In a 1983 case, plaintiff was prosecuted allegedly without probable cause. There was a state mechanism for determining probable cause for the prosecution, but, here, there were facts available to the police who failed to check into them until after the prosecution was initiated. Whether the investigation was incomplete or the officers were reckless could not yet be determined, and summary judgment was denied. OPW Fueling Components v. Works, 2007 U.S. Dist. LEXIS 34083 (S.D. Ohio May 9, 2007):

The Sixth Circuit has held that “where a state affords an opportunity for an accused to contest probable cause at a preliminary hearing and the accused does so, a finding of probable cause by the examining magistrate or state judge should foreclose relitigation of that finding in a subsequent § 1983 action.” Coogan v. City of Wixom, 820 F.2d 170, 174-75 (6th Cir. 1987), overruled on other grounds by Frantz v. Village of Bradford, 245 F.3d 869, 874 (6th Cir. 2001). Only where there is evidence of false statements or misrepresentations by law enforcement officials during the criminal proceeding does the finding of probable cause in a preliminary state criminal hearing lose its preclusive effect. See Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir. 2002); Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001). Here, Works and the Estes do not argue that they were unable to contest probable cause at a preliminary hearing. Instead, the[y] allege that Jones and Rogers knew or should have known that the charges against them were false, lacked probable cause, or were reckless in that regard.

At the preliminary hearing, Jones testified that he was not aware of anyone giving Works permission to [] remove the nozzles on April 15, 2005–the date Works was videotaped. However, Jones stated that he later learned that Works had been given permission to remove some materials in August of 2005. It is not clear from the state court record whether these statements by Jones were false or misleading or merely indicate a[n] incomplete investigation on behalf of Jones and Rogers. At this stage of the proceedings, based upon these statements, in combination with the allegations contained in the Amended Counterclaim and Third Party Complaint, the Court must find that Works and the Estes have properly alleged a lack of probable cause. As a result, the Court DENIES Jones and Rogers Motion to Dismiss Works and the Estes’ claim for malicious prosecution under section 1983.

In a convoluted civil case involving a Heck defense, the plaintiffs contended that the state investigators withheld information of wiretaps from them until after they were released from prison. Following circuit precedent, the court held the claims barred by Heck. Whitaker v. Garcetti, 2007 U.S. App. LEXIS 11012 (9th Cir. May 10, 2007):

Plaintiffs also argue for a “belated discovery” exception to Heck for individuals who, because of a defendant’s actions, do not discover a constitutional violation until after their confinement ends. They argue that Plaintiffs were “kept in the dark by the Defendants and the only way they have been kept from seeking relief during their confinement was due to Defendants’ successful concealment.” We need not reach this question. Assuming without deciding that such an exception should exist, no Plaintiff would qualify for it. Contrary to Plaintiffs’ flat assertion, the Portillo Plaintiffs knew about the handoff procedure less than eight months after they pleaded guilty, while each either was in jail or on parole, and Gaxiola and Gastelum knew about the handoff before they pleaded guilty. Indeed, when Plaintiffs filed their first complaint in 1999, all Plaintiffs (with the exception of Whitaker, who was not convicted of any crime) remained in prison or on parole.

At oral argument, Plaintiffs asserted for the first time that the judicial deception claim is sufficiently attenuated from the evidence to avoid the bar of Heck. This new argument runs counter to Plaintiffs’ theory throughout this case–that an unbroken chain linked the improper, undisclosed wiretaps to the surveillance and the evidence used against Plaintiffs at trial. It is too late for Plaintiffs to change theories now. See Smith, 194 F.3d at 1052 (“[O]n appeal, arguments not raised by a party in its opening brief are deemed waived.”); Monetary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir. 1995) (“As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances.” (internal quotation marks omitted)).

In short, we hold that Heck bars Portillo, Avalos, Martinez, Delgado, Carrizoza, Gaxiola, and Gastelum from bringing suit for declaratory relief or damages on their judicial deception and handoff claims.

Consent was obtained from a motorist for a search as found by his answers and hand gestures. The fact consent was sought while the officer was holding defendant’s driver’s license was not determinative. United States v. Burnett, 2007 U.S. Dist. LEXIS 33894 (E.D. Ark. May 7, 2007):

Burnett argues that the search was not consensual because when Coleman asked him if he could search the vehicle, Coleman was holding his driver’s license and he was not free to terminate the encounter. However, consent is not the product of coercion merely because the officer requesting consent has not finished his investigation of the driver’s license or returned the license. See United States v. Siwek, 453 F.3d 1079, 1084 (8th Cir. 2006) (citing United States v. Fuller, 374 F.3d 617, 622 (8th Cir. 2004)). Furthermore, an officer is not required to inform a subject that he is free to leave and refuse a search before consent to search may be deemed voluntary. Id.

A traffic stop can be based on reasonable suspicion, not just probable cause, and any ulterior motive is irrelevant.

Kennedy’s argument I should apply a probable cause standard to the traffic stop is unavailing. The Terry reasonable suspicion standard applies to routine traffic stops. U.S. v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006). A police officer has the initial burden of providing the “specific, articulable facts” to justify a reasonable suspicion to believe that an individual has violated the traffic laws. Id. (internal citations omitted). When I consider the traffic stop, I find Cpl. Neuhaus credibly articulated the tinted windows gave him reason to make the Feb. 21, 2006, traffic stop. An officer’s ulterior motive for making a stop is irrelevant. Whren v. United States, 517 U.S. 806, 813 (1996). Reason to believe a traffic violation occurred makes the stop and search legal regardless of the officer’s subjective intent. Ohio v. Robinette, 519 U.S. 33, 38 (1996) (holding motive of officer irrelevant).

