Samson v. California only applied the California statute, and Florida’s statute is different, so the search here was unlawful because Florida law does not require all probationers submit to suspicionless searches. Rollins v. State, 948 So. 2d 1046 (2d Dist. February 23, 2007):

We are mindful that the United States Supreme Court recently held that the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee. Samson v. California, 126 S. Ct. 2193, 2202, 165 L. Ed. 2d 250 (2006). However, Samson examined a California law which provided that “every prisoner eligible for release on state parole ‘shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.'” Id. at 2196 (citing Cal. Penal Code Ann. § 3067(a) (West 2000)). There is no similar law in Florida requiring a person placed on probation to submit to a search, with or without cause, by a law enforcement officer. Therefore, Samson does not apply to the case at bar.

Defendant’s neighbor entered his land to look for a dog, and he stumbled upon a greenhouse with marijuana in it. He told the police who came onto the property and looked, too. Under Dunn, it was open fields. Wilson v. State, 952 So. 2d 564 (5th Dist. 2007):

In Dunn, DEA agents made three warrantless entries onto the defendant’s 198-acre ranch on two consecutive days by crossing over a perimeter fence that completely surrounded the property. Thereafter they walked one-half mile, crossed several barbed wire fences, climbed a wooden fence and peered into the barn using flashlights to view the interior of the locked barn, at which time agents observed an illicit drug laboratory. The barn, which was 60 yards from the defendant’s residence, was not visible from the perimeter of the property because the clearing in which the barn was situated was completely surrounded by woods. The Supreme Court concluded that these actions did not constitute a Fourth Amendment violation because the barn was not within the curtilage of the residence. Therefore, the defendant did not enjoy an expectation of privacy in the area immediately outside the barn.

In concluding as it did, the Dunn court announced a four-part test to use in determining whether an area is protected “curtilage.” The Court emphasized, however, that the “centrally relevant consideration [in this determination is] whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301. Our application of the Dunn four-part test here, with emphasis on the “centrally relevant consideration,” leads us to the inescapable conclusion that Appellant’s greenhouse, like the barn in Dunn, does not lie within the curtilage of his residence.

The first Dunn factor, the distance between the home and the area claimed to be curtilage, is, in this case, unhelpful because the distance of 100 feet supports no inference either way. Likewise, the second Dunn factor, whether the area is included within an enclosure surrounding the home, is of little import here because the perimeter fence does not provide a demarcation point separating the residence and curtilage from the remaining property. See United States v. Taylor, 458 F.3d 1201 (11th Cir. 2006) (holding perimeter fence around five-acre parcel did not bring entire parcel within curtilage of residence).

The third factor, however, suggests strongly that the greenhouse at issue here did not fall within the protected curtilage. This factor requires that we analyze the use to which the area is put to determine if it was “so associated with the activities and privacies of domestic life” that it should be “deemed” a part of the residence. Dunn, 480 U.S. at 302. Here, as in Dunn, the only use to which the structure was put was the manufacture of illicit drugs, a use completely disassociated with the “privacies of the home.” This factor, therefore, militates in favor of the government.

The fourth and final Dunn factor involves an examination of the steps taken by Appellant to “protect the area from observation by people passing by.” Id. at 301. In Dunn, the barn was locked, enclosed within a wooden fence, barbed wire fence and a perimeter fence, yet the Court concluded that the defendant had done “little to protect the barn area from observation by those standing in the open fields.” Id. at 303. Here, the greenhouse was protected to a lesser degree than the barn in Dunn. It was not locked, it was constructed of semi-transparent material with a two-foot void, and only one fence, a standard rail fence, separated it from adjoining lands. Based on a comparison of the facts in Dunn, we must conclude that the fourth Dunn factor also favors the government.

Spatial and temporal proximity to shots fired can be reasonable suspicion. People v. Mendez, 371 Ill. App. 3d 773, 309 Ill. Dec. 205, 863 N.E.2d 837 (2d Dist. 2007):

Several Illinois courts have held that a police officer may form a reasonable suspicion that an individual was involved in a shooting due to his spatial and temporal proximity to the shots fired. For example, in People v. Lee, 48 Ill. 2d 272 (1971), police officers testified that they were assigned to patrol an area where a gang war was expected to occur. At approximately 9:30 p.m., the officers heard what they believed to be gunshots. Lee, 48 Ill. 2d at 274. Within two minutes and about two blocks away, the officers saw six people walking. There was no one else in the area. Four of the six people were wearing the type of clothing worn by one of the gangs that might have been involved. The officers stopped and frisked all six people. The supreme court found the stop and search reasonable under Terry. Lee, 48 Ill. 2d at 277. The police officers had a reasonable suspicion that the group of people walking in the area of gunfire was involved in the shooting and therefore the court upheld the investigatory stop, including the pat-down search for weapons. Lee, 48 Ill. 2d at 277.

Knock and talk led to an arrest, and there was specific exigent circumstances as to his closed duffle bag. Alternatively, it could have been subjected to a search incident. State v. Warren, 949 So. 2d 1215 (2007).*

Detention of a man who just left the premises to be searched was valid. Presence alone just before the warrant was executed is enough. United States v. Castro-Portillo, 211 Fed. Appx. 715 (10th Cir. 2007) (unpublished):

Applying Summers and Muehler to the case at hand, it is plain the search warrant in this case carried with it the limited authority to detain Mr. Castro-Portillo as an occupant during the search of the house. This alone was sufficient to detain him during the entirety of the search. The fact he was not observed committing a crime at the time of the stop, drove away from the house moments before the execution of the search warrant, and did not know about the search warrant did not prevent authorities from having the requisite suspicion to stop him, as further demonstrated by our decision in Ritchie. In that case, the defendant was stopped in his driveway and then detained in his yard ten minutes before execution of a search warrant on his residence. See 35 F.3d at 1479, 1483.

