Officers standing at a convenience store heard loud party at a nearby mobile home, so they drove over there to “head off” a noise complaint. As they approached, everybody ran inside. Standing outside, they could smell alcohol and there were young people around. That did not create sufficient exigency to enter without a warrant. State v. Ealum, 283 Ga.
App. 799, 643 S.E.2d 262 (2007).

Police got a search warrant for premises, but the warrant did not permit searches of persons associated with the premises. When they arrived, they found people in the front yard talking. They were rounded up and searched, too, but this was outside the warrant. Norton v. State, 283 Ga. App. 790, 643 S.E.2d 278 (2007).

Collateral estoppel barred retrying a suppression motion that was fully litigated in another county years earlier and was the same as the one defendant wanted to try here. People v. Vogel, 148 Cal. App. 4th 131, 55 Cal. Rptr. 3d 403 (3d Dist. 2007):

The circumstances of this case, however, justify a different result. Defendant does not deny that the Siskiyou County case was a fair adversary proceeding in which he had the opportunity to fully present his case on the question of whether Sergeant Wiley had probable cause to arrest him for annoying or molesting a minor. Moreover, not only did defendant get a full and fair chance to litigate that issue before the superior court, he got a full and fair chance to litigate the issue before this court. Thus, there is no need to allow defendant to relitigate the issue in this case to vindicate his right to a fair adversary proceeding in which he can fully present his case on the probable cause issue. Defendant has had that opportunity already. Under these circumstances, the need to limit litigation must prevail. This result promotes judicial economy, prevents the possibility of an inconsistent determination that would undermine the integrity of the judicial system, and provides repose to the People.

Six days between a sale of heroin and a search warrant for defendant’s house was not stale. Prince v. State, 920 A.2d 400 (Del. 2007).*

Defendant was free to walk away from an officer questioning him because the officer lacked reasonable suspicion. Greeno v. State, 861 N.E.2d 1232 (Ind. App. February 27, 2007):

Bobby Greeno appeals the denial of his motion to suppress the evidence collected from his person. In this interlocutory appeal, he asserts the warrantless search to which he was subjected was unconstitutional. The Fourth Amendment permits a police officer, without any reasonable suspicion of any wrongdoing, to approach a citizen to ask questions; however, that citizen remains free to ignore the questions and walk away. Accordingly, when a citizen in such a circumstance walks away from the officer, the officer must have reasonable suspicion a crime is, was, or is about to occur prior to yelling “stop” and chasing the citizen. Because the officer had no reasonable suspicion when he yelled for Greeno to stop and then chased after Greeno, his warrantless search of Greeno was improper. We therefore reverse the denial of Greeno’s motion to suppress.

By defendant networking his personal computer into a city computer system for purpose of file sharing, he lost any subjective reasonable expectation of privacy in the computer when it was networked. United States v. Barrows, 481 F.3d 1246 (10th Cir. 2007):

Mr. Barrows claims that he invited no one to use his computer and therefore expected its contents to remain private. Yet he surely contemplated at least some third-party access: he knowingly networked his machine to the city computer for the express purpose of sharing files. And though the record does not reflect whether an employee operating the city computer could access all of Mr. Barrows’s files or only a few, the fact remains that Mr. Barrows knew the contents of his machine were not wholly private. He also knew when he chose to relocate his computer to city hall that he would be working in a public area. City employees and members of the general public passed in and out all day. The chances a passerby might spy snatches of personal material over his shoulder, or sit down to use his computer having honestly mistaken it for a city one, were appreciable.

Even if Mr. Barrows did possess a subjective expectation of privacy, his failure to take affirmative measures to limit other employees’ access makes that expectation unreasonable. Angevine, 281 F.3d at 1135; see O’Connor v. Ortega, 480 U.S. 709, 718 (1987) (“[S]ome government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable.”). Those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private. Home owners who place personal effects in their driveways cannot reasonably anticipate that those items will go unobserved. United States v. Long, 176 F.3d 1304, 1308-09 (10th Cir. 1999) (citing California v. Greenwood, 486 U.S. 35, 41 (1988)). Apartment tenants who move personal items into a common hallway cannot reasonably believe those items will be left uninspected. See United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (holding that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building); accord United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993), United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), United States v. DeWeese, 632 F.2d 1267, 1270 (5th Cir. 1980).

Mr. Barrows voluntarily moved his personal computer into a public space and took no measures to protect its contents from public inspection. Consequently, he did not enjoy a reasonable expectation of privacy and Officer McQuown’s search worked no Fourth Amendment violation.

An arrest warrant does not justify detaining others who live there under Summers. Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007):

Because Freeman was at her own home when she was detained, and because the deputies had no right to search Freeman’s home based on their arrest warrant for Kevin, the detention cannot be justified under Summers.

Seeing a shotgun in a car justified a Long search for the gun and the person of the defendant. Reasonable suspicion was otherwise shown. United States v. Clay, 483 F.3d 739 (11th Cir. 2007).*

The government keeping records that were seized too long was a Fourth Amendment issue, not a due process issue, so the due process claim is dismissed. Hansen v. Schubert, 2007 U.S. Dist. LEXIS 24094 (E.D. Cal. April 2, 2007):

Plaintiffs’ § 1983 due process claim arises out of the allegation that defendants’ deliberate refusal to return the seized items within a reasonable period of time resulted in the destruction of plaintiffs’ business without due process of law. (Pls.’ 2d. Am. Compl. P 29). The unreasonable retention of seized property is the type of government conduct for which the Fourth Amendment provides explicit limitations. See United States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982) (holding that the “Government’s unnecessary delay in returning the master volumes appears to be unreasonable and therefore unconstitutional manner of executing the warrant”); see also Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), reversed on other grounds by 117 F.3d 1425 (1997) (“A seizure of property occurs, within the meaning of the Fourth Amendment, when there is some meaningful interference with an individual’s possessory interests in that property.”) (internal quotations omitted). The Supreme Court has affirmatively held that where the Fourth Amendment is the source of limitations on the type of conduct challenged by a plaintiff’s claims, that Amendment, rather than the more general substantive due process protections guaranteed by the Fourteenth Amendment, must govern the plaintiff’s claim. Albright, 520 U.S. at 273; Graham, 490 U.S. at 395; see Armendariz, 75 F.3d at 1321. As such, because the conduct plaintiffs allege is the type of government action that the Fourth Amendment regulates, their substantive due process claim is precluded. Therefore, defendants’ motion for summary judgment regarding plaintiffs’ substantive due process claim is GRANTED.

A California Indian tribe running a casino used tribal police for security. They conducted an illegal search in the parking garage, and the superior court suppressed. The state appealed, and the court of appeals affirmed. Under the Indian Civil Rights Act, 25 U.S.C. § 1302(2), the tribal officers are governed by the Fourth Amendment. People v. Ramirez, 148 Cal. App. 4th 1464, 56 Cal. Rptr. 3d 631 (3d Dist. 2007):

Thus, by act of Congress, Indian tribal governments have no more power to conduct unreasonable searches and seizures than do the federal and state governments under the Fourth Amendment. n8 The question is whether in extending the Fourth Amendment’s prohibition against unreasonable searches and seizures to Indian tribal governments through its enactment of section 1302(2), Congress also intended that the exclusionary rule which unquestionably applies to evidence obtained by federal and state law enforcement officers in violation of the Fourth and Fourteenth Amendments would likewise apply to evidence seized by tribal police officers in violation of section 1302(2).

Illegal stop led to officer running the defendant’s name which produced a warrant for his arrest. The existence of the warrant attenuated the stop from the arrest. Falls v. State, 953 So. 2d 627 (Fla. App. 4th Dist. 2007).

