent here.

“We reject Boechler’s contention that the search of his home violated the Fourth Amendment. The search warrant was valid, … and the officers did not exceed the scope of the warrant in executing the search, …. Further, the officers’ seizure of numerous items in Boechler’s residence before issuance of the second search warrant was justified under the “plain view” exception to the warrant requirement. … Here, the officers were lawfully on Boechler’s property under authority of the lawful search warrant, and the incriminatory nature of the items seized was immediately apparent.” [seemingly conflicting?] United States v. Boechler, 2007 U.S. App. LEXIS 3615 (9th Cir. February 15, 2007)* (unpublished). (Comment: It looks like the Ninth Circuit’s new form of memorandum opinions is just like those of the N.Y. Appellate Courts in their brevity and occasional opacity.)

Plaintiff’s decedent, arrested on a misdemeanor, died of “anoxic encephalopathy due to probable cardiac dysrhythmia due to restraint/positional asphyxia” after refusing to change into a jail jumpsuit and being forcibly stripped while officers held her down. Plaintiff could not show sufficient facts to get past summary judgment on the question of overall reasonableness. Giannetti v. City of Stillwater, 216 Fed. Appx. 756 (10th Cir. 2007)* (unpublished):

Our conclusion is buttressed by the Seventh Circuit’s holding in Abdullahi, 423 F.3d at 771. In Abdullahi, unlike here, the plaintiff identified the specific misconduct at issue–the officer’s placing his knee on the decedent’s back with crushing force. The plaintiff also introduced competent medical evidence establishing that this act directly caused deadly injuries including a collapsed lung and other injuries consistent with extreme external pressure. But the court stated that “the mere fact that an injury occurred while an individual was in police custody is not sufficient to avoid summary judgment–a plaintiff must identify the specific unreasonable conduct that caused his or her injuries.” Id. at 770-71. Here, however, Mr. Giannetti can point to no specific act of misconduct that suggests the officers applied excessive force. Even when we construe the facts in the light most favorable to Mr. Giannetti, he cannot establish facts sufficient to survive summary judgement.

Questions of fact remained on whether officers could rely on apparent authority of consenter that precluded summary judgment. Kirley v. Williams, 2007 U.S. Dist. LEXIS 11238 (W.D. Pa. February 15, 2007).*

“In consideration of the totality of the circumstances, the Court finds that the officers had reasonable suspicion to approach the Defendant when they observed him walking in a grassy area between two buildings of the apartment complex where ‘No Trespassing’ signs had been visibly posted. Moreover, the Court finds that the officers’ initial contact with the Defendant constituted a police-citizen encounter for which the Fourth Amendment is not implicated.” United States v. Worsham, 2007 U.S. Dist. LEXIS 11165 (E.D. Va. February 15, 2007).*

Heck v. Humphrey applies to revocation of parole, too. Williams v. Massey, 2007 U.S. Dist. LEXIS 11069 (S.D. Ala. February 13, 2007).

Hot pursuit across the stateline from Wyoming into Colorado by Wyoming officers is governed by the law of Colorado. The common law would invalidate such an arrest, but Colorado law permitted it. Also, the defendant does not have to know that officers are in pursuit for it to be hot pursuit. Doolittle v. State, 2007 WY 52, 154 P.3d 350 (2007):

Admittedly, the facts of the present case do not fit easily within the traditional sense of fresh pursuit where it is envisioned that an officer observes a crime and immediately begins chasing a fleeing suspect across a jurisdictional boundary line. However, when evaluated under the criteria set forth under Colorado law, we do not find Mr. Doolittle’s arrest to be unlawful. Detectives immediately set up surveillance at the location where Mr. Doolittle agreed to meet Mr. Collins in furtherance of the ongoing conspiracy. Mr. Doolittle arrived as expected, but after driving into Wyoming, continued on a driveway which curved back over to the Colorado side of the border. The detectives followed Mr. Doolittle’s vehicle across the border and apprehended him after he stepped out of the car. The police action in this case was without unnecessary delay and was continuous and uninterrupted. Mr. Doolittle was apprehended as close to the time the crime was committed as was reasonable under the circumstances. We find Mr. Doolittle’s arrest was lawful.

Illegal entry into the backyard does not immunize what was lawfully observed in the front yard. Brocuglio v. Proulx, 478 F. Supp. 2d 309 (D. Conn. 2007):

Brocuglio’s new trial motion, argues, in effect, that the defendants’ illegal presence in the back yard immunized him from arrest, either for prior illegal conduct and even for any illegal conduct in the presence of the officers. That theory fails. The illegal entry does not vitiate the existence of probable cause for events in the front yard, nor does it permit Brocuglio to undertake illegal conduct in the back yard at will and without fear of arrest.

In the same case, there was no qualified immunity for violation of plaintiff’s curtilage because the law was well settled. Brocuglio v. Proulx, 478 F. Supp. 2d 297 (D. Conn. 2007).*

Officers had reasonable suspicion for a probation search. “Given that both Brown and the Defendant affirmatively asserted that the lockbox, which was in plain view to the officers legally on the premises, belonged to a third party, the Defendant has no expectation of privacy in the box and as a result the Defendant has no standing to object to the legality of the search of the lockbox.” Fenton v. State, 2007 WY 51, 2007 Wyo. LEXIS 54 (March 23, 2007).

The police created their claimed exigent circumstances, and they could not rely on them. DeMayo v. Nugent, 475 F. Supp. 2d 110 (D. Mass. 2007):

Furthermore, even assuming arguendo that exigent circumstances were present, they were foreseeable and deliberately created by the government. When the government fully anticipates a search and seizure, it may not, absent countervailing factors, rely on exigent circumstances to avoid the warrant requirement. Niro v. United States, 388 F.2d 535, 539 (1st Cir. 1968). In addition, the government may not deliberately create the exigent circumstances on which it then relies. Samboy, 433 F.3d at 160; United States v. Cresta, 825 F.2d 538, 553 (1st Cir. 1987). Unforeseeability, however, “has never been recognized as an element of the exigent circumstances exception.” Cresta, 825 F.2d at 553. Additionally, an “exigency may arise at any time, and the fact that the police might have obtained a warrant earlier does not negate the possibility of a current situation’s necessitating prompt police action.” Cardwell v. Lewis, 417 U.S. 583, 595-96, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974).

