Use of a police dog to attack is not found to be not lethal as a matter of law, despite cases in other circuits to the contrary because this circuit has not ruled. Blake v. City of New York, 2007 U.S. Dist. LEXIS 49160 (S.D. N.Y. July 3, 2007):

fn2. While the Second Circuit has not decided the question, several other circuits have held that a properly trained police dog cannot, as a matter of law, constitute deadly force. See, e.g., Dunnigan v. Noble, 390 F.3d 486, 492 n. 8 (6th Cir. 2004) (“No federal appeals court has held a properly trained police dog is an instrument of deadly force.”); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988)(“[W]e find that the use of a properly trained police dog to apprehend a felony suspect does not carry with it a ‘substantial risk of causing death or serious bodily harm [i.e. deadly force].'”); Kuha v. Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004) (“[T]he use of a properly trained police dog in the course of apprehending a suspect does not constitute deadly force.”).[end fn]

. . .

Accordingly, the Court need only craft a charge which will help a jury decide whether the force used in this case was reasonable under all the circumstances. The Court will explain that, in conducting this analysis, the jury may consider the Graham factors, namely, the severity of the crime; whether Plaintiffs posed an immediate threat to the safety of the officers; and whether the Plaintiffs actively resisted arrest. Graham, 490 U.S. at 396. If appropriate, the Court may instruct the jury to consider additional factors as requested by the parties. The Court will advise the jury that the objective reasonableness inquiry is fact-specific, so the jury may consider any other aspects of this case that inform the reasonableness analysis.

The Court will not instruct the jury as to the definition of deadly force or the specific circumstances under which deadly force is or is not reasonable. That said, both sides may present evidence as to the amount of force a police dog can exert. Plaintiffs may present evidence that the police dog in this case could have killed Plaintiffs. Defendants may present evidence that the dog in this case could not have–or was highly unlikely to have–killed Plaintiffs. The parties may then argue that it was reasonable or unreasonable to use DJ under the circumstances of this case. But the Court will not instruct the jury as to deadly force.

A host of disputed facts about the legality of the police entry, excessive force, and whether a third-party could consent all precluded defendants’ motion for summary judgment. Deitch v. City of Olympia, 2007 U.S. Dist. LEXIS 49253 (W.D. Wash. July 9, 2007).*

Early July is always a strange week: some courts (like my own) are off for the summer and courts will presumably hand down fewer cases this week because of Wednesday being a holiday [although I posted a case to www.lawofcriminaldefense.com yesterday from June 29th “officially released July 3d” already on that court’s website], and readership in the past was down about 25% this week.

Postings will be off and on this week because I have a 1400 mile roadtrip, leaving today to drive my father to the old homestead on the east end of Lake Ontario for the summer. I’ll be checking e-mail because it is now a necessary part of a lawyer’s life. Whether I’ll take the time to post depends upon the number of cases that come through and whether I take the time to read any before I get there Tuesday night.

And, readers, thank you for visiting this site. Site visits for June was 101,000, 9% above May’s 92,000. I did this website for almost four years before the numbers took off. Knowing that readers are there makes this worthwhile.

Finally, depending on what my webguy can do (I have no control over the template, and I’d be afraid to try), this term’s SCOTUS cases will be added to the right margin shortly.

Seizing defendant’s wallet to determine his identity that led to his arrest did not nullify the arrest. United States v. Osborne, 2007 U.S. Dist. LEXIS 47870 (E.D. Tenn. July 2, 2007):

After carefully reviewing the R&R, the Court agrees with Judge Guyton that the police officers had a right to obtain defendant’s identity and that defendant therefore cannot allege a claim of violation of the Fourth Amendment on the basis of the officers’ means of so doing. See, e.g., U.S. v. Navarro-Diaz, 420 F.3d 581, 586 (6th Cir. 2005). Accordingly, “even if obtained as a result of a search which went beyond the reasonable parameters of a protective sweep, can not be suppressed.” [Doc. 41 at 11.] As Judge Guyton went on to aptly note, “better procedures for obtaining the defendant’s identity perhaps were available,” [id.], but this alone does not justify the suppression of defendant’s arrest and the evidence seized thereby.

The affidavit for the arrest and search warrant for defendant’s vehicle showed sufficient nexus to believe that evidence of a crime would be found in defendant’s vehicle. It was believed he would be crossing the border, and it was logical that he would do so in his vehicle. United States v. Robinson, 2007 U.S. Dist. LEXIS 47999 (E.D. Tenn. July 2, 2007).*

Plaintiff was arrested on a child support warrant after voluntarily appearing. It took five days to present him before a magistrate for a probable cause determination. The motion for summary judgment against his claim for false imprisonment was denied. Rodriguez v. Garcia, 2007 U.S. Dist. LEXIS 48017 (D. P.R. July 2, 2007).*

As I noted here on July 1st, the “protective sweep” doctrine, developed for a sweep of houses or rooms to look for others who could pose a threat to the officer (Maryland v. Buie, 494 U.S. 325 (1990)), has lended its name to the “vehicle frisk” for weapons (Michigan v. Long, 463 U.S. 1032 (1983)), or at least the cases are starting to use that phrase.

I’m not the guardian of the Holy Grail of the Fourth Amendment; I’m just a reporter and commentator of what is going on, and this is going on. We might as well accept it: the phrase is here to stay. Let’s just get over it and agree that a “Long vehicle frisk for weapons” can be called a “protective sweep,” too. The rationale and scope are the same: neutralizing potential threats, not searching for evidence. It seems natural. Fourth Amendment purists might disagree with the usage, but I’m not, as long as the place being “frisked” or “swept” is clearly defined, capable of harboring or concealing something or someone that poses a potential threat, and it does not become a ruse for a vehicle search.

Today’s posting is United States v. Brinsen, 2007 U.S. Dist. LEXIS 47413 (E.D. Va. June 29, 2007), involving a car stopped for loud music:

At the time the officers decided to ask Morris and Brinsen to leave the car and to do a protective sweep of the car, the officers’ suspicions were raised by the following facts: (1) there was excessively loud music coming from the vehicle, which was a violation of City of Richmond Ordinance No. 18-1(a)(11) and 18-2; (2) the vehicle was being driven in a high crime area at night; (3) the passenger, Brinsen, was not wearing a seat belt, which is an offense for which he can be charged and issued a summons; (4) when the officers initiated the traffic stop, the vehicle did not stop immediately but proceeded to the parking lot of a McDonald’s several blocks away and into a parking space as if the driver did not see or hear the police car behind him or in an effort to convince the officers that the driver and passenger did not believe they had committed any offense; (5) the officers smelled the strong odor of air freshener and saw the can of air freshener on Brinsen’s lap, often an indication that the occupants are trying to hide the smell of marijuana; (6) both the driver and passenger were reluctant to provide identification and to answer questions regarding identifiers, such as a license or other identification card or social security number; (7) the driver asked several times, although he had already been told, why they were being pulled over; (8) the driver did not comply with the officer’s instructions to get out of the car, but instead telephoned someone and told that person that the police were going to search the car; (9) both the driver and the passenger were nervous, fidgety, and evasive, and Brinsen would not look at the officers; and (10) the officers could smell the odor of burnt marijuana coming from the car, after the smell of the air freshener dissipated. All of these facts “taken together with the rational inferences from those facts, reasonably warrant the officers in believing that the suspect[s] [in this case were] dangerous and [that] the suspect[s] may gain immediate control of weapons.” There was no violation of the Fourth Amendment.