Police responded to a domestic call, and defendant’s girlfriend met the police outside and told them that he choked her and she wanted to go in, get her stuff, and leave. The three went in, and saw the defendant sitting on a couch fidgeting. He stood up and tried to walk away, but the officers were concerned about their own safety so they patted him down, finding nothing, so they searched the couch where he was sitting and found a gun. United States v. Humphrey, 2007 U.S. Dist. LEXIS 33197 (W.D. Tenn. May 4, 2007).*

Defendant was not entitled to summary judgment in his false arrest case. “In this case, if the finder of fact were to credit Parker’s version of the events, it could conclude that Stanhope lacked probable cause to believe the Plaintiff posed a threat of serious physical harm, either to the officer or to others and that no warning, if feasible, was given. Consequently, summary judgment is not warranted.” Parker v. Henderson County, 2007 U.S. Dist. LEXIS 33233 (W.D. Tenn. May 4, 2007).*

Questions to the defendant after a traffic stop were not unreasonable. United States v. Toranzo, 2007 U.S. Dist. LEXIS 33309 (N.D. Ind. May 4, 2007)*:

Moreover, contrary to Defendant’s contention, Commander Martinez’s questions were not “commanding and very loaded” thereby detaining the Defendant. In fact, the Supreme Court upheld a similar line of questioning in Robinette. …

After the ticketing was complete, Commander Martinez was free to ask Defendant any questions without probable cause or reasonable suspicion just as he could with anyone on the street or in a public place. …

Leave it to the newspapers to be a source. In today’s local paper is mention of a really interesting and excellent law review article: Ned Snow, A Copyright Conundrum: Protecting Email Privacy, 55 Kan. L. Rev. 101 (2007), which can be opened or downloaded here. The Abstract follows:

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the “forward” button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.

The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright’s protection of privacy. Email forwarding must yield to privacy protection.

Would the courts find an expectation of privacy that society would recognize as reasonable in e-mail once sent? As the White House is about to find out, “e-mail is forever.” Copyright maybe; under traditional Fourth Amendment doctrine, no because, by sending an e-mail, like mailing a letter, once it is out there, it is fair game.

But, that is the point of the article: E-mail actually inhibits free and frank discussion because of fear of forwarding. What I hate are people that shoot off e-mails without thinking about them, or looking at the recipient (as they respond to an entire list serv with something confidential). Written letters give you time to think, reflect, and change your mind. An e-mail can go around the world in a matter of a second or two. A forwarded e-mail in minutes or hours, and you have no control.

Remember e-mail etiquitte:

23. Do not use email to discuss confidential information.

Sending an email is like sending a postcard. If you don’t want your email to be displayed on a bulletin board, don’t send it. Moreover, never make any libelous, sexist or racially discriminating comments in emails, even if they are meant to be a joke.

. . .

28. Don’t send or forward emails containing libelous, defamatory, offensive, racist or obscene remarks.

By sending or even just forwarding one libelous, or offensive remark in an email, you and your company can face court cases resulting in multi-million dollar penalties.

In New Hampshire, a man was charged with wiretapping for audiotaping his own arrest when he was stopped. Boston Globe, Dover man charged with taping his DWI arrest (May 7, 2007).

So, let me get this straight: The police can surreptitiously record us, videotape from cars, place suspects in a police car with a recorder, hoping that they will talk to each other and incriminate themselves, videotape the same stop that this motorist recorded, but the motorist can’t? What possible expectation of privacy does the police officer have in the police-citizen encounter? The same one that makes him figure that he can lie about the facts of a stop and the judge will always buy the story?

Evidence of drug trafficking is likely to be found where a drug suspect resides, sufficient for probable cause for a search warrant. Here, however, there was insufficient evidence. The good faith exception, however, saves it because the affidavit was not bare bones. United States v. Davis, 2006 U.S. Dist. LEXIS 95532 (E.D. Mich. November 9, 2006):

Even if the affidavit contained more specific information regarding defendant’s activities, it lacks sufficient information to create a nexus between those activities and 18196 Goldwin Street. As indicated in the affidavit, DEA-2 informed Agent Dosch that defendant lived on Goldwin Street in Southfield, Michigan, and that defendant drove a Corvette, a Dodge Charger, and a Chevrolet pickup. Agent Dosch stated that he and other agents conducted surveillance and observed vehicles matching the description provided by DEA-2 at 18196 Goldwin at “various times” over the course of “the past several weeks.” It does not identify those vehicles as belonging to defendant. A search of property records revealed that the title owner of the property was an individual named Bridget Huddleston. Another informant, DEA-3, informed Agent Dosch that defendant’s girlfriend was named Bridget, that she had no known source of legitimate income, and that defendant had provided the funds used to purchase the house.

In the court’s view, these facts fall short of constituting verification that defendant actually resided at 18196 Goldwin Street at time the warrant was issued. The basis of DEA-3’s knowledge regarding defendant’s connection to the property is not set forth in the affidavit and, in any event, the fact that he might have furnished the funds for the purchase of the home at some unspecified time does not mean that defendant resided there when the warrant was issued. Only DEA-2 specifically stated that 18196 Goldwin Street was defendant’s residence, and the affidavit lacks any information regarding the basis of DEA-2’s knowledge. Further, no time frame is given for the information provided by DEA-2. The affidavit merely states that “[r]ecently, DEA-2 advised your affiant that [defendant] lived on Goldwin Street in Southfield, Michigan.” n2 Moreover, DEA-2’s tip regarding defendant’s residence was corroborated only to the slightest degree. Agents conducted surveillance at 18196 Goldwin Street, but no agent appears to have personally observed defendant at the Goldwin Street address. Rather, they merely observed vehicles defendant purportedly drove parked at 18196 Goldwin Street. In addition, Agent Dosch provided no specific information as to when this surveillance occurred, stating only that the vehicles were observed “at various times” over the course of “the past several weeks.” In sum, the affidavit lacks information showing that defendant actually resided at 18196 Goldwin Street at the time the warrant was issued.

