The Ninth Circuit held Friday, in a well reasoned opinion because of the reasonabless of the accident without injury, that the DEA could effect a stop and seizure of a vehicle by the ruse of a traffic accident because they already had probable cause. The “unorthodox method” of this stop was to maintain the cover of an undercover operation, which the Ninth Circuit found reasonable. United States v. Alverez-Tejeda, 2007 U.S. App. LEXIS 13378 (9th Cir. June 8, 2007):

The parties agree that the DEA agents had the right to seize the car without a warrant …. The agents had probable cause to believe that the car had been “used for carrying contraband” because they had purchased drugs from inside it as part of their investigation. They also had probable cause to believe the car was carrying contraband on the day of the seizure based on several intercepted phone calls and direct surveillance. The only issue in doubt is whether their unorthodox method of seizing the car was constitutional.

An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner. See United States v. Jacobsen, 466 U.S. 109, 124 (1984). “To assess the reasonableness of th[e] conduct, [a court] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at 125 (internal quotation marks omitted). While agents have discretion to decide “how best to proceed” in conducting a covert operation, they must abide by the “general” protections of the Fourth Amendment. Dalia v. United States, 441 U.S. 238, 257 (1979).

The benchmark for the Fourth Amendment is reasonableness, which requires us to weigh the government’s justification for its actions against the intrusion into the defendant’s interests. Jacobsen, 466 U.S. at 125. The government here certainly had important reasons for employing this unusual procedure in seizing the car. First, the agents wanted to stop the drugs before they reached their ultimate destination–a patently important goal. Second, they wanted to protect the anonymity of the ongoing investigation–another vital objective. The Supreme Court has emphasized “the necessity for some undercover police activity,” Lewis v. United States, 385 U.S. 206, 208-09 (1966), and explained that “[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises[;] … to reveal the criminal design; [or] to expose the illicit traffic, … the illegal conspiracy, or other offenses,” id. at 209 n.5 (quoting Sorrells v. United States, 287 U.S. 435, 441-42 (1932)) (first alteration in original). Protecting the secrecy of an ongoing investigation is a well-recognized consideration in the administrative seizure process. See 18 U.S.C. § 983(a)(1)(D)(v) (providing for an extension not to exceed 60 days for notifying interested parties where more prompt notice would “seriously jeopardiz[e] an investigation”).

At the same time, the intrusion into Alverez-Tejeda’s Fourth Amendment interests was relatively mild. First, Alverez-Tejeda argues that the agents were unreasonable in using force to seize the car. While the police may not use excessive force in conducting a search or seizure, see, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1184, 1186 (9th Cir. 2007), the force here was minimal. The district court found that the agent in the truck bumped the stationary car with “enough force … so that the tap was felt by Defendant to the extent that it caused him to get out of his car and examine his bumper” (emphasis added), but the truck was moving at only 1 to 2 miles per hour and the tap caused no harm to the couple and left no scratch on the car. A tap is a use of force, to be sure, but it is hardly excessive. The staged collision involved just enough force to pull off the “drunk driver” ruse, without causing physical injury to the suspects.

This would be a different case if the government’s tactics created a serious risk of bodily injury or escalation of violence, which might well have outweighed the interest in protecting the investigation. The balance may well be different if the police simulated a car heist by running Alverez-Tejeda off of the road or staged a car-jacking by holding him up at gunpoint. In this case, however, the use of force and potential for physical harm were within reasonable bounds.

Swearing match between plaintiff and defendant officer over whether officer struck plaintiff in the face with a flashlight while plaintiff was handcuffed was sufficient to deny summary judgment for unreasonable and excessive force. Jones v. Wheeler, 2007 U.S. Dist. LEXIS 40313 (E.D. Ark. June 1, 2007).*

Excessive force claim fails where force used was less than that found in an Eleventh Circuit case to be insufficient. Manning v. City of Atlanta, 2007 U.S. Dist. LEXIS 40276 (N.D. Ga. June 1, 2007)*:

Here, the facts show that Defendant Price and the other officers used far less force than in Nolin. The officers handcuffed Plaintiff, and upon being informed that he was injured, the officers called for an ambulance. When the ambulance arrived, the officers placed Plaintiff on a bed sheet and dragged him up the hill because the paramedics were unable to reach Plaintiff with a gurney. The court finds that the officers’ actions were objectively reasonable considering the context and facts of the situation.

Summary judgment against false arrest action denied. Saucier analysis is problematic and expected at this point in the case. Questions of fact remained on cause for arrest. Friermuth v. City of Puyallup, 2007 U.S. Dist. LEXIS 40352 (W.D. Wash. June 1, 2007):

It is not unusual for the Saucier test to be problematic. This case is no exception. The tension between the directive to make an early determination, and the “reasonableness” of the officer’s actions in the context of summary judgment can be difficult. That is especially true in this case where plaintiff’s explanation for defendant Pihl’s behavior appears to be that he was deliberately untruthful, as opposed to being negligent or mistaken in his judgment. The basis of this credibility characterization is based, in part, on plaintiff’s position that Pihl’s reported observations of plaintiff’s behavior could not be true given the subsequently revealed alcohol and drug test results. This is important given the admonition by the Saucier Court that the court must consider the right in the context of the case.

Because the court is satisfied that the alleged constitutional right to be free from an unlawful search and seizure was well known to defendant Pihl, and because there are questions of fact as to whether or not the arrest was reasonable defendant Pihl’s motions for summary judgment and qualified immunity are denied.

Prison inmate’s claim of Fourth Amendment violation failed as frivolous because he never alleged that they were unreasonable, which would be incredibly hard anyway. Creer v. Caldwell Corr. Ctr., 2007 U.S. Dist. LEXIS 40187 (W.D. La. April 5, 2007).*

N.D. Cal. holds that a search incident of a cellphone was contrary to purposes of search incident in Chimel, recognizing that it was departing from United States v. Finley, 477 F.3d 250 (5th Cir. 2007). This is a really interesting discussion and far more sensitive an inquiry into reality and technology than the Fifth Circuit bothered to give the issue in Finley. United States v. Park, 2007 U.S. Dist. LEXIS 40596 (N.D. Cal. May 23, 2007):

Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007). In Finley, officers arrested the defendant and a passenger in the defendant’s car after effecting a traffic stop. Officers seized the defendant’s cellular phone at the time of the arrest, and then transported the defendant to the passenger’s residence; while at the residence, officers searched the call records and text messages on the defendant’s cellular phone, and questioned him about those records and messages. The Finley court held that although the police had moved the defendant, the search was “still substantially contemporaneous with his arrest,” and therefore permissible. Id. at 260 n.7. The court also held that “Finley’s cell phone does not fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of arrest.” Id. (quoting Chadwick, 433 U.S. at 15).

The facts in Finley differ slightly from the facts here, since in Finley the search of defendant’s cell phone at the passenger’s residence was “substantially contemporaneous” with defendant’s arrest; here, the search of the cell phone was not contemporaneous with arrest. More fundamentally, however, this Court finds, unlike the Finley court, that for purposes of Fourth Amendment analysis cellular phones should be considered “possessions within an arrestee’s immediate control” and not part of “the person.” Chadwick, 433 U.S. at 16 n. 10. This is so because modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. n6 Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.

n6 In this case, two of the searched phones were T-Mobile Sidekick IIs; in addition to address books, these phones feature e-mail accounts, text messaging, cameras, instant messenging, Internet capability, and video caller ID. The Court takes judicial notice of these features. See http://www.t-mobile.com/shop/phones/detail.aspx?tp=tb2&device=154e9bca-a74c-4299-99eb-48a1159c922b.