Plaintiff who was charged with obstruction after a domestic stand-by turned into the police deciding to enter the home. The charge lacked probable cause, and the police were denied summary judgment on the merits and qualified immunity. Court acknowledges circuit’s move to “arguable probable cause” and SCOTUS criticism for viewing qualified immunity too narrowly. Weissinger v. Murray, 2007 U.S. Dist. LEXIS 47075 (N.D. Ga. June 27, 2007):

Ms. Weissinger was arrested for theft by conversion, but ultimately charged with obstruction. According to her testimony, there was probable cause for neither charge. As noted above, Officer Murray was informed by Jeremy that Weissinger had already made plans with Jeremy’s wife to transfer the shirts. Thus, there was no basis for assuming that Weissinger intended to convert the shirts for her own use. Indeed, according to Murray, the reason he let Jeremy onto the property is because Weissinger had already agreed to transfer the shirts to Jeremy’s wife. The officers were only dispatched as a “domestic standby.” They were not investigating a crime, and had no reason to believe that Weissinger was acting illegally. Once Weissinger asked the officers to leave they were no longer acting as a domestic standby. “[T]hey were instead merely attempting forcibly to resolve a civil dispute.” Thornton v. City of Macon, 132 F.3d 1395, 1399 (11th Cir. 1998). The fact that Weissinger could have changed her mind and decided to keep the shirts would not even be arguable probable cause. See, e.g., Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995) (noting that the mere fact that an item “could have been used for unlawful activity . . . is not enough to establish even arguable probable cause”). Indeed, the flimsy basis for the charge is why the Defendants were forced to charge her with “obstruction.”

The officers lacked probable cause to make the arrest for “obstruction.” … A reasonable jury could find that the arrest was unreasonable and violated the Fourth Amendment. Tuggle and Murray may nevertheless be shielded from liability for civil damages if they did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Hope, 536 U.S. at 739. …

“This circuit was recently chastised by the Supreme Court for taking an unwarrantedly narrow view of the circumstances in which public officials can be held responsible for their constitutional violations.” Id. It is clearly established that an arrest made without probable cause violates the Fourth Amendment. See Thornton, 132 F.3d at 1399. But an officer is entitled to qualified immunity where the officer had “arguable probable cause.” Id. Arguable probable cause exists where reasonable officers in the same situation as the defendant, knowing what he knows, could have believed that probable cause existed. The facts underlying the Plaintiffs’ claims and the Defendants’ defense of qualified immunity must be determined by the trier of fact.

The facts that support a Fifth Amendment takings claim can also support a Fourth Amendment seizure claim. Gonzalez v. City Plan Comm’n, 2007 U.S. Dist. LEXIS 46520 (N.D. Tex. June 26, 2007):

Plaintiffs claim that Defendants effected an unreasonable seizure of their property in violation of the Fourth Amendment, by selling the abandoned right-of-way and the surplus land to the Congregation, and by approving the Congregation’s application to replat its property. The Fourth Amendment provides, in relevant part, that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. CONST. amend. IV. A seizure of property occurs “when there is some meaningful interference with an individual’s possessory interests in that property.” United States v. Lovell, 849 F.2d 910, 915 (5th Cir. 1988) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Defendants move for summary judgment against Plaintiffs’ Fourth Amendment claim, arguing that no unreasonable seizure occurred. In support, Defendants argue that no law supports Plaintiffs’ apparent position that the sale and replatting of nearby property can constitute an unreasonable seizure of Plaintiffs’ property. The Court agrees. Seizures are frequently found when a complainant’s physical property is either actually taken or damaged by state action. See, e.g., Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005). Here, by contrast, Plaintiffs had no possessory interest in the property that was sold to the Congregation, and have failed to demonstrate, in response to Defendants’ contentions, that any economic injury to their property resulted, or that such injury would be unreasonable in light of state and local law that allows the challenged actions. The Court thus GRANTS summary judgment as to Plaintiffs’ § 1983 claim based on the Fourth Amendment.

Plaintiff stated a possible claim for relief under § 1983 for errors in his mental health records that keep him confined. Pecou v. Forensic Comm. Pers., 2007 U.S. Dist. LEXIS 46651 (E.D. N.Y. June 18, 2007).*

Traffic stop was justified, but reasonable suspicion developed during the stop. The officer “testified that his suspicions were aroused because: 1) Dominguez was the sole occupant of the RV; 2) Dominguez could not remember the name of the friend whose wedding he attended after driving cross-country in an RV; 3) he was extraordinarily nervous [carotid artery throbbing]; 4) he exited the interstate at an interchange with no apparent commercial establishments or signs indicating that such were present, ostensibly to re-fuel when he still had half a tank of gas; and 5) the RV emitted a strong scent of deodorizers which are typically used to mask the presence of illegal narcotics. These circumstances suffice to warrant Crain’s suspicion, based on his experience as a law enforcement officer, that Dominguez was transporting illegal substances.” United States v. Dominguez, 2007 U.S. Dist. LEXIS 46385 (W.D. La. May 21, 2007).*

The United States Supreme Court decided yesterday a malicious prosecution/RICO case with a Fourth and Fifth Amendment implication: Wilkie v. Robbins. The Court held 7-2 (Opinion by Souter, concurring opinion by Thomas, Ginsburg concurring in part and dissenting in part) that actions by federal employees acting within their duties are not subject to suit under Bivens or RICO. The case is interesting for civil practitioners dealing with potential immunity from Bivens actions, but it does not have broad enough Fourth Amendment implications to discuss at length. Instead, consider this quote from Willamette Law Online:

Robbins’ High Island Ranch is private property intermingled with parcels belonging to private owners and both the state and federal governments. When Robbins bought the Ranch the easement previously enjoyed by the government had not been recorded. Negotiations with Robbins to reestablish the easement broke down and he refused to re-grant it. This conflict led to numerous trespass and permit-revocation actions cited in this suit. Robbins brought suit both under the RICO Act and the Fourth and Fifth Amendments as applied in the Bivens case. The United States Court of Appeals for the Tenth Circuit affirmed the United States District Court for the District of Wyoming’s dismissal of the charges and the United States Supreme Court granted certiorari. The Court held that aggressive practices from Bureau of Land Management employees were within their job descriptions for the most part and allowing a Constitutional tort claim against those employees under Bivens would do more harm than good. The proper remedy to overzealous government employees is legislative not judicial. [Summarized by Melissa Parker]

I received a spam overnight from Google Earth selling Tracksticks so you can Follow Anything That Moves for less than $200.

The Trackstick records its own location, time, date, speed, heading and altitude at preset intervals. With over 1Mb of memory, it can store months of travel information. The Trackstick is the perfect tool for individuals looking for a way to track anything that moves. Use it for recording the exact routes you take when hiking, biking or vacationing. Record the location of everywhere you went, import pictures and other information into Google Earth™ to offer an entirely new perspective of your journey. Includes GPX photo stamping feature for adding your favorite photos to you own maps.

It adds:

Applications / Features

• Seamless integration into Google Earth™
• GPS tracking / location history recording
• Employee and vehicle monitoring
• Mileage recording and verification
• Public Safety
• Law Enforcement
• Homeland Security
• Jogging, Hiking and Biking
• Photo Tours
• Child / Family Safety

For this price, anybody can plant one in your car and track your movements. Thank you Google; we now have even fewer rights. There is no reasonable expectation of privacy in our movements in a public place (Karo), and, like the frog in the heating water, we have seen technology overtake our freedoms.

Any police officer or PI can follow virtually anybody, without even leaving his or her office.

A state prison guard was reasonably suspected of importing contraband into the prison, and he was brought into a conference room and interviewed and patted down. His car was searched in the parking lot revealing a close relationship to some inmates. Then his desk was searched and drugs were found. Summary judgment for defendants granted. Morris v. Valeriano, 2007 U.S. Dist. LEXIS 45993 (D. Conn. June 25, 2007):

In the case at bar, prior to searching Morris’s person and car, the defendants had many objective facts from which they could have reasonably drawn the inference that Morris may have been planning to carry contraband into the correctional facility. A routine audit of the speed-dial system for all DOC facilities had discovered that 3,576 calls were made from inmate phones at Garner to Morris’s speed-dial number between June 1, 2003, and May 17, 2004, as compared to an average of between 25 to 50 of such calls per month to other speed-dial numbers. See Def.’s Stat. at PP7-9. Moreover, the audit found that the recording feature on Morris’s phone was disabled on February 10, 2004, which requires an affirmative act. Id. at PP12-13. Finally, three DOC Security Division employees personally listened to calls made by inmate Duffy to Morris between May 17 and May 20, 2004, in which they claim to have heard Duffy urge Morris repeatedly to bring him various items, with Morris responding in a way that, to these individuals, indicated he was planning to bring those items to Duffy. Id. at PP20-22. They also claim that they heard code words that they believed were used to disguise the items Duffy and Morris were discussing. Id. at P23.