A discretionary impoundment of defendant’s vehicle by the officer was not a violation of the Fourth Amendment, and an inventory based on the impoundment was valid. “Less intrusive means” to the impoundment are not constitutionally required. City of Blue Ash v. Kavanagh, 113 Ohio St. 3d 67, 2007 Ohio 1103, 862 N.E.2d 810 (2007):

Defendant argues that he could have been permitted to call a tow truck himself as an alternative to impoundment. The Bertine court observed that although giving the defendant in that case an opportunity to make alternative arrangements for his vehicle would have been possible, “‘[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative “less intrusive” means.'” [Bertine,] at 373-374, 107 S.Ct. 738, 93 L.Ed.2d 739, quoting Illinois v. Lafayette (1983), 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65.

Similarity between defendant and his brother led police to detain them while they sorted out which was which, and that led to a search of the one without a warrant producing paraphernalia. The search was valid because it was not unreasonable in these circumstances. Trial court’s suppression order reversed. State v. Xiong, 154 P.3d 318 (2007):

Given the similarity in appearance between Kheng Xiong and Bee Xiong, the time necessary to clarify their initial identification, Bee Xiong’s location at Kheng Xiong’s home, the bulge in Bee Xiong’s pocket, his reaction when an agent tried to touch it, and the officer’s stated safety concerns, the agent was justified in frisking Bee Xiong’s pocket. Based on the hardness and shape of the object, the agent was justified in pulling the object out. See State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994) (if a pat-down search is inconclusive and the officer feels an object which might be a weapon, he is entitled to withdraw it for examination).

In sum, given the propriety of the initial stop and the stated need to dispel the agent’s safety concerns during the ensuing investigation, the evidence seized incident to Bee Xiong’s arrest was incorrectly suppressed under well established principles governing frisks during investigatory stops.

Alaska holds that a prosecutor’s comment that the defendant refused a second test is tantamount to a comment on the defendant’s right to refuse consent. Bluel v. State, 153 P.3d 982 (Alaska 2007):

In our view, the dilemma faced by the defendants in Elson, Padgett, and Bargas was functionally and legally indistinguishable from the dilemma Bluel faced here. As the state acknowledges, once Bluel submitted to the DataMaster test, Alaska’s implied consent law entitled him to an independent test; under the law he could opt to arrange a test of his own choosing, ask for help in obtaining a test, or choose no test at all. In offering to help Bluel obtain an independent test, the state’s standard “Notice of Right to an Independent Test” form expressly told him that if he did choose to have an independent test, the state could seek to obtain the evidence and use it against him. The state does not seem to dispute that the independent test would have required a physical intrusion sufficient to qualify as a search. Nor does the state dispute that the implied consent law required the state to honor Bluel’s choice; in other words, that the law precluded the state from compelling Bluel to submit to another blood-alcohol test.

In terms of its practical consequences, then, Bluel’s refusal to accept the state’s offer to arrange an independent test is indistinguishable from a refusal to consent to a search. Moreover, the provisions of Alaska’s implied consent laws that give Bluel the right to choose whether to obtain an independent test reflect the same “carefully balanced” consideration of policy interests that would have precluded Bluel from being ordered to submit to another test.

Finally, the statutory right to an independent test implicates concerns for fundamental fairness rooted in the due process right to effectively analyze and challenge the reliability of the state’s compelled breath-test evidence. We have described this due process right as one that is “closely analogous, if not equivalent, to” the right of cross-examination, since it affords the defendant the opportunity to “bring out facts which will tend to discredit” the results of the mandatory test. n38 Just as a decision to bypass the opportunity for cross-examination creates no inference of guilt, a decision to bypass an independent test also cannot properly be seen as a “badge of guilt.”

For all of these reasons, even if evidence of Bluel’s right to refuse testing might not have directly violated any constitutional rights, we conclude that this evidence exposed him to essentially the same risk of unfair prejudice as commenting on his assertion of the constitutional right to refuse an unreasonable search. Thus, Bluel is entitled to a commensurate level of protection from such evidence; that is, he is entitled to insist that his exercise of the right to refuse independent testing not be chilled by the state’s use of his refusal as a “badge of guilt.”

Ordering a defendant from a vehicle so a consent search could occur is not unreasonable. State v. Boles, 952 So. 2d 586 (Fla. App. 4th Dist. 2007):

When a driver is lawfully stopped for a traffic violation, once the purpose of the initial stop and detention has been satisfied, absent a reasonable, articulable suspicion of illegal activity, the officer no longer has a legal basis to continue to detain the motorist. State v. Breed, 917 So. 2d 206, 208 (Fla. 5th DCA 2005). However, “[d]uring a valid traffic stop, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search.” State v. Cromatie, 668 So. 2d 1075, 1077 (Fla. 2d DCA 1996). If a driver freely and voluntarily consents to a search of himself or the vehicle, the detention may continue, see State v. Johns, 920 So. 2d 1156, 1158 (Fla. 2d DCA 2006), and narcotics seized incident to that search will generally be shielded from suppression. State v. Kindle, 782 So. 2d 971, 973 (Fla. 5th DCA 2001).

Here, Boles agreed to the search of his vehicle. He contends, however, that the officer did not ask nor did he consent to his removal from his vehicle. We reject this reasoning. Instead, we conclude that the consent to search the vehicle necessarily includes the removal of any persons in the vehicle in order to facilitate the search. Of course, because the search is consensual, the person who has consented may withdraw his consent and refuse to exit the vehicle.

Plaintiff contended that she was arrested without the police conducting an adequate investigation into possible defenses. This they were not required to do. Rubenstein v. Rubenstein, 2007 U.S. Dist. LEXIS 27699 (D. Conn. March 31, 2007):

As a general rule, moreover, an officer who has probable cause for an arrest is not required to refrain from seeking a warrant until he has investigated a possible defense of lack of specific intent. See Romagnano v. Town of Colchester, 354 F. Supp. 2d 129, 135-36 (D. Conn. 2004) (quoting Baker v. McCollan, 443, U.S. 137, 145-46, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). Nothing in the record supports an exception to this rule. There is no evidence Lieutenant Munoz had reason to believe Bonnie was acting without the requisite criminal intent. In particular, there is no evidence he knew of child abuse by Jeffrey, or even a single allegation of such abuse, at the time he prepared his affidavit. As mentioned earlier, omitted information is relevant only if it was within the officer’s knowledge. See Caldarola v. Calabrese, 298 F.3d 156, 167-68 (2d Cir. 2002).

Defendant’s challenge that he was arrested on an arrest warrant from the Cuyahoga County Court of Common Pleas, but then transported to the Cleveland City Jail, did not state a constitutional violation. United States v. Henderson, 2007 U.S. Dist. LEXIS 27696 (N.D. Ohio April 13, 2007).*

It is not unconstitutional for a prosecutor to up a plea offer because the prosecutor was made to go through a suppression hearing. Not having a suppression hearing would have saved time and resources. State v. Thomas, 392 N.J. Super, 920 A.2d 142 (2007):

Although it is true that plea agreements are unacceptable if based on an illegal term or condition, Pressler, Current N.J. Court Rules, comment 4.3 on R. 3:9-3 at 822 (2007), we disagree with the proposition that an agreement to forego filing a motion to suppress constitutes such an illegal term or condition. The prosecutor’s offer of a harsher sentence because defendant filed a motion cannot be deemed to have violated any of his rights. Under both the general rules applicable to plea agreements, R. 3:9-3(e), and the specific requirements for negotiated agreements in section 12, a court faced with a plea agreement that does not serve the interests of justice may vacate the plea or permit the defendant to withdraw from it. Under section 12, however, the court may not impose a lesser sentence than that negotiated between the parties. Here the court expressly found that the plea agreement served the interests of justice, and defendant himself never argued to the contrary.