(Note: The 10th Cir. says this is unpublished, but F.R.A.P. 32.1 applies to all cases decided after January 1st making it binding authority.)

Record supported a finding of voluntariness of consent for a search and a Miranda waiver. Defendant was a Brazilian police officer, and Brazilian law recognized a right to remain silent as well, so he was aware of what was going on. United States v. Braiani, 2007 U.S. Dist. LEXIS 23 (D. Me. January 2, 2007).*

Officers were standing by to keep the peace during a litter removal action on residential property, and they ended up arresting plaintiff for obstructing official business and resisting arrest. The arrest was with cause and summary judgment is granted for the defendants. Helms v. City of Green, 2007 U.S. Dist. LEXIS 21 (N.D. Ohio January 2, 2007).*

(In court today. More posting later.)

Use of a drug dog on a car is generally permissible in Mississippi. Jaramillo v. State, 950 So. 2d 1104 (Miss. App. 2007):

P7. Jaramillo’s next contention, that the dog-sniff search was performed without probable cause in violation of the Constitution, is thwarted by the United States Supreme Court decision of Illinois v. Caballes, 543 U.S. 405 (2005). Even without reasonable, articulable suspicion, the performance of a dog sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is not a violation of one’s Fourth Amendment rights against unreasonable searches and seizures. Had the traffic stop been prolonged unreasonably for the purpose of a canine sniff, Jaramillo may have been able to challenge the constitutionality. But, Jaramillo does not contend that the Fourth Amendment violation against him occurred due to an extension of the time he was stopped. He contends, rather, that his rights were violated by the use of the drug detecting dogs in the search.

P8. The Supreme Court of the United States has spoken to the issue of the use of drug dogs during the course of a traffic stop. Caballes, 543 U.S. 405. The Supreme Court held that “the use of a well-trained narcotics-detection dog–one that ‘does not expose noncontraband items that otherwise would remain hidden from public view’–during a lawful traffic stop, generally does not implicate legitimate privacy interests.” Id. at 409 (quoting United States v. Place, 462 U.S. 696, 707 (1983)). Notwithstanding the uncontested fact that Jaramillo consented to the search of his vehicle during the traffic stop, we find that the use of narcotics-detection dogs during a stop based on probable cause did not violate the Fourth Amendment to the United States Constitution. We, therefore, uphold the decision of the trial court in denying Jaramillo’s motion to suppress.

Officers raided defendant’s next door neighbor’s property after a drug sale, but the marked money disappeared. The officers came to defendant’s property looking for it, plus they had information that defendant was involved in meth. His conversation with the officers was consensual at the time. That led to a consent search. Melton v. State, 950 So. 2d 1067 (Miss. App. 2007):

P16. The nature of his encounter with the deputy seems more properly characterized as a voluntary conversation. The investigation that was taking place was not directed at Melton personally but involved Melton because of the close proximity of his yard and the possibility that the drug money may be located on his property. Melton obviously knew he had the right to terminate the search, and exercised that authority in demanding the search end and not continue without a search warrant. Under these circumstances there was no illegal detention.

Private search conducted to aid police but with a motive to protect defendants’ children from drugs was not a search instigated by the police; therefore, it was not subject to the Fourth Amendment. State v. Malkuch, 2007 MT 60, 336
Mont. 219, 154 P.3d 558 (2007).*

Defendant had no expectation of privacy in a vehicle abandoned in the woods. Maldonado v. State, 284
Ga. App. 26, 643 S.E.2d 316 (2007).*

Valid traffic stop led to reasonable suspicion with “red flag indicators” of the potential for illegal activity. Giles v. State, 284 Ga. App. 1, 642 S.E.2d 921 (2007).*

Under defendant’s parole agreement, reasonable suspicion was not required for defendant to submit to a UA. State v. Pursley, 2007 SD 22, 729
N.W.2d 351 (2007):

[*P14] We conclude that a fair reading of the Agreement reveals that paragraph 5 is a general provision requiring reasonable suspicion for all parolee searches and seizures. The “Special Limitations” provisions of paragraph 13e list UAs and PBTs as specific exceptions to the reasonable suspicion requirement. Paragraph 13e unambiguously required Pursley to submit to UAs and PBTs as the checkbox provision covering those tests is marked and follows the clear, introductory language that states, “I will participate, cooperate and complete any programs as directed[.]” Moreover the checkbox provision expressly prefaces the tests as being random UAs and PBTs.

[*P15] Random is defined as “[l]acking aim or method, purposeless, not uniform, applies to that which occurs or is done without careful choice, aim, or plan.” Webster’s New World College Dictionary 1187 (4th ed 2001). This is clearly in contrast to reasonable suspicion that Black’s Law Dictionary defines as “[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.” Id. at 1273 (7th ed 1999). Under the provisions of the Agreement, requiring the parole agent to show reasonable suspicion before being able to request a random UA would create an inconsistent result.

Defendant and his roommate were suspects in an attempted arson based on a store security videotape of them buying gas in a gas can nearby and shortly before the attempted arson. Officers went to the house and talked to the roommate who admitted presence but inferentially implicated the defendant. The officer asked to talk to the defendant who invoked Miranda. Based on the statement of the other, the officer had probable cause to arrest, so defendant was handcuffed. The officer then secured consent from the roommate, and shoes were found matching shoe prints at the scene. Invoking Miranda did not invoke Randolph as well because nothing in the invocation of rights included a refusal to consent to a search. Indeed, he was never even asked for consent. People v. Lapworth, 273 Mich. App. 424, 730 N.W.2d 258 (2006).

An NYPD officer had no reasonable expectation of privacy in his locker in the precinct house from a search by Internal Affairs. It was alleged, and defendant detective admitted, that he purloined nude photos from two female crime victims. The search of the locker occurred after the detective said that he had destroyed the photos. People v. Vecchio, 2005 N.Y. Misc. LEXIS 3465, 234 N.Y.L.J. 59 (Richmond Co. September 23, 2005).