In this case, no exigent circumstances “arose” during the initiated controlled delivery. The protective sweep occurred in accordance with a “pre-arranged signal” almost immediately after the first undercover agent made contact with DeMayo’s father. DEA Report at 3. The exigent circumstances relied upon for justification were thus anticipated, expected, and foreseeable. Finally, the government deliberately created the exigency. See Cresta, 825 F.2d at 553. The First Circuit has “refused to find exigent circumstances where the ‘circumstances [were] created by government officials who unreasonably and deliberately delay[ed] or avoid[ed] obtaining the warrant.'” Samboy, 433 F.3d at 160 (citing United States v. Rengifo, 858 F.2d 800, 804 (1st Cir. 1988)). A necessary element in such a determination is whether the government had control over the time of the delivery. Cresta, 825 F.2d at 553. This element is clearly found on the record evidence and is supported by the arrangement for delivery while posing as UPS employees. See DEA Report at 2.

Additionally, the police must have had time to seek and secure a search or an arrest warrant. See Samboy, 433 F.3d at 161. The First Circuit has held the circumstances not exigent where the police had three hours to secure a warrant. See United States v. Beltran, 917 F.2d 641, 642 (1st Cir. 1990). Here, the drug dog alert to the package occurred at 9:15 AM and the controlled delivery occurred at approximately 11:25 AM. DEA Report at 1-2. This time period is well within the range recognized by the First Circuit as sufficient to secure a warrant. The sufficiency of the two hour time period is further supported by Nugent’s appearance before a clerk magistrate that same day at 2:25 PM to secure a search warrant for the suspect package. DEA Report at 5.

Arrest warrant does not become stale the same way as a search warrant. Here, defendant’s paying the debt on which the warrant was issued likely, even though there was an intervening bankruptcy, was a waiver of the issue. Pierre v. Warrick, 2007 U.S. Dist. LEXIS 11838 (M.D. Pa. February 20, 2007).

Defendant showed a failure of performance of defense counsel to enable him to withdraw his plea of guilty because of defense counsel’s failure to appreciate the viability of a search and seizure claim. United States v. Singleton, 2007 U.S. Dist. LEXIS 12042 (N.D. Ind. February 20, 2007).*

District court was justified in basing its credibility determination on impeaching defendant’s witness at suppression hearing with grand jury testimony. United States v. Evans, 216 Fed. Appx. 592 (7th Cir. 2007)* (unpublished).

Defendant did not have standing to challenge the search of an international package at Chicago, the port of entry, and a search warrant was based on Customs finding a silencer in the package addressed to a known felon. The search warrant based on that finding for defendants’ home was with probable cause. United States v. Robinson, 2007 U.S. Dist. LEXIS 12072 (M.D. Ala. February 21, 2007).*

Plaintiff was arrested with probable cause and subjected to video arraignment without 48 hours, so he fails to show a violation of constitutional rights. Bresette v. Krewson, 2007 U.S. Dist. LEXIS 11792 (W.D. Wis. February 20, 2007).*

Claimant’s detention was with justification and was not unreasonably extended because reasonable suspicion had developed, even in a short time. United States v. $433,980 in United States Currency, 473 F. Supp. 2d 672 (E.D. N.C. 2006)*:

First, any detention incident to that investigation was of limited duration. The encounter between Rodriguez and law enforcement personnel, from the moment he was pulled over until the currency’s discovery, lasted approximately forty minutes. Under these circumstances, even if Rodriguez’s detention occupied that entire time interval, it might not suggest a Terry Stop of unreasonable scope. See United States v. McFarley, 991 F.2d 1188, 1194 (4th Cir. 1993)(holding that, where officers had reasonable suspicion of a drug offense, seizing defendant’s luggage for 38 minutes under Terry did not mature into an unlawful arrest). However, the alleged detention here only commenced upon DiGiovanni’s issuance of the courtesy warning to Rodriguez, at 8:07. Even assuming the detention extended until after the currency’s discovery, it would have lasted at most 27 minutes. In light of DiGiovanni’s suspicion that a drug crime could be taking place, the Court does not find this to be a per se unreasonable duration. Second, DiGiovanni acted with adequate diligence in exploring his belief that Rodriguez and Escobar might be involved in a drug offense. DiGiovanni asked Rodriguez’s permission to question him further, and to search his vehicle; the drug sniff took only a few moments, and involved only two revolutions around the car’s exterior. The record thus reveals that both troopers worked expeditiously, using methods designed to limit intrusion upon Rodriguez’s Fourth Amendment interests. Third, the stop was not unnecessarily prolonged. Again, after he gave Rodriguez the courtesy warning, DiGiovanni turned immediately to investigating a possible drug crime; the record contains no indication that DiGiovanni and Jones required Rodriguez to wait unnecessarily. Finally, the governmental interest involved in this case — detection and preservation of evidence related to a possible drug crime — is substantial, and justifies the momentary restraint placed upon Rodriguez’s liberty. Place, 462 U.S. at 703. Because Rodriguez’s alleged detention was supported by reasonable suspicion and conducted reasonably under the circumstances, the Court will not suppress the $433,980 or the dog sniff on Fourth Amendment grounds.

An operating meth lab is inherently dangerous and, therefore, exigent circumstances justifying an immediate warrantless entry to neutralize it. A warrant was obtained to continue the search. Barth v. State, 955 So. 2d 1115 (Fla. App. 2d Dist. 2006):

We expressly agree with the conclusions of these courts and hold that the operation of a methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception.

In the instant case, the detectives had reasonable cause to believe that Barth had a methamphetamine lab in operation within the dwelling based on their experience, facts developed during investigation, and observance of Barth’s activities that day. Thus, their initial entry into the residence was based on clear exigent circumstances and was therefore lawful.