Any contrary holding could have far-ranging consequences. At the hearing, the government asserted that, although the officers here limited their searches to the phones’ address books, the officers could have searched any information — such as emails or messages — stored in the cell phones. In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee’s laptop computer as a warrantless search incident to arrest. As other courts have observed, “the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object. A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records.” United States v. Arnold, 454 F. Supp. 2d 999, 1004 (C.D. Cal. 2006).

The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. See generally Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Inspector Martinovich stated that he initiated the searches because “evidence of marijuana trafficking and/or cultivation might be found in each of the cellular telephones.” Martinovich Decl. P 6. Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants’ cellular phones, officers could have sought a warrant to search the contents of the cellular phones.

“Considering the arrest warrant affidavit in light of this authority, the court finds there was a substantial basis for finding probable cause for the warrant to issue. Significantly, a factual foundation, supported by bank records, is outlined for violations of 11 Del. C. §§ 841 and 861. Defendant’s contention that the arrest warrant affidavit lacks probable cause because it details legal rather than illegal conduct is an issue for trial to determine defendant’s intent and is inconsequential to this analysis.” United States v. Flood, 2007 U.S. Dist. LEXIS 40709 (D. Del. June 5, 2007).*

In this article from Charleston, WV, with accompanying video from local TV news, a pizza delivery driver was stopped for no seatbelt at a seatbelt checkpoint and marijuana was found.

A Putam County man was arrested after city police said they found more than two pounds of marijuana his car during a seatbelt checkpoint.

Roger Lee Caldwell, 25, was arrested in Friday when police said they discovered the marijuana inside several pizza delivery bags, according to a release from the department.

Caldwell worked as a pizza delivery employee for a local pizza establishment, but police did not say which one.

Apparently a search incident to a seatbelt violation is permissible in West Virginia.

In the e-mail that brought this to my attention, the correspondent tells me that he came upon a seatbelt checkpoint at night on a bicycle, and the officers were wearing nightvision goggles and said they used to them see into the cars in the dark as the cars passed by.

The N.D. Ohio holds that child porn is presumptively retained by the holder, so a search warrant for child porn is seldom found stale. Brothers v. County of Summit, 2007 U.S. Dist. LEXIS 38468 (N.D. Ohio May 25, 2007):

With regard to allegations of child pornography, the courts have found probable cause was not stale because it is presumed that such material is securely retained by the suspect. See United States v. Summage, 481 F.3d 1075, 2007 WL 1052456 *3 (8th Cir. 2007); U.S. v. Koelling, 992 F.2d at 823 (pedofile presumed to maintain pornography collection); United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (information that was six months old was not stale); U.S. v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (information that was 10 months old was not stale). Since there is no “bright line” standard for measuring staleness and case law has permitted use of evidence as old as 10 months old in child pornography prosecutions, then plaintiffs have not demonstrated a constitutional violation.

Plaintiff survives summary judgment on warrantless search based on her alleged consent which, remarkably, she videotaped and it showed her consenting under threat of arrest. Myers v. Halbleib, 2007 U.S. Dist. LEXIS 38577 (D. Neb. May 25, 2007):

This is an unusual case. Fifteen minutes after Myers permitted the officers to enter her home, and after the officers had several times attempted to obtain Myers’ consent to search the home, Myers made a video recording of her interaction with Defendants and that video recording is in evidence before the court. The video reflects that when Myers asked “[A]re you tellin’ me … that if I don’t let you guys search my house I’m gonna be arrested,” Halbleib replied “[a]bsolutely, yes.” (DVD Tr. 4:16-24 (emphasis added).) Later, Myers gave permission for Baker to search her home. Obviously, the voluntariness of this consent is at issue. “[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227. Consent may not be coerced by implied threat or covert force, id. at 228, and certainly not by direct threats or force.

Myers contends that her consent was involuntary because she understood Officer Halbleib to have threatened her with arrest if she refused consent to search, she was physically intimidated when Officer DeSanti tried to handcuff her, and because the officers continued to request consent to search despite her repeated refusals. n3 (Filing 40 at 13.) Defendants assert that although Halbleib said “absolutely, yes” when Myers asked if she would be arrested if she refused consent, Halbleib threatened arrest not because Myers refused consent to search but because Myers’ refusal to answer questions obstructed the investigation into the search for the missing girl. (Filing 55 at 5, 19.) Thus the ultimate question of fact–voluntariness of consent–is in dispute. In addition, there is a dispute as to a key underlying fact: whether DeSanti or Halbleib touched Myers in an attempt to handcuff her and whether she was handcuffed. (Myers Dep. 66:4-5 (DeSanti grabbed her and tried to put her in handcuffs); DeSanti Dep. 35:8-20 (DeSanti got his handcuffs out, but none of the officers “put their hands on Ms. Myers”).) Because there is clearly a factual dispute as to the voluntariness of consent, I cannot grant summary judgment on this issue.

Pushing the plaintiff down to a bed from which she stood up did not qualify as excessive force. Gonzalez v. Cameron County, 2007 U.S. Dist. LEXIS 38598 (S.D. Tex. May 29, 2007).*

Court refuses to reconsider its refusal to assume “anamolous jurisdiction” over property taken in a seizure. The complaining party has not shown that it will be irreparably harmed, and it still has remedies for recovery of the property. In re Seizure of Various Bus. & Personal Prop., 2007 U.S. Dist. LEXIS 38553 (E.D. Wash. May 29, 2007).*

(A lot today; more later.)

Defendant’s identity was not subject to suppression. He had no ID on him, and, after his arrest, the officer looked through defendant’s vehicle for his wallet and ID, and this was a reasonable search. United States v. Osborne, 2007 U.S. Dist. LEXIS 38558 (E.D. Tenn. May 25, 2007).*

The fact a federal law enforcement officer provided information for the search warrant was not enough to make the state search warrant and state officers’ search “federal in character” to invoke Rule 41. Defendant argued that the state nighttime search rule was violated, but federal courts do not apply state law. “Mr. Armendariz is more insistent than coherent in urging the application of state law.” United States v. Armendariz, 2007 U.S. Dist. LEXIS 38503 (D. Utah May 25, 2007):

To the extent that Mr. Armendariz alleges only that a federal officer provided the information that formed the basis of the probable cause determination, he has not shown the search to have been federal in character. See Bookout, 810 F.2d at 968 (search state in character when executed by state officers where warrant based on information conveyed by federal officer). If, on the other hand, Mr. Armendariz contends that federal officers took part in the execution of the warrant, the question is a closer one. While the parties’ conflicting accounts of the search do not permit a conclusion regarding the participation of federal officers in the execution of the search, there is no need to take evidence on the matter because, even if the Court were to assume, arguendo, that the search was federal in character, there has been no violation of the requirement in Rule 41 that nighttime searches be supported by good cause and expressly authorized by the issuing magistrate.

Search warrant issued after a wiretap was not imparticular, even though the list of things to be seized was extensive and identified things by references to the N.Y. Penal Code. United States v. Session, 2007 U.S. Dist. LEXIS 38477 (W.D. N.Y. May 24, 2007):

A simple reading of the search warrant makes clear that it identified two categories of evidence to be seized from 67 Quentin Road: evidence relating to the trafficking of cocaine and evidence relating to the possession of illegal firearms. Indeed, the warrant specifically identified the particular New York State narcotics and weapons offenses as to which it authorized the search and seizure of evidence. Although the list of items enumerated was relatively extensive, all items appear reasonably related to the offenses upon which the search warrant was based. Accordingly, I find that the warrant was sufficiently particular to identify for the searching officers the evidence of specific criminal activity for which they were authorized to search, see, e.g., United States v. Washington, 48 F.3d 73, 78 (2d Cir.) (upholding warrant describing “specific categories of drug-related evidence sought”), cert. denied, 515 U.S. 1151, 115 S. Ct. 2596, 132 L. Ed. 2d 843 (1995); United States v. George, 975 F.2d at 76 (collecting cases upholding warrants authorizing searches for evidence of “specific illegal activity”), and I therefore recommend that Session’s motion to suppress evidence from his residence on that basis be denied.