Officer had reasonable suspicion to stop the defendants’ car for being backed into a loading dock at a police building where undercover cars were kept. He first encountered the defendants and made them get in the car and leave. After they left he stopped them, and he made them leave so he could have time for back up to arrive. On the totality, the officer had reasonable suspicion for the stop, and great cause to detain them after his observations during the stop. Commonwealth v. Plante, 2006 PA Super 376, 914 A.2d 916 (December 28, 2006).*

Officer noticed furtive movements during a traffic stop, and told the defendant to keep his hands visible. The defendant said that he would not consent to a search, but he would consent to a patdown. The patdown revealed heroin capsules by plain feel, and the officer was entitled under Dickerson to seize them. Cost v. Commonwealth, 49 Va. App. 215, 638 S.E.2d 714 (December 28, 2006).*

Officer had cause for arrest and impoundment and search of vehicle even though the statute under which the arrest occurred was later invalidated, extending Potter to a different statute because the rationale is the same. State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (December 28, 2006)*:

We recently determined that a police officer who arrested a person for violating RCW 46.20.342(1)(c) prior to Moore had probable cause to believe that the individual had committed a crime. State v. Potter, 156 Wn.2d 835, 843-44, 132 P.3d 1089 (2006). We concluded that “probable cause is determined at the time of arrest” and “reliable information from the DOL indicated [the defendants] were committing the crime.” Id. at 844.

Although Potter involved a different statute, the same principle applies here. Officer Black arrested Gonzales after observing him driving a vehicle with a cracked windshield because, when he verified Gonzales’ name on DOL records, he found that Gonzales had a suspended driver’s license. Officer Black was entitled to rely on DOL records in accordance with Potter. As in Potter, this court struck down the statute under which Gonzales’ license was suspended subsequent to Gonzales’ arrest. See id. at 841. Nevertheless, the DOL information available to Officer Black at the time was sufficient to warrant the belief that Gonzales had committed the offense of driving with a suspended license. Officer Black’s reliance on the DOL information was reasonably prudent at the time of the arrest, and he had probable cause to believe that Gonzales had committed a misdemeanor in his presence.

Affidavit for search warrant that did not specify the crime that allegedly occurred for which the warrant was issued was not constitutionally difficient. The investigation started out as a solicitation for videotaped sex with a retarded young man, and yielded child porn. United States v. Summage, 481 F.3d 1075 (8th Cir. 2007):

The district court faulted the affidavit for its lack of specificity in describing the offense giving rise to the request for the warrant. We disagree. It is not necessary for an affidavit to include the name of the specific crime alleged. United States v. Koyomejian, 970 F.2d 536, 548 (9th Cir. 1992) (Kozinski, J., concurring); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.1, at 9 n.28 (4th ed. 2004) (“It need not be certain precisely what crime was committed.”). Rather, “‘only a probability of criminal conduct need be shown.'” United States v. Koonce, 485 F.2d 374, 380 (8th Cir. 1973) (quoting McCreary v. Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969)); Gates, 462 U.S. at 235 (“It is clear that ‘only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'” (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969))). Although the affidavit did not specifically name the crime that had been committed, the alleged facts support a finding of probable cause to believe that Summage’s actions constituted criminal conduct–specifically the solicitation of prostitution or pandering–given the fact that Summage had offered money in exchange for Doe’s services in a sex act.

Defendant was driving his pimped out 1968 Electra up to the Detroit-Windsor Tunnel border area, and he looked for a parking space. The car drew the attention of Customs and Border Patrol officers and it was noticed that the defendant was smoking a blunt. The search was justified as occurring within the border area, even though he said he was not crossing the border, or plain view. United States v. Humphries, 2007 U.S. Dist. LEXIS 26015 (E.D. Mich. April 9, 2007).

The confidential informant was corroborated and the police were in constant communication with him. The original place of the drug deal had moved, and the informant told the police. United States v. Traxler, 2007 U.S. App. LEXIS 8211 (10th Cir. April 9, 2007).*

Defense counsel was not ineffective for not exploring the basis for his search where the defendant agreed with a statement of facts that included defendant consented to the search. Wilkins v. United States, 2007 U.S. Dist. LEXIS 25998 (E.D. Tenn. April 6, 2007).*

Magistrate recommended dismissal of a § 1983 case because it did not mention the Fourth Amendment. District Court disagrees under F.R.C.P. 8: “While we find that the plaintiff’s complaint falls far short of the standard for ideal legal drafting, we agree that the complaint provides fair notice to the defendant of plaintiff’s allegation that the breathalyzer tests administered to him violated his Fourth Amendment rights.” Majewski v. Luzerne County, 2007 U.S. Dist. LEXIS 26056 (M.D. Pa. April 5, 2007).*

The police received a silent 911 hangup call, and cars were dispatched to the area. Because no information was provided, there was no reasonable suspicion to stop cars in the area of the call, so the government failed in its burden of showing reasonable suspicion. The court also compares the quality and nature of information from 911 calls in the cases. United States v. Cohen, 481 F.3d 896 (6th Cir. 2007):

We believe that the 911 hang-up call, standing alone without follow-up calls by a dispatcher or other information, is most analogous to an anonymous tip. The Supreme Court has noted that “there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'” Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). For example, an anonymous tip that accurately predicts a subject’s future behavior in detail can be credited with “a special familiarity with [the subject’s] affairs” and thus bears sufficient indicia of reliability to provide reasonable suspicion. White, 496 U.S. at 332. However, the Supreme Court has made clear that an anonymous tip does not exhibit sufficient indicia of reliability merely because it provides “[a]n accurate description of a subject’s readily observable location and appearance,” J.L., 529 U.S. at 272, as such a tip “provide[s] no predictive information and therefore [leaves] the police without means to test the informant’s knowledge or credibility,” id. at 271. See also United States v. Patterson, 340 F.3d 368, 370-72 (6th Cir. 2003) (applying the holding of J.L. to similar circumstances); Feathers v. Aey, 319 F.3d 843, 849-50 (6th Cir. 2003) (same); Northrop v. Trippett, 265 F.3d 372, 381-83 (6th Cir. 2001) (same), cert. denied, 535 U.S. 955, 152 L. Ed. 2d 354 (2002). Such a tip is not irrelevant in evaluating the totality of the circumstances, but should be given little weight. See Caruthers, 458 F.3d at 465-66.