For the reasons discussed above, the court concludes that the affidavit fails to establish probable cause to search 18196 Goldwin. It contains only vague references to defendant’s drug trafficking activities, it lacks specific information indicating that defendant was actively engaged in drug trafficking activities at or near the time the warrant was issued, and it lacks sufficient averments to establish that defendant actually resided at 18196 Goldwin at that time. The court finds that it lacks both “verified allegations of drug trafficking” and “verification that said defendant lives at a particular residence,” and is thus insufficient under the rule stated in Goward to give rise to probable cause to search the Goldwin Street address in the absence of evidence indicating that any illegal activity had occurred there. Goward, 2006 WL 1952282, at *3.

. . .

Agent Dosch’s affidavit cannot be deemed a bare bones affidavit. . . .

. . .

For the reasons discussed above, the court concludes that the warrant was invalid, but that the agents’ reliance thereon in conducting a search of 18196 Goldwin Street was objectively reasonable. As set forth in the affidavit, the agents conducted an extensive investigation, obtained information from reliable confidential informants that defendant was a long-time participant in a large scale drug trafficking operation, obtained information tying defendant to the Goldwin Street address, and partially corroborated the information provided by the informants. The affidavit, while lacking in the type of specific, corroborated information that might ordinarily be desired, is not “so lacking in indicia of probable cause” as to preclude application of the Leon good faith exception.

There is no due process claim in malicious prosecution. Castro v. Negron, 475 F. Supp. 2d 147 (D. P.R. 2007):

It is now clearly established that claims for malicious prosecution cannot serve as grounds for Due Process violations either in the procedural due process or substantive due process modes. Nieves v. McSweeney, 242 F.3d 46, 53 (1st Cir. 2001); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996). In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), a plurality of the Supreme Court ruled that no substantive due process violation is available for criminal prosecutions instituted without probable cause. Further, because there is an adequate remedy at law available in Puerto Rico to indemnify victims of malicious prosecution there is no viable procedural due process claim either. See, Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994)(“availability of an adequate remedy for malicious prosecution under commonwealth law … is fatal to appellants’ procedural due process claim.”).

Two sentence point in a suppression motion making a Franks challenge was insufficient to even get a hearing on the issue because there was “no substantial preliminary showing.” United States v. Carlisle, 2007 U.S. Dist. LEXIS 14552 (N.D. Ind. February 28, 2007):

The Defendant’s argument on this point is a mere two sentences long and reads “The Judge issuing the Search Warrant had nothing before him except the bare facts set forth in the Affidavit presented to him by the law enforcement officer. The law enforcement officer failed to address the reliability of the informant, as well as information provided by the Confidential Informant, that being CI 515.” (Dfdt’s Br. at 7).

The problem with Defendant’s argument is that even assuming all the above is correct, it does not get the Defendant past the first hurdle in the Franks analysis, that is a preliminary showing that the affidavit contained erroneous information or omitted information material to the probable cause determination. Amerson, 185 F.3d at 687. Rather, Defendant’s argument is not that the affidavit was incorrect or that Lt. Barile’s affidavit contains untruths, but is, in essence, a complaint that the affidavit could not support probable cause because it didn’t contain more information, namely, more information regarding the reliability of the informant.

Handcuffing was reasonable under the circumstances, and this handcuffing does not rise to the level of excessive force. Kim v. Barnes, 2007 U.S. Dist. LEXIS 14575 (S.D. Ind. February 28, 2007).*

Encounter between plaintiff and police officer was objectively consensual, so summary judgment granted for the defense. Greer v. City of Duluth, 2007 U.S. Dist. LEXIS 14601 (D. Minn. January 31, 2007).*

“The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets ….”
— Anatole France, “The Red Lilly,” 1894

In a civil case filed by the homeless persons of the City of Fresno by the ACLU, the E.D. Cal. held after a four day hearing that they were entitled to an injunction against the city’s gathering up all their property and destroying it. Kincaid v. City of Fresno, 2006 U.S. Dist. LEXIS 93464 (E.D. Cal. December 8, 2006):

C. Likelihood Of Success On The Merits Unlawful Seizure.

6. The Fourth Amendment to the United States Constitution protects against unreasonable seizures and searches. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). Similarly, Article I, Section 13 of the California Constitution provides in part that “[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated ….,” a provision that provides at least as much protection as does the Fourth Amendment. See People v. Brisendine, 13 Cal.3d 528, 548-52 (1975), abrogated on other grounds as discussed in In re Lance W., 37 Cal.3d 873, 879 (1985).

7. A seizure for Fourth Amendment purposes occurs when there is some meaningful interference with an individual’s possessory interest in property. Soldal v. Cook County, Ill., 506 U.S. 56, 63 (1992). An officer who comes across an individual’s property in a public area may seize it only if Fourth Amendment standards are satisfied–for example, if the items are evidence of a crime or are contraband. Id. at 68.

8. As the Ninth Circuit recently further explained:

Reasonableness is the touchstone of any seizure under the Fourth Amendment. Thus, to comply with the Fourth Amendment, the seizure … must have been reasonable under the circumstances. We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer’s duties. A seizure becomes unlawful when it is “more intrusive than necessary.” To determine whether the [given seizure] was reasonable, we balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.

San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005).

9. The City’s policy and practice in dealing with the homeless, as implemented, effects seizures of homeless individuals’ property. The interference with Plaintiffs’ possessory interests is more than just “meaningful;” it is total and irrevocable, since the City seizes and then immediately destroys all of the property that it seizes in its sweeps. Id. at 975 (“[t]he destruction of property by State officials poses as much of a threat, if not more, to people’s right to be ‘secure in their effects’ as does the physical taking of them.”).