Because the detectives took the precaution of waiting until the search warrant arrived before reentering the residence and conducting their search, we need not examine whether the exigent circumstances justifying the initial entry also justified the subsequent search and seizure of the evidence Barth sought to have suppressed. Instead, the search was conducted pursuant to a properly executed warrant, and the evidence discovered during that search was therefore admissible. See Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); State v. Riley, 462 So. 2d 800, 802 (Fla. 1984); Mercier, 579 So. 2d at 309.

Record supports the conclusion that the defendant consented to a search of his person during a traffic stop. State v. Conn, 2006 Tenn. Crim. App. LEXIS 935 (November 21, 2006). Nothing is mentioned, however, that this extended the detention of the initial stop or that there was any reasonable suspicion. Apparently, in Tennessee, it is permissible to ask any motorist for a search of the person without cause.

Inventory of defendant’s car was conducted by a parole officer, even though he was not on parole. The PO was acting as an LEO under state law and as an agent of the officer at the time, and the inventory is valid. State v. Nash, 2006 Ohio 6396, 2006 Ohio App. LEXIS 6346 (5th Dist. December 4, 2006).*

911 call brought officers to defendant’s residence, and one of the other two occupants consented to an entry and search, which defendant did not dispute. State v. Ramirez, 2006 Tenn. Crim. App. LEXIS 928 (December 4, 2006).*

Officers entered upon defendant’s porch with probable cause but the question of exigency was not adequately shown beyond maintaining the status quo. Defendant, however, consented to the entry. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007):

Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. The court of appeals then observed:

“Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone …. A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety.”

We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant’s home. The detectives’ response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disporportionate it may be to the perceived exigency.

Appellate court’s reliance on DWI videotape of his stop but its absence from that court’s record required remand for the tape to be included and re-evaluated. Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007).*

Officers executing an otherwise valid warrant brought along another officer, and that officer found something else in “plain view” during the search that was of evidentiary value. State v. Willock, 2007 Iowa App. LEXIS 278 (March 14, 2007):

Iowa law supports the district court’s rulings on the motions to suppress. As our highest court has stated, the seizure of an object found in plain view is justified where (1) the intrusion of the police was lawful and (2) the incriminating nature of the object was immediately apparent. State v. Chrisman, 514 N.W.2d 57, 60 (Iowa 1994). There is no question that the presence of the Waterloo detective in Robert Willock’s home was lawful and that the receipt was in plain view.

Our inquiry could end here, but both Willock and the State also cite federal authorities relating to pretextual searches. See United States v. Johnson, 707 F.2d 317, 320-21 (8th Cir. 1983); United States v. Wright, 641 F.2d 602, 605 (8th Cir. 1981); United States v. Sanchez, 509 F.2d 886, 889 (6th Cir. 1975). These opinions are inapposite. All relied on an articulation of the plain view exception to the warrant requirement that was rejected in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). There, the United States Supreme Court stated “inadvertence” was not a necessary predicate to application of the plain view exception. Horton, 496 U.S. at 130, 110 S. Ct. at 2304, 110 L. Ed. 2d at 118-19. The court specifically stated,

“[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.”

Id. at 138, 110 S. Ct. at 2309, 110 L. Ed. 2d. at 124. The court concluded, “if the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.” Id. at 140, 110 S. Ct. at 2310, 110 L. Ed. 2d at 125. This opinion clarifies that the focus is not on the officer’s intent prior to executing the search. Instead, the focus is on the warrant requirement or a valid exception to the warrant requirement. Because the cited federal opinions have a broader focus, we find them unpersuasive.

In a § 1983 case over a no-knock warrant and entry, the court held that the entry was lawful so the city could not be held liable for its policy. Estate of Davis v. City of North Richland Hills, 2007 U.S. Dist. LEXIS 17648 (N.D. Tex. March 13, 2007):

General order 811.05 does not use the term “hazardous warrants” or “no-knock” warrants. Instead, that order provides,

“The Special Weapons and Tactics (S.W.A.T.) team will serve any search and arrest warrant that has a high potential for armed confrontation. These type of warrants may consist of kidnapping, mental patients, and known violent offenders.” (Emphasis added.)

The official policy is that a special tactical team is to serve warrants when there is a high potential for armed confrontation. The policy goes on to illustrate examples of when there may be a high potential for armed confrontation. But those examples are not a part of the official policy. And it neither authorizes nor directs the blanket execution of warrants on a no-knock basis in circumstances where a high potential for armed confrontation may occur. Thus, on its face, the general order is not, itself, unconstitutional. Consequently, Plaintiffs have the burden of showing that the general order “was adopted or maintained … with deliberate indifference as to its known or obvious consequences ….” Nacogdoches County, 379 F.3d at 309. Establishing deliberate indifference “generally requires that a plaintiff demonstrate at least a pattern of similar violations.” Id. (internal quotations and citations omitted).

Here, Plaintiffs have not presented any evidence that the general order has been adopted or maintained with a deliberate indifference to Fourth Amendment constitutional rights. They present no evidence that the NRH police department developed a practice or custom of executing all narcotics warrants on a no-knock basis. In fact, the policy itself supports various implementations. The policy only requires that a special tactical team execute warrants where there is a high potential for armed confrontation. But that does not translate into an authorization for a no-knock entry in every instance. The special tactical team could decide, based on the circumstances of the particular situation, that although there is a potential for armed confrontation, knocking and announcing may be safer for the officers because it will give the suspects a chance to surrender before any armed confrontation ensues. The reality is that police officers are well aware that a surprise, unannounced entry of a dwelling poses its own dangers. The surprise in and of itself may cause the armed confrontation. It makes little sense that the NRH police department would have an official policy or practice of blanket no-knock entries in cases where there is a high potential for armed confrontation. The sensible policy and practice is to let the officers decide, on a case-by-case basis and after concluding that reasonable suspicion exists to forgo a knock-and-announce entry, whether the benefits of surprise outweigh its risks. This probably explains Plaintiffs’ failure to present any evidence to support their claim that the NRH police department executes all narcotic warrants on a no-knock basis.