Accordingly, we hold that the trial court erred in imposing a lesser sentence on defendant than the one negotiated between him and the prosecutor pursuant to N.J.S.A. 2C:35-12.

Defendant was stopped for a traffic offense, and the officer ordered him out of the car and frisked him. There were no safety concerns, and the frisk was invalid. Howard v. State, 862 N.E.2d 1208 (2007):

Assuming without deciding that Officer Kajmowicz’s initial stop of Howard was reasonable, see Scott v. State, 855 N.E.2d 1068, 1073-74 (Ind. Ct. App. 2006), the officers were not permitted to order Howard from his car and conduct a Terry pat-down search. Prior to ordering Howard from his car, Officer Vantlin recognized that the driver was Howard, not Baker. He could see Howard’s hands and the interior of the car, but he did not testify that either raised officer safety concerns. Neither officer testified that, when Howard exited his vehicle, they feared for officer safety or that they had any weapons drawn when they approached Howard. See id. (purpose of a Terry search is not to discover evidence of crime, but rather to allow an officer to pursue his investigation without fear of violence). Officer Vantlin testified that he knew Howard from prior drug arrests, but there is no evidence that Howard was armed on these prior occasions, resisted arrest, or otherwise presented concerns for officer safety. Perhaps creating the most significant concern regarding the legality of this search was the point that Officer Vantlin testified that he had previously told Howard he was going to search him every time he saw him. Tr. at 57. These circumstances did not warrant a pat-down search incident to a Terry stop. We conclude that the seizure of Howard’s person and thereby his possessions was illegal. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004), trans. denied (citing Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (the exclusionary rule, also known as the ‘fruit of the poisonous tree’ doctrine, bars from trial physical, tangible materials obtained during or as a direct result of an unlawful invasion)). As such, the trial court should have suppressed the evidence.

Collective knowledge showed cause for stop, and the fact that the officer making the stop did not know about it “is of no import.” Commonwealth v. Quinn, 68 Mass. App. Ct. 476; 862 N.E.2d 769 (2007):

The judge concluded that Donahue acted on a hunch rather than a reasonable suspicion, as he received no report that a motor vehicle was involved in the break-in or seen near the vicinity of the gas station. It appears to us that stopping the only motor vehicle on the road, which was being driven from the direction of a crime, within minutes of that crime, was proper. Having to make a rapid decision, the officer acted permissibly. See Commonwealth v. Davis, 63 Mass. App. Ct. 88, 90-91 & n.3 (2005). See also Commonwealth v. Berment, 39 Mass. App. Ct. 522, 529-530 (1995) (Kass, J., dissenting) (“The Fourth Amendment is concerned with the right of ‘the people to be secure in their persons … against unreasonable searches and seizures'” [emphasis supplied]).

There is, however, even more here when the collective knowledge of the police officers is taken into consideration. “Where a cooperative effort is involved, facts within the knowledge of one police officer have been relied on to justify the conduct of another.” Commonwealth v. Riggins, 366 Mass. 81, 88 (1974). Thus, the information discovered by Harvey — that there were “fresh tire tracks … pulling out from the side of the road next to the Texaco station … heading towards Route 18” and footprints leading from the tire tracks to the gas station and back — was imputed to Donahue. The officers were engaged in a cooperative effort to investigate the break-in at the gas station, so “it is unnecessary for the detaining officer to know all the information pertaining to the incident …. [T]he knowledge of one [police officer] … [is] the knowledge of all.” Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311 (1994), quoting from Commonwealth v. Lanoue, 356 Mass. 337, 340 (1969). See also Commonwealth v. Andrews, 34 Mass. App. Ct. 324, 327-328 (1993) (based on the collective knowledge doctrine, the officer had reasonable suspicion to conduct an investigatory stop). That this information was not heard by Donahue is of no import.

Circumstances of the stop were such that defendant would not have felt free to leave or terminate the encounter, so the trial court did not err in suppressing. State v. Dixon, 218 S.W.3d 14 (Mo. App. W.D. 2007).*

In a factually cryptic unpublished opinion, something we will see more of under new F.R.A.P. 32.1, the Ninth Circuit held that a probation search applies to a probationer’s business, citing nothing more than Knights. United States v. Brown, 212 Fed. Appx. 608 (9th Cir. 2006) (unpublished).

Officers did a knock and talk of defendant’s house after an allegation by defendant’s 14-year-old girlfriend who police stopped running down the street. She said that he had sex with her, beat her, and restrained her. They also learned that he was an illegal alien. When they looked through the window, there were several men in the living room, but, after they knocked, the men dispersed through the house. Officers were admitted, and elected to do a protective sweep because of the other men, some of whom could be seen around the house. During the sweep, one officer saw a box of shotgun shells, and defendant was asked about it and whether he had a shotgun, after being told he did not have to answer. He admitted to a shotgun, and officers retrieved it, and it was sawed off. While the Tenth Circuit had previously held that a protective sweep required an arrest, they looked back to the facts of the knock and talk and held that the officers had probable cause to arrest the defendant for domestic abuse [or even sex with a minor], and that, coupled with the others scattered around the house, justified the protective sweep. United States v. Torres-Castro, 470 F.3d 992 (10th Cir. December 12, 2006).

At an immigration checkpoint stop, the defendant, driving a tractor trailer, was excessively nervous, so the officer directed the truck over to a secondary checkpoint, and defendant consented to a search. The officer also “us[ed] an alien and drug detecting dog” which alerted on the truck. “Immigration checkpoint stops, and referral to the secondary inspection area there, do not require individualized suspicion, and asking for consent to search a vehicle does not unreasonably prolong an immigration checkpoint stop.” United States v. Harrison, 209 Fed. Appx. 390 (5th Cir. 2006)* (unpublished).

Stop of truck, on review for clear error, was not unconstitutionally prolonged to warrant suppression of search warrant. United States v. Ricardo, 472 F.3d 277 (5th Cir. 2006).*

Stop that turned into the officer “ask[ing]” the defendant to get out of his car and “place his hands on top of the car” was a show of authority, and consent was a submission to a show of authority. Davis v. State, 946 So. 2d 575 (Fla. App. 1st Dist. December 18, 2006).

Plain view of a holster after a stop based on reasonable suspicion justified looking for the weapon. United States v. Harlson, 212 Fed. Appx. 694 (9th Cir. 2006)* (unpublished):

Officer Tucker knew of the following facts at the time he detained Harlson: (1) Harlson was present in a high-crime area during an unusual hour; (2) Harlson was outside a business establishment that appeared to be closed; (3) Harlson had the screen door to the business establishment propped open; (4) Harlson had moved between the business establishment and his vehicle multiple times; and (5) Harlson had watched Officer Tucker “very closely” as Officer Tucker drove by. These facts, taken together, were sufficient to justify a Terry stop.

Pointing a gun at an unsuspecting person during a protective sweep of a building during entry for an arrest was not unconstitutional, based on the fact the U.S. Marshals were looking for a violent suspect. Komongnan v. U.S. Marshals Serv., 471 F. Supp. 2d 1 (D. D.C. 2006).