10. Such seizures, which result in the irrevocable destruction of homeless persons’ property, are also “more intrusive than necessary” and therefore unlawful. Id. The City conducts its seizures in a highly intrusive manner, by immediately destroying the property and thus permanently depriving the homeless owners of their property. The City makes no effort to separate and or store for later retrieval items that are clearly owned and are valuable, not trash. Rather, the City’s policy is to immediately seize and destroy all property in the area of the sweeps, without regard to the nature or value of the property.

11. The City’s sweeps are not confined to seizure and destruction of property that is evidence of a crime or contraband, or that presents immediate threats to public health or safety. Even when homeless people inform City workers that they have been granted permission to keep their belongings where they are, the City seizes and destroys the property regardless. This policy and practice of seizure and destruction without just cause violates the Fourth Amendment and the concomitant protections against unlawful seizure found in the California Constitution.

12. The City has attempted to justify its policies and practices by its rule that the property of the homeless that it seizes and destroys is “abandoned” and is therefore “trash.” The City’s “rule,” developed by Specialist Wallace and adopted by the City Police Department Sanitation Department, and City Manager, is that if a homeless person is not literally beside his or her property laying claim to it during a sweep, then the City deems that property to be abandoned, making the property “trash,” which is then destroyed. There is no legal justification for this rule which is demeaning as it places no value on the homeless’ property and is not honest because the “rule” purports to transmogrify obviously valuable property into trash.

13. In California, as under the common law, an item is the property of its owner unless the owner intentionally and voluntarily abandons it because “she simply no longer desires to possess the thing being abandoned.” 1 Cal.Jur.3d Lost and Escheated Property, Sec. 2; See Katsaris v. United States, 684 F.2d 758, 761-62 (11th Cir. 1982). Here, the evidence demonstrates that Plaintiffs did not intend to abandon their tents, carts, clothing, bicycles, personal effects, memorabilia, and other property that they need to survive, and no reasonable official could believe this to be the case. Nor can the City treat property as abandoned and trash just because the owner has not removed it in the time the government has allotted. A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998).

14. The City’s purported desire for clean and safe streets does not make its conduct lawful. Protection of the public does not require the wholesale seizure and immediate destruction of all Plaintiffs’ possessions and in any event “is outweighed by the more immediate interests of the plaintiffs in not having their personal belongings destroyed.” Pottinger v. City of Miami, 810 F.Supp. 1551, 1573 (S.D. Fla. 1992).

15. The City’s seizure of homeless people’s personal property without probable cause and the immediate and permanent destruction of such property without a method to reclaim or to assert the owner’s right, title, and interest to recover such personal property violates the Fourth Amendment to the United States Constitution and Art. I, § 13 of the California Constitution.

Rule 41 did not govern a state search where the federal participation prior to warrant execution was minimal and not for the benefit of the federal government. United States v. Slater, 209 Fed. Appx. 489 (6th Cir. 2006) (unpublished) (argued as plain error):

We have held that “[w]hile it is important not to stifle cooperation between federal and state officers, we think it clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct.” Searp, 586 F.2d at 1121. However, “[m]ere federal involvement is not enough; there must be significant involvement prior to the search.” United States v. Hunter, 4 F. App’x 295, 301 (6th Cir. Feb. 9, 2001); see also Searp, 586 F.2d at 1119-21. In Searp, for example, the investigation was a “joint undertaking between the Kentucky police and the FBI from the beginning,” they initiated the investigation together, an FBI agent swore out the affidavit supporting the search warrant in question, there were five FBI agents present at the search, and a federal officer directed the search. Searp, 586 F.2d at 1121. On the other hand, in cases where only a single federal agent consulted on an investigation, did not participate in the process of obtaining a search warrant, and a decision to pursue federal charges was not made prior to the search, we have held that the requirements of Rule 41 do not govern the search. See, e.g., United States v. Alcorn, 9 F. App’x 426, 431 (6th Cir. May 16, 2001); Hunter, 4 F. App’x at 301.

The only evidence Slater presents that federal officers were substantially involved in the investigation is the testimony of ATF Agent Malone at the detention hearing held pursuant to 18 U.S.C. § 3142(f)(2). Slater’s main evidence is that when asked on cross-examination: “When did the case officially come from [sic] a state case into a federal case?”, Malone replied: “When I was contacted by the special investigations unit that they had learned through informants that Mr. Slater was distributing significant quantities of narcotics.” JA 125. Neither the question nor Malone’s reply demonstrates that all parties involved, both state officers and federal agents, considered that the investigation had become a federal investigation and stopped being a state investigation, nor is Malone’s answer on cross-examination binding on this court. In fact, Malone’s further testimony that he did not become the case agent, that Detective Floyd remained the case agent, that Floyd obtained the warrant, and that Malone’s involvement in the investigation was limited all indicate that the state officers still considered it to be a state investigation at the time. Malone’s answer to an ambiguous question may merely have indicated that it was at that time that the federal government began considering a concurrent federal investigation and/or federal prosecution. Based solely on this evidence, we cannot find that federal officers were so involved in the state investigation as to mandate that any warrant be obtained pursuant to federal standards. See Alcorn, 9 F. App’x at 431; Hunter, 4 F. App’x at 301.

A plaintiff prosecuted for a 20 year old child sex abuse allegation who was convicted at trial, affirmed on appeal, and released on federal habeas without retrial, stated a sufficient complaint to at least require the defendants to have to file a responsive pleading. Weimer v. County of Kern, 2006 U.S. Dist. LEXIS 93539 (E.D. Cal. December 22, 2006).*

The officer had reasonable suspicion during the stop from the defendant passenger’s excessive nervousness and his efforts to keep the officer from talking to the driver, his wife. After the officer got her out of the car and talked to her, reasonable suspicion had come together, and consent was sought and refused. Then a drug dog was brought out to sniff the car. The refusal to consent was not a factor in the use of the dog because of the existence of reasonable suspicion. United States v. Jones, 2006 U.S. Dist. LEXIS 88040 (M.D. Tenn. December 5, 2006).