The court finds these facts sufficient to meet the reasonable suspicion standard. See Carey, 737 F.2d at 205-206. Moreover, the court rejects Morris’s argument that the intrusion in this case was far greater than constitutionally permitted. See Plf.’s Mem. in Opp. at 10-11. In Carey, the Second Circuit permitted strip searches of certain correction officers where there was reasonable suspicion to do so. Id. A search of such an intrusive nature having been permitted under the reasonable suspicion standard, the court can find no reason for not constitutionally permitting the brief pat-down search of Morris’s outer clothing. Moreover, with respect to the search of Morris’s car, the Supreme Court has indicated that a “search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one’s person,” Almeida-Sanchez v. U.S., 413 U.S. 266, 279 (1973) (Powell, J., concurring), and that individuals have a diminished expectation of privacy in their car, U.S. v. Chadwick, 433 U.S. 1, 12 (1977). Based on this reasoning, as well as the presence, acknowledged by Morris, of the sign at Garner’s entry and the Administrative Directives regarding vehicle searches on prison property, the court finds the search of Morris’s car to be constitutionally permissible. It was based on a reasonable suspicion that Morris was bringing contraband into Garner. See supra at 10-11.

Therefore, summary judgment as to the Fourth Amendment search and seizure claim against the defendants is granted.

The officer had probable cause to arrest the defendant based on a 911 call from a crime victim who reported that defendant had threatened her with a shotgun. She did not give her name, but she identified herself as his girlfriend, and that was enough to find her later if need be. Once the officer was inside, the defendant consented to finding the shotgun. United States v. McKnight, 2007 U.S. Dist. LEXIS 46205 (M.D. Tenn. June 25, 2007):

This case is distinguishable from J.L. in at least two material respects. First, the caller was not exactly anonymous. While the Court does not know based on the record before it if Ronesha Smith gave her name to dispatch, it is clear that the caller identified herself as the girlfriend of Barry McKnight and that she was staying at 151 University Court. As the Supreme Court pointed out in J.L., an anonymous tip is less reliable than “a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated.” Id. at 1375. Here, even if Ronesha Smith did not initially give her name to the police, she was sufficiently identified such that the police could track her down and hold her accountable should it become necessary. See, United States v. Howard, 150 Fed. Appx. 476, 479 (6th Cir. 2005)(tip was not anonymous even though investigating officer did not know informant where the informant left her name and number with the 911 dispatcher and following arrest investigating officer contacted the informant); Elston, 479 F.3d at 318 (a “significant indicator that an anonymous informant is reliable is her disclosure of information that would enable authorities to identify her if they deem it necessary to do so”).

The plaintiff alleged that the Cook County jail conducted arbitrary penis swabbings for STDs with sloppy record keeping that did not even allow them to determine who was tested. Neither side was entitled to summary judgment, but plaintiff will get a chance to prove his case. Jackson v. Sheriff of Cook County, 2007 U.S. Dist. LEXIS 21141 (N.D. Ill. March 23, 2007).

Evidence that defendant was told that she “had a lot to lose” as to her children if she did not consent was not coercion. The officer was civil toward her until he determined she was lying about harboring a fugitive. Not all references to children are coercive, although they can be, when, for example, the officer says that the defendant will never see her kids again unless she consents. United States v. Yates, 479 F. Supp. 2d 1212 (D. Kan. 2007).*

Issuing plaintiff a criminal citation and threatening jail if he declined to sign the citation is not a seizure under the Fourth Amendment. Martinez v. Carr, 2007 U.S. App. LEXIS 7074 (10th Cir. March 27, 2007).*

Officers had more than an inchoate and unparticularized suspicion that criminal activity occurred. Officers were investigating bank robberies. By the time they stopped defendant’s vehicle, it had ripened into probable cause to search the vehicle, and a warrant was not required. United States v. Lindsey, 482 F.3d 1285 (11th Cir. 2007).*

The search warrant was issued on probable cause. “Defendant’s criminal history includes a conviction and an arrest for possession of a controlled substance within the previous four years. This history, coupled with a high volume of short-term traffic at the residence to be searched, corroborated the informant’s first-hand observation of defendant at that residence and in possession of drugs and a firearm.” United States v. Collins, 2007 U.S. Dist. LEXIS 21021 (D. Minn. March 23, 2007).*

Excessive force: (1) Plaintiff fled from officer after officer saw him talking with a known prostitute from his car. He fled on foot after stopping the car, and he pled that he was on the ground to surrender when he was unnecessarily struck with the officer’s gun. That stated a claim. Tabb v. Veazey, 2007 U.S. Dist. LEXIS 22428 (N.D. Ga. March 28, 2007).* (2) And, while plaintiff had surrendered he sufficiently pled that a dog was sicced on him. Vickers v. Stoops, 2007 U.S. Dist. LEXIS 21990 (S.D. Ind. March 26, 2007).*

Defendant had no expectation of privacy in a box of clothes used by illegal aliens seized from a car they had been in. Another person was in control of the box and consented to a search and that person had directed the defendant to discard the box. United States v. Perez-Quirzola, 2007 U.S. Dist. LEXIS 22140 (D. P.R. March 27, 2007).*

While the third party consenter probably lacked actual authority to consent, the proof was “overwhelming” that the officer could reasonably rely on her apparent authority because she appeared to be living there and called the police on a domestic disturbance. United States v. McCurdy, 480 F. Supp. 2d 380 (D. Me. 2007).*

There was no Franks violation: “Mr. Zaldivar distinguishes between delivering drugs into the house and delivering drugs to the house. But the court does not believe the distinction is material, and the omission of the hotel information does not amount to a material omission.” There was probable cause, and the good faith exception would save the search in any event. United States v. Zaldivar, 2007 U.S. Dist. LEXIS 22158 (D. Utah March 26, 2007).*

Plaintiff’s decedent was allegedly arrested falsely and struck in the legs with police batons. He hung himself in jail after the arrest. The complaint was deficient on a Fourth Amendment claim as a matter of law, but plaintiff would be given a chance to replead. Powers-Bunce v. District of Columbia, 479 F. Supp. 2d 46 (D. D.C. 2007)*:

The Court recognizes, however, that, under the circumstances of this case, Plaintiff is at an informational disadvantage and must be given some leeway in stating a viable claim based on the alleged unconstitutional arrest and use of excessive force. See, e.g., Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004) (noting that “civil rights plaintiffs … often face informational disadvantages”). Therefore, the Court will dismiss the “unlawful stop, search, and detainment” and “excessive force” claims without prejudice.

Officers were able to link defendant to another name and a 1996 arrest warrant, and the search incident to that arrest was valid. United States v. Rosario, 2007 U.S. Dist. LEXIS 21637 (D. N.J. March 26, 2007).*

Defendants aroused officers’ suspicions because of an unusual train itinerary. They consented to limited searches and then a search of a sleeping compartment on the train and what was in it. That included a backpack in plain sight that had cocaine in it. United States v. Freeman, 482 F.3d 829 (5th Cir. 2007).*

Defendant had no expectation of privacy in recorded jail calls or cellphone records of another person. United States v. Solomon, 2007 U.S. Dist. LEXIS 21434 (W.D. Pa. March 26, 2007).*

Detailed information from a named informant that ice would be coming from Washington State in a DHL package to a named person with a tracking number provided, coupled with a criminal history check of the recipient, was an adequate basis for a search warrant for the package, notwithstanding that the police dog did not alert on it. United States v. Wall, 2007 U.S. Dist. LEXIS 21674 (D. Guam March 23, 2007).*

Even those under the influence of drugs can consent to a search. United States v. Purcell, 2007 U.S. Dist. LEXIS 21620 (E.D. Ky. March 23, 2007):

That Crist ingested drugs and even that officers suspected as much does not automatically negate voluntariness of her consent. “Voluntary consent can be given even by a person under the influence of drugs, when that person is coherent and fails to exhibit any visible impairment.” United States v. Griffin, 1997 WL 487325, at *2 (6th Cir. 1997).