Use of chokehold during plaintiff’s arrest raised factual issues that could not be resolved on summary judgment because plaintiff showed enough to get to trial that it might have been excessive. Watts v. Williams, 2006 U.S. Dist. LEXIS 90640 (D. D.C. December 15, 2006).*

Officer had cause to stop the defendant because the license on the vehicle had been reported as stolen. When he observed the defendant fiddling with his keys, he noticed something on the key chain that he recognized as a probable container for drugs, and its search was not unreasonable. LaPlant v. State, 2006 WY 154, 148 P.3d 4 (December 15, 2006).*

Officers were looking for defendant’s wife, an EMT, whom they believed was missing. They went to the defendant’s home at 4:30 a.m. and knocked, got no answer, but the door was unlocked and they entered. Inside, the officers found the defendant’s daughters asleep. They asked the girls where their mother was, and they said that she was at a river with their dad, spending the night. The officers opened a closet looking for her and found a mushroom growing operation. They continued looking for her and found her and then applied for a search warrant to go back. The opening the closet door was reasonable under the emergency exception. Moulton v. State, 2006 WY 152, 148 P.3d 38 (December 15, 2006):

[*P24] Upon arriving at the residence and receiving no response to their efforts to make their presence known, it was reasonable given the urgent sounding early morning radio transmission from an EMT for the deputies to enter the home to look for Ms. Moulton. Even after talking with the daughter, it was reasonable for the deputies to look for Ms. Moulton in other areas of the house, including the master bedroom. Once inside the bedroom, the deputies were authorized to see what was in plain view. All of the evidence indicated the drug growing paraphernalia was in plain view. No evidence was presented to suggest the deputies had intentions, other than to locate Ms. Moulton, when they looked inside the home. After discovering the items in the master bedroom, Deputy Motley said to Deputy Klier, “[W]e are not here for this. We have got a possible emergency. We are here to find Ms. Mouton and make sure she is all right.” Once they determined Ms. Moulton was not there, the deputies left the residence. They were inside the house for about seven minutes. Under these circumstances, the district court correctly concluded the search of the Moulton residence for Ms. Moulton was not illegal or improper, but rather fell appropriately with the emergency assistance exception to obtaining a search warrant.

A defendant who had pled guilty and who had refused consent to search before the police sought consent from another was allowed to withdraw his plea based on Randolph being decided after the plea. United States v. Hughes, 2006 U.S. Dist. LEXIS 94138 (W.D. N.C. December 29, 2006). (Note: Randolph was decided March 22, 2006.)

§ 1983 claim filed by pretrial detainee over his arrest was dismissed on the merits of probable cause to arrest and under Heck‘s requirement that he have already prevailed on the search in state court. Hawthorne v. Sheriff of Broward County, 212 Fed. Appx. 943 (11th Cir. 2007):

Under Heck, a state prisoner may not bring a claim for damages under § 1983 “if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction.” Heck, 512 U.S. at 487, 114 S. Ct. at 2372. Thus, unless the plaintiff-prisoner can demonstrate that the conviction or sentence has already been invalidated, the complaint must be dismissed. Id. Here, Hawthorne contends that the Officers falsely stated that he committed the offenses for which he is now incarcerated. To prevail on this claim, Hawthorne must necessarily establish that he did not commit the offenses for which he was convicted. Hence, a judgment in Hawthorne’s favor on this claim would necessarily imply the invalidity of his underlying convictions. Because Hawthorne has not demonstrated that his convictions have already been invalidated, this claim is barred under Heck. See id. at 487, 114 S. Ct. at 2372.

Officers who were tailing a fugitive who had consent to enter to look for him handcuffed the plaintiff because he bore a resemblance to the fugitive. The officers swept the premises, did not find the fugitive, and determined that the plaintiff was not him, so they let him go. They were entitled to qualified immunity from suit. el Bey v. Roop, 2006 U.S. Dist. LEXIS 93995 (S.D. Ohio December 29, 2006).*

The use of a Taser on a student who was unruly during an arrest at school and refused to calm down before it was used, where the use of the Taser was within department policy, entitled the officers to qualified immunity. RT v. Cincinnati Pub. Schs., 2006 U.S. Dist. LEXIS 94004 (S.D. Ohio December 29, 2006).

Statement made to the Coast Guard Investigative Service was predicated on false information from CGIS, and that required that the statements be suppressed. United States v. Schroder, 2006 U.S. Dist. LEXIS 94070 (S.D. Ala. July 6, 2006):

In light of this concession and the evidence presented, the court finds that, whether deliberate or not, CGIS materially mislead defendant about the nature of the investigation on April 12, 2006. A letter of predication was issued on March 13, 2006, which unequivocally directed the CGIS to conduct a criminal investigation targeting defendant Schroder. Under the circumstances of this case, any involvement in the investigation by CGIS after the letter of predication was issued was related to CGIS’ criminal investigation of defendant. Thus, the court finds that on April 12, 2006, whether Agent Lee responded that it was not a criminal investigation, or simply stated that they had expanded the investigation and were there to gather more facts, the statement was misleading. It is undisputed that defendant’s attorney specifically asked whether this was a criminal investigation. Under either version, Lee’s response was at least evasive and incomplete. There was clearly a criminal investigation of defendant at that time and the only truthful and accurate answer was an affirmative one. Whether or not Lee believed he was being truthful, his statement was misleading and inaccurate and resulted in the defendant providing information that he may not have provided otherwise. Thus, the court finds defendant’s motion to suppress is due to be granted as to statements given on April 12, 2006.

§ 2255 petitioner loses on the merits of his search claim, so it is not possible that defense counsel was ineffective. United States v. Boyd, 2006 U.S. Dist. LEXIS 94166 (W.D. Tenn. December 29, 2006).*

Police officers aiding a court ordered receiver in his actions toward plaintiff’s property acted reasonably and with qualified immunity. The court notes that the facts here are the “mirror image” of Soldal. Downeast Ventures v. Washington County, 2007 U.S. Dist. LEXIS 43461 (D. Me. June 13, 2007)*:

In any event, assuming that the facts of Soldal were actionable under the Fourth Amendment, those facts are the mirror-image of what is presented in the summary judgment record of this case. In Soldal the sheriff’s deputies prevented the plaintiff from interfering with the removal of his mobile home from a park even though they knew that the owner of the park had not complied with Illinois law and that no judgment of eviction had ever issued. Id. at 57. Here, the County Defendants knew that the Receiver was a court-appointed officer with the authority to demand possession of property held by third parties. Although the Receiver’s authority was not unlimited, it was nevertheless established by court order that he was empowered to demand possession of contested property. Because there is no evidence that the County Defendants knowingly participated in any abuse of the Receiver’s power and authority, the summary judgment record is insufficient, as a matter of law, to support a finding that the County Defendants violated Downeast’s Fourth Amendment rights.

Search warrants and affidavits are discoverable under F. R. Crim. P. 16. United States v. Moss, 2005 U.S. Dist. LEXIS 45231 (W.D. Tenn. June 13, 2005):

Courts have recognized that search warrants and affidavits are not exempted by Fed. R. Crim. P. 16. See United States v. Politi, 334 F. Supp. 1318, 1320 (S.D.N.Y. 1971) (noting that the Government agreed that search warrants and affidavits should be produced). As such, to the extent that Defendants seek the production of search warrants or affidavits related to United States Customs agents’ seizures of international shipments, the Court finds that the Government shall produce these documents per the Magistrate Judge’s May 5, 2005 Order.

Defendant was free to leave the airport until the officers directed him not to leave the taxi stand area. He was being followed, and that was not a seizure. “It does not matter whether the officers intended to allow Nielsen to leave the airport, so long as they did not communicate this intention to him. … Moreover, Nielsen asked at the taxi stand whether he was then being detained, indicating his understanding that he was not detained before that.” United States v. Nielsen, 2007 U.S. App. LEXIS 14225 (9th Cir. June 12, 2007)* (unpublished).