The exclusionary rule does not apply to probation revocation proceedings. United States v. Pittman, 209 Fed. Appx. 725 (9th Cir. 2006)* (unpublished), following United States v. Hebert, 201 F.3d 1103 (9th Cir. 2000).

Confidential informant’s statement satisfied NY’s Aguilar-Spinelli rule. People v Collins, 2006 NY Slip Op 9061, 2006 N.Y. App. Div. LEXIS 14462 (3d Dept. December 7, 2006):

Judging the warrant, as we must, under the two-pronged Aguilar-Spinelli test …, we conclude that the application was sufficient to demonstrate the reliability of the source of the information and the basis of at least one of the confidential informant’s knowledge …. The information provided by the third informant, in affidavit form, was against such informant’s penal interest … and was both thorough and specific concerning defendant’s drug operations at the location sought to be searched …. The identification of defendant as being involved in drug-related activities was also consistent with not only the information provided by the two other informants but also the objective information acquired by the detective that assembled the warrant application …. (citations omitted)

In a bizarre case of a citizen’s alleged paranoia and impersonating a police officer (which he was acquitted of), he sued various police officers and Assistant State’s Attorneys. There were many claims, but the only one that is of interest here is that mailing him a summons was not a seizure. The officer had no ticket book when he stopped the plaintiff. Tweeton v. Frandrup, 2006 U.S. Dist. LEXIS 90533 (D. Minn. December 12, 2006):

As an initial matter, “the view that an obligation to appear in court to face criminal charges constitutes a Fourth Amendment seizure is not the law.” Nieves v. McSweeney, 241 F.3d 46, 55 (1st Cir. 2001); see also Jefferson v. City of Omaha Police Dep’t, 335 F.3d 804, 806 (8th Cir. 2003) (acknowledging that the Eighth Circuit has not addressed the issue of whether an individual is seized when ordered to appear in court, but noting that “several of our sister circuits have been disinclined to expand fourth-amendment law in” this way). Because court attendance is not a seizure, Tweeton has failed to demonstrate any deprivation of his Fourth Amendment rights.

Stop of bus at permanent immigration checkpoint led to questioning of passenger about her citizenship status, and the immigration officer thought it suspicious how protective the defendant was of her bag [apparently he has never traveled with a computer]. In a quick series of questions taking about ten seconds, she consented to a look into her bag, and a brick of marijuana was seen. The District Court suppressed, but the Fifth Circuit reversed, finding that the stop was of short duration and that it was not unreasonable. United States v. Jaime, 473 F.3d 178 (5th Cir. December 15, 2006):

The second principle thus relied on in Machuca-Barrera is that the permissible duration of a suspicionless stop at a fixed immigration checkpoint includes the time necessary to “request consent to extend the detention.” Id. at 433. Thus, we held:

“The scope of an immigration checkpoint stop is limited to the justifying, programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint. The permissible duration of an immigration checkpoint stop is therefore the time reasonably necessary to determine the citizenship status of the persons stopped. This would include the time necessary to ascertain the number and identity of the occupants of the vehicle, inquire about citizenship status, request identification or other proof of citizenship, and request consent to extend the detention.” Id. (emphasis added; footnotes omitted).

On the basis of the foregoing two principles, we held that Machuca-Barrera’s suspicionless detention at the checkpoint was legal because its duration, up to the time he gave his consent to search, was objectively reasonable, and thereafter the duration of his detention could be lawfully extended without any other justification. We stated:

“… the permissible duration of the stop was the amount of time reasonably necessary for Agent Holt to ask a few questions about immigration status. Agent Holt’s few questions took no more than a couple of minutes; this is within the permissible duration of an immigration checkpoint stop. Although Machuca-Barrera notes that Agent Holt asked a question about drugs, we will not second-guess Agent Holt’s judgment in asking that question. The brief stop by Agent Holt, which determined the citizenship status of the travelers and lasted no more than a couple of minutes before Agent Holt requested and received consent to search, was constitutional.” Id. at 435.

It is clear that Machuca-Barrera dictates the result here. There, the time elapsed between the agents’ initial contact with the defendant until he consented to the request to search his vehicle was “no more than a couple of minutes;” here the comparable time was clearly less than half a minute. During that period of time three things occurred in Machuca-Barrera. First, citizenship and travel plan questions were asked and answered, the answers reflecting United States citizenship, and that is likewise the case here. Second, in Machuca-Barrera, the agents asked questions about carrying drugs and guns, which were answered in the negative, and we declined to “second-guess” the asking of that question or to engage in “inquiry into the subjective purpose of the officer asking the questions.” The next thing that occurred in Machuca-Barrera was that consent to search the car was asked for and given, and we expressly and specifically held that the permissible duration of a suspicionless fixed checkpoint immigration stop included the time reasonably necessary to request consent to extend the detention (and, by necessary implication, to receive the reply to the request) by consenting to search of the vehicle. Here, what immediately followed the citizenship and travel plan questions and answers, was Jaime being asked if the bag was hers, and on her promptly responding that it was, whether she would consent to its search and her affirmative reply. Clearly the question whether the bag was hers was a part of, and a necessary predicate to, asking her consent to search it, and hence should be treated in the same way as the request for and receipt of consent to search was in Machuca-Barrera. But, even wholly apart from that, there is no conceivable justification for holding that the bag ownership question and answer impermissibly extended the duration of the stop here, while the carrying drugs or weapons question and answer in Machuca-Barrera did not.

The Eleventh Circuit held in United States v. Atkinson, 209 Fed. Appx. 957 (11th Cir. 2006)* (unpublished), that a Franks challenge, one of five issues raised, “lack[ed] merit” after oral argument and was not even discussed.