(Only one new case today; tomorrow will be excessive.)

All police officers except the one making the decision to enter without a warrant get summary judgment in an unlawful entry case. The others were entitled to rely on his determination (essentially shifting all the liability to him). The facts are fairly compelling, but the District Court was faced with settled law that not every erroneous entry states a cause of action. The court noted in passing Los Angeles County v. Rettele, decided May 21 and noted here. This case is a good example of how easy it is for an informant to lie about something and cause a search. Mar v. City of McKeesport, 2007 U.S. Dist. LEXIS 38324 (W.D. Pa. May 25, 2007):

In summary, a dispatcher from Allegheny County 911 informed the McKeesport police that they had received a call informing that Kahule Cochrane was located in Apartment 10G in Crawford Village, where he was armed, dangerous and accompanied by at least one other armed individual. Deputy police chief Mark Holtzman, the acting shift commander, received the information and verified that the 911 dispatcher had obtained the informant’s name and phone number. Kahule Cochrane was a suspect in a recently-committed murder, and was known to police to be violent and to reside in Crawford Village. Based on this information, Holtzman decided that exigent circumstances justified an immediate search without a warrant and assembled all available officers. Holtzman did not speak to the informant. Upon execution of the search of Apartment 10G only Plaintiffs, a father and his ten year old son, were found to be there.

Several officers formed a perimeter and Lieutenant Lopretto knocked on the door and announced himself as a police officer. When Darrell Mar, Sr., unlocked the door, it was forced open, and four officers entered the apartment. Officers then threw Mr. Mar to the floor, forcefully restrained him and placed a gun to his head before permitting him to sit on a couch. Another officer grabbed Darrell Mar, Jr., by the shirt sleeve, forcefully shoved him against a wall and pointed a gun in his face. The officers used profanity and gave no explanation for their actions. There is no evidence in the record that either Plaintiff was struck by the officers or suffered physical injury. The search of the apartment lasted approximately five minutes.

The “rank and file” officers get qualified immunity for relying on the decision to enter without a warrant made by their superior officer. He, however, does not. As to the excessive force claim, plaintiffs lose. The officers could legally point a gun in the face of a child and threaten to shoot.

In analyzing the excessive force factors, the Report and Recommendation did not evaluate the threat posed by the murder suspect, but instead simply stated that Plaintiffs “were unarmed, posed no threat to the safety of the officers, and never attempted to flee their home.” This focus is off-target. The relevant analysis is that the crime at issue was murder, that the suspect, Kahule Cochran, posed an immediate deadly threat to officers and others, that he was actively evading and resisting arrest, that he was armed and that officers reasonably anticipated that they would confront multiple armed and violent persons. The force used by the officers was significant, consisting of forcing open the door, brandishing weapons, physically moving Plaintiffs to positions of submission, and use of profanity. However, the use of force lasted for less than five minutes and neither of the Plaintiffs was physically injured.

The Defendants cited to analogous cases in their summary judgment brief which were not addressed in the Report and Recommendation. In e.g. Torres v. United States, 200 F.3d 179, 185 (3d Cir. 1999), the Court of Appeals explained that it was reasonable for officers to handcuff occupants of a house face-down on the floor during a search for narcotics due to the legitimate interests in preventing flight, preventing disposal of narcotics and agent safety. The Court explained that the risk of harm to all involved is minimized if officers exercise unquestioned command over the situation. Id. at 186 (citing Michigan v. Summers, 452 U.S. 692 (1981)). In Glass v. City of Philadelphia, 455 F. Supp.2d 302 (E.D. Pa. 2006), the Court concluded after a non-jury trial that officers had not used excessive force by pointing guns at plaintiffs, yelling profanity, handcuffing them, and placing them in police car, even though plaintiffs were not actively resisting arrest. Also instructive, although not cited by Defendants, is Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997), in which the Court held that officers had not used excessive force even though the SWAT team was used in a domestic violence situation and police forced occupants to lie face down in the dirt at gunpoint and threatened to blow their f***ing heads off. Accord Mellott v. Heemer, 161 F.3d 117 (3d Cir. 1998) (reasonable for officers to load and point weapons and push occupant into a chair in effort to discourage expected resistance to eviction). [Here citing Los Angeles County v. Rettele in fn. 6: “The Supreme Court explained that “officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search” even though the resulting frustration, embarrassment and humiliation of occupants is real.”]

Under the factors for determining the reasonableness of Defendants’ use of force in this case, it is clear that their conduct was well within the parameters found to be lawful in Torres, Glass, Mellott and Sharrar. Even assuming, arguendo, that the use of force was excessive, the officers would be entitled to qualified immunity because it would not have been clear to a reasonable officer that their conduct was unlawful. Accordingly, the motion for summary judgment will be granted on the claims of excessive force as to all Defendants.

The defendant sought de novo review from the U.S. Magistrate Judge’s R&R denying his motion to suppress his alleged consent based under 28 U.S.C. § 636(b)(1)(C). The District Court questions its ability to do so, but it finds under that standard that the consent was valid and the R&R stands. United States v. Zellars, 2007 U.S. Dist. LEXIS 38172 (E.D. Ky. May 24, 2007):

Although this Court must make a de novo determination of those portions of the Magistrate Judge’s proposed findings of fact and recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), “[i]t does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court has reviewed the evidence presented de novo and agrees with the Magistrate Judge’s conclusion that Zellars knowingly and voluntarily consented to the search of his apartment.

A traffic stop involving a PIT maneuver and injury to plaintiff resulted in a § 1983 case. Plaintiff refused to stop because he could not tell that the car pursuing him, even when it pulled up next to him, was a police car. [There is a story on ABC’s Good Morning America today about people afraid to stop for police who may not appear to be police; it was not posted as of the time of this post. It appeared at 8:08 am.] The officers pled Scott v. Harris (posted here) decided April 30th, but the District Court declined to dismiss the case without discovery. Marshall v. West, 2007 U.S. Dist. LEXIS 38169 (M.D. Ala. May 24, 2007):

Having considered Defendants’ argument and Plaintiff’s response, the court finds, first, that it logically may be inferred that the Lincoln Town Car did not bear resemblance to the typical marked law enforcement vehicle, and, for present purposes, the court accepts the representation of Plaintiff’s counsel on this point. (See Doc. No. 8 at 3 (PP 2-3), 6 and Fed. R. Civ. P. 11(b)(3).) Second, Plaintiff has alleged that he did not know either West or Hutson, that Defendants were in plain clothes (i.e., black tee shirts), and that West, without identifying himself as a law enforcement officer, pointed a pistol out the window directly at Plaintiff. (See Compl. PP 13, 15-16, 19.) The court finds that these allegations support the inference that Plaintiff believed that he was being directed to pull over in a threatening manner by two men in street clothes, not by law enforcement officers. The court, therefore, rejects Defendants’ argument that there are facts presently from which it can be determined that Defendants had arguable reasonable suspicion or probable cause to believe that Plaintiff had violated § 32-5A-193(a) of the Code of Alabama. Cf. Jackson, 206 F.3d at 1166 (finding under summary judgment standard that, if a jury credited plaintiffs’ version of facts, no arguable reasonable suspicion existed for the officers’ investigative stop where evidence showed, among other things, that plaintiffs were in compliance with all traffic laws and that plaintiffs believed that undercover, plain-clothed officers were “armed robbers about to harm them”). Accordingly, the court finds that West and Hutson are not entitled to qualified immunity at this stage of the proceedings on Plaintiff’s Fourth Amendment illegal stop claim.