The Coast Guard boarded defendant’s ship to look for safety issues under 14 U.S.C. § 89. It was not found to be pretextual. United States v. Overseas Shipholding Group, 2006 U.S. Dist. LEXIS 95813 (E.D. Tex. October 4, 2006):

The Coast Guard’s exercise of its duties to carry out a vessel inspection in a safe and proper manner is considered to be a limited intrusion that is reasonable under the Fourth Amendment. United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). While the inspections conducted by the Coast Guard are administrative in nature, they are not covered by the general administrative search exception to the Fourth Amendment warrant requirement. United States v. Royal Caribbean Cruises, Ltd., 24 F. Supp.2d 155, 164 (D.P.R. 1997); see also Michigan v. Clifford, 464 U.S. 287, 291-92, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Rather, Coast Guard searches are covered under the rubric of searches on the high seas or in United States territorial waters and fall under the regulatory rubric directed to safety inspections and ships. That criminal activity might be suspected is immaterial to the issue of the reasonableness vel non of the search. Royal Caribbean Cruises, Ltd., 24 F.Supp.2d at 164; see United States v. Villamonte-Marquez, 462 U.S. at 584.

. . .

It is difficult to conceive how the Coast Guard’s actions in this matter amount to a pretext search. The Coast Guard has statutory authority to board a vessel “for the prevention, detection, and suppression of violations of laws of the United States”. 14 U.S.C. § 89(a). The Coast Guard had clear authority to board the Pacific Ruby to examine equipment and review documents relating to discharges and other issues relating to the pollution equipment on board. Their purpose in boarding the vessel was to, in fact, examine that equipment and those related documents. The fact that they informed the Captain and crew that they were there to conduct a Non-Priority Vessel (NPV) Safety Exam or a “Random” Non-Priority Vessel (NPV) Safety Exam does not, in this Court’s view, make this search or inspection pre-textual. In addition, there is no authority for the proposition that the Coast Guard had a duty to disclose any of their suspicions that a crew member may have committed a crime before boarding and conducting an inspection under the relevant statutes. It is conceivable that such a disclosure, in some circumstances, could cause repercussions for the individuals on board the vessel who provided information to the Coast Guard.

Plaintiff denied consent and his girlfriend by affidavit denied she consented. The officers only made a swearing match, so their summary judgment is denied. Sledge v. Stoldt, 480 F. Supp. 2d 530 (D. Conn. 2007).*

Officer had cause to stop the plaintiff for a minor traffic violation and then arrest for DUI. Gregorie v. Goins, 2007 U.S. Dist. LEXIS 24133 (D. S.C. March 29, 2007).*

Court appointed guardian ad litem has absolute immunity under § 1983 for a Fourth Amendment claim. Jenkins v. Whitley, 2007 U.S. Dist. LEXIS 23952 (E.D. Tenn. March 27, 2007).*

Officers who never observed alleged use of excessive force could not be sued under § 1983 for failing to intercede. Cosby v. City of White Plains, 2007 U.S. Dist. LEXIS 23770 (S.D. N.Y. February 9, 2007).*

Silence in the face of a protective sweep is consent by acquiescence. United States v. Pena-Baez, 2007 U.S. Dist. LEXIS 26554 (D. Kan. April 9, 2007). (Comment: Like a suspect would feel that he could object to cops wandering around in his house? The violation has already occurred by then.)

Various factors involving a tractor trailer amounted to reasonable suspicion to extend the stop. United States v. Lopez, 2007 U.S. Dist. LEXIS 26170 (E.D. Pa. March 26, 2007):

Once the truck was validly stopped, Gooding acted lawfully in requesting license, registration and other vehicle-related paperwork, and in questioning Santana and Garcia about details related to such paperwork. See, e.g., Givan, 320 F.3d at 459; Rosborough, 366 F.3d at 1148. Within a matter of minutes into the stop, Gooding’s quick inspection of the truck and the paperwork revealed the following: both drivers were awake, religious disclaimers in the cab, high DOT number, unusual log book entries (especially given the nature of the perishable cargo involved), load’s origination in Ontario, and that Santana had flown from Phoenix to Ontario to pick up the truck. These objective facts, viewed in light of Sgt. Gooding’s extensive experience, amounted to the requisite “reasonable and articulable suspicion” of criminal activity sufficient to justify him expanding the scope of temporary stop. See United States v. Johnson, 285 F.3d 744, 749 (8th Cir. 2002) (finding reasonable suspicion for extended detention during routine safety stop based on incomplete log book entries and paperwork, driver’s confusion as to final destination, that driver flew to pick up truck, truck’s indirect route given that it carried produce, driver’s evasive and strange behavior, and unusual locks on the trailer). Upon “escalation” of the stop, Gooding reasonably broadened his investigation in calling for a drug dog and in contacting EPIC to access their database.

Given the totality of the circumstances in this case, the Court concludes that the 20-minute delay in the canine’s arrival, during which time Gooding continued his reasonable investigation by contacting EPIC and making inquiries of Garcia, was not unreasonably lengthy as to render the detention of the tractor-trailer unconstitutional. See Frost, 999 F.2d at 742 (80 minute delay between initial seizure and arrival of canine not unreasonable). This is especially the case where there is no indication that Gooding and Smart acted with anything less than the utmost diligence; indeed, Trooper Smart and Rita arrived at Gooding’s location within a minute or so after Smart concluded his traffic stop, approximately 20 minutes after Gooding initially requested canine assistance.

Fact question remainded for trial based on plaintiff’s version that excessive force was unjustified when it was used. Carey v. Maloney, 480 F. Supp. 2d 548 (D. Conn. 2007):

The Court finds that there are genuine issues of material fact regarding the conduct of Officers Maloney and Fox and the amount of resistance Carey offered. A reasonable jury could find that Carey was subjected to more force than necessary to secure his arrest, particularly given Carey’s deposition testimony that Fox and Maloney failed to warn Carey before pushing him against the pick-up truck, that he did not resist arrest, and that he had only taken a couple of steps toward his father, as well as the short period of time before the pepper spray was used, and the number of times he was sprayed.

Officers had probable cause to arrest the plaintiff for public intox so his civil case fails. Nitsch v. City of El Paso, 482 F. Supp. 2d 820 (W.D. Tex. 2007).*

Search warrant for business records potentially intruded into the attorney-client privilege. The defendants asserted privilege in a timely fashion as to some records while in the possession of the taint agent, and there was no waiver. As to those records where the defendant unreasonably delayed, there was a waiver. United States v. SDI Future Health, Inc., 2006 U.S. Dist. LEXIS 95794 (D. Nev. October 16, 2006):

The search warrant in this case, however, was directed at seizing non-privileged business records and tax returns and tax preparation documents. As stated, during the search, taint agents reviewed documents in offices identified by SDI as containing privileged documents. Given the scope of the seizure, it is not surprising that the taint agents may have allowed seizure of certain records that were potentially privileged, or that potentially privileged records were located in other offices not inspected by the taint agents or possibly on SDI’s computers. Defendants have cited no authority, however, which holds that where the Government seizes voluminous business records, it must first employ a taint team to review all of the records to identify potentially privileged documents. On the other hand, SDI’s counsel did timely notify the Government of certain seized files or documents that allegedly contained attorney-client privileged documents. SDI’s counsel also informed the Government of the identities of law firms and attorneys who represented SDI so that the Government could identify potentially privileged documents and protect them from review by the case agents or prosecuting attorneys until a privilege determination was made. Other than the very general statements in the Government’s Opposition and Ms. Damm’s Declaration, the Government provides little or no information as to what steps were taken to segregate such allegedly privileged documents before they were reviewed by the case agents.