Defendant’s flight from approaching officers was not a seizure under Hodari D. “Assuming that the detectives’ pursuit of Coley was a show of authority, Coley ran and, therefore, did not submit to it.” United States v. Coley, 464 F. Supp. 2d 487 (D. Md. December 13, 2006).*

Officers set up a controlled buy of about 100 kilos of cocaine. They stopped a rented car leaving the defendant’s premises and found the drugs. They kept the property under surveillance and did not seek a search warrant. While waiting, one officer sneaked into the open garage to look around. Then they did a knock and talk and defendant was found to have consented to the entry. The illegal entry into the garage was unknown by the defendant, and it had no bearing on his consent. United States v. Punzo, 208 Fed. Appx. 468 (7th Cir. 2006)* (unpublished).

Reasonable suspicion developed from officers working off duty at an apartment complex trying to curb crime when they passed a vehicle in the lot twice, and they approached on foot after the second sighting. This time the two in the vehicle were slumped down, and, seeing the officers, they reached under the seats as if hiding something or going for a weapon. Valid consent was then given for a search of the apartment for marijuana one admitted he had there. United States v. Brown, 209 Fed. Appx. 450 (5th Cir. 2006)* (unpublished).

District court sustained a search on Terry grounds, but it was really a lack of a reasonable expectation of privacy in a car defendant was ordered out of by the driver, and he left a gun behind, thereby abandoning it. United States v. Whitsett, 2006 U.S. App. LEXIS 30635 (7th Cir. December 12, 2006).*

Defendant was stopped at the permanent border checkpoint on I-25 about 20 miles north of Las Cruces NM. He was exceedingly nervous, and answered virtually every question put to him (at least as the opinion reflects) wrong. An informant had already told the FBI that the truck already had marijuana in it, and it was loaded with more in Las Cruces, and then would head to Chicago. It was thus being followed. At the checkpoint, a dog sniffed the trailer and alerted. A search revealed 1,000 kg of marijuana. Defense counsel filed an Anders brief on the search, and the issue was meritless. United States v. Mendivil, 208 Fed. Appx. 647 (10th Cir. 2006).*

In a forfeiture case, the officer had reasonable suspicion from defendant’s story about attending a funeral and driving a Los Angeles rented car back to Detroit to “enjoy the scenery” whereas the rental agreement said the car was to be left in LA. His demeanor was of extreme nervousness. The officer asked for consent and it was refused, but the use of the drug dog extended the stop two minutes at best. The dog alerted on money. United States v. $49,000.00 in United States Currency, 208 Fed. Appx. 647 (10th Cir. 2006)* (unpublished).

Day care regulators conducted a search of plaintiff’s day care operation which was in her home. This was a search rather than an inspection because plaintiff retained a reasonable expectation of privacy in her home day care center. Summary judgment is denied on this issue and the issue of whether plaintiff consented. Summary judgment was also denied for seizure of records required to be kept because of a factual dispute over whether the defendants claimed they had a court order requiring production. The court finds that day care businesses are pervasively regulated businesses under Washington law, but finds that the inspection statute is flawed under Burger. De La O v. Arnold-Williams, 2006 U.S. Dist. LEXIS 91919 (E.D. Wash. December 20, 2006).

Officers had probable cause to arrest defendant for bank robbery based on a 911 call describing the getaway car with the license number and the license number was traced to a rental agency which rented to the defendant earlier in the day. When the car was stopped, he matched the description of the bank robber, and his story about how he got the car at the airport was inconsisent. His consent and statement thereafter were valid. United States v. Street, 472 F.3d 1298 (11th Cir. December 20, 2006).*

Wal-Mart-type meth materials purchase led a civilian to call the police and describe the vehicle and the driver. Officers were tipped off to the vehicle, and it was seen, clocked on radar, and stopped for speeding (73 in a 70). The stop was valid, despite the mixed motive and the officer’s testimony that he would have stopped the vehicle even if it was not speeding. The defendant conceded that everything after that was legal. United States v. King, 209 Fed. Appx. 760 (10th Cir. 2006)* (unpublished).

Habeas petitioner at least gets a hearing on his IAC claim about the suppression hearing, at least because the entire transcript of the hearing is unavailable to the habeas court. Bray v. Cason, 2006 U.S. Dist. LEXIS 91899 (E.D. Mich. December 20, 2006):

Although Fourth Amendment claims are not cognizable on habeas review, Stone v. Powell, 428 U.S. 465 (1976), “federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying error.” Kimmelman v. Morrison, 477 U.S. 365, 383 (1986). An evidentiary hearing may assist the Court in discerning what occurred at the suppression hearing and whether Petitioner’s claims about Mr. Fishman have any merit. The Court therefore reserves judgment on habeas claim VII. Petitioner may raise that claim at the evidentiary hearing.

The officer preparing a search warrant had a computer problem in trying to create a search warrant for defendant’s premises. He took a previously issued warrant from another case and changed information in it, but he left the previous name in there. The court refused to suppress finding the mistake reasonable, and there was no problem of the wrong place being searched. United States v. Sirmans, 2006 U.S. Dist. LEXIS 82652 (D. Del. November 14, 2006):

The Fourth Amendment mandates that an issued warrant specifically describe the person or things to be searched and seized. United States v. Doe, 703 F.2d 745 (3d Cir. 1983). “Fed. R. Crim. P. 4(c)(1) provides that a warrant ‘shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be described with reasonable certainty,’ and this Rule has been read as a gloss on the fourth amendment.” Id. at 747. (citation omitted). The warrant must contain either on its face or by attachment a particular description of what is to be seized. Bartholomew v. Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000). The “requirement of particularity has been described as a question of practical rather than technical accuracy.” United States v. Dollson, 2004 U.S. Dist. LEXIS 22478, 2004 WL 2577551 at *3 (E.D. Pa. Oct. 24, 2004). To that end, clerical errors will not automatically render a warrant defective. United States v. Carter, 756 F.2d 310, 313 (3d Cir. 1995). The crucial issue is “whether there has been such a variance as to ‘affect the substantial rights’ of the accused.” Id., citing Cromer v. United States, 78 U.S. App. D.C. 400, 142 F.2d 697 (D.C. Cir. 1944)).