. . .

The silent 911 hang-up call also did not provide a description of Cohen or his car and thus did not identify any determinate person. The quick response of Officers Pender and Koenig made it possible to limit those potentially related to the silent 911 hang-up call to those people and vehicles within four minutes of the area surrounding Wooded Glen Court, and the early hour limited the number of people in that general area, but those limitations still fall short of identifying a determinate person. Cf. United States v. Brown, 448 F.3d 239, 247-52 (3d Cir. 2006) (concluding that police officers did not have reasonable suspicion to stop two men in the area of a robbery based solely on a general description provided by a robbery victim that the perpetrators were two black men of a particular age and height wearing hooded sweatshirts).

Some courts have concluded that an emergency 911 report is more reliable than an anonymous tip and may, by itself, supply reasonable suspicion to make an investigatory stop, at least when the caller identifies himself or herself. See United States v. Drake, 456 F.3d 771, 774-75 (7th Cir. 2006); United States v. Terry-Crespo, 356 F.3d 1170, 1174-77 (9th Cir. 2004); cf. Thacker v. City of Columbus, 328 F.3d 244, 253-55 (6th Cir. 2003) (concluding that an emergency 911 report combined with police officers’ observations of a man bleeding, acting belligerently, and demanding assistance from paramedics justified warrantless entry into a home on the basis of exigent circumstances). Even if we were to assume that an anonymous 911 report is more reliable than other similar anonymous tips, however, we believe that the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot requires us to give the 911 hang-up call little weight in evaluating the totality of the circumstances.

Validity of a traffic stop is not based on the factual accuracy of what the officer was relying on, but on the objective reasonableness of the belief that there was a traffic offense committed. United States v. Hampton, 2007 U.S. Dist. LEXIS 27159 (W.D. Pa. April 12, 2007):

Ultimately, the Delfin-Colina court concluded that “[t]aken together, then, Terry and Whren stand for the proposition that a traffic stop will be deemed a reasonable “seizure” when an objective review of the facts shows that an officer possessed specific, articulable facts that an individual was violating a traffic law at the time of the stop. In other words, an officer need not be factually accurate in her belief that a traffic law had been violated but, instead, need only produce facts establishing that she reasonably believed that a violation had taken place.” Id. at 398.

Reasonable suspicion to stop led to a plain view that led to a vehicle search on probable cause. United States v. Naylor, 2007 U.S. Dist. LEXIS 27202 (E.D. Pa. April 12, 2007).*

Pro se motion to dismiss for outrageous police misconduct based on same grounds as suppression hearing already heard when defendant had counsel was rejected as “plow[ing] the same ground.” United States v. Cochran, 2007 U.S. Dist. LEXIS 27093 (N.D. Ind. April 10, 2007).*

Franks challenge failed. It was clear that the Postal Inspector was confused by some of the questions put to her, and it did not rise to the level of a Franks challenge. The defense also overstated the issue and apparently lost credibility with the court. United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (S.D. N.Y. April 4, 2007):

That Inspector Fraterrigo was confused was both obvious and understandable given the nature and form of some of the questions asked of her. Moreover, the Defendants’ notion that Inspector Fraterrigo freely admitted, under oath, that she lied to a magistrate judge and then executed what she knew to be a patently invalid warrant by seizing items that she had no basis to take is too fanciful even for a bad Hollywood courtroom drama. Thus, the Court rejects Defendants’ claim that Inspector Fraterrigo, in open court, admitted to intentionally misleading a magistrate judge in order to obtain and execute an illegal warrant. She testified to just the opposite, and the Court found this testimony to be credible.

This same case appears in the later posting just above these for more issues.

The defendant was driving 12 miles under the speed limit in the left lane on an interstate highway, but this did not constitute reasonable suspicion for a stop. The officer also thought that the passenger waving to the officer added something, but the court held that it did not. United States v. Coronado, 2007 U.S. Dist. LEXIS 22477 (W.D. Tex. March 16, 2007).

Citizen reporting crime to 911 and identifying herself but unwilling to meet with officers face to face was capable of being found by the 911 and her own information and that was sufficient to elevate her status above that of an anonymous informant, and the district court erred in treating her as an anonymous informant requiring more corroboration. Not all of it was corroborated, but a significant part of her information was, and that gave reasonable suspicion. United States v. Elmore, 482 F.3d 172 (2d Cir. 2007).

NCIC printout that there was a felony warrant on defendant justified police entry into his motel room to arrest him. A comment on the print out that said “pick up in Florida only” related to extradition payments, not the authority to arrest. After the arrest, officers left and got a search warrant for things seen in plain view in the room, and that was a valid independent source for the seizure. United States v. Sobolewski, 2007 U.S. App. LEXIS 7313 (3d Cir. March 29, 2007) (unpublished).

A reasonable belief that a defendant committed a traffic violation is all that is required for a stop. [The court declined to quibble over whether there was in fact a factual basis or not; the question was whether it was reasonable for the officer to believe there was.] United States v. Pena, 2007 U.S. App. LEXIS 7309 (5th Cir. March 28, 2007)* (unpublished).