(d) Fourth Amendment False Arrest and Unlawful Search Claims

Plaintiff also alleges Fourth Amendment false arrest and unlawful search claims in Count I. The viability of Defendants’ substantive arguments seeking dismissal of these two claims hinges on the existence of a legal traffic stop. (See, e.g., Doc. No. 6 at 9-12.) Having found that Plaintiff has sufficiently alleged an unlawful traffic stop, the court also finds that the § 1983 false arrest and unlawful search claims survive the instant motion to dismiss.

Reasonable suspicion did not justify officer’s search of defendant’s trunk. The search was premature, and inevitable discovery was not applied to save the search. United States v. Stevens, 2007 U.S. Dist. LEXIS 18690 (E.D. Pa. March 16, 2007):

The police plainly had reasonable suspicion sufficient to approach and temporarily detain Defendant; in other words, they were justified in conducting a brief investigatory stop because the officers had “a reasonable articulable suspicion that criminal activity [was] afoot.” See United States v. Goodrich, 450 F.3d 552, 559 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968), and Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The police had information from a victim suggesting that a man, who reasonably fit Defendant’s description, committed a crime. Moreover, because the “articulable facts” may have led the police to believe that Defendant was in possession of a weapon, the police were justified in patting down Defendant as a matter of officer safety. Terry, 392 U.S. at 29-30 (police with reasonable grounds to believe suspect was armed and dangerous were justified in patting down suspect to discover weapons and quickly neutralize situation). Further, pursuant to Terry, the police were justified in approaching Defendant with drawn guns, see United States v. Edwards, 53 F.3d 616, 619-20 (3d Cir. 1995), and they could have detained Defendant for a limited period of time, in order to effectuate the purpose of their stop, United States v. Sharpe, 470 U.S. 675, 685 (1985). See also Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229 (1983) (plurality opinion).

Nonetheless, while reasonable suspicion made the stop lawful and would have justified the detention of Defendant for a short period of time before Henderson arrived, it did not justify the search of Defendant’s trunk. The police needed probable cause to search the trunk of the vehicle. See Burton, 288 F.3d at 100. After patting down Defendant and finding no weapons, a reasonable and prudent officer would not have believed that probable cause existed to search Defendant’s trunk. The police knew, however, that Henderson was to arrive momentarily; upon his arrival, the police would have known whether Defendant was Henderson’s alleged assailant. Once Henderson identified Defendant, the police would have had probable cause to believe that Defendant’s trunk contained a weapon, and the constitutional safeguards would have been fulfilled. However, the police failed to wait that short period for Henderson to arrive, a period which the law afforded them, and as such, they lacked probable cause to search the trunk. In this case, while the officers’ instincts may have been correct, their judgment was not.

. . .

The inevitable discovery doctrine does not apply in this case. Applying it in cases such as this would undermine the deterrence aspect of the exclusionary rule. The police officers should have known that probable cause did not exist to search the trunk. Moreover, they knew that a witness with the ability to establish (or undermine) the existence of probable cause would be arriving in a matter of moments. In a circumstance such as this, where it is obvious that probable cause is lacking and that the facts necessary to determine its existence, vel non, are imminently available, the only way to assure compliance with the probable cause requirement is to refuse to apply the inevitable discovery exception. In contrast to Nix, application of the inevitable discovery doctrine here would provide an incentive for police misconduct. See, e.g., United States v. Haddix, 239 F.3d 766, 768 (6th Cir. 2001) (citations omitted) (Applying the inevitable discovery doctrine to those instances where police had probable cause and could have obtained a warrant, but failed to do so, would obviate the warrant requirement altogether.); United States v Reilly, 224 F.3d 986, 994 (9th Cir. 2000) (citations omitted). In this case, the court finds that the public interest in deterrence far outweighs the interest in providing a jury with unlawfully-seized evidence. Patience is not only a virtue; here, it was a legal requirement. As such, the evidence seized from Defendant’s car is suppressed.

Failure to file a motion to suppress that led to 404(b) evidence was not ineffective assistance because the issue was resolved on appeal and, in any event, the information that was admitted did not reasonably change the outcome. United States v. Huff, 2007 U.S. Dist. LEXIS 18604 (E.D. La. March 15, 2007).*

Plaintiff’s § 1983 claims were, in effect, appeals from state court decisions on the same issues, and they were barred by the Booker-Feldman doctrine. Benjamin v. Abraham, 2007 U.S. Dist. LEXIS 18685 (E.D. Pa. March 15, 2007).*

Georgia assumes for sake of argument that a search that recovered a murder victim’s purse was found with an invalid warrant, and it finds consent to search was attenuated. Spence v. State, 281 Ga. 697, 642 S.E.2d 856 (2007):

Analyzing the attenuation factors set forth in Brown to the present case, we turn first to the time factor. In this regard, Moore’s consent to search occurred during the on-going, assumed illegal search of the apartment. Thus, there is effectively no lapse of time between the assumed illegal conduct and Moore’s consent. The record, however, shows that the duration of the search had no bearing on Moore’s consent.

As for intervening circumstances, the record shows that Moore executed a consent-to-search form that informed him that he had the right to refuse the consent to search; that he could revoke the consent to search at any time; that he had not been promised anything in exchange for his consent; and that he had not been threatened or compelled to give the consent. Moreover, the Supreme Court in Brown specified that the attenuation analysis must be “answered on the facts of each case” In the present case, a significant factor supporting a finding that Moore’s consent was not a product of the illegal conduct, but was instead a product of his free will is that he was not the target of the officer’s investigation.

As for the police misconduct in this case, even though we have assumed that the officer’s affidavit given in support of the search warrant failed to establish probable cause that evidence of the crime would be found at Spence’s residence, the illegality lacks any of the purposefulness or flagrancy that the Supreme Court weighed against the government in Brown. There, two police detectives, who acted without probable cause and a warrant, broke into Brown’s apartment, conducted a search, pointed guns at Brown when he arrived home, and arrested him. Clearly, the degree of flagrant misconduct and coercion that was present in Brown is not present here.

Evaluating the foregoing attenuation factors, we conclude that Moore’s consent to search was an act of free will that sufficiently attenuated the discovery of the purse from any assumed illegality of the officer’s search. The trial court, accordingly, did not err in denying Spence’s motion to suppress the purse.

The administrative search exception was used to conduct a search of a medical practice, but the Kentucky Supreme Court held that the administrative search exception of Burger v. New York, assuming it applied, did not apply because this was a law enforcement search because law enforcement was working the case for six months before the administrative search was conducted. Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006):

In this case, an active criminal law enforcement investigation had been ongoing for six months prior to the engagement of the administrative agency in this case. The Board of Medical Licensure did not initiate a civil investigation into the matter until a formal grievance was filed by the criminal investigators. When the Board’s investigation proceeded, it was in complete conjunction with the uninterrupted criminal investigation. Indeed, not only did the criminal investigators supply the Board with all underlying facts and evidence to support its investigation, but the criminal investigators also determined which files were to be seized by the Board and then accompanied and assisted the Board during the actual raid. Such excessive entanglement with law enforcement simply belies any notion that the warrantless raid in this case was somehow “divorced from the State’s general interest in law enforcement.” Ferguson, supra, at 79, 121 S.Ct. at 1289; see also, New Jersey v. T.L.O., 469 U.S. 325, 341, n. 7, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (distinguishing searches carried out by administrative authorities “acting alone and on their own authority” from those conducted “in conjunction with or at the behest of law enforcement agencies”).