In sum, SDI had some arguably valid objections to the Government’s taint procedures. The problem is that SDI waited more than three years after the search to raise those objections with the Court. That stated, the Court generally agrees with the statement by the court in United States v. Neill, supra, 952 F.Supp. at 841 that:

“Where the government chooses to take matters into its own hands rather than using more traditional alternatives of submitting disputed documents under seal for in camera review by a neutral and detached magistrate or by court-appointed special masters, (citations omitted), it bears the burden to rebut the presumption that tainted material was provided to the prosecution team. Briggs, 698 F.2d at 495, n.29 (‘the government is, of course, free to rebut this presumption by showing for example, procedures in place to prevent such intragovernmental communications.’).”

. . .

The Court agrees with the approach taken in United States v. Neill, supra, which involved similar circumstances. As to documents which Defendants identified and asserted claims of privilege in SDI counsel’s letters dated February 5, 8 and 21, 2002, the Court finds that Defendants have not waived their attorney-client privilege. In so finding, the Court weighs and balances Defendants’ failure to take earlier judicial action to enforce their privilege against the failure of the Government to timely notify Defendants of the privilege determinations made by the taint attorney, combined with the fact that in August-September 2005, the Government still recognized that some of the documents were potentially privileged.

In regard to other documents, including computer based records, as to which SDI never asserted specific attorney-client privileges, the record supports the conclusion that SDI waived its attorney-client privilege by failing to assert it or to take timely action to protect it. In their Reply (# 67), Defendants attempt to distinguish de la Jara and In re Grand Jury (Impounded) on the ground that those cases involved a single document and that Bowles v. National Ass’n of Home Builders involved a finite number of ascertainable documents. In contrast, Defendants argue that the Government seized hundreds of thousands of documents which it maintained in its sole control. This is not a sufficient basis for distinguishing those cases.

There is no evidence, nor is there any basis for believing that the hundreds of thousands of paper documents and computer records seized by the Government constituted potentially privileged attorney-client communications. Within days and weeks after the seizure of its documents, SDI was able to identify potentially privileged documents and files that had been seized by the Government. SDI’s counsel also advised the Government that there might be other privileged documents contained in the seized records which could only be determined after SDI having an opportunity to review the seized records. At that point, the Court would agree that SDI had not waived its privileges because it had, as yet, no opportunity to inspect its files and identify additional privileged records. See In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d at 515 (stating that movant could not be criticized for failing to provide a privilege log before he had an opportunity to review the records). See also Burlington Northern & Sante Fe Railway Co. v. District Court., 408 F.3d 1142 (9th Cir. 2005)(timeliness of privilege log is determined by the relevant circumstances including the ability of the party to review the documents and identify privileged materials). On the other hand, the Court does not agree that a mere generalized assertion that seized records may contain attorney-client privileged materials is, in and of itself, sufficient to preserve the defendant’s privilege indefinitely. See United States v. Ary, 2005 WL 2367541 (D. Kans. 2005).

SDI counsel’s February 21, 2002 letter to AUSA Myhre stated that the Government agreed to make certain SDI records available for copying on February 22, 2002, and “to allow SDI’s representatives to use a scanner and laptop to copy all needed records, ZIP disks and CD ROMS.” Defendants’ Motion (# 39), Exhibit “5”, pages 1-2. According to this letter, the Government also agreed to return other documents to SDI. No evidence has been presented that the Government subsequently refused to return records it agreed to return, or that the Government refused to permit SDI to copy the documents and computer records. AUSA Pomeranz’s May 20, 2004 letter to SDI’s counsel noted the “extraordinary access” that SDI was granted “to review the materials seized both during and after the execution of the search warrant.” Government’s Opposition (# 55), Exhibit “A-2.” No evidence has been submitted by Defendants showing that they disputed the Government’s assertion in this regard.

It appears that SDI was granted access to the seized records which it could have reviewed to identify additional privileged attorney-client communications. Therefore, it was unreasonable for SDI to fail to take steps to identify and assert its privilege regarding other documents within a reasonable time after it was granted access to the seized records. Assuming, for sake of argument, that the Government had refused to permit SDI to inspect and copy the seized records after February 21, 2002, it would have been incumbent on Defendants to timely pursue judicial action to obtain the records so that additional privileged documents could be identified and objections made to the Government’s use of those records. The Court therefore finds that Defendants waived any attorney-client privilege regarding documents seized during the search of SDI’s corporate headquarters and offsite storage facility on January 31, 2002 that the Defendants did not identify in SDI counsel’s letters dated February 5, 8 and 21, 2002. Defendants therefore are not entitled to an evidentiary hearing regarding the Government’s alleged improper intrusion into the Defendants’ attorney-client privilege regarding those records as to which Defendants made no timely assertion of privilege.

Defendant’s version of the police entry into his apartment at 5 a.m., corroborated in significant part by his neighbor who the police had awoken minutes earlier by knocking on her door too, was the more credible version of how the entry occurred. Also, the defendant did not impliedly consent to the police entering his apartment while he got his shoes. Once inside, an officer opened a container and found cocaine. United States v. Antone, 479 F. Supp. 2d 255 (D. R.I. 2007):

Simply put, the Court credits Antone’s account because he was a credible witness with a believable story, and because his neighbor, Ms. Baker, who corroborated the critical segment of his account, was credible as well and appeared to be a disinterested witness. The Court does not make these findings lightly. Antone is after all a convicted felon fighting to stay out of prison for the rest of his life; and, strangely, he testified that he did not sign a consent form that appears to bear his signature. Also, Ms. Baker testified that Antone spoke clearly when — as was patently obvious to the Court during the hearing — he does not. In spite of these concerns, however, careful inspection of their respective testimony has convinced the Court that, in demeanor and inflection, Antone and Baker told a credible story. Swierk and Mitchell were generally credible as well, but the key difference is that their testimony lacks plausibility while Antone’s and Baker’s makes sense. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (observing, in the context of appellate court review for clear error, that “factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness’ story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.”).

Assuming for the moment that “come on” in these circumstances has the meaning the government ascribes to it (i.e., an invitation to enter the apartment as opposed to “you gotta be kidding me”), Antone’s account that he said “hold on” makes far more sense in light of what he was asked to do. All parties agree that Det. Swierk did not ask Antone if they could enter his apartment; instead, he asked whether Antone would go to the police station after telling him they were investigating a sexual assault. To this request, Antone responded affirmatively. For Antone, on his own initiative, to have said “come on” in the sense that he was inviting the detectives into his apartment in response to the officer’s request strains credulity. Of course, it is not impossible that a suspect would prefer to answer questions at home instead of the police station and so might parry the request to go to the police station with an invitation to come in and talk. But the disconnect here is that Antone agreed to go off to the police station by saying he had to get his “keys” or “shoes,” thus implying that he did not prefer his apartment, or, at least, did not mind going to the police station.