Plaintiff in a § 1983 survives PLRA review as to some defendants. “In the instant case, defendant Jenkins testified at the plaintiff’s preliminary hearing that he and defendant Burger arrested plaintiff on a parole violation warrant whereas the plaintiff contends that no such warrant exists and that no other circumstances justified his arrest. These assertions are sufficient to state a Fourth Amendment false arrest claim and for the plaintiff to proceed on the claim.” Harris v. Libal, 2007 U.S. Dist. LEXIS 22733 (E.D. Wis. March 27, 2007).*

Randolph does not require the police to seek out every potential objector to a search before seeking consent from a co-tenant. United States v. Brown, 2006 U.S. Dist. LEXIS 91484 (N.D. Ga. December 18, 2006). Comment: This was the subject of a comment by me five days ago at the bottom of the December 16th post. This is going to keep coming up, but defense counsel should give up on raising this issue.

State search warrant led to federal prosecution. The fact that state officials were the primary investigating agency and federal agents came along and even talked about taking the case federal did not require that a federal judicial officer had to have issued the warrant under Rule 41. It was a state warrant, and the feds were along for the ride to see what they might do, and that does not require issuance of a warrant under Rule 41. United States v. Jones, 2006 U.S. App. LEXIS 31285 (8th Cir. December 20, 2006):

Alternatively, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there still would have been no significant federal participation in the search. Jones contends that the search in the instant case had significant federal involvement based on United States v. Tavares, 223 F.3d 911 (8th Cir. 2000). In Tavares, we found significant federal participation triggered the federal no-knock warrant requirements of 18 U.S.C. § 3109 where federal officers discussed the possibility of a federal prosecution with state police prior to participating in a search authorized by a state-court-issued warrant. Id. at 915. This was so even though the federal officers were not involved in the planning, directing or organization of the search. Id. We held that “where federal agents directly participate in a search conducted pursuant to a state warrant, but with an expectation of federal prosecution, the stage is set for the circumvention of more restrictive federal requirements such as those set forth in section 3109.” Id. at 916.

Tavares would not control in the instant case for two reasons. First, the district court made a factual finding that the federal agents had no expectation of federal prosecution prior to the search. Second, Jones has not asserted any potential evasion of a substantive federal requirement, such as the evasion of the § 3109 no-knock warrant requirements in Tavares. Instead, the instant case would appear to be controlled by United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997), where we found no significant federal involvement “even if there were federal officers present at the search … [because] the warrant was not issued and executed pursuant to federal authority.” Id. at 443. Tavares did not overrule Schroeder, but rather distinguished it on the basis that the federal officers in Tavares envisioned a federal prosecution, yet avoided the federal no-knock warrant requirements of § 3109. Tavares, 223 F.3d at 916. In the instant case, as in Schroeder, “[the federal rule] was irrelevant to [the officers] at the time the warrant issued.” Schroeder, 129 F.3d at 443 (quoting United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992)) (alterations in Schroeder). Therefore, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there would have been no significant federal participation in the search and Rule 41 would not apply.

Failure to object to the U.S. Magistrate Judge’s Report and Recommendation on a search and seizure precludes appellate review. United States v. Russo, 210 Fed. Appx. 525 (7th Cir. 2006)* (unpubulished).

During execution of a warrant, officers did not act unreasonably in pointing guns at everybody inside because of officers objectively fearing a risk of violence by others during execution of the warrant. Qualified immunity defeats § 1983 action. Halsell v. Etter, 208 Fed. Appx. 413 (6th Cir. 2006).*

Officers had an arrest warrant and expected to find the defendant armed. When they found him in a motel room, they had to tazer and tackle him to make the arrest. Before Mirandizing him and after handcuffing him, he was asked where he hid the gun. He told them. Then they cleaned a bruise on his head from the arrest, Mirandized him, and sought consent to search. Under Quarles, his answer was not suppressed. The fact defendant was handcuffed did not alter the outcome. Moreover, the court found the evidence supported the district court’s conclusion that he consented after all that (and circuit authority supported it). United States v. Smith, 210 Fed. Appx. 533 (7th Cir. 2006)* (unpublished):

Following Quarles, we have held that when arresting officers have reason to believe that a suspect has concealed a weapon near the place of arrest, they may ask about the weapon to protect themselves or the public “from the immediate danger that a weapon would pose” even after the suspect is handcuffed and searched. United States v. Edwards, 885 F.2d 377, 384 n.4 (7th Cir. 1989); see also United States v. Knox, 950 F.2d 516, 519 (8th Cir. 1991) (police were not required to give Miranda warnings before asking arrestee where his gun was; even though pat-down indicated arrestee did not have a gun, police had reason to believe it could be close by or in a public area).

Here, the officers had reason to believe Smith had a concealed gun nearby. He was wanted on weapons charges and the tipster had told police that Smith was recently armed. The officers could tell that the gun was not on his body, so there was reason to believe Smith had hidden or disposed of it somewhere else close by. Even though Smith was handcuffed and his hotel room was secured, the gun could be elsewhere nearby and thus might pose a threat either to members of the public who could discover it, or even to the officers should Smith again resist arrest. Reasonably believing that Smith had a concealed gun but having not yet seen it, the officers properly invoked the public safety exception to ask Smith where it was.

Smith’s second argument–that his waiver and consent to search were involuntary so that the gun itself should have been suppressed–is also meritless. He says that he “consented” only after being tackled and tasered by police, and hitting his head on the door frame. We initially note that Smith “signed a consent form, which weighs heavily toward finding that his consent was valid.” United States v. Taylor, 31 F.3d 459, 463 (7th Cir. 1994). Moreover, the district court determined that under the totality of the circumstances, Smith’s waiver and consent were not coerced, a factual finding we review for clear error. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Mendoza, 438 F.3d at 795. The record shows that the officers did not use weapons or any kind of force to obtain the waiver and consent (only the arrest), and that any physical injury Smith sustained during his arrest was insignificant. We have found that arrest-related injuries do not necessarily vitiate valid consent, see Watson v. DeTella, 122 F.3d 450, 454 (7th Cir. 1997) (consent voluntary even though defendant had been kicked in the head by police at the time of his arrest), particularly when arresting officers inflict injuries solely to bring suspects into compliance with police orders and not as a form of interrogation. See id. (suspect was kicked in the head during his arrest not to make him confess but because he refused to raise his hands). That is the case here, so the district court’s consent finding was not clearly erroneous.