Nevertheless, even if Plaintiffs did present evidence that the NRH police department has a practice of executing all narcotics warrants on a no-knock basis, that fact would not be dispositive here. The fact that the NRH police department has a practice based on the implementation of an official policy of unconstitutionally forgoing the knock-and-announce requirement is irrelevant because the evidence here clearly establishes that the officers had a reasonable suspicion from the particular circumstances that justified their no-knock entry into the Davis residence. See Richards, 520 U.S. at 395 (holding blanket rule for no-knock unconstitutional but still upholding officers’ no-knock entry because circumstances of case established officers had reasonable suspicion that evidence may be destroyed). The Court has already decided in its September 30 order that the evidence justified the officers’ no-knock entry into the Davis home. Thus, the officers’ no-knock entry was not a constitutional violation. Accordingly, Plaintiffs have failed to meet the third element to establish municipal liability.

Plaintiff’s failure to show that his arresting officers lacked probable cause doomed his § 1983 claim. Dampier v. Donaglia, 2006 U.S. Dist. LEXIS 95656 (W.D. Wash. November 13, 2006).*

Reasonable suspicion existed for a stop but the scope of patdown became an issue and nothing was found. A remand was required. State v. Rollins, 922 A.2d 379 (Del. 2007):

Here, a similar situation occurred when the police patted Rollins down and did not find any indication of criminal activity. Then the police directly entered and searched Rollins’ right pocket (the same pocket into which Rollins had inserted his hand earlier when police approached him in the courtyard). Their purpose was to obtain evidence. It is manifestly clear that the officers’ interest in a more extensive search did not relate to protecting themselves. That said, the issue here is the import of the conversation between Rollins and the police after the Terry pat down. In the suppression hearing, it was not necessary for the Superior Court judge to determine whether Rollins consented to the second search because he found that the police did not have a reasonable articulable suspicion to stop Rollins and, therefore, had no need to explore whether Rollins voluntarily consented to a police probe directly into his pockets. While we hold that there was a reasonable articulable suspicion for the initial Terry stop, we nevertheless believe that the Superior Court must first decide whether Rollins voluntarily consented to an incursion into his pockets in order to determine whether the evidence seized as a result of that direct entry into his pockets should be admitted or suppressed. Therefore, we remand to the Superior Court with the following instructions: The Superior Court judge should find as a matter of fact whether Rollins voluntarily and knowingly consented to the officers’ direct search of his pockets following the uneventful Terry stop and frisk.

“The initial stop of defendant for driving with a broken taillight was proper and was not contested. In addition, the officer did not violate the Fourth Amendment by asking defendant to exit his vehicle for safety reasons. The police pulled over defendant for a valid reason and then discovered another possible violation (a restricted driver’s license) that provided a legitimate reason to detain and further investigate. The trial court found that the encounter turned into an investigatory stop. But, that did not prevent the police from asking defendant questions without giving Miranda warnings.” [Lexis overview] State v. Olave, 948 So. 2d 995 (4th Dist. February 21, 2007, released for publication March 9, 2007).

Defense counsel was not ineffective for not objecting to officers’ videotaping open fields before entry. Since it was open fields, there was nothing to object to. Jaeger v. Dubuque County, 2007 Iowa App. LEXIS 271 (March 14, 2007).*

Officers had a reasonable basis under the emergency doctrine to enter a house and inspect all rooms for potential injured persons. The court provided a detailed analysis of all factors justifying the scope of the search. Guererri v. State, 922 A.2d 403 (11th Cir. 2007):

There also was a reasonable nexus between the emergency and the area searched. At the time the officers entered Guererri’s house, they had no knowledge of how many people were actually inside, nor did they know if anyone had been injured during the shootings. Thus, the police properly restricted their search to areas inside Guererri’s house where they might find potential gunshot victims. Their search was not unlimited or random, such as, for example, peering into drawers, cupboards or wastepaper baskets. Here, after the police confronted the defendants who apparently were in no need of emergency assistance, it was reasonable for them to check the rest of the house “to see if there was anybody else down or hurt inside the residence.” The police had reason to search the basement for potential victims and did so without exceeding the bounds of their authority under the emergency doctrine. Therefore, because the officers had a reasonable basis for an emergency search and the scope of their search was likewise reasonable under the circumstances, they did not violate the Fourth Amendment.

Defendant officers had cause to enter on a domestic disturbance call because of the sounds from inside. “‘Police officers responding to a domestic violence report have a duty to ensure the present and continued safety and well-being of the occupants….the fact that the occupants appeared to be unharmed when the officers entered did not guarantee that the disturbance had cooled to the point where their continued safety was assured.’ People v. Higgins, 26 Cal. App. 4th 247, 253 (Cal. Ct. App. 1994), quotations omitted.” Sanders v. City of Bakersfield, 2007 U.S. Dist. LEXIS 22675 (E.D. Cal. March 10, 2007).*

Officers noticed strong odor of a meth lab, and they went to defendant’s door and knocked. When he answered, they arrested him and conducted a protective sweep, not finding a lab. They secured a search warrant, and then found the lab. The trial court erred in granting the motion to suppress, applying the wrong law. State v. Kennedy, 953 So. 2d 655 (Fla. App. 1st Dist. 2007).*

Officers came to defendant’s motel room door looking a man in the motel, and said he was not the one they were looking for (he actually wasn’t). They asked for ID, and he went back into the room to get it. While the door was open, the officer could smell raw marijuana, and he stepped into the room for safety purposes, and then he could see marijuana packages in plain view. The motion to suppress was improperly granted. United States v. Jones, 64 M.J. 596 (Army Ct. App. 2007).*

Unjustified entry with guns drawn, ordering elderly man out of house first, was obviously not consensual. Later attempted consent was invalid because it was tainted by the original entry. United States v. Minnis, 2006 U.S. Dist. LEXIS 79920 (S.D. Fla. November 1, 2006):