The District of Montana has held that a judge’s oversight in not signing a search warrant in a child porn case, although the judge signed the application for the warrant made before the judge, voided the warrant. Also, the good faith exception could not save the search for an unsigned search warrant. United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007):

Judge Erickson may very well have intended to sign the search warrant at issue in this case. Nevertheless, the fact remains the warrant was not signed and there was no ten-day limit posted on its face. This Court is unwilling to accept the potential repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by the government. If a reviewing court can speculate about what a magistrate intended to do, what prevents it from surmising what a magistrate would have done? Why not permit officers to come before this Court after a search has been conducted to seek admission of seized evidence on the ground that if a warrant had been presented to a magistrate before the search, the magistrate would have issued the warrant? Absent an exception, the Fourth Amendment requires a probable cause determination to be made and issued by a magistrate before officers invade a person’s privacy. If the right to privacy is too precious to entrust to the discretion of officers who detect crime, it is similarly too precious to entrust to after-the-fact conjecture about a magistrate’s intentions. McDonald, 335 U.S. at 455-56; see also Robinson, CR 04-32-BU-DWM, 358 F. Supp. 2d 975 at 10. Because the warrant in this case did not provide any indication that it was officially authorized, the search of Defendants’ residence was warrantless in violation of the Fourth Amendment.

. . .

Even if the search of Defendants’ residence was not warrantless, the Leon good faith exception does not apply. An officer’s reliance on an invalid warrant (as opposed to no warrant at all) must be objectively reasonable before the government can claim the benefit of the good faith exception. Reliance on an unsigned warrant is not objectively reasonable. Groh is again instructive in this regard. After determining the warrant in Groh, which completely failed to describe the items to be seized, was unconstitutional, the Court concluded the officer’s reliance on the warrant was not objectively reasonable. 540 U.S. at 563-65. The Court observed “even a cursory reading of the warrant in this case–perhaps just a simple glance–would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.” Id. at 564. The Court refused to apply the Leon good faith exception under such circumstances. Id. at 565 (noting the exception does not apply when a warrant is “so facially deficient … that the executing officers cannot reasonably presume it to be valid”). The Court also rejected the officer’s argument, based on Sheppard, that he was immune from liability because any constitutional error was committed by the magistrate. The Court reasoned, the warrant in Groh was so patently defective, it was unreasonable for the officer to rely on it. Id. at 561 n.4. In so holding, the Court acknowledged officers executing a search warrant have a duty to “make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct.” Id. at 563 n.6.

Massachusetts courthouse entry search was valid, and it was treated as an administrative search. The fact he could not leave the courthouse to avoid the search did not void it. Commonwealth v. Roland R., 448 Mass. 278, 860 N.E.2d 659 (January 30, 2007).

Declining to find presumptive exigent circumstances in the need for a blood draw in an alcohol related automobile death, the Utah Supreme Court still finds exigent circumstances under the totality of the circumstances presented. State v. Rodriguez, 2007 UT 15, 156 P.3d 771, 570 Utah Adv. Rep. 55 (2007), rev’g 2004 UT App 198, 501 Utah Adv. Rep. 8, 93 P.3d 854 (2004).*

The Utah Supreme Court holds that the mere smell of burning marijuana is not a sufficient exigent circumstance to justify a warrantless entry into the home even though it involves “destruction of evidence.” State v. Duran, 2007 UT 23, 156 P.3d 795, 573 Utah Adv. Rep. 3 (2007):

We decline to pare back a fundamental constitutional guarantee where the commission of an offense–in this case, smoking marijuana–involves as its incidental but inevitable consequence the destruction of evidence. According to the testimony of the police officers who conducted the warrantless entry in this case, the marijuana was being “destroyed” by persons who were “in the very process of smokin’ up the evidence.” This is an odd departure, indeed, from the circumstances that typically attend destruction of evidence exigencies. In most instances, an exigency arises from the possibility that persons, alerted to the presence of law enforcement officials seeking to execute a search warrant, might understandably rid themselves of any trace of contraband. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (en banc) (holding that exigent circumstances were present where “the [law enforcement] agents could reasonably conclude from the defendants’ hurried actions and furtive looks that [they] were either aware or afraid that someone was watching them [and] [d]estruction or removal of … the narcotics was therefore a possibility” (footnote omitted)). The reverse is also true, as it is well-recognized that “[c]ircumstances are not normally considered exigent where the suspects are unaware of police surveillance.” Id. at 1511; see, e.g., United States v. Elkins, 300 F.3d 638, 656-57 (6th Cir. 2002); United States v. Davis, 170 F. Supp. 2d 1234, 1239 (M.D. Fla. 2001).

Calling 911 where the caller, although not leaving her name, has to know that the number was captured and the telephone call recorded, is entitled to greater weight than an otherwise anonymous call. Commonwealth v. Costa, 448 Mass. 510, 862 N.E.2d 371 (March 13, 2007):

In this regard, it is important to recognize that citizens who report criminal activity justifiably may be concerned for their own safety if their identity becomes known to the persons subsequently investigated or arrested, and for this reason may wish to remain anonymous. This circumstance should not stand as an insurmountable impediment to a favorable assessment of their reliability in a case such as the one before us. In this respect, we agree with Justice Kennedy’s observation that “a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.” Id. at 275. Some of those features might include “[i]nstant caller identification,” “[v]oice recording of telephone tips [that might] be used by police to locate the caller,” and “the ability of the police to trace the identity of anonymous telephone informants.” Id. at 276.

By providing information to the police after knowing that her call was being recorded, and that the number she was calling from had been identified, we conclude that the caller placed her anonymity sufficiently at risk such that her reliability should have been accorded greater weight than that of an anonymous informant. Although at the end of the conversation the caller appeared anxious to terminate the telephone call, and did not leave her name, it is apparent from the tape recording of the conversation that she was principally concerned about the defendant (not the police) knowing her identity if she were to be observed on the cell phone.n11

n11 The caller was neither asked her name by the 911 operator nor did she say that she wanted to remain anonymous. Contrast Commonwealth v. Barros, 435 Mass. 171, 172 n.1, 755 N.E.2d 740 (2001).

Consent was not voluntary. People v. Gulla, 2007 N.Y. Misc. LEXIS 826, 237 N.Y.L.J. 41 (Rockland Co. February 15, 2007):

In this case, the defendant was clearly in custody. People v. Yukl, 25 N.Y.2d 585, 589, 256 N.E.2d 172, 307 N.Y.S.2d 857 (1969). Further, the “immediate events of an arrest, especially a resisted arrest, do, however, engender an atmosphere ordinarily contradictory of a capacity to exercise a free and unconstrained will.” People v. Gonzalez, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 383 N.Y.S.2d 215 (1976). In this case, the testimony makes clear that the defendant resisted being handcuffed and resisted being placed in the police car. Additionally, the police displayed their weapons in effectuating the arrest.

At the time the consent was given, there was a large number of officers present in the vicinity of the defendant. Id. at 129. Further, the fact that the defendant was handcuffed at the time is significant. Id. Additionally, the defendant was not cooperative throughout the encounter with police.

Significantly, the defendant was agitated and intoxicated at the time the consent was allegedly given.

Prior to giving consent, the defendant was not Mirandized and not advised of his right to withhold his consent. Id. at 130. Although such warnings are not absolutely essential to establishing voluntary consent, failure to advise the defendant of his right to refuse is a factor to be considered. Id.