Generalized flyover in rural Tenneessee led to officers spotting marijuana plants 50 yards behind defendant’s house with no enclosures. United States v. Ortkiese, 208 Fed. Appx. 436 (6th Cir. 2006)* (unpublished):

Here, the police spotted several marijuana plants growing in Ortkiese’s backyard while conducting a routine helicopter flyover. The marijuana plants were not within the curtilage of Ortkiese’s home, as the officers spotted the contraband 50 yards behind the home, out in the open and without any enclosure. The Supreme Court, notably, has reaffirmed the open-fields doctrine in the precise context of the cultivation of marijuana plants some distance from a person’s residence. See Oliver, 466 U.S. at 174, 179; cf. United States v. Dunn, 480 U.S. 301 (1987) (defining the curtilage protected by the Fourth Amendment by its “proximity . . . to the home,” whether it is “within an enclosure surrounding the home,” how it is used by the owner and “the steps taken . . . to protect the area from observation by people passing by”).

To the extent Ortkiese means to challenge the government’s search of his property by a helicopter, he offers no evidence to support his theory that the police were targeting him for investigation, as opposed to performing a generalized flyover, the latter of which the Court has approved as constitutionally permissible. See Florida v. Riley, 488 U.S. 445, 450-51 (1989) (plurality); id. at 454-55 (O’Connor, J., concurring in the judgment). Because the officers’ search for, and seizure of, the marijuana plants were valid in every respect, the district court correctly rejected his Fourth Amendment challenge.

N.D. Ill. decides that a former Mexican police officer had to know that he was not in custody when he made admissions to the police and consented to the search of his house. United States v. Gonzalez-Villa, 2007 U.S. Dist. LEXIS 39394 (N.D. Ill. May 31, 2007):

The officers’ use of a protective pat-down and handcuffs were reasonably necessary to assure both the officers’ and Gonzalez-Villa’s safety, and did not amount to a custodial arrest. Once Agent Vargas arrived, he immediately questioned Gonzalez-Villa in a language that Gonzalez-Villa understood, a few car-lengths away from his vehicle. Neither of the two officers in Gonzalez-Villa’s immediate vicinity had their weapons drawn. At the time, Gonzalez-Villa was thirty-six years of age, and a former Mexican police officer. In examining the totality of the circumstances, a reasonable thirty-six year old former Mexican police officer would have understood his situation to not have equated to being in custody before or during Agent Vargas’s questioning. Therefore, the statements Gonzalez-Villa made to Agent Vargas were not given in violation of his Fifth Amendment rights.

. . .

Gonzalez-Villa argues that his statements should be suppressed as involuntary. As noted above, although Gonzalez-Villa was handcuffed, he was not in such an inherently coercive environment as to be considered in custody.

. . .

Further, Gonzalez-Villa gave the police consent to search his residence approximately twenty minutes after the investigatory stop took place, and only minutes into the conversation between Agent Vargas and Gonzalez-Villa. In addition, the consent form that Gonzalez-Villa signed was written in Spanish, and stated that Gonzalez-Villa gave his consent to search his residence “freely” and that he had “not been threatened nor forced in any way” to give his consent. (T. 28-29).

Comment: What is the cultural belief of a former Mexican police officer about U.S. constitutional rights? I personally find that fact irrelevant. The only time I was in Mexico as an adult, and it was only in February, there were drug roadblocks within miles of the border, and they weren’t stopping Anglos. What a former Mexican police officer thinks is relevant to what he or she understands is a lack of an ability to object to a request for consent. There is not one word in the opinion about cultural beliefs and understandings of the defendant, a Mexican national, who would have a completely different understanding of law, police officer or not. Consent now gets total deference to the police and government.

For those interested in cultural issues in criminal defense, including suppression issues, see Linda Friedman Ramirez, Cultural Issues in Criminal Defense (2d ed. 2007).

Gunshot fired from an upstairs bedroom of a house justified its entry, twice. United States v. Yanez, 2007 U.S. Dist. LEXIS 39389 (S.D. Tex. May 31, 2007):

Here, before the officers entered defendant’s home, they faced a fluid, fast-moving situation in which the safety of the public was at risk as an unknown gunman fired a weapon from an upstairs bedroom. Such a situation presents the paradigmatic instance of exigent circumstances, in which the officers reasonably acted with haste to enter the premises and stop a shooting spree they reasonably believed was endangering neighborhood citizens. Accordingly, while warrantless entries into a home are presumptively unreasonable, see Payton, 445 U.S. at 586, the court finds that the Government’s claim of exigent circumstances rebuts the presumption and renders the initial entry a reasonable one. After the officers entered the home, they found the defendant’s two sisters, removed them from harm’s way, and escorted them outside. This action was clearly motivated by the need to protect those inside who could have been shot by the as-yet unidentified shooter or shooters. This entry into defendant’s home does not run afoul of the Fourth Amendment.

. . .

The case at bar presents very similar circumstances to those in Pringle. Here, the officers approached a small bedroom from which they reasonably believed the shots were fired. They found two persons who cautiously emerged into the hallway, understandably raising the officers’ suspicion. At the time, the officers had no way to know whether one or both of the suspects had been firing the weapon. They only knew that a firearm had been discharged several times, but not by whom. As the officers came upon the room, it was thus reasonable for them to believe that either or both of the suspects had fired the weapon or had engaged in a joint venture to violate the law. Accordingly, the officers had probable cause to believe that this defendant, Gabriel Yanez, was guilty of an offense, and his arrest did not contravene the protections of the Fourth Amendment.