Prison strip search was subjected to a “light” standard of reasonableness, and it was justified by penological interests. Rutland v. Louisiana Dep’t of Pub. Safety & Corrections, 2007 U.S. Dist. LEXIS 22031 (W.D. La. February 6, 2007).*

Defendant lacked standing to challenge the search of the vehicle of another parked outside the place searched under a search warrant. Brandeis’s Olmstead dissent does not provide an equitable ground of relief. United States v. Babb, 2007 U.S. Dist. LEXIS 19173 (N.D. N.Y. March 19, 2007):

To overcome the hurdle posed by his lack of standing, defendant relies on the equitable principle that the government should not unfairly “profit from its lawless behavior.” United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting). In support of his position, defendant further cites to the dissenting opinions written by Justices Brandeis and Holmes in Olmstead v. United States, 277 U.S. 438 (1928). Justice Brandeis opined that “[i]f the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself ….” Id. at 485. Justice Holmes echoed similar concerns when he added that “[i]f the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.” Olmstead, 277 U.S. at 470. Invoking fundamental fairness, defendant argues that the Court should not permit the government to circumvent the Fourth Amendment’s exclusionary rule and profit from its lawlessness. See Dkt. No. 16, Mem. of Law at 14. Since the writing of these dissenting opinions, however, the Supreme Court has yet to have expanded the exclusionary rule’s ambit and operation so as to permit a court to use its supervisory powers to circumvent settled Fourth Amendment law.

Consent to an interview of a child concerning paddling at school is not consent to a “beneath the clothes search,” and a reasonable person had to know that. Michael C. v. Gresbach, 479 F. Supp. 2d 914 (E.D. Wis. 2007).

Liberally construing plaintiff’s pro se complaint, she sufficiently alleged excessive force and sexual battery in an officer’s attempt to remove her from her car during a traffic stop. Christian v. Anderson, 2007 U.S. Dist. LEXIS 19394 (D. N.H. March 15, 2007).*

Another plaintiff stated a sufficient claim to have a “triable issue” for kicking and beating him after he was tackled by the police. Gray v. City of Hayward Police Dep’t, 2007 U.S. Dist. LEXIS 19280 (N.D. Cal. March 2, 2007):

The next area of disputed fact concerns the amount of force that was applied by the defendants and other officers. Plaintiff alleges that after he was tackled to the ground and handcuffed, Cristofani and Dorn “beat him,” Carpenter kicked him in the back, these three officers dragged him to the stairs in handcuffs, defendant Hutchinson punched him in the face and hit him in the back, face and arms with a baton, Hutchinson pepper-sprayed him, Matthews threatened to shoot him while pointing a gun at his face, Matthews struck him in the face and on the top of the head with the scope of a rifle, “busting [his] head wide open,” Hutchinson directed Divinagracia to release a police dog which bit plaintiff on the legs and wrist, and Olsen “slapped” him. Matthews states that after Dorn tackled plaintiff to the ground, he struck plaintiff once in the head with his weapon, but denies having heard any officer threaten to shoot plaintiff. (Matthews Decl. P 24). According to Dorn, after tackling plaintiff to the ground, he tried to pull at plaintiff’s left arm, and attempted but did not complete a “Carotid restraint.” (Dorn Decl. PP 14-15.) The declarations submitted do not address plaintiff’s allegations of the use of force by the other defendants and officers present, but in their motion defendants concede “other officers” used “baton strikes, open hand strikes, and for a brief moment a K9” in the attempt to subdue plaintiff. n9

Assuming plaintiff’s version of these events is true, as the Court must do at this stage of the proceedings, plaintiff has raised a triable issue of material fact, as he has alleged facts from which a finding could be made that the officers’ actions were unreasonable under the circumstances. Certainly, the officers, at the outset, had reason to be concerned for their safety, as there is no dispute that plaintiff had a history of violence with the police, was wanted for violent crimes, and initially had run from his house to the deck. Plaintiff states, however, that once he was on the deck, he told the officers he was surrendering and showed them his hands, after which he was handcuffed. Thereafter, according to plaintiff, defendants and other officers participated in a beating in which they kicked him, dragged him, punched him in the face, hit him with a baton in the back, face and arms, pepper-sprayed him, pointed a gun at his face and threatened to shoot him, hit him in the face and the head with the scope of a rifle, and released a police dog who bit him on the legs and wrist. It is undisputed that at least seven police officers and a police dog were present, and there is no evidence plaintiff was armed. Further, it is undisputed plaintiff was injured and bleeding as a result of the altercation, and was immediately taken to a hospital by ambulance for treatment of his injuries. See Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2001) (“Headwaters“) (holding that whether use of force poses risk of significant injury is factor considered in evaluating need for amount of force used), judgment vacated on other grounds, 534 U.S. 801 (2001).

Officers lacked probable cause to arrest the plaintiff, and no reasonable officer could have believed he did. Therefore, the defendants had no qualified immunity. Blankenship v. Cox, 2007 U.S. Dist. LEXIS 19425 (D. Nev. March 19, 2007).*

A police officer encountered defendant and asked for identification the information from which he called in and handed back to the defendant. That did not escalate the encounter into a seizure under the Fourth Amendment. State v. Adams, 2007 UT App 117, 158 P.3d 1134, 575 Utah Adv. Rep. 12 (2007):

The present case is similar to United States v. Analla, 975 F.2d 119 (4th Cir. 1992), in which the Fourth Circuit held that a defendant was not seized for purposes of the Fourth Amendment where the investigating officer did not take the license over to the squad car to run the warrants check. See id. at 124. Instead, the officer “stood beside the car, near where [the defendant] was standing, and used his walkie-talkie” to contact the dispatcher. Id. This circumstance, among others, resulted in the determination that the consensual encounter did not escalate into a level two seizure. See id. Thus, in this case, Patrick’s momentary use of Adams’s identification for a warrants check does not compel the conclusion that a level two seizure occurred, especially because Patrick did not hold onto the identification any longer than was necessary. Cf. Florida v. Royer, 460 U.S. 491, 501-02, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion) (holding that police acted permissibly in approaching airline traveler and asking for identification, but when police retained traveler’s documentation while asking him to accompany them to a separate room for questioning, police illegally seized traveler); People v. Jackson, 39 P.3d 1174, 1188 (Colo. 2002) (collecting cases and noting that numerous federal and state courts have recognized that “whether an officer retains a defendant’s identification is a critical factor in distinguishing, under the totality of the circumstances, a consensual encounter from an investigatory stop” (emphasis added)).

Defendant’s arrest was without probable cause because there was insufficient justification to connect him to drugs for even constructive possession. State v. Chavez, 138 Wn. App. 29, 156 P.3d 246 (2007).

Quality of CI’s information was not argued to the trial court, so it could not be argued on appeal. Reyes v. State, 952 So. 2d 1262 (Fla. App. 2d Dist. 2007).*

Trial court erred in granting defendant’s motion to suppress for stop after he “almost” hit an officer pulling away from the curb. The stop had justification and was reasonable. Lewis v. State, 398 Md. 349, 920 A.2d 1080 (2007).*

The defendant stopped at his home after conducting a drug sale, but this did not show that the defendant kept drugs at his house. Also, the affidavit otherwise failed to show probable cause. Commonwealth v. Stegemann, 68 Mass. App. Ct. 292, 862 N.E.2d 381 (2007):

The Commonwealth advances two unpersuasive arguments in an effort to salvage its search and seizure. First, it claims probable cause to search Stegemann’s residence existed because, as set forth in the affidavit, police surveillance “has shown Stegemann to drive directly to his 8 Oak Street apartment moments after his sale to Carnute and Officer Hill.” The fact that Stegemann stopped at his residence–once, and then only after making a sale–fails logically to support any reasonable inferences justifying the issuance of a warrant to search that residence on the theory that his drug stash was probably there. Compare Commonwealth v. Smith, 57 Mass. App. Ct. 907, 908, 783 N.E.2d 463 (2003) (police observation of defendant driving one day from home to a drug sale and, on another occasion, to home after a drug sale was, without more, insufficient to link the defendant’s residence to drug activity). Contrast Commonwealth v. O’Day, 440 Mass. at 302-304 (police surveillance showed defendant going directly to drug sales from his residence); Commonwealth v. Eller, 66 Mass. App. Ct. 564, 570-571, 849 N.E.2d 859 (2006) (same); Commonwealth v. Gallagher, ante, 68 Mass. App. Ct. 56, 59-60, 859 N.E.2d 893 (2007) (same).