Reasonable suspicion as to the place defendant came from extended to him. State v. Smith, 2006 La. App. LEXIS 2697 (5th Cir. November 28, 2006):

We find the totality of the circumstances support the trial judge’s finding of reasonable suspicion of criminal activity. Although the record does not disclose that the officer had specific information about the defendant, he did have information that drugs were being sold out of the particular apartment the defendant visited. All of the factors together, including this experienced officer’s observation of the apparent hand-to-hand transaction outside of an apartment under surveillance for narcotics activity in a high crime area, and the fact that the officer had made other narcotics arrests there, formed reasonable suspicion of criminal activity to support an investigatory stop.

Defendant did not engage in headlong flight from the police, and the state failed to show it, and, thus, the state failed to show that there was reasonable suspicion. Rainer v. State, 944 So. 2d 115 (Miss. App. November 28, 2006), on rehearing from Rainer v. State, 2005 Miss. App. LEXIS 917 (November 22, 2005) (reaching same result).

News: Dec. 1st’s Atlanta Journal-Constitution reports that two of the officers in the drug raid that led to the death of Kathryn Johnston had good job ratings:

The five Atlanta narcotics officers involved in a drug raid that ended in the death of an elderly woman have earned mostly top job performance ratings, and their personnel files don’t indicate they have ever been disciplined for misconduct.

Two of the officers have received commendations from Chief Richard Pennington for their work in drug cases.

. . .

The personnel files on the officers contain a number of documents.

They include standardized job appraisal forms, oath of office forms, personnel data sheets, personal weapons requests, commendations, and police academy information.

Nothing in the personnel records for the five officers suggests they would likely be embroiled in such a controversial case.

The state and federal investigation continues.

Warrantless entry into the home was based on exigent circumstances. Commonwealth v. McAliley, 2007 PA Super 55, 919 A.2d 272 (2007):

The factors identified in Walker are as follows:

“(1) the gravity of the offense; (2) whether there is a reasonable belief that the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong showing that the suspect is within the premises to be searched; (5) whether there is a likelihood that the suspect will escape; (6) whether the entry was peaceable; (7) the time of the entry, i.e., day or night; (8) whether the officer was in hot pursuit of a fleeing felon; (9) whether there is a likelihood that evidence may be destroyed; and (10) whether there is a danger to police or others.”

Id. (citation omitted).

[*P14] We will address these factors ad seriatim. With respect to the first factor, the police observed McAliley sell cocaine on two occasions outside his residence, which is a serious felony offense. See 35 PA.STAT. § 780-113(f)(1.1) (providing that possession with intent to deliver cocaine is a felony).

[*P15] The second factor, whether there was a reasonable belief that McAliley was armed, was not explored at the suppression hearing; however, it is reasonable to conclude that the officers may have expected McAliley to have been armed. See Commonwealth v. Lopez, 525 Pa. 185, 190, 579 A.2d 854, 856 (1990) (opinion in support of affirmance) (noting that second factor was not “investigated during the suppression hearing” but that “experienced narcotics officers may have expected that appellant, engaged as he was in observable drug selling, was indeed armed”).

[*P16] We also find that there was a clear showing of probable cause. “[P]robable cause for a warrantless search exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime.” Commonwealth v. Wright, 2005 PA Super 35, 867 A.2d 1265, 1267 (Pa. Super. 2005) (citation omitted), appeal denied, 583 Pa. 695, 879 A.2d 783 (2005), cert. denied, __ U.S. __, 126 S. Ct. 1047, 163 L. Ed. 2d 879 (2006). In the present case, the police officers observed McAliley engage in the sale of cocaine in two separate transactions. Thus, the third factor is easily established.

[*P17] We also find that the fourth factor is also easily met. The police observed McAliley enter the residence at 1319 West Jerome Street just after the cocaine sales, and did not see him leave thereafter. Thus, their observations established that McAliley was present in the premises which was to be searched.

[*P18] The fifth factor, whether there is a likelihood that the suspect will escape, was not established at the suppression hearing. As mentioned, the police officers had the residence under surveillance.

[*P19] With respect to the sixth factor, whether the entry was peaceable, the Commonwealth established at suppression hearing that the entry was peaceful. The police officers simply opened unlocked doors to enter the residence. See N.T., 7/20/05, at 36, 49-50.

[*P20] As for the seventh factor, the police officers entered the residence in the afternoon, not at nighttime. See, e.g., Commonwealth v. Roland, 535 Pa. 595, 600, 637 A.2d 269, 271 (1994) (noting that nighttime “is a particularly suspect time for searches to be conducted”).

[*P21] The eighth factor, whether the police were in hot pursuit of a fleeing felon, is not a factor in this case.

[*P22] The ninth factor, whether there was a likelihood that evidence would be destroyed, was established at the suppression hearing. This Court has noted the ease with which narcotics can be destroyed. See Walker, 836 A.2d at 981. Furthermore, in the present case, the police officers observed that McAliley had what appeared to be a stash of contraband in his pants pocket when he finished his second narcotics deal. Immediately after the second deal, McAliley entered his residence. Subsequent thereto, McAliley reappeared in his doorway and stood there until he was alerted to the police presence, after which, he went into his residence. Thus, there is a reasonable inference that McAliley either had a stash of narcotics on his person or that a stash was in his residence. Therefore, when he was alerted to the police presence, there was a strong likelihood that he could have easily destroyed the narcotic contraband.

[*P23] The tenth factor, whether there is a danger to the police officers or other persons, was not established at the suppression hearing.

[*P24] Seven of the ten factors, as outlined above, weigh heavily in favor of finding that the warrantless search was based on appropriate exigent circumstances. Of course, not all of the factors must be present to justify a finding of exigent circumstances. See, e.g., Walker (finding that exigent circumstances existed to justify the warrantless search where seven of the ten factors were met). As such, we find that the warrantless search was lawful as exigent circumstances existed.

Officer had probable cause to arrest the plaintiff based on the complainant’s statement that plaintiff pointed a gun. Plaintiff’s search claim was dismissed because he did not name the officers who conducted the search as parties. Jacobson v. Pettersson, 2007 U.S. Dist. LEXIS 14952 (W.D. Wash. March 2, 2007).*

Pro se plaintiff did not respond to summary judgment motion against his § 1983 claim, so the court uses the requirement of liberal construction of pro se pleadings. Giving the plaintiff the benefit of the doubt, defendant must prevail because there was probable cause for a traffic stop and an impoundment of the car led to a valid inventory. Wolschlager v. Anderson, 2007 U.S. Dist. LEXIS 15178 (E.D. Mich. January 22, 2007).*

Civil case over a housing inspection entry was dismissed because it was evident that the occupant consented to the entry. Fox v. Bay City, 2007 U.S. Dist. LEXIS 15299 (E.D. Mich. January 3, 2007).*

(Cases were received after 8 a.m. again today.)

I can’t summarize this better than the judge did, and the court provides a good analysis of application of qualified immunity: Pribble v. Town of Winona Lake, 2007 U.S. Dist. LEXIS 28517 (N.D. Ind. April 17, 2007):

According to Plaintiff Charles J. Pribble, Jr., in the early morning hours of May 15, 2005, Officer Paul Heaton was driving around a neighborhood of Winona Lake looking for an underage drinking party that was rumored to be occurring. When he saw a bunch of cars parked outside the Pribble home and saw through a large window that young people were drinking inside, he believed he had found what he was looking for. He knocked on the door to investigate, but when the wily person who answered the door asked if Heaton had a warrant, he replied that he didn’t need one. Heaton then forcibly entered the house and arrested everyone inside, including Pribble. This left Pribble’s father unhappy and prompted him to file a lawsuit in state court against Officer Heaton, the town of Winona Lake, and an unknown private security officer who allegedly accompanied Heaton during the raid. Defendants then removed the case to this Court. Pribble alleges violations of his Fourth, Fifth, and Sixth Amendment rights and a common law claim of false arrest and imprisonment.