The only factor that does not weigh against a finding of voluntariness is the factor concerning the defendant’s background. This factor favors neither side since no evidence was adduced at the hearing.

Accordingly, the People have not met their burden of establishing that the defendant’s consent was voluntary.

The defendant supported his Franks motion with affidavits of his relatives that he did not sell drugs, and the affidavits were suspect at best. “A number of courts have recognized, as did the circuit court, that, when a non-governmental informant is personally brought before the magistrate to testify to the facts that will establish probable cause in a warrant, the burden of determining the reliability of the informant then shifts to the court and away from law enforcement personnel.” If the informant is lying and the police do not know it, that is not a Franks violation. People v. Gorosteata, 371 Ill. App. 3d 655, 309 Ill. Dec. 77, 863 N.E.2d 709 (1st Dist. 2007).

Stop was objectively reasonable for running a stop sign, and odor of marijuana provided probable cause for a search. United States v. Watson, 2007 U.S. Dist. LEXIS 9626 (D. Neb. February 1, 2007).*

Private removal of a tote bag by occupants where defendant was staying that had property of murder victims in it showed defendant lacked standing. Stinski v. State, 642 S.E.2d 1, 642 S.E.2d 1 (2007):

The sole evidence on this issue introduced at the hearing on Stinski’s motion to suppress was testimony by a police officer that residents in the home where Stinski had been staying voluntarily removed the tote bag from the home then contacted the police to come for the bag and that the residents had repeated to police information they had overheard that indicated the bag contained items stolen from the victims.

Grandparents with whom defendant stay, and whom he had no right to exclude from his room, could consent to a search of his room. Rhone v. State, 2007 Ga. App. LEXIS 111 (February 12, 2007).*

Violating an administrative limit on execution of arrest warrants outside of county does not equate with a constitutional violation. State v. Nielsen, 2007 Iowa App. LEXIS 45 (January 18, 2007).

The police reinitiated interrogation after the right to counsel was invoked, so the trial court properly suppressed the defendant’s statement. The trial court erred, however, in suppressing a bucal swab taken from the defendant at the time because it was not fruit of the poisonous tree of a Fifth Amendment violation. People v. Bradshaw, 156 P.3d 452 (Colo. 2007):

Fruit of the poisonous tree describes evidence gathered with the aid of information obtained unconstitutionally. Oregon v. Elstad, 470 U.S. 298, 304, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); see also Brown v. Illinois, 422 U.S. 590, 601-02, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). Although the fruit of the poisonous tree doctrine applies to Fourth Amendment violations, the United States Supreme Court has imported the poisonous tree doctrine into Fifth Amendment violations in the limited circumstance where coerced statements made during interrogation directly produce additional evidence. Elstad, 470 U.S. at 310. The Court differentiated between coerced statements and statements made after a Miranda violation. Id. It held that “actual coercion” means the accused has been “compelled … to be a witness against himself” in violation of the Fifth Amendment. U.S. Const. amend. V. Conversely, a failure to adhere to Miranda does not rise to a Fifth Amendment violation. New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Instead, a Miranda violation presumes only that “the privilege against compulsory self-incrimination has not been intelligently exercised.” Elstad, 470 U.S. at 310. Thus, because Miranda violations do not rise to actual coercion in violation of the Fifth Amendment, the fruit of the poisonous tree doctrine does not apply. Id. at 304.

“All persons on the premises” at the time of the search in a drug search warrant is reasonable. The defendant arrived just before the search warrant arrived, but after it was issued. State v. McClendon, 2007 Ohio 1656, 2007 Ohio App. LEXIS1504 (12th Dist. April 9, 2007).

In a long and well considered opinion, surveying authorities from many jurisdictions, a New Jersey appellate court held that the fact the issuing magistrate of a search warrant was considered the family attorney of the defendant’s family was sufficient to show that the magistrate was not “neutral and detached.” Because this issue is one of first impression, the ruling is prospective only, affording this defendant no relief, but the court made clear this is not harmless error analysis. State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007):

Based on these precepts, we agree with the motion judge that the Municipal Court judge should have recused himself from this warrant application proceeding. We assume, as we must, that he carefully reviewed the Grisso affidavit that revealed defendant’s involvement and that he knew or should have known that this was his former client. Under these circumstances, there was an appearance of impropriety under R. 1:12-1(f). Nevertheless, in State v. Marshall, 148 N.J. 89, 279, 690 A.2d 1, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Court made clear that while “the mere appearance of bias may require disqualification” pursuant to R. 1:12-1(f), “the belief that the proceedings were unfair must be objectively reasonable.” Tested by that standard, we conclude that the appearance of partiality was objectively reasonable in this situation.

Having concluded that the Municipal Court judge should not have participated in the application proceeding, we come to the question of remedy. While we generally agree with the thoughtful opinion of the motion judge, we conclude that suppression is not appropriate in this case. Here, defendant makes no assertion of bias on the part of the judge who signed the warrant and the facts concerning the prior relationship suggest none. n4 More importantly, as we have noted, no case until today has expressly condemned the practice in question, which likely occurs only infrequently. As a result, our ruling shall be purely prospective. See State v. Knight, 145 N.J. 233, 249, 678 A.2d 642 (1996) (citing State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981)).

Plaintiff was arrested on an arrest warrant that had been determined proper by two Commonwealth courts, but it declined to grant a motion to dismiss or treat the motion as one for summary judgment until more information was available. Torres-Lopez v. Olivo-Miranda, 478 F. Supp. 2d 182 (D. P.R. 2007).*

A prisoner has no expectation of privacy to be free from a urine test. Davies v. Valdes, 462 F. Supp. 2d 1086 (C.D. Cal. 2006).*

It could not be determined as a matter of law that plaintiff demonstrators were in a private or non-public area when they were arrested for trespassing, so summary judgment was denied. Genia v. Parker, 2007 U.S. Dist. LEXIS 19700 (E.D. N.Y. March 20, 2007).*

Plaintiff’s arrests on various offenses were with probable cause, and the officer’s investigation into other alleged offenses were also with arguable probable cause. Cvicker v. Meyer, 2007 U.S. Dist. LEXIS 19816 (E.D. Wisc. March 20, 2007).*

The Coast Guard boarded a ship in international waters, and defendant raised lack of reasonable suspicion for the stop. The Fourth Amendment, however, did not apply to non-Americans in international waters. United States v. Bravo, 2007 U.S. App. LEXIS 6618 (1st Cir. March 22, 2007):

The Fourth Amendment prohibits “unreasonable searches and seizures” whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is “fully accomplished” at the time of an unreasonable government intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); see also United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there was a constitutional violation of the Fourth Amendment, it occurred solely in international waters, where the search and seizure took place. But the Fourth Amendment does not apply to activities of the United States against aliens in international waters. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267 (1990). The Supreme Court’s holding in Verdugo-Urquidez is clear that the actions of the United States directed against aliens in foreign territory or in international waters are not constrained by the Fourth Amendment. 494 U.S. at 267 (“There is … no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters.”); see also United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) (“In light of the Supreme Court’s holding in Verdugo-Urquidez, it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters.”). Accordingly, the district court was correct in denying Appellants’ motion to suppress because the Fourth Amendment was inapplicable to the USCG’s search of the vessel.