The Commonwealth also repeatedly asserts the significance of a single fact: that on one occasion Stegemann “was in the process of cooking a large quantity of cocaine in his apartment on Oak Street.” The affidavit does not, however, indicate whether Stegemann “cooked” cocaine on that occasion for distribution or for his personal consumption. More significantly, it fails to state when he allegedly cooked the cocaine–it could have been as long as five months earlier. See Sgro v. United States, 287 U.S. 206, 210-211, 53 S. Ct. 138, 77 L. Ed. 260 (1932) (the facts supporting probable cause cannot be stale and must be “closely related to the time of the issue of the warrant”). See also Commonwealth v. Reddington, 395 Mass. 315, 322-323, 480 N.E.2d 6 (1985) (six month old tip about once seeing drugs in defendant’s house stale and insufficient to establish probable cause).

The affidavit further fails to explain how Carnute knew of this “cooking” incident–whether she observed it personally or whether Stegemann or someone else subsequently mentioned it to her. n22 The information that Stegemann allegedly once cooked crack in his apartment at some undetermined time simply could not be deemed sufficiently reliable to support a probable cause finding to search that apartment.

Tractor trailer was lawfully stopped for traffic offense and then officer noticed that it had insufficient markings for interstate use. That justified extending the stop. Consent after that was valid. United States v. Norwood, 2007 U.S. Dist. LEXIS 11659 (C.D. Ill. February 20, 2007).

Officer’s mistake bars application of good faith exception. United States v. Cos, 2006 U.S. Dist. LEXIS 95396 (D. N.M. June 14, 2006), earlier opinion on legality of search: United States v. Cos, 2006 U.S. Dist. LEXIS 95391 (D. N.M. May 4, 2006):

As the Court noted in its Memorandum Opinion and Order (Doc. 55), like the mistake that the state trooper made in United States v. Herrera, “the mistake that led the police officers into Cos’ apartment–that Ricker had authority to consent — was one that they, not a neutral third party like a magistrate, made. As a result, the good-faith exception does not seem to apply in this case.” Id. at 30. The United States objects to this reasoning on two grounds. First, it argues that United States v. Herrera is distinguishable from this case, because in this case, “after the Defendant’s firearm was discovered, the officers obtained a search warrant that was approved by a state district court judge who found no problem with the preceding conduct that uncovered the evidence of the firearm. In Herrera, there was no search warrant; the search at issue was a warrantless administrative search and seizure.” Third Motion to Reconsider at 3.

The United States’ argument raises a distinction without a difference. While it is true that a state district court judge issued a search warrant after the constitutional violation occurred, the Tenth Circuit has expressed that the issuance of a search warrant does not preclude district courts from peering back at events before the search warrant to determine if a constitutional violation has taken place. See United States v. Scales, 903 F.2d at 768 (“Moreover, the search of the suitcase after the search warrant was issued does not prevent us from evaluating the agents’ behavior prior to that time.” (emphases in original)). In addition, United States v. Herrera did not base its decision about the good-faith exception on the fact that it was an administrative search case; instead, the rule it announced is that, to receive the benefit of the good-faith exception, the mistake that led to the constitutional violation must have been made by someone other than the law enforcement officer. See 444 F.3d at 1249 (“Leon‘s good-faith exception applies only narrowly, and ordinarily only where an officer relies, in an objectively reasonable manner, on a mistake made by someone other than the officer.”). While the Tenth Circuit stated, as an additional reason to suppress the evidence, that the good-faith exception should not apply to an administrative search because there is nothing, in that situation, to give notice to the party being searched that he or she is subject to a warrantless inspection, this conclusion did not alter the Tenth Circuit’s holding that the good-faith exception “almost always applies only when there is a determination made by a third party upon which the officer reasonably relied to conduct the challenged seizure or search.” Id. at 1253-54 (“Herrera never had any notice that a state trooper would have even facially valid authority to stop him to conduct a random administrative inspection. That is because Herrera was not in fact operating in a pervasively regulated industry such that he could not help but be aware that he and his truck were subject to search. For this reason, as well, we decline to apply Leon‘s good-faith exception so far afield from that exception’s origin.” (emphasis added)(citation and internal quotations omitted)).

Protective sweep for another gun after the only gun believed to be present was found lacked reasonable suspicion on the totality of circumstances. The officer’s training was to assume that there was another gun was logical and prudent, but it was not articulable reasonable suspicion. State v. Bentz, 211 Ore. App. 129, 158 P.3d 081 (2007):

Viewing the totality of the circumstances, we conclude that Slyter did not have reasonable grounds to believe that there was a true emergency that required immediate action or that there were persons present who posed an immediate threat of danger to the officers or anyone else. No specific articulable facts indicated that anyone other than Lohr’s children was inside the apartment. Furthermore, once Ward’s gun had been secured, Slyter had no reason to believe that Ward had given the gun to defendant’s brother. Thus, the only thing supporting Slyter’s concern that there could be another gun in the apartment was his training, which taught him to assume that, when one gun is found, another is present. Although that might be a prudent assumption for a police officer to make, where no articulable facts support the assumption, it is not a sufficient basis for a warrantless search.

In short, because there were no specific and articulable facts indicating that either a potential victim of a life-threatening incident or a potential perpetrator of a dangerous act were present in the apartment, we reject the state’s contention that the emergency aid doctrine and the protective sweep doctrine justified Slyter’s warrantless entry into the apartment. That conclusion also disposes of the state’s argument that Slyter’s contact with defendant was a lawful stop, because that argument hinges on the state’s assertion that Slyter’s entry into the apartment was lawful. It follows that Slyter’s stop of defendant was unlawful. Because the evidence used in defendant’s trial would not have been discovered without the unlawful stop, the evidence was tainted.

Defendant was convicted in the Edgewater mass murder case where the defendant came to his work and shot co-workers. In the investigation, police entered his apartment without a warrant looking for possible other victims, did a quick walk through, and secured the apartment. A warrant was then obtained. Computers were seized during the search even though they were not named in the warrant. Commission of a crime does not translate into an automatic right to search the defendant’s premises, but the police here showed a possible connection because his home would likely yield evidence of the crime. Also, specification in the warrant for “records” (in an effort to determine motive for the shootings) must be construed to include computers. Commonwealth v. McDermott, 448 Mass. 750, 864 N.E.2d 471 (2007):

Here, the information in the affidavit describing the shootings and the initial investigation (including the numerous firearms and large quantity of ammunition involved in the shootings), combined with the police observations of a firearms manual and ammunition during the warrantless search of the defendant’s residence, provided a clear link between the defendant and the shooting deaths of his seven coworkers and suggested that the defendant’s will, n19 and other evidence relevant to the investigation, could be found at the defendant’s residence. As noted by the judge, in light of the arsenal of firearms and ammunition recovered at Edgewater, the magistrate had a sound basis reasonably to infer that the defendant did not hastily acquire the arsenal, but more likely amassed it over time, and had brought the weapons to work from another location large enough to store them, namely, his apartment. It follows that the magistrate could also reasonably infer that documents regarding the defendant’s purchase of such firearms and ammunition, as well his legal right to carry firearms, are documents of a personal nature that would likely be kept in a secure location such as the defendant’s apartment. Contrary to the defendant’s contention, the fact that his identity, as the perpetrator, was not in question does not mean that police lacked probable cause to collect evidence confirming his identity and other relevant materials.

. . .

We reject the defendant’s argument that the seizure of the computers and disks from his apartment was unlawful on the ground that the warrant did not specifically authorize the seizure of any “computer” or “disk.” We join those courts adopting the approach that a warrant that authorizes a search for records (properly delineated in a warrant) permits the seizure of computers and disks that electronically may hide and store such records. See United States v. Musson, 650 F. Supp. 525, 531-532 (D. Colo. 1986) (warrant authorizing seizure of “any records or writings of whatsoever nature showing any business or financial transactions” permitted seizure of computer disks); People v. Gall, 30 P.3d 145, 148 n.4, 153 (Colo. 2001) (warrant authorizing seizure of “written or printed material” indicating intent to do physical harm to person or building, permitted seizure of computers because they were “reasonably likely to serve as ‘containers’ for writings”); Frasier v. State, 794 N.E.2d 449, 454, 460 (Ind. Ct. App. 2003) (warrant authorizing search of “notes and/or records” of marijuana sales allowed police to examine computer files).