Videotape of the stop supports the government’s claim of consent. United States v. Brown, 2007 U.S. Dist. LEXIS 39539 (S.D. Ohio May 31, 2007).*

Tazering of plaintiff during his fingerprinting was not unreasonable, and summary judgment was granted against him. He continued to resist during book-in. Price v. Austin Police Dep’t, 2007 U.S. Dist. LEXIS 39378 (W.D. Tex. May 31, 2007).*

Qualified immunity is tough to be applied at the pleading stage against the plaintiff, but it can be. Here, it could not be applied. Horton v. Williams, 2007 U.S. Dist. LEXIS 39201 (M.D. Ala. May 30, 2007):

At the motion-to-dismiss stage, a complaint should not be dismissed on qualified-immunity grounds unless its allegations, on their face, show that qualified immunity bars recovery. Marsh, 268 F.3d at 1022. Applying that standard here, the court does not believe that Horton’s Fourth Amendment claim against Shockley should be dismissed. Horton alleges that on August 2, 2005, Shockley caused a warrant to be issued for Horton’s arrest for furnishing a false report to a law enforcement officer even though he had evidence that proved her report was not false and even though the evidence was clear that she had not committed a criminal offense. Compl. PP 16-17, 22. Faced with such evidence, a reasonable officer could not have believed that probable cause was present, and a reasonably well-trained officer would know that there was a lack of probable cause for an arrest warrant. Accordingly, Shockley’s qualified-immunity defense does not defeat Horton’s Fourth Amendment claim at the motion to dismiss stage, and his motion to dismiss on that ground will therefore be denied, albeit with leave to renew the qualified-immunity defense on a motion for summary judgment.

A D.C. speeding and “safety and compliance checkpoint” was unconstitutional because it was set up ad hoc to check driver’s licenses [and potentially pretextually to reduce speeding, for which no evidence was offered]. “Ultimately, however, it is not necessary for the Court to decide whether speed prevention was a ‘subterfuge’ for crime prevention. United States v. McFayden, 275 U.S. App. D.C. 207, 865 F.2d 1306, 1312 (D.C. Cir. 1989), abrogated in part by Davis, 270 F.3d at 981. For even accepting the assertion that the roadblock’s primary purpose was to prevent speeding, the government has not met its burden of demonstrating that defendant’s suspicionless stop was reasonable under Brown‘s three-part balancing test.” On the proof, the roadblock failed all standards. United States v. Hudson, 2007 U.S. Dist. LEXIS 40538 (D. D.C. June 5, 2007).

NAMBLA had no reasonable expectation of privacy when it solicited persons to join and an FBI agent did. United States v. Mayer, 2007 U.S. App. LEXIS 13022 (9th Cir. June 6, 2007):

Here, NAMBLA invited Agent Hamer to join its group, participate in its holiday card program, attend its conferences, and participate in the privacy committee. He received access to other people, not access to files or information. In essence, NAMBLA invited Agent Hamer to join its social network; his conversations with other members were well within the scope of that invitation, and NAMBLA had no legitimate expectation of privacy in them.

In summary, Aguilar articulates a Fifth Amendment requirement of good faith and a Fourth Amendment warrant requirement. Neither requirement becomes more stringent in light of the threat to First Amendment values. Rather, the risk of a First Amendment violation is part of the analysis courts apply under the Fourth and Fifth Amendments. We hold that this investigation fell within these bounds.

§ 1983 claim for involuntary commmitment failed as a due process and Fourth Amendment claim because there was plenty of cause for the commitment, confirmed by several doctors. Fisk v. Letterman, 2007 U.S. Dist. LEXIS 40780 (S.D. N.Y. June 6, 2007).*

Removing a boisterous “patron” from the courthouse law library to a holding cell for a little while was not unreasonable. There had been a history of trouble between the plaintiff and courthouse security. Birhanzl v. Doe, 2007 U.S. Dist. LEXIS 40548 (D. Ore. May 30, 2007).*

The Washington Post today has posted this article: FBI Finds It Frequently Overstepped in Collecting Data:

An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.

The new audit covers just 10 percent of the bureau’s national security investigations since 2002, and so the mistakes in the FBI’s domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.

The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.

But two dozen of the newly-discovered violations involved agents’ requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.

Your USA Patriot Act at work. The government got its wish list for domestic surveillance then treated, and still does, the Constitution like it no longer matters. Who polices the FBI?

Where do we go to get our rights back? Not Congress. Maybe the courts? Too little, too late.

Defendant with a 62 IQ could still consent to a search, and the same analysis was applied for waiving Miranda rights. United States v. Jennings, 2007 U.S. Dist. LEXIS 42344 (M.D. Ala. March 2, 2007):

As the standard that a consent to searches be made voluntarily, knowingly and intelligently, is the same as for the waiver of defendant’s Fifth Amendment right regarding self-incrimination under Miranda, see Barbour, 70 F.3d at 585 and Colorado v Connelly, 479 U.S. 157, 169-70, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); and similar forms, essentially, were used with some modification as to place or item to be searched; the analysis of defendant’s behavior, intellect and understanding of the consequences of his actions as to the searches is the same. The forms used n18 for the consent to search were simplistic and concrete; they were not lengthy; they were read by the detective to defendant; defendant was asked if he understood them, and after indicating his verbal understanding, signed the three forms. Neither Dr. Dana or Dr. Boyer review these particular forms with defendant. Thus, it is our finding that given the testimony presented as to defendant’s capabilities, his understanding of simple concepts and verbal explanations as indicated by the experts, the government met its burden of showing that defendant consented to the search of his personal bag and it contents.