E.D. Mich. reverses itself under Wallace v. Kato and holds in a case where it previously held that the statute of limitations began when a conviction was reversed that the statute runs from the date of the search. Kucharski v. Leveille, 478 F. Supp. 2d 28 (E.D. Mich. 2007), prior opinion 2007 WL 522715, *8-9 (E.D. Mich. February 12, 2007). Wallace was decided February 21, and the plaintiff’s case was dismissed.*

Plaintiff’s behavior, observed by several people, showed that he was mentally unstable, and defendant had qualified immunity from taking him into custody for plaintiff’s own good. Brown v. Catania, 2007 U.S. Dist. LEXIS 19927 (D. Conn. March 20, 2007).*

Arrest that was valid for some crime. “For the reasons stated above, defendants clearly had probable cause to arrest plaintiff. Moreover, because probable cause need only exist as to any crime that could have been charged under the circumstances, the arrest was valid, regardless of whether defendants had probable cause to believe that plaintiff was operating a vehicle under the influence of alcohol. See Bizier, 111 F.3d at 219. Accordingly, defendants are entitled to summary judgment on plaintiff’s unlawful arrest claim.” LaFrenier v. Kinirey, 478 F. Supp. 2d 126 (D. Mass. 2007).*

Officers had reasonable suspicion for defendant’s detention based on his conduct prior to the stop based on his not speaking English, paying for a motel room with two new $50 bills, and giving an address which came up with a hit on an open investigation in the DEA’s files. United States v. Verdugo, 2007 U.S. Dist. LEXIS 19776 (E.D. Mo. March 20, 2007).*

A Terry frisk does not permit a search of a cigarette pack because weapons cannot be secreted there. State v. Horton, 136 Wn. App. 29, 146 P.3d 1227 (November 16, 2006) (raised in the context of an IAC claim; defense counsel found ineffective for not raising issue).

Stop for not having seatbelt on was valid and supported DUI conviction. State v. Beffrey, 2006 Tenn. Crim. App. LEXIS 892 (November 16, 2006).*

Under Idaho law, in an administrative proceeding on a suspension of a driver’s license, the defendant has the burden of proving that the officer lacked reasonable suspicion or probable cause for the stop. In re Driver’s License of Gibbar, 155 P.3d 1176 (Ida. App. 2006).*

Park Rangers came upon a parked pickup truck with an expired tag. While looking in the truck for firearms, a man appeared from the woods and said that the truck was his, and he offered an explanation that the license was expired because he just bought the truck and had not had time to license it. Another man appeared, and the officers separated them and asked for IDs and ran an NCIC check. The second man had a PV warrant for negligent homicide out of Georgia. As he was being handcuffed, he was asked about whether he had a gun, and he said that he did in a backpack in the truck. The question about the gun and subsequent search was justified under Quarles because the officers could not know who else was in the woods. Alternatively, it was justified as a search incident under Belton and Thornton. He had been out of the vehicle only five minutes. United States v. Everman, 2007 U.S. Dist. LEXIS 11503 (W.D. Ark. February 16, 2007).

While a protective sweep of a building may be permissible in limited situations where the defendant was arrested outside, this was not one of them. [To do so on these facts would stretch the facts.] Yorzinski v. Alves, 477 F. Supp. 2d 461 (D. Conn. 2007). Fn. 2 cites cases supporting such a protective sweep but found them inapplicable:

n2 The cases cited by defendants are distinguishable on their facts. See, e.g., United States v. Martins, 413 F.3d 139, 150-51 (1st Cir. 2005)(reasonable suspicion for protective sweep where shootings that officers were investigating took place within 100 yards of apartment complex, apartment was tied to shootings because one of the victims had retreated there, the police knew from experience that victims in gang-area shootings often were gang members themselves and tended to congregate with other gang members, and the individual who first spoke from behind the closed door was evasive and a different person responded the second time the officer knocked on the door); United States v. Richards, 937 F.2d 1287, 1291 (7th Cir. 1991)(reasonable suspicion for protective sweep where “officers knew that the day prior, [defendant] had been seen with Moore, a suspect in the murder investigation. When [defendant] met them at the door, the officers did not know whether Moore was inside the apartment. Next, [defendant] opened the door with a gun [which] gave the officers a specific and articulable fact regarding [defendant’s] apartment: that it harbored at least one and possibly more threatening gun owners, such as murder suspect Moore,” the officers also saw cocaine in the living room and defendant “twice failed to answer [the officer’s] question about whether anyone else was in the house”); United States v. El-Gheur, No. 91cr328 (LBS), 1991 U.S. Dist. LEXIS 13356, 1991 WL 197559, at *4 (S.D.N.Y. Sept. 24, 1991) (reasonable suspicion for sweep where “after arresting two individuals in Manhattan and seizing about 500 grams of heroin, the agents were told by one of the individuals that the supplier was at the apartment in Brooklyn waiting for the money and holding additional heroin [and] [w]hile the agents were standing outside the defendant’s apartment, the door opened and the defendant started to emerge [and] after the agents identified themselves as police officers, the defendant appeared ‘shocked’ and ‘startled’ and attempted to retreat back into the apartment. After the officers entered the apartment, they found a second individual with the defendant”).

Defendant was validly stopped for a seat belt violation and he had been under surveillance all day for drug trafficking. While unrestrained, but in a police car, he was asked for consent to search his house which he gave, and the court finds it valid. United States v. Valdez, 2007 U.S. Dist. LEXIS 11556 (S.D. Tex. February 20, 2007).*

Defendant who bought a car by identity theft or use of a false identity had no reasonable expectation of standing in the vehicle when it was seized. United States v. Daprano, 2006 U.S. Dist. LEXIS 95371 (D. N.M. December 13, 2006):

In United States v. Betancur, the Tenth Circuit held that a person who fails to come forward with evidence establishing that he or she was in lawful possession of a vehicle does not have standing to contest a search of that vehicle. See 24 F.3d at 77. Other circuit courts, such as the United States Court of Appeals for the Second Circuit, have ruled, more specifically, that a defendant who knowingly possesses a stolen vehicle has no legitimate expectation of privacy in the vehicle and, therefore, cannot establish standing to contest a search of the vehicle. United States v. Tropiano, 50 F.3d at 161-62. Basing its decision in United States v. Caymen on unlawful vehicle possession cases like Betancur and Tropiano, the Ninth Circuit, finding no ground on which to distinguish property obtained by fraud from property obtained by theft, found that a defendant who had fraudulently obtained a laptop computer had no Fourth Amendment standing to contest a search of that computer’s files. See United States v. Caymen, 404 F.3d at 1200-01.

Considering that line of cases, the Court finds that Daprano has no standing to contest the searches of the Jetta. Like the Ninth Circuit, the Court does not believe that there is a basis for distinguishing between fraudulently obtained property and stolen property. It is also clear to the Court that Daprano knowingly obtained the Jetta via fraudulent means. As such, Daprano has no legitimate expectation of privacy in the Jetta and, therefore, has no standing to contest the searches of it. Accordingly, to the extent that Daprano is requesting that the Court suppress evidence obtained from either the inventory search or the August 23 search, the Court will deny such requests.

The police stopped the defendant based on reasonable suspicion and a belief that he was the shooter in an incident. After the arrest, however, it became obvious that probable cause no longer existed to believe that defendant was the shooter, and the contination of the arrest became unlawful. Even the alternative theory of probable cause advanced by the government showed dissipation. United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007):

The government’s analysis, however, overstates the significance of Lopez’s connection to the getaway car, insofar as it is contended that the connection shows Lopez was the attempted shooter. But cf. infra Part IV.C. And, more importantly, the government’s analysis fails to account for substantial, countering indicators. The effect of evidence which may support, or incline toward, a finding of probable cause can, of course, be vitiated by countervailing evidence. See Ortiz-Hernandez, 427 F.3d at 574. This was the case here, where there was substantial evidence known to the police tending to show that the defendant was not the person responsible for the earlier attempted shooting.