. . .

We analogize the issue (as did the judge) to that of searches of containers. The authority justifying such an analogy is well established. [citations omitted]

While every court confronting the issue has not adopted this approach, [citation omitted] the approach is by far the more practical. The reasoning sensibly acknowledges that clairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records; that there is no meaningful difference to a reader between records maintained electronically and those kept in hard copies; and that, in this age of modern technology, persons have increasingly become more reliant on computers not only to store information, but also to communicate with others. For these reasons, we conclude that the warrant authorized police to seize the electronic storage media (computers and disks) within which the documents listed in the warrant may have been stored.

. . .

In conducting the actual search of the computers and disks, considerable discretion must be afforded to the executing officers regarding how best to proceed with the search. See Commonwealth v. Garner, 423 Mass. 735, 740 (1996), quoting Dalia v. United States, 441 U.S. 238, 257 (1979). Advance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. See United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999) (“The warrant process is primarily concerned with identifying what may be searched or seized — not how …” [emphasis in original]). Indeed, the judge or officer issuing the search warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis. In conducting the analysis, a cursory examination of a computer’s files is permissible. See United States v. Gray, 78 F. Supp. 2d 524, 529 (E.D. Va. 1999) (holding that federal agent was “entitled to examine all of defendant’s [computer] files to determine whether they contained items that fell within the scope of the warrant”). Cf. United States v. Giannetta, 909 F.2d 571, 577 (1st Cir. 1990) (“Courts have regularly held that in searches for papers, the police may look through notebooks, journals, briefcases, file cabinets, files and similar items and briefly peruse their contents to determine whether they are among the documentary items to be seized”). Just as “few people keep documents of their criminal transactions in a folder marked ‘[crime] records,'” United States v. Hunter, supra at 582, quoting United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990), “computer files can be misleadingly labeled, particularly if the owner of those files is trying to conceal illegal materials,” United States v. Gray, supra at 527 n.5. However, if officers, in the course of conducting a lawful search, discover evidence in plain view, such evidence may be seized under the plain view exception to the warrant requirement. n24 See id. at 528. See also Commonwealth v. Hinds, 437 Mass. 54, 61 (2002) (applying plain view doctrine to computer search).

n24 Contrary to the defendant’s contentions, the judge properly denied the suppression of the defendant’s (1) Internet query, “how to fake mental illness”; (2) Amazon.com purchase of the book, Clinical Assessment of Malingering and Deception; and (3) downloading an article entitled, “Psychometric Detection of Malingering,” because the evidence was discovered in plain view.

With these principles in mind, we add that care must be taken to minimize the intrusion of the search and the search conducted must be reasonable. Here, these safeguards were more than satisfied. A forensic duplicate was made of the defendant’s computers’ hard drives and storage media to preserve all original data. Further, the keyword search method resulted in a cursory inspection of only approximately 750 files out of the 100,000 files contained in the defendant’s computer media, which amounted to less than one per cent of the defendant’s files. We thus reject the defendant’s assertion that the computer search was performed in an unreasonable manner.

Officers conducted a knock-and-talk on defendant’s premises. The trial court found that the “No Trespassing” sign in photographs admitted into evidence by the defense were not taken until much later because of foliation of the trees and were not present at the time of the knock-and-talk. State v. Henry, 2007 Tenn. Crim. App. LEXIS 302 (April 11, 2007). (Comment: The moral here is that the defense needs to investigate the circumstances of the search as soon as possible after getting involved in the case. If “No Trespassing” signs are there, they should be photographed immediately just so the prosecution cannot argue that they were planted later. In digital photographs, the date follows the .jpg image and helps prove when the picture was taken.)

Plaintiff claimed he was arrested on a VA parking lot by a VA police officer, held in a jail cell for two hours without explanation, then given a citation and released. He filed an FTCA case against the government, and its motion for summary judgment was denied. Viera-Carrasquillo v. United States, 482 F. Supp. 2d 182 (D. P.R. 2006).*

The fact it took five days to bring the defendant before a USMJ when he was arrested at sea hundreds of miles from the nearest one is not unnecessary delay. Here, the defendant was flown to Tampa. His confession was valid because there was no oppressive questioning in the interim. United States v. Lizarraga-Caceres, 2007 U.S. Dist. LEXIS 45107 (M.D. Fla. June 8, 2007):

In determining whether the government violated [F.R. Crim. P.] Rule 5(a), courts look at the reason(s) for the delay. Purvis, 768 F.2d at 1239; Rogers, 330 F.2d at 538. In Purvis, the court looked at such factors as the distance from the place of arrest to the nearest United States territory, any reasons for delay during the transport, the treatment of the defendant during transport and whether the defendant was improperly interrogated. Purvis, at 1239. In considering the “outer limits” of any necessary delay during which an interrogation will be permissible, the court in Rogers considered the availability of a committing magistrate, the length of delay before the prisoner is taken before the magistrate, and the police purpose or justification, if any, for the delay. Rogers, at 538. When a judicial officer is available and detention is prolonged for the purpose of eliciting a confession through interrogation, Rule 5(a) is violated. Id. (citing Mallory v. United States, 354 U.S. 449 (1957)).

In Purvis, the defendants were on a boat 350 miles from Key West when the boat was boarded and drugs were found. Purvis, 768 F. at 1239. Five days elapsed from the time the defendants were arrested at sea to the time they were brought before a federal magistrate. Id. at 1238-39. In concluding there was no unnecessary delay under Rule 5, the court determined that a large part of the delay was necessitated by the fact that the arrests were made at a significant distance from port and a portion of the delay was necessitated by the brief unavailability of the magistrate. Id. Additionally, the court noted that the defendants had not been mistreated during the delay, they were fed regularly, given mattresses to sleep on, and had access to bathrooms. Id. Further, there was no evidence of any improper or coercive interrogations; rather, the defendants were read their rights and interrogated by Coast Guard authorities after the arrest. Id.

Traffic offense justified stop, and defendant consented to a patdown. Before the patdown could occur, defendant apparently tossed baggies of crack to the ground, and it was abandoned property. United States v. Tisdale, 2007 U.S. Dist. LEXIS 44781 (D. Kan. June 19, 2007).*

The date decal on an out of state license plate was partially blocked by a license plate bracket, and that gave cause for a stop under Kansas law. The officer could see it after the stop, and he told the defendant that he was not getting a ticket, but the officer asked for consent and got it. The consent was valid. United States v. Orduna-Martinez, 2007 U.S. Dist. LEXIS 45156 (D. Kan. May 2, 2007)*:

Upon receiving the information from dispatch, Trooper Nicholas approached defendant who was standing at the back of the Explorer, gave him a warning ticket, returned all of defendant’s paperwork, and told him, “Have a safe trip.” Both started walking toward their respective vehicles. Trooper Nicholas then asked, “Hey, can I ask you some questions?” When defendant returned to the back of the Explorer, Trooper Nicholas motioned toward the tires and wheels in the back of the Explorer and asked, “Those fit a Honda? Can I look at them?” The defendant replied, “Yeah,” and opened the back of the Explorer. The trooper then asked, “You don’t have any drugs, guns, money or stuff like that,” and upon receiving a negative response from defendant, asked for and received consent to search.

During Trooper Nicholas’ examination of the tires, wheels and vehicle, he became convinced that there was a false compartment in the vehicle and called for backup. Back-up officers later arrived and the officers discovered cocaine in the concealed compartment. Defendant and the passenger were then arrested and defendant was given a Miranda card written in Spanish, which he said he understood. Defendant was not asked any questions at that time.