The court finds Herron’s uncontradicted testimony credible and his explanation for the mistake reasonable. Considering the affidavit in conjunction with the warrant, it is evident that Herron was referencing defendant and that the inclusion of Henderson’s information was an inadvertent error that does not impinge defendant’s substantive rights.

Alien detained in international waters far from the United States who was in possession of 9200 kgs of cocaine on a ship was not denied any Fourth Amendment rights by there being no prompt determination of probable cause before he was brought to the U.S. for trial. As an alien outside the U.S., the Fourth Amendment did not apply to him under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The search on the ship took five days. United States v. Zakharov, 468 F.3d 1171 (9th Cir. November 15, 2006) (this case was under submission for two years).

Reasonable suspicion of drug trafficking was clearly present for detaining defendant to bring in a drug dog. Also, officer was not obliged to seek a telephonic warrant for use of the dog and then search of the car. United States v. Mendoza, 468 F.3d 1256 (10th Cir. November 15, 2006).

Defendant was a mere visitor whose connection to the premises did not rise to the level of a guest under Olson. United States v. Wineinger, 208 Fed. Appx. 286 (5th Cir. 2006)* (unpublished).

Oregon holds that a search warrant that mistakenly only authorized a search but did not mention a seizure did not prevent a seizure, at least under plain view doctrine, because the police were lawfully inside the premises. State v. Carter, 342 Ore. 39 (November 24, 2006), aff’g in part 200 Ore. App. 262, 113 P.3d 969 (2005):

The history confirms what the text of Article I, section 9, and this court’s cases construing it demonstrate. The purpose of the particularity requirement was to prevent the use of general warrants — to ensure that a warrant described with particularity the person to be seized, the place to be searched, or the thing to be seized. Nothing in that history suggests that the framers intended to require that every warrant authorize both a search and a seizure, as defendant argues. Considering the text of Article I, section 9, this court’s cases construing that provision, and its history, we conclude that a warrant that authorizes only a search or only a seizure is facially valid under Article I, section 9.

Defendant raises a second argument. He contends that, unless a warrant authorizes a seizure as well as a search, it will be an impermissible general warrant. The question, however, whether a warrant authorizes both a search and a seizure has nothing to do with the question whether it is a general warrant. A warrant that authorized both a search and a seizure could do so in the most general terms and thus could run afoul of the particularity requirement. See Reid, 319 Ore. at 69-70 (describing vice of general warrants); Joseph Story, 3 Commentaries on the Constitution of the United States 748-50 (1833) (same). Conversely, a warrant that authorized only a search or only a seizure may be sufficiently particular — a proposition that the warrant in this case illustrates. The warrant in this case authorized the officers to search only for specific types of evidence in defendant’s home. It thus limited the areas in which they could search and avoided the vice inherent in general warrants.

The Court of Appeals correctly held that the warrant at issue here was facially valid. Given the state’s concession that the warrant does not authorize a seizure as well as a search, the Court of Appeals permissibly remanded the case to the trial court to determine whether the officers could seize the evidence (that they did seize) under the plain view doctrine. In the context of this case, that doctrine permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime. See State v. Sargent, 323 Ore. 455, 463 n 5, 918 P.2d 819 (1996) (evidence of a crime in plain view); State v. Lippert, 317 Ore. 397, 403, 856 P.2d 634 (1993) (contraband in plain view).

Affidavit for search warrant was supported by probable cause, which is a “fair probability” that evidence would be found. Also, the officers corroborated the informant’s information. In any event, the good faith exception would also apply. United States v. Amaya, 2006 U.S. App. LEXIS 29109 (10th Cir. November 22, 2006)* (unpublished).

A bank robber had no reasonable expectation of privacy in his bank records or car rental records from production at trial. “‘[A]n individual has no claim under the fourth amendment to resist the production of business records held by a third party.’ In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988). In short, Grimmette had no Fourth Amendment right of privacy in these records kept and maintained by Wachovia Bank and Accent Car Rental.” United States v. Grimmette, 208 Fed. Appx. 709 (11th Cir. 2006)* (unpublished).

Excessive nervousness, rambling conversation, and masking odor all added up to reasonable suspicion. United States v. Powell, 2006 U.S. Dist. LEXIS 85018 (D. Kan. November 21, 2006).*

Today’s AJC article on the Atlanta SWAT shooting is here. It adds nothing new.

Defendant was stopped for not having a seatbelt on. By the time the officer made a U-turn and stopped him, he was parked in front of his house. Defendant did not have proof of insurance, and a warrants check produced a warrant. The officer impounded the car and conducted an inventory that produced a gun. The community caretaking function did not justify the search. People v. Williams, 145 Cal. App. 4th 756, 52 Cal. Rptr. 3d 162 (2d Dist. December 13, 2006):

No community caretaking function was served by impounding appellant’s car. The car was legally parked at the curb in front of appellant’s home. The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if Morton had not stopped and arrested appellant as he returned home. In this regard, it is significant that other cars were parked on the street and that it was a residential area. The prosecution made no showing that the car was blocking a driveway or crosswalk, or that it posed a hazard or impediment to other traffic. Because appellant had a valid driver’s license and the car was properly registered, it was not necessary to impound it to prevent immediate and continued unlawful operation. (Cf. People v. Benites (1992) 9 Cal.App.4th 309 [impoundment proper where neither driver nor passenger had valid driver’s license]; People v. Burch (1986) 188 Cal. App. 3d 172, 232 Cal. Rptr. 502 [impoundment proper where car’s registration tag was expired and driver’s license was suspended].) No other justification that would further a community caretaking function was offered or supported by evidence. Indeed, Morton admitted he decided to impound the car simply because he was arresting appellant and almost always impounded the cars of drivers he arrested. The prosecution simply did not establish that impounding appellant’s car served any community caretaking function. It therefore failed to establish the constitutional reasonableness of the seizure and subsequent inventory search.