It is well established that a person’s mere presence or “mere propinquity to … criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (holding that police lacked probable cause to search a person based solely on his presence in a tavern at a time when the police had reason to believe the bartender possessed heroin for sale). We have distinguished the “mere presence” doctrine from cases in which the “facts and circumstances … support an inference that [an] individual is connected to the proximate criminal activity.” United States v. Buckner, 179 F.3d 834, 839 (9th Cir. 1999). Although the government argues that this is such a case, we find this case distinguishable from Buckner and the other cases cited by the government.

In Buckner, we concluded that the “attendant facts and circumstances support[ed] a fair probability” that the defendant—the sole passenger in a car carrying thirty-seven pounds of marijuana hidden in the dashboard and rear panels—“was linked to the crime of drug trafficking.” Id. We noted a number of relevant facts, including the following: the car belonged to neither occupant and was procured under suspicious circumstances, the car was entering the United States from a Mexican city known as a drug source, and officers considered it typical for drug traffickers to travel in pairs to deflect suspicion. Id. at 837, 839; see also Carranza, 289 F.3d at 640 (finding probable cause where inspectors knew that defendant was sole passenger in vehicle carrying commercial quantity of illegal drugs across the border; there was strong smell of gasoline coming from the vehicle, and gas tanks are frequently used to smuggle drugs; and driver of the vehicle made suspicious, false statements); United States v. Valencia-Amezcua, 278 F.3d 901, 906-08 (9th Cir. 2002) (finding probable cause based on defendant’s physical proximity to the crime scene-and suspicious conduct in helping to attempt to conceal a secret door).

[7] The instant case is unlike Buckner, Carranza, and Valencia-Amezcua in several respects. To begin, Lopez was not directly or immediately associated with the scene of the crime (the attempted shooting). The public parking lot to which he delivered Ms. Polish (approximately eight hours after the incident involving the Ford Focus driver and the law enforcement officers) was at least some distance away from the crime scene, and Lopez did not make direct contact with the getaway vehicle—Polish was the one to take possession of the Ford Focus. In Buckner and Carranza, by comparison, the arrested person was present in a car when it was found to be transporting illegal drugs—providing both temporal and physical proximity to the commission of a crime. See Buckner, 179 F.3d at 838; Carranza, 289 F.3d at 637-39; see also Valencia-Amezcua, 278 F.3d at 907-08 (noting defendant’s physical and temporal proximity to the crime scene).

[8] Moreover, we find that attendant facts gathered by the police tended to dissipate, rather than support, probable cause to believe Lopez was the attempted shooter. After he was stopped, Lopez was positively identified as Hosvaldo Lopez, the registered owner of the Ford Taurus he was driving. When the police removed Lopez’s driver’s license from his wallet, they could readily compare it with the information they had from the Department of Motor Vehicles regarding the owner of the Ford Focus and see that Lopez and Gamez had different names. The police were also in a position to observe that Lopez’s appearance did not match the Department of Motor Vehicles’ physical description of Gamez. It should then have been manifest that Lopez was not Gamez, the registered owner of the getaway car. Furthermore, police officers testified that “Lopez was actually very cooperative” and responded appropriately and “without hesitation” to all of the officers’ requests. Cf. United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002) (finding that defendant’s suspicious remarks to the police were a factor supporting probable cause).

[9] By the time Lopez was brought to the police station for questioning and to give consent to the search of his car, the police had observed and gathered a substantial amount of information. Given the totality of the facts the police had assembled by the time they commenced questioning Lopez at the police station, we conclude that the police did not then have probable cause to believe that Lopez was the attempted shooter.

Inventory of bag in defendant’s possession at the time of booking was not unconstitutional. While the policy refers to jail personnel, it is not strictly applicable to them. The inventory search here was no different or intensive than that which would have been conducted by the jail personnel, and there was no showing that it was conducted with an investigatory motive. Indeed, the bag only came along because defendant requested it. United States v. Banks, 482 F.3d 733 (4th Cir. 2007):

The written policy reveals that the end result of an inventory search in the typical arrest scenario is that the arrestee’s person and possessions are searched, with paper currency returned immediately to the arrestee, other personal property stored until the arrestee’s release, and contraband seized and secured. Det. Gunn’s search of the bags mirrored this routine practice. Just as the bags would have been searched and their contents confiscated and secured by booking personnel in a typical arrestee processing, they were searched, confiscated and secured by Det. Gunn.

Banks may only succeed in challenging the search of the bags, then, by showing that Det. Gunn’s search was motivated by “an investigatory police motive,” Opperman, 428 U.S. at 376. See id.; Brown, 787 F.2d at 932 (allowing searches “so long as the purpose of the inventory is … not to gather incriminating evidence against the owner”). This second argument is fatally weakened, however, by the district court’s finding that Det. Gunn’s actions were “perfectly reasonable … under the circumstances and do[] not betoken bad faith on his part.” J.A. 259. This factual finding must be upheld on appeal unless clearly erroneous. Buckner, 473 F.3d at 553.

Banks presented no evidence that Det. Gunn initiated the search of the bags or conducted the inventory search because he suspected that he would find incriminating evidence therein. To be sure, Det. Gunn’s decision to perform the inventory himself in his office, instead of following the usual procedures, was irregular. The irregularity was due in part, however, to the unusual circumstances of the arrest. The arresting officer, though he responded first to the Target, was only involved because of Det. Gunn’s distance from the pharmacy at the time Eggleston and Banks arrived at the store. Furthermore, the bags were not in Banks’s physical possession because they were procured by Det. Gunn, at Banks’s specific request, after his arrest.

Officer was entitled to qualified immunity for warrantless entry into an apartment based on an apparent emergency. The search was not clearly unreasonable, and it was objectively justified. McTwigan-Evans v. Spaulding, 2007 U.S. Dist. LEXIS 27245 (D. Colo. April 12, 2007).*

A face-to-face CI is more reliable than an anonymous tipster. This one was corroborated, and the reasonable suspicion involved danger to the officer. United States v. Kent, 2007 U.S. Dist. LEXIS 27111 (E.D. Mo. April 12, 2007):

The court finds the officers had specific articulable facts providing reasonable suspicion to detain the defendant. Although the defendant argues that the CI had no track record. That is true. However, as the Second Circuit stated in United States v. Salazar, 945 F.2d 47, 50-51 (2nd Cir. 1991), “A face-to-face informant must, as a general matter, be thought more reliable than an anonymous tipster, for the former runs the greater risk that he may be held accountable if his information proves false.” The CI was considered by Blakely to be sufficiently trustworthy to be signed up to be an informant. For tips there is no requirement that the informant even be known. Illinois v. Gates, 462 U.S. 213, 237-238, 103 S.Ct. 2317 (1983). The CI in this instance had offered firsthand knowledge of the person who had just been at the CI’s residence. He was walking in an area known for crack cocaine trafficking. He was alleged to be carrying a concealed weapon, which is a crime in itself. Blakely remembered that there had been a controlled buy from TKO in 2003.

There was a danger and immediacy involved in this factual situation, which is not always present in an investigatory stop. The likelihood of finding weapons with one who has been involved in drug trafficking is alluded to in many cases. The person described as TKO, when informed of the officer’s intent to pat him down for weapons, in effect, refused to be patted down and placed his hands in his pockets where a weapon might be located and was going to walk away, which under the circumstances, could reasonably be interpreted as an admission that he was the man they were looking for. The officers were faced with a situation such as the one described in Terry:

“We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.”

392 U.S. at 23-24, 88 S.Ct. at 1881.