Accordingly, not having obtained valid consent to enter the residence, officers needed either a search warrant–which they did not have–or probable cause and exigent circumstances before it was legally permissible for them to enter that home. Steagald, 451 U.S. at 205; United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000) (citing United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc)). As explained in the August 28, 2006 R&R, there were neither in this case. Because none of the constitutional prerequisites for a warrantless entry without consent were present, and because the law deems this entry presumptively unconstitutional, the undersigned recommends that Defendant’s motion to suppress be granted, and that the evidence seized from Defendant’s residence and the statements Defendant made on April 25, 2006, be suppressed.n6

n6 We have, however, drawn a distinction between the initial entry – that lacked legal consent – with the consent that was later obtained, after the passage of time and after additional steps were taken by law enforcement to establish voluntariness. As explained in footnote 15 of the R&R, if a legal initial entry occurred contrary to the R&R’s conclusion, the passage of time, the use of a consent form that was later read to Ferguson and the Defendant, and their express consent at that point without any threat or show of force, all made it possible for Ferguson and Defendant to consent to a search after the protective sweep was conducted. Officers in fact obtained that consent. But for the other reasons argued in the R&R, that later consent to search (not enter) cannot save the government’s unlawful and warrantless entry into the apartment. See, e.g., Santa, 236 F.3d at 676-79 (illegal warrantless entry tainted consent to search provided immediately after illegal entry and all evidence seized thereunder).

Plaintiff’s actions gave officers reasonable suspicion to detain him. He was disheveled, smelled bad, and pacing around the front of the Cook County courthouse at 6:30 a.m. They decided to ask him for identification, and he claimed to be a “federal process server,” but he refused to identify himself. He was attempting to serve the sheriff with process at a shift change. Plaintiff’s conduct and words made them have reasonable suspicion that he was potentially dangerous, and summary judgment was properly granted. Cady v. Sheahan, 467 F.3d 1057 (7th Cir. November 3, 2006).*

Plaintiff was at a Breeder’s Cup event in Texas, and he was drawing the structure of the building with pictures of pigs in military uniforms and other references to possible religious beliefs. Security guards were notified by a patron, and they came and looked. After detaining him, they called the ATF which sniffed his van, and they looked in it in the parking lot. [“Paranoia strikes deep. Into your life it will creep.” –Stephen Stills] The detention and search were reasonable enough to qualify for qualified immunity. Govea v. ATF, 2006 U.S. App. LEXIS 27216 (5th Cir. November 2, 2006)* (unpublished).

Defendant was driving his girlfriend’s car with her permission, so he had standing to challenge its search. Search of the car was based on PC, and it was valid. United States v. Brown, 203 Fed. Appx. 997 (11th Cir. November 2, 2006).

The Eleventh Circuit rejected an IAC claim on grounds not related to the Fourth Amendment, but it mentioned that two defendants removed from a car with two “cookies” of crack were put in a police car and recorded where they made admissions of knowledge of the drugs in the car. United States v. Downs, 217 Fed. Appx. 841 (11th Cir. 2006)* (unpublished).

Defendant was stopped for speeding. His suspicious behavior led to reasonable suspicion justifying a greater detention. United States v. Porchay, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006):

At the time of the stop, Barnett had more than eleven years of experience with the highway patrol. He also had received training in kinesics, which is the interpretation of non-verbal behavior related to movement. As Barnett pulled the vehicle over, he noticed unusual movement by the occupants of the vehicle, who appeared to be reaching in the backseat and perhaps under the seat. When Barnett asked Kelley where he was going, Kelley became unusually nervous. He told Barnett that he was going to visit Fred and Dominique Coleman. However, Kelley did not know the Colemans’ street address. When Barnett asked Speed where they were going, Speed became unusually nervous as well. She told Barnett that they were going to visit her friends Karen and Carolyn, after which she became defensive and refused to answer anymore of Barnett’s questions. Speed was unusually reluctant to identify herself. The inconsistent answers that Speed and Kelley gave Barnett, combined with their nervousness and unusual behavior, justified Barnett’s expansion of the scope of the stop to investigate further. Cf. Edmisten, 208 F.3d at 694; Lyton, 161 F.3d at 1170.

Comment: So, police departments are sending their officers for training in body language interpretation, and they use an uncommon word (“kinesics”) to make it sound more important and, presumably, more reliable? Will they try to get them declared expert witnesses next? Can the defense get a Daubert hearing?

Customs did not have to have reason to believe that defendant’s luggage contained contraband or dutiable goods to conduct a border search. They found ledgers that the FBI was looking for and their turning them over to the FBI was not unlawful. United States v. Gurr, 374 U.S. App. D.C. 21, 471 F.3d 144 (D.C. Cir. 2006).

Officers believed that the renter of a trailer and space had apparent authority to consent to a search of the trailer that was supposedly empty. In plain view, officers found a small quantity of drugs and then found evidence that somebody might be living there, and then they got a warrant. Up to that point, the warrantless search was based on apparent authority and it was valid. United States v. Haynes, 2006 U.S. Dist. LEXIS 88573 (D. Alaska December 6, 2006):

Here, the officers knew that Prato owned the Viskari Trailer Court. Moreover, Prato told them that he owned the trailer and that no one was living in the trailer. Based on the above information, the officers reasonably believed that Prato had actual authority to consent to a search of the trailer. When the officers commenced the consent search and found signs that someone may have been living in the trailer unbeknownst to Prato, the officers decided to apply for a search warrant. During the initial consent search, the police officers saw in plain view a plastic baggie containing a white crystalline substance which later tested positive for methamphetamine. Because Prato had apparent authority to consent to a search of a trailer he owned, the court will deny the motion to suppress the fruits of the consent search on February 21, 2006.

(As of today, the number of cases on Lexis from the U.S. District Courts is double 2005’s total.)