. . .

Defendants maintain that Plaintiff’s claim of unreasonable search and seizure under the Fourth Amendment should be dismissed because Officer Heaton had probable cause to enter the home and make the arrest. The question of probable cause is typically “a proper issue for a jury if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them.” Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993). Defendants’ own cases (most of which are Indiana state court cases, which do not control our interpretation of the federal Constitution) reflect this principle. See Earles v. Perkins, 788 N.E.2d 1260, 1264 (Ind. App. 2003) (reviewing grant of summary judgment; “The determination of probable cause is a mixed question of law and fact.”); Miller v. City of Anderson, 77 N.E.2d 1100 (Ind. App. 2002) (affirming summary judgment; plaintiff’s case must fail “if the record as a whole reflects probable cause for the arrest” (emphasis added)). Plaintiff’s complaint alleges that “Heaton advises he allegedly observed an underage drinking party occurring by looking into the house from the road” (Compl. P 8 (emphasis added)), but the Court does not interpret that allegation to mean that Plaintiff admits Heaton’s version of events or concedes that Heaton had probable cause.

More importantly, Defendants incorrectly assert that Heaton only needed probable cause in order to justify his entry into a private residence. That is plainly not the standard. In the absence of a warrant, a police officer needs both probable cause and the presence of exigent circumstances, such as a risk of physical harm or the imminent destruction of evidence, that make it reasonable for the officer to enter even though he does not have a warrant. United States v. Karo, 468 U.S. 705, 715 (1984) (“Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances.”); Payton v. New York, 445 U.S. 573, 576, 590 (1980) (absent exigent circumstances, police officers may not enter an individual’s home without consent in order to make a warrantless arrest for a felony, even if they have probable cause); Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) (“[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”).

Taking the complaint on its face, Officer Heaton entered the house without a warrant because he saw some young people drinking inside, not because he perceived any particular danger or risk inside. Cf. Brigham City v. Stuart, 126 S.Ct. 1943, 1944 (2006) (exigent circumstances were present where officers, who had responded to a 3:00 a.m. call about loud party, heard an altercation as they approached the house, saw juveniles drinking in backyard, and upon looking through screen door and windows, saw an altercation in which a juvenile punched an adult, causing him to spit blood). Once inside, he began arresting people, including Plaintiff. The complaint does not indicate what Heaton saw when he entered the home, so it is unclear whether Heaton had probable cause to arrest Plaintiff once he was inside the house. The existence of both probable cause and exigent circumstances are issues that require the development of facts. See Jacobs v. City of Chicago, 215 F.3d 758, 770 (7th Cir. 2000) (dismissal was inappropriate where allegations in complaint gave no indication that exigent circumstances existed for warrantless search). For now, it is enough that Plaintiff has plainly stated a claim for relief under the Fourth Amendment.

Defendants insist, however, that Officer Heaton is entitled to qualified immunity for his actions. State officials occupying positions with discretionary authority and who are acting under color of state law may be immune from claims that he violated a plaintiff’s constitutional rights. Siegert v. Gilley, 500 U.S. 226, 231 (1991). But the pleading stage of a case is not the appropriate time to raise qualified immunity. As the Seventh Circuit has noted, “a complaint is usually not dismissed under Rule 12(b)(6) on qualified immunity grounds.” Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). This is because qualified immunity is a defense. “Because an immunity defense usually depends on the facts of the case, dismissal at the pleading stage is inappropriate: ‘[T]he plaintiff is not required initially to plead factual allegations that anticipate and overcome a defense of qualified immunity.'” Id. at 651-52, quoting Jacobs, 215 F.3d at 765 n.3.

To evaluate a defense of qualified immunity, the Court must first determine whether Plaintiff has stated a violation of his constitutional rights, and then determine whether those rights were clearly established at the time that the violation allegedly occurred. Jacobs, 215 F.3d at 766. The first step has been satisfied; as discussed above, we have already determined that Plaintiff has stated a claim for violation of his Fourth Amendment rights. In order to satisfy the second step, the plaintiff must show that, in light of pre-existing law, a reasonable defendant would have known that his conduct was unlawful. Anderson v. Creighton, 433 U.S. 635, 60 (1987). It has been clearly established since the Supreme Court decided Coolidge v. New Hampshire in 1971 or Payton v. New York in 1980, that “a search and seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.'” Coolidge, 403 U.S. 443, 474-75 (1971). Because we don’t know at this point what the circumstances were on the night in question, dismissal on qualified immunity grounds is plainly inappropriate.

A bailbondsman arresting under the authority of a state statute is acting under “color of law” for § 1983 purposes, especially when acting with a police officer. Evans v. City of Etowah, 2007 U.S. Dist. LEXIS 28408 (E.D. Tenn. April 17, 2007).*

Computer repair person reported child porn and officer requested expansion of the private search. The repair person had apparent authority to consent to the search, and the officer’s reliance on the apparent authority to expand the search was reasonable. United States v. Anderson, 2007 U.S. Dist. LEXIS 28329 (N.D. Ind. April 16, 2007).

In Los Angeles County v. Rattelle, 2007 U.S. LEXIS 5900 (May 21, 2007), decided on the cert papers alone, the Supreme Court held that officers searching the wrong house with a search warrant had qualified immunity from suit, even though they had reason to believe, as soon as they were inside, they likely were in the wrong house. “Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost.”

The officers had a search warrant from a prior drug deal, and they knew one suspect had a gun. When the search warrant was obtained and executed four months later, it turned out that the prior occupants had moved and new tenants were there. The officers entered and immediately noticed that the occupants were a different race than the persons being sought. Nevertheless, the occupants were ordered out of bed long enough for the police to search to be sure there was no gun, and they apparently, within 2-4 minutes, told the occupants to get dressed.

The Ninth Circuit held, 186 Fed. App. 765 (9th Cir. 2006), posted here, that the officers were not entitled to qualified immunity because it was readily apparent they were in the wrong place, and ordering the occupants out of bed was unreasonable.

The Supreme Court reversed and held that the officers acted reasonably under the circumstances, including ordering the occupants out of bed and searching it, and they were entitled to qualified immunity. [Notably, the plaintiffs did not challenge the validity of the warrant for staleness since the persons sought had moved four months before the search.]

There is no syllabus, being a per curiam [Souter would deny cert, and Ginsburg and Stevens concurred in the decision].

In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that officers executing a search warrant for contraband may “detain the occupants of the premises while a proper search is conducted.” Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.” Id., at 703. Against that interest, it balanced “preventing flight in the event that incriminating evidence is found”; “minimizing the risk of harm to the officers”; and facilitating “the orderly completion of the search.” Id., at 702-703; see Muehler v. Mena, 544 U.S. 93 (2005).

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id., at 98-100; see also id., at 103 (KENNEDY, J., concurring); Summers, supra, at 704-705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U.S. 386, 397 (1989) (addressing the reasonableness of a seizure of the person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396-399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F.3d 788, 791 (CA9 2003) (“When [the suspect] put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him”); see also United States v. Jones, 336 F.3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United States v. Hightower, 96 F.3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his pillow); State v. Willis, 36,759-KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers “pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant’s left hand had been”); State v. Kypreos, 115 Wn. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, “the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.” Summers, 452 U.S., at 702-703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that “special circumstances, or possibly a prolonged detention” might render a search unreasonable. See id., at 705, n. 21. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 U.S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, “they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on.” Deposition of Judy Lorraine Sadler in No. CV-0206262-RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

As respondents’ constitutional rights were not violated, “there is no necessity for further inquiries concerning qualified immunity.” Saucier v. Katz, 533 U.S. 194, 201 (2001). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

The briefs are not available online, at least not yet, because this case was decided on the cert papers, without full briefing.