Defendant has no standing to challenge the finding of his cellphone number in another person’s cellphone call history. United States v. Redd, 2007 U.S. Dist. LEXIS 42330 (N.D. Ill. June 11, 2007).*

Franks challenge failed where defendant could only show that he disagreed with the affidavit. United States v. King, 2007 U.S. Dist. LEXIS 42496 (S.D. Fla. June 1, 2007):

Here, Cameron alleges falsities in the affidavit with respect to the reliability of the confidential informants referred to in the affidavit; information obtained (or not obtained) from the informants (i.e., no statement by the informant that he purchased cocaine from Cameron); and the source of money used to purchase the cocaine (i.e., no “Official Miami-Dade County Funds” were used to purchase the cocaine). However, Cameron offers no proof of these alleged misrepresentations in the affidavit other than his own reading of the affidavit and records he apparently obtained from the Miami-Dade Police Department with respect to two earlier sales of narcotics by Cameron to different informants being used by other police officers at the subject residence. Thus, Cameron fails to make a “substantial showing” of falsehood in the search warrant affidavit or reckless disregard for the truth which would warrant a Franks hearing under the circumstances of this case.

Plaintiff’s apparently swallowing a handcuff key while in jail justified x-rays and a forced enema when he refused to voluntarily produce the key. He had an escape attempt history, and that justifiably concerned the jailers. Faircloth v. Lee, 2006 U.S. Dist. LEXIS 96328 (E.D. N.C. November 20, 2006).*

(And this is all the cases for today.)

When I started this blog in February 2003, my goal was to post everything for that day before 9 a.m. ET. That worked for about two years, and then the number of cases that Lexis was gathering from the federal district court system doubled. Plus, I’m busy doing my regular job, and that sometimes gets me out of the house before 7 a.m. to drive to court.

Somedays this blog takes two hours or more to digest the cases and summarize the ones worth posting. If in doubt, I post it.

I posted this morning and again at 8:30 p.m. CT. There is a statistics page I looked at, and 30 people accessed the website in the 20 minutes prior to that post. When a page says “# views,” that means registered users, of which there are not many. This site averages about 3200 visits a day.

So, if you visit once a day, there may be a post later in the day. I just cannot get it all done in the morning.

(About 25 cases today which makes up for yesterday’s lack of cases. This will take awhile.)

Plaintiff was on the premises when a search warrant was executed, and the officers only had reasonable suspicion as to him. He was patted down and nothing was found, so they unconstitutionally strip searched him. Burton v. Spokane Police Dep’t, 2007 U.S. Dist. LEXIS 42101 (E.D. Wash. June 11, 2007):

Accordingly, because the strip search was not a Terry stop, nor was it justified as a search incident to arrest, the officers were required to obtain a warrant before conducting a strip search, absent exigent circumstances. Id. at 1449.

Here, Defendants have not argued that exigent circumstances existed that would justify the warrantless strip search. In Fuller, the circuit held that no exigent circumstances were present in that case because there was no risk that the alleged stolen property, a ring, would have been discarded or destroyed if hidden in a body cavity. Id. at 1450. It noted that in a custodial setting, the police could have easily guarded against the possibility that the defendant would have removed the ring from her body cavity by observing her while the warrant was obtained. Id. The circuit also concluded that the ring was not likely to pose any health risk to an individual secreting it within her body. Id.

As in Fuller, no exigent circumstances were present to excuse Defendant Bowman’s failure to obtain a warrant to conduct the strip search. Plaintiff was handcuffed and he could have easily been observed while the officers obtained a warrant to conduct a strip search. As such, the warrantless strip search conducted in the field was unconstitutional.

(2) Qualified Immunity

Defendant Bowman would enjoy qualified immunity from liability in connection with the strip search of Plaintiff if a reasonable police officer could have believed that searches were lawful, in light of clearly established law and the information he possessed at the time. Fuller, 950 F.2d at 1450.

As noted above, Robinson, Giles, and Fuller clearly established that strip searches in the field, absent a warrant or exigent circumstances, are unconstitutional. Robinson was decided in 1973; Giles was decided in 1984; and Fuller was decided in 1991. The Court finds that the law regarding strip searches was clearly established and Defendant Bowman is not entitled to qualified immunity.

Not a search and seizure case, but a § 1983 case on malicious prosecution and due process: A grand jury indictment is prima facie probable cause for arrest, but it can be rebutted. Here, it wasn’t, despite Brady claim. However, the officer’s withholding Brady information before indictment that led to plaintiff’s acquittal at trial was sufficient to defeat summary judgment. “Parties are encouraged to discuss settlement.” Carvajal v. Dominguez, 2007 U.S. Dist. LEXIS 42115 (N.D. Ill. June 11, 2007).*

No IAC for defense counsel’s failure to get a plea agreement for defendant where the defendant never wanted to plead guilty. There was also a waiver of his search and seizure claim. United States v. Diaz-Ramirez, 2007 U.S. Dist. LEXIS 42122 (S.D. Tex. June 11, 2007).*

Prosecuting Attorney who advised an officer that the officer should arrest plaintiff for an allegation of sexual abuse had qualified immunity based on the facts known at the time. Barela v. City of Woodland, 2007 U.S. Dist. LEXIS 42154 (W.D. Wash. June 11, 2007).*

Officer was entitled to qualified immunity for plaintiff’s arrest for solicitation because there was cause for the initial stop and the investigation turned to the solicitation charge. Gonzalez v. Order City of Federal Way, 2007 U.S. Dist. LEXIS 42156 (W.D. Wash. June 8, 2007).*

The Lexis morning update never arrived. It seems inconceivable that no search and seizure cases came down Monday or were new in the Lexis system Monday. Could this be a glitch? We’ll see tomorrow. (Updated at 10:50 p.m. CT.)