Even if defendant’s arrest was without probable cause, he was called over to the police to talk to them, and he discarded his cocaine before he came over. He was not seized per Hodari D. when called over by the officer. Therefore, it was abandoned. People v. McClain, 149 P.3d 787 (Colo. January 8, 2007) (more troubling to the court was the question of whether a seizure occurred because Colorado would more likely hold it did, but here it did not).

ATF had probable cause to search defendant’s storage unit in Arizona based on information that he transferred firearms there in 1992 while a felon. [The opinion says nothing about staleness or whether it was even raised.] United States v. Segal, 216 Fed. Appx. 650 (9th Cir. 2007).*

Child dependency court child seizure order gave absolute immunity to all acting reasonably under the order. Haugen v. Fields, 2007 U.S. Dist. LEXIS 493 (E.D. Wash. January 5, 2007).*

The defendant’s wife consented to a seizure of a computer rented by her but used primarily by her husband. She did not, however, have the alleged password to his files on the computer. The police could rely on her apparent authority to seize the computer. The forensic examination did not reveal any password protection, so the totality of circumstances showed she could consent. United States v. Buckner, 473 F.3d 551 (4th Cir. January 11, 2007):

Whether the officers reasonably believed that Michelle had authority to consent to a search of all the contents of the computer’s hard drive, however, depends on viewing these facts in light of the totality of the circumstances known to the officers at the time of the search. At that time, the officers knew that the computer was located in a common living area of the Buckners’ marital home, they observed that the computer was on and the screen lit despite the fact that Frank Buckner was not present, and they had been told that fraudulent activity had been conducted from that computer using accounts opened in Michelle’s name. The officers also knew that the machine was leased solely in Michelle’s name and that she had the ability to return the computer to the rental agency at any time, without Frank Buckner’s knowledge or consent.

Furthermore, the officers did not have any indication from Michelle, or any of the attendant circumstances, that any files were password-protected. Cf. Trulock, 275 F.3d at 398 (noting that the searching officers were explicitly told that the computer contained password-protected files to which the consenting party did not have access). Even during the mirroring and forensic analysis processes, nothing the officers saw indicated that any computer files were encrypted or password-protected. Despite Michelle’s suggestion that she lacked deep familiarity with the computer, the totality of the circumstances provided the officers with the basis for an objectively reasonable belief that Michelle had authority to consent to a search of the computer’s hard drive. Therefore, the police were justified in relying on Michelle’s consent to search the computer and all of its files, such that no search warrant was required.

Randolph does not require the police to first ask the target of a search whether he will consent. The police can arrest the target and then move to another with apparent authority and ask. United States v. Wilburn, 473 F.3d 742 (7th Cir. January 11, 2007):

Randolph holds that police violate the Fourth Amendment when they conduct a search, authorized by a person with apparent authority to consent, over the objection of a physically present potential defendant who shares the premises and declines to offer his consent. But Randolph is a rather narrow holding, and no matter how hard Wilburn wiggles–like the stepsisters trying to squeeze into Cinderella’s glass slipper–he can’t fit within its embrace.

. . .

In trying to wedge himself under Randolph, Wilburn says the police, knowing he would object to the search, deliberately kept him in the squad car away from Taylor while she was giving her consent. But even if the police were clairvoyant–Randolph was decided 2 years and 15 days after the search of the Taylor/Wilburn apartment–the police here were not doing an end run around its holding. Wilburn was validly arrested (even he admits this inconvenient truth) and he was lawfully kept in a place–the back seat of a squad car–where people under arrest are usually held. Given these facts, the police were not obligated to bring Wilburn to Taylor so he could be a party to the discussion regarding consent.

Knock and talk that occurred outside motel room was noncoercive, and officers, while armed, patiently waited while the occupants made up their mind and came outside. Then, one consensual produced a syringe. United States v. Crapser, 472 F.3d 1141 (9th Cir. January 10, 2007):

Here, similarly, there was a single, polite knock on the door. The police did not demand that Twilligear open the door; they asked, she nodded an affirmative response, and the police waited patiently and silently for her to decide that she (and Defendant, as it turned out) were ready to come outside about two minutes later. Although the officers were armed, they made no effort to draw Defendant’s attention to their weapons, nor did they use any form of physical force. The police made no effort to enter the motel room. The encounter occurred in the middle of the day, on a sidewalk in public view. The entire event, up to the time Defendant produced the syringe, lasted about five minutes. Although there were four officers present, most of the time only two talked to Defendant, while two talked to Twilligear, and part of the time only Galloway was with Defendant. The police did not block Defendant or Twilligear, suggest that they could not leave or return to their room, give them orders, or affirmatively assert authority over their movements.

Border patrol had reasonable suspicion to stop defendant’s vehicle near the border because of suspicious activity. Once stopped, the officers could smell the marijuana, and that gave probable cause. United States v. Delaney, 216 Fed. Appx. 674(9th Cir. 2007)* (unpublished):

The police officer had reasonable suspicion to stop the car based on: the location of the car very near the border; the timing of its travel in the border area during the period when border agents change shifts and are likely to be less attentive; the indications that the car had recently crossed the border at other than the designated border crossing; the fact that the vehicle — an SUV with a large luggage carrier — is of the type often used to smuggle narcotics; and the occupants’ purported birdwatching accomplished by pointing opera glasses at the sky while driving at fifty miles per hour. These factors, taken together, provided the officer with a particularized and objective basis for suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (9th Cir. 2002).

With regard to the search, we doubt that there was consent to search the locked luggage carrier that held the drugs. See United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990). Nonetheless, there was adequate probable cause to search the carrier due to the odor of marijuana and the alerting of the drug-detecting canine. See United States v. Barron, 472 F.2d 1215, 1216 (9th Cir. 1973). Probable cause was sufficient for the search under the automobile exception; a warrant was not necessary. California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).

(Note: If birdwatching is your excuse, at least get real binoculars and stop once and awhile. Here, they only drew the officer’s attention to themselves.)

More to follow in the afternoon. Many cases today, and some may even have to go over until tomorrow.