The LA Times article is here, and an excellent editorial piece entitled “Naked Truth” is here:

AS RESIDENTS OF the Los Angeles area don’t have to be told, law enforcement officers sometimes misbehave in ways that violate individual rights and call for severe sanctions. But a ruling Monday by the U.S. Supreme Court is a reminder that it’s unwise to make a federal case out of every misstep by the police.

Dec. 19, 2001, was a bad day for Max Rettele and Judy Sadler. They were in bed in their Lancaster home — and not wearing pajamas — early that morning when L.A. County sheriff’s deputies arrived with drawn guns and a search warrant. The deputies ordered the couple to get out of bed and show their hands, and at first wouldn’t allow them to cover their nakedness.

A few minutes later, the deputies were apologizing to the now-clothed couple. Although the address on the warrant matched the couple’s residence, the targets of the search — three suspected identity thieves — had moved out before Rettele and Sadler had moved in. Also, the suspects were African Americans; Rettele and Sadler are white.

The post on the Volokh Conspiracy blog is here.

At least the officers apologized before leaving. I’ve read cases where it was alleged that the officers did not even apologize for breaking down the door to the wrong house in the middle of the night.

I was on the Bureau of Prisons website today looking for something else, and I came upon the regulations for searchs of inmates and others. The Policy Statement number coincides with the Code of Federal Regulations section number.

The inmate search regulation is Program Statement 5521.05 (June 30, 1999) (.pdf). This is implemented under 28 C.F.R. § 552.10:

§ 552.10 Purpose and scope.

In order to further the safe, secure, and orderly running of its institutions, the Bureau of Prisons conducts searches of inmates and of inmate housing and work areas to locate contraband and to deter its introduction and movement. Staff shall employ the least intrusive method of search practicable, as indicated by the type of contraband and the method of suspected introduction.

The CFRs for all “custody” relationships are here.

They include the following:

§ 552.11: Body searches

§ 552.12: Close observation

§ 552.13: X-ray, major instrument, fluoroscope, or surgical intrusion

§ 552.14: Search of inmate housing and work areas [Note: “Tossing” the cell is inappropriate. Policy Statement ¶ 9(b) “Staff conducting the search shall leave the housing or work area as nearly as practicable in its original order.”]

Search of visitors is Program Statement § 5267.08 (May 11, 2006). This is implemented under 28 C.F.R. § 540.40:

§ 540.40. Purpose and scope.

The Bureau of Prisons encourages visiting by family, friends, and community groups to maintain the morale of the inmate and to develop closer relationships between the inmate and family members or others in the community. The Warden shall develop procedures consistent with this rule to permit inmate visiting. The Warden may restrict inmate visiting when necessary to ensure the security and good order of the institution.

§ 540.41 Visiting facilities.

The Warden shall have the visiting room arranged so as to provide adequate supervision, adapted to the degree of security required by the type of institution. The Warden shall ensure that the visiting area is as comfortable and pleasant as practicable, and appropriately furnished and arranged. If space is available, the Warden shall have a portion of the visiting room equipped and set up to provide facilities for the children of visitors.

(a) Institutions of minimum and low security levels may permit visits beyond the security perimeter, but always under supervision of staff.

(b) Institutions of medium and high security levels, and administrative institutions may establish outdoor visiting, but it will always be inside the security perimeter and always under supervision of staff.

The rule on attorney visits was last revised in 2003:

§ 540.46 Attorney visits.

Requirements for attorney visits are governed by the provisions on inmate legal activities (see §§ 543.12 through 543.16 of this chapter). Provisions pertinent to attorney visits for pretrial inmates are contained in § 551.117 of this chapter.

Parole officers did not violate the Fourth Amendment by conducting a warrantless search of plaintiff’s home, when he was not there, searching for child porn on his computer. The officers had the requisite “well founded suspicion” under Washington law based on a report from a neighbor. He signed a parole agreement agreeing to such searches on “well founded suspicion.” Plaintiff was on parole for a sex offense. Addleman v. King County, 2007 U.S. Dist. LEXIS 35117 (W.D. Wash. May 14, 2007).

Demolition of plaintiff’s uninhabited and collapsing building was a seizure under the Fourth Amendment, but it was reasonable on a balancing of interests. Gariffo Real Estate Holdings Co. v. City of Philadelphia, 2007 U.S. Dist. LEXIS 35071 (E.D. Pa. May 11, 2007):

Balancing the relative interests at issue, it is clear that the balance is struck in favor of the City. The Plaintiff retained little or no reasonable expectation of privacy in a dilapidated, uninhabited rental property after L&I provided notice by mail, as well as posted on the structure itself, of its imminently dangerous condition. See Freeman, 242 F.3d at 652. Moreover, the City has a strong interest in ensuring that structures located within City bounds do not pose a threat to the safety of the general public. See Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) (“[T]he public interest demands that all dangerous conditions be prevented or abated.”).

It is important to note that a seizure in this circumstance is not per se unreasonable without the City first obtaining a warrant. See Gardner v. McGroarty, 68 Fed. Appx. 307, 312 (3d Cir. 2003); Manganaro v. Reap, 29 Fed. Appx. 859, 861 (3d Cir. 2002); Freeman v. City of Dallas 242 F.3d 642, (5th Cir. 2001). Although a warrant may first be necessary before inspectors may enter an inhabited building to inspect suspected violations of municipal housing code, Camara, 387 U.S. at 534, this safeguard is not necessary where, as here, the evidence of the municipal code violations were already obtained by means unchallenged by the Plaintiff, i.e. the collapsed outer wall was visible from the street. Freeman, 242 F.3d at 651.

Generalized motion to suppress could be denied in the court’s discretion, but the court denies the motion on standing because the car the marijuana was stored in was being used as a shipping container and it was out of defendant’s control for shipping, having been driven by another. United States v. Crowder, 2007 U.S. Dist. LEXIS 34946 (N.D. Ill. May 10, 2007):

Here, Crowder’s unsupported claims that he “had a proprietary interest and legitimate expectations of privacy” in the Mustang does not carry the day. See Def.’s Brief, P 5. Any reasonable expectation of privacy Crowder alleges “must be demonstrated to the Court.” United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006). Absent a supporting affidavit “or testimony from the defendant, it is almost impossible to find a privacy interest ….” Id. Given the fact that the Mustang was registered to co-defendant Watkins’s mother, that Crowder was not even the driver of the Mustang at the time the DEA agents stopped the car, and that Crowder relinquished control of the Mustang to a third party shipping company, Crowder does not have standing to claim that the search of the car was in violation of the Fourth Amendment.

. . .

Plainly put, Crowder cannot establish a reasonable expectation of privacy in the drug-laden Mustang. He delivered the car and its contents to the shipping company to transport across the country, and surrendered the keys to the automobile upon delivery. As a result, the bailee, in this case the driver, had complete access to the car, in order to drive it onto and off of the truck, in addition to a number of other purposes. “A reasonable expectation of privacy is infringed when the defendant exhibits an actual or subjective expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable.” Mendoza, 438 F.3d at 795. The driver had complete control and full access to the Mustang when it was shipped to Illinois. No individual, who relinquishes control over a vehicle in the manner done so by Crowder, could possess a subjective expectation of privacy in that vehicle. See id.