Traffic stop for running a stop sign that did not exist led to officer searching a backpack on the passenger side of the car at defendant’s feet without consent. The trial court suppressed, the state court of appeals affirmed, and the state sought leave to appeal to the state supreme court which remanded for a standing inquiry. On remand, the Michican Court of Appeals said that standing was irrelevant because the search could not be justified by any rationale offered by the state. People v. Labelle, 273 Mich. App. 214, 729 N.W.2d 525 (2006):

Turning to the second argument first, we are not persuaded that the search incident to arrest doctrine is applicable to this case. Michigan courts have held that the search incident to arrest exception to the warrant requirement “applies whenever there is probable cause to arrest, even if an arrest is not made at the time the search is actually conducted.” But none of these cases involved traffic stops and the United States Supreme Court has made it clear that the search incident to arrest doctrine does not apply to a traffic stop which does not result in arrest, even if the officer would have been justified in making an arrest.

In Knowles, the officer stopped the defendant for speeding. Although Iowa law authorized the officer to arrest the defendant, the officer issued a citation instead. The officer then conducted a full search of the vehicle, discovering a bag of marijuana and a “pot pipe” under the driver’s seat, resulting in the defendant’s arrest. The defendant challenged the search, with the prosecution relying on the search incident to arrest doctrine. The Iowa Supreme Court ruled in favor of the prosecution, concluding that a “full-blown search” is authorized where probable cause to make a custodial arrest existed, even though no such arrest was made.

In rejecting the argument that a search incident to arrest is justifiable in such circumstances, the Court noted that neither of the two rationales for such searches applies in the traffic stop scenario which does not result in a full custodial arrest. The first rationale is the need to disarm a suspect when taking him into custody. The Court noted that the concern for officer safety is significantly less in the traffic citation situation because the encounter is briefer (because the suspect is not being transported to jail) and a person receiving a citation might well be less hostile to the police than one who is formally arrested. The Court was satisfied that the actions that police may take for their safety during a traffic stop, such as ordering the occupants out of the vehicle, were adequate without the need for a full-blown search of the vehicle.

The second rationale behind the search incident to arrest doctrine is the need to preserve evidence for later use at trial. The Court found no basis under this rationale because a search of the vehicle would not yield any additional evidence of the offense for which the citation was issued, namely speeding. The Court further rejected the argument that the search could be justified because it might yield evidence of an “as yet undetected crime.”

Exigent circumstances that the defendant might be destroying evidence were not shown to justify a warrantless entry. Inevitable discovery also does not apply. United States v. Isais-Cabrera, 2007 U.S. Dist. LEXIS 8507 (N.D. Cal. January 19, 2007):

The government must also satisfy the exigent circumstances requirement. Exigent circumstances requires that there be some indication, based on the totality of the circumstances, that evidence would be destroyed or the suspect would flee. United States v. Salvador, 740 F.2d 752 (9th Cir 1984). Furthermore, the government bears the burden of demonstrating a risk of destruction with particularity. United States v. Reid, 226 F.3d 1020, 1028 (9th Cir. 2000). “Mere speculation regarding the presence of drugs on a premises and the danger of their destruction is not sufficient to show exigent circumstances.” United States v. Tarazon, 989 F.2d 1045, 1049 (9th Cir. 1993). Contrary to the government’s contention, there were no exigent circumstances here. There is simply no evidence of any sort indicating that Aguayo was destroying evidence at the time the police entered Apartment No. 2. The government argues that the police officers had a reasonable belief that Aguyao might destroy evidence based on his likely awareness of Borrego’s search and arrest in Apartment No. 5, but this type of speculation does not satisfy the requirement of a particularized evidence necessary to support a reasonable belief. Nor has the government provided sufficient evidence for its contention that the warrantless entry was necessary to protect the police officers. It has provided nothing beyond the blanket assertion that it is “obvious and reasonable” for the police to conclude that Aguayo might harm the officers if he had learned of Borrego’s search and arrest. Gov’t Resp. at 8. The general observation that guns and drug trafficking are often interrelated does not support the government’s argument. The government’s claim that the conduct of the officers after entering the apartment supports their view of this as an emergency is not compelling. Id. The officers had sufficient time between the search of Apartment No. 5 and the entry into Apartment No. 2 to obtain a telephone warrant. In fact, they appear to have taken their time rather than acting as if exigent circumstances existed. The court concludes that the government has failed to carry its “heavy burden” of showing “particularized evidence” that the agents reasonably believed that the defendant presented a substantial risk of flight at the time of the arrest or was destroying evidence. Reid, 226 F.3d at 1028.

Defendant was on parole with a parole search condition, and he showed up at the parole office asking for his monitoring device to be removed. Parole officers then went out to search his car and found a gun shop bumper sticker and during the search found three pipe bombs and proof he traveled. The search was valid. United States v. Henry, 472 F. Supp. 2d 649 (E.D. Pa. 2007).*

§ 1983 case failed because officers collectively had probable cause to arrest the defendant. Deberry v. Village of Matteson, 2007 U.S. Dist. LEXIS 8709 (N.D. Ill. February 1, 2007).*

Class action status denied without prejudice in strip search claim because numerosity could not be met. Foster v. City of Oakland, 2007 U.S. Dist. LEXIS 8522 (N.D. Cal. January 29, 2007):

While there is no specific numerical requirement in the text of Rule 23, courts have repeatedly held that classes of less than twenty members do not satisfy the numerosity requirement. See, e.g., General