The defendant’s employer had a computer use and e-mail policy that effectively eliminated all reasonable expectation of privacy in the system or defendant’s own work station. United States v. Hassoun, 2007 U.S. Dist. LEXIS 3404 (S.D. Fla. January 17, 2007):

However, the Defendant argues in his objections that the employer’s ownership of the seized computer and components and the existence of the above-quoted policy, which does not forbid all personal use of computers and allows for employee monitoring of an employee’s work computer, is not dispositive of the employee’s expectation of privacy.

In his R & R, the Magistrate Judge relied on cases that did not forbid all personal uses of the employer’s computer and/or computer network systems. United States v. Angevine, 281 F. 3d. 1130 (10th Cir. 2002) and United States v. Scrushy, No. CR-03-BE-0530-S, 2005 WL 4149004 (N.D. Ala. 2005). Moreover, MarCom’s policy did not limit in any way its right to monitor an employee’s computer. Although the MarCom policy did not forbid employees’ personal use of their assigned computers, the policy makes clear that all uses –work or personal, would be subject to the company’s monitoring. “Employer monitoring is largely an assumed practice, and thus…a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor.” United States v. Ziegler, 456 F.3d 1138, 1146 (9th Cir. 2006).

In a forfeiture case, the record supports the finding that the claimant consented to a search of the vehicle that produced the cash. Jury verdict of relation to drugs was supported by the evidence. United States v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars in United States Currency, 214 Fed. Appx. 432 (5th Cir. 2007)* (unpublished).

A suspicionless search of a known parolee, under the authority of Cal. Penal Code § 3067(a), did not violate the Fourth Amendment. That section applied to defendant’s parole via § 3067(c) because the underlying offense for his parole was committed on March 7, 2001. Because even a suspicionless search of a person known by police to be a California parolee subject to § 3067(a) was not unconstitutional, defendant’s challenge to the search based on lack of reasonable suspicion failed. The court noted that defendant did not challenge the search as arbitrary, capricious, or harassing. United States v. Dixon, 217 Fed. Appx. 712 (9th Cir. 2007)* (unpublished) (virtually quoting from the Lexis Overview).

Police responded to a 911 call that someone in the area of defendant’s house was firing a shotgun at their house. Police arrived and found shotgun shells on the ground, and defendant was associated with the premises. He was removed from the area. Officers then talked with his girlfriend, and they learned that she had moved into the house months earlier. She also paid the telephone bill. She had apparent authority to consent, and Randolph did not apply. United States v. Groves, 2007 U.S. Dist. LEXIS 3518 (N.D. Ind. January 17, 2007)* (on remand from the Seventh Circuit in light of Randolph which was decided after briefing).

Officers had reasonable suspicion for frisk of defendant’s person but not his vehicle. They asked for consent to search first and were denied. United States v. Spinner, 374 U.S. App. D.C. 347, 475 F.3d 356 (D.C. Cir. 2007).

Overbreadth in search warrant is remedied by suppresing that which was should not have been seized, not by suppressing the whole search. United States v. Alagic, 2007 U.S. Dist. LEXIS 2698 (E.D. Mo. January 12, 2007):

In any event, even if some portion of the search warrant were deemed to be overbroad, suppression would be limited only to those items seized pursuant to the overbroad portions of the warrant. See United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983) (en banc) (holding that despite seizure of firearms pursuant to invalid portion of warrant, evidence of participation in drug conspiracy admissible in accordance with sufficiently particularized portions of warrant); accord, United States v. Timley, 443 F.3d 615, 622 (8th Cir.) (holding that where warrant is invalid only in part, warrant is “severable,” and items seized pursuant to valid portions need not be suppressed), cert. denied, 127 S.Ct. 299 (2006); United States v. Krasaway, 881 F.2d 550, 553 (8th Cir. 1989) (same). Here, Defendant has not identified any items seized pursuant to allegedly overbroad portions of the warrant. Indeed, the only item seized that was specifically identified at the hearing, was the $13,000 in currency, and currency was specifically listed in the warrant.

Defendant’s wife was excluded from the defendant’s property because of a domestic violence order of protection. Nevertheless, he permitted her on the premises, and there was no reason why the police could not reasonably believe her apparent authority to consent. United States v. Barefoot, 2007 U.S. Dist. LEXIS 2548 (E.D. N.C. January 7, 2007).

An officer surveilling cars frequenting a parking lot known for hand to hand drug deals observed cars and developed reasonable suspicion as to one person but it developed into reasonable suspicion as to his passenger, too. United States v. Hannah, 2007 U.S. Dist. LEXIS 6885 (N.D. Tex. January 31, 2007):

When Washington’s conduct is considered, the finding that Officer Johnson had reasonable suspicion to detain Hannah follows easily from the evidence developed at the hearing. Officer Johnson articulated several facts that created a reasonable suspicion to justify detaining Washington and Hannah. First, he observed the two men sitting in a parked car outside a restaurant in a high-crime area of Addison. When he approached the vehicle, the passenger immediately stepped from the car. When he inquired whether the passenger had any illegal substances on him, the passenger stated “no, but you can search my car.” Based on Officer Johnson’s experience, he had reason to believe the two were then engaged in criminal activity, or had already completed criminal activity (possession of narcotics). In his experience making drug-related arrests, suspects act together, and they could have been in the middle of a drug transaction. Moreover, for the reasons explained above, he considered suspicious the explanation given concerning placing a to-go order at the nearby restaurant and then deciding to eat inside.

Considered in their totality, these facts support a finding that Officer Johnson had reasonable suspicion that Hannah, too, was then engaged, or had engaged, in criminal activity.

Border Patrol officers had reasonable suspicion to stop defendant’s vehicle after a border vehicle sensor indicated that a vehicle had crossed the border, and there was only one vehicle in the area. Observations added to the reasonable suspicion. United States v. Rodriguez-Reyes, 214 Fed. Appx. 809 (10th Cit. 2007)* (unpublished).