The Tenth Circuit melds probable cause and the good faith exception, essentially determining them together. After determining that the informant was reasonably corroborated and that probable cause is such a fluid concept dealing with mere probabilities, the court finds that the good faith exception applied. United States v. Bedolla, 2007 U.S. App. LEXIS 11733 (10th Cir. May 16, 2007)* (unpublished):

Although defendant does not directly challenge the district court’s good-faith determination, his arguments attacking the reliability of the informant implicate the third exception recognized in Leon. We conclude, however, that SA Carroll’s affidavit was not so lacking in indicia of probable cause as to convince a reasonably well-trained officer that the search was illegal. See Danhauer, 229 F.3d at 1007. We have previously explained that “the absence of information establishing the informant’s reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, particularly when the officer takes steps to investigate the informant’s allegation.” Id. (citation omitted). Furthermore, an officer is not required to corroborate information provided by an informant through personal observation. See United States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004). It is enough if the officer simply has “knowledge of other matters that reasonably corroborate the informant’s statements.” Id. Finally, we have held that good faith can be established so long as a minimal nexus exists between the place to be searched and the suspected criminal activity. See United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005).

Plaintiff survived summary judgment on excessive force claim during execution of a search warrant. He claimed that he was kicked and beaten with a flashlight while handcuffed. “Yet, the reasonableness of law enforcement using their hands or feet to keep the Defendant’s head down during execution of the search warrant turns, at least in part, on how much force was used. Given the conflicting version of events, a jury could determine that the degree of force officers used was excessive in relation to the danger the Plaintiff posed laying handcuffed on the ground.” Cooper v. City of Fort Wayne, 2007 U.S. Dist. LEXIS 36301 (N.D. Ind. May 15, 2007).*

Defendant did not have an expectation of privacy in a cellphone left at a crime scene that was in another’s name. Alternatively, it was abandoned at the crime scene. United States v. Hanner, 2007 U.S. Dist. LEXIS 36296 (W.D. Pa. May 14, 2007):

From the unrebutted evidence presented during the suppression hearing, the following has been established by a preponderance of the evidence:

. Cricket cellular telephone 412-628-5290 was found by the police in the alleyway adjacent to the house and crime scene where Frank Helisek, Jr., had been shot on the night of January 19, 2004;

. The telephone subscriber records for Cricket cellular telephone 412-628-5290 reflect Derrick Maurer as the subscriber;

. The telephone subscriber records do not list Defendant Hanner as an authorized user of the subject telephone;

. The listed subscriber, Derrick Maurer, did not purchase this particular cellular telephone;

. The listed subscriber, Derrick Maurer, never gave permission or authorized Defendant Hanner to possess or use Cricket cellular telephone 412-628-5290;

. Periodically, Dena Berardi and/or Paul Cimino would contact Defendant Hanner at cellular telephone 412-628-5290; and

. With the exception of Khaliah Solomon, no one other than Defendant Hanner would answer cellular telephone 412-628-5290.

What remains unknown and without evidentiary support, however, is how Defendant Hanner came to be in possession of Cricket cellular telephone 412-628-5290 and/or whether Defendant Hanner was an authorized user of the phone.

. . .

Without any substantively meaningful evidence to support Defendant Hanner’s argument that he had a subjective expectation of privacy, one which society is prepared to recognize as “reasonable,” the Court finds that Defendant Hanner has not carried his burden to establish that he had a legitimate reasonable expectation of privacy in the Cricket cellular telephone 412-628-5290 and thus, he is foreclosed from challenging the warrantless search of the Cricket cellular telephone.

B. Abandonment

Assuming, arguendo, however, that Defendant Hanner has proven by a preponderance of the evidence that he had a legitimate reasonable expectation of privacy in the subject Cricket cellular telephone, his motion to suppress would still be denied. The police recovered the subject cellular telephone after Defendant Hanner voluntarily abandoned it; thus, Defendant Hanner relinquished any legitimate expectation of privacy that he may have had.

Excessive force in a jail on a pretrial detainee is governed by the Fourteenth Amendment, not the Fourth Amendment. Jenkins v. City of Clanton, 2007 U.S. Dist. LEXIS 36016 (M.D. Ala. March 7, 2007).*

Curfew stop resulted in defendant turning away and walking away from the police officer. The officer stopped him and frisked him, and the defendant spontaneously made admissions and drugs were found. The stop and frisk was legal. State v. A.L., 2007 Fla. App. LEXIS 7578 (2d Dist. May 18, 2007).*

(Yesterday, there were 24 cases to sort through; today 1. Sometimes Mondays have 7-9.)

Pro se plaintiff got past the pleading stage in his § 1983 false arrest case, and he filed a request for declaratory judgment under F.R.C.P. 57 (which incorporates 28 U.S.C. § 2201). The court held that declaratory relief was unnecessary to determine the rights of the parties in this type of civil rights case. Nail v. Gutierrez, 2007 U.S. Dist. LEXIS 34568 (N.D. Ind. May 10, 2007):

The purpose of the Declaratory Judgment Act is to afford relief from uncertainty and insecurity with respect to legal relations. Nucor Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 578 (7th Cir. 1994); Sears, Roebuck & Co. v. American Mut. Liability Ins. Co., 372 F.2d 435, 438 (7th Cir. 1967). Otherwise stated, the purpose of declaratory judgments are “to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication, without waiting until his adversary should see fit to begin suit, after damage had accrued.” Nucor Corp., 28 F.3d at 578.

Although the defendants have not responded to Nail’s motion and the court could summarily rule on the motion pursuant to N.D. Ind. L.R. 7.1(a), the court will address the merits of Nail’s motion. In this case, Nail has filed a complaint for monetary damages based upon an unreasonable search and seizure. There is no uncertainty with respect to the legal relations between the parties in this case because the Fourth Amendment has defined the legal relations between the parties with regards to unreasonable search and seizure cases. The issue in this case is not determinative on whether a legal relation exists, but whether or not the officers’ conduct rose to the level of an unreasonable search and seizure. This type of determination is not within the purpose of the Declaratory Judgment Act. As a result, Nail’s motion for a declaratory judgment (docket # 71) is DENIED.

The defendant was arrested on a controlled delivery of a package containing meth to his house. His cellphone was seized at the time of his arrest, but its call directory was not accessed for nearly three hours. The search of the cellphone could not be justified under the search incident doctrine. United States v. Lasalle, 2007 U.S. Dist. LEXIS 34233 (D. Haw. May 9, 2007).

Plaintiff’s § 1983 claim for recovery of records seized during a raid for over sale of psuedophedrine was dismissed because he had a remedy under Rule 41. Fowler v. Lawson, 2007 U.S. Dist. LEXIS 34235 (W.D. Okla. May 9, 2007):

In his response to the instant motion, Plaintiff acknowledges that Rule 41 provides for the return of his records. Viewing the evidence in the light most favorable to Plaintiff and viewing all reasonable inferences in Plaintiff’s favor, as the Court must when addressing a motion for summary judgment, the Court finds that the remedy provided by Rule 41 is a “special factor” counseling hesitation and precluding Plaintiff’s claim based on the retention of his records.

Failure to list firearms seized from a felon in the inventory was not a Fourth Amendment violation that entitled the defendant to suppress the evidence. United States v. Ford, 2007 U.S. Dist. LEXIS 34154 (W.D. Pa. May 9, 2007).

A statement to the accused during search was not interrogation designed to elicit a response [HA!]. United States v. Jackson, 2007 U.S. Dist. LEXIS 34207 (D. Me. May 7, 2007):

At the conclusion of the hearing, during closing arguments, the government conceded that the defendant was not free to leave when he made the offer to try to retrieve the gun or when he told Campbell that the guns were in the refrigerator, but the defendant takes nothing from this because I conclude that neither statement was the result of interrogation. Informing a suspect of the evidence gained to date by law enforcement in the investigation of a particular crime and of the potential charges against the suspect do not constitute interrogation for purposes of Miranda. See Genao, 281 F.3d at 308, 310-11 (showing defendant items seized from his apartment and saying “We’ve got a problem here” not functional equivalent of questioning); United States v. Conley, 156 F.3d 78, 81, 83 (1st Cir. 1998) (recital of evidence by officer and his observations on its strength did not constitute interrogation).