Defendant was stopped for a traffic offense. As the officer handed back the paperwork he asked about consent, which defendant agreed to. The asking of consent at that point did not unlawfully extend the stop because the officer had reasonable suspicion by then, and his consent was valid. United States v. Ramirez, 476 F.3d 1231 (11th Cir. February 1, 2007).*

Probable cause for a search warrant is not whether the target of the search is guilty of a crime. The question is whether evidence of a crime could be found in the place to be searched, and that requirement was satisfied here. United States v. Harris, 215 Fed. Appx. 262 (4th Cir. 2007)* (unpublished):

“In determining whether a search warrant is supported by probable cause, the crucial element is not whether the target of the search is suspected of a crime, but whether it is reasonable to believe that the items to be seized will be found in the place to be searched.” United States v. Lalor, 996 F.2d 1578, 1582 (4th Cir. 1993) (citing Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S. Ct. 1970, 56 L. Ed. 2d 525 & n.6 (1978)). This court has adopted the rule that “the nexus between the place to be searched and the items to be seized may be established by the nature of the item and the normal inferences of where one would likely keep such evidence.” United States v. Anderson, 851 F.2d 727, 729 (4th Cir. 1988). In Anderson, the affidavit indicated that Anderson was trying to sell a particular gun that had been used in a murder, and we concluded that although no specific facts established a direct link between the gun and Anderson’s residence, it was reasonable to believe that he was probably keeping the gun in his home. Id.

District court credits officers’ testimony that there was no coercion and the consent form was signed because the signer said “we have nothing to hide.” United States v. Hassoun, 2007 U.S. Dist. LEXIS 6804 (S.D. Fla. January 31, 2007).*

A parolee was stopped and subjected to a search under California law mandating that all parolees are subject to search. All the officer had to know was that the defendant was on parole, which the district court found. United States v. Akin, 213 Fed. Appx. 606 (9th Cir. 2006)* (unpublished):

n. 2. The search-and-seizure condition is mandatory for every prisoner eligible for release on state parole in California. See Cal. Penal Code § 3067(a) (West 2000); Samson, 126 S. Ct. at 2196. Thus, Samson does not hold that a police officer must be familiar with the parolee’s particular conditions of release in order to execute a search. We address the issue of Rodriquez’s awareness here, however, because it is conceivable that Akin would not be subject to the mandatory condition if he were paroled prior to January 1, 1997, the date this provision became effective. See Cal. Penal Code § 3067(c) (West 2000).

Probation officers conducted a home visit of a probationer, and he was being visited by defendant. When defendant left, he took a bag with him which the officers decided to search. Their authority extended only to the probationer and not his visitor, the suppression motion was properly granted. The officers could not seize defendant. Commonwealth v. Scott, 2007 PA Super 16, 916 A.2d 695 (2007):

[*P5] Further, unless there are exigent circumstances, none of which existed here, a search of [probationer] McDowell’s residence must have been supported by reasonable suspicion that, “the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.” Searches by county probation and parole officers, supra. That is to say, if there had been evidence McDowell was under supervision for a drug offense, then perhaps the officers would have had reasonable suspicion for the search, but they still would have needed a supervisor’s approval absent exigent circumstances. Here, no such suspicion existed; in fact, Officer Yasenchak testified his sole purpose for being at McDowell’s residence was to conduct a routine home visit, and Officer Kerstetter testified he went along on the “spur of the moment.” N.T. at 6, 44. Even if one were to concede the officers had the “right” to conduct a Terry stop, which this Court specifically denies, the officers had no reasonable basis (suspicion) upon which to detain appellee. Once the bag was removed from the premises by appellee, the officers had no authority to detain appellee, search the bag that he removed from McDowell’s residence, or do anything other than perhaps call the police on McDowell’s behalf, if they believed the bag was being stolen. No evidence was presented to suggest the officers believed appellee to be armed and dangerous, warranting a search for their protection. Suppression was properly granted.

Habeas petitioner did not file a suppression motion before trial, but he raised the issues on appeal, and the state appeals court reached the merits, denying relief. He had his fair opportunity to litigate the suppression issue under Stone v. Powell, and his certificate of appealability (“COA”) is denied. Webster v. AG of Oklahoma, 213 Fed. Appx. 664 (10th Cir. 2007).* (Note: This opinion is the first I’ve encountered to attempt to comply with new F.R.A.P. 32.1. It does not say it is “unpublished,” just not binding.)

Likewise, a 2255 petitioner who admitted that he consented to a search and then never pursued the search claim could not claim counsel was ineffective for not raising it. Lopez-Contreras v. United States, 2007 U.S. Dist. LEXIS 2357 (M.D. Fla. January 11, 2007).*

On the government’s motion to reconsider, two informants independently provided information about the defendant that corroborated each other. This, coupled with defendant’s actions, gave the officers at least reasonable suspicion of drug trafficking, and that permitted the officers to pat the defendant down for weapons when they stopped him. United States v. Maxfield, 2007 U.S. Dist. LEXIS 2364 (D. Utah January 11, 2007)* (Note: The court was concerned that this issue was not fully raised in the first response to the motion, but it gave the government an opportunity to argue it again, this time siding with the government.)

Plaintiff failed to respond to defendants’ motion for summary judgment in a § 1983 action, which is deemed consent to granting the motion under local rule. Nevertheless, the court goes to the merits, and plaintiff loses because the officers’ actions were reasonable in making a stop of a potentially stolen vehicle and his subsequent detention. Hudson v. City of North Las Vegas, 2007 U.S. Dist. LEXIS 2377 (D. Nev. January 4, 2007):

Hudson has neither alleged, nor is there any evidence to suggest that Defendants were not diligent in performing their investigation or that the scope of their investigation ventured into areas unrelated to their suspicion of a car theft. Although Defendants ultimately determined Hudson was not stealing the vehicle, that does not mean Defendants did not have reasonable suspicion to perform the stop. The Fourth Amendment accepts the risk that officers may stop innocent people. Gallegos, 308 F.3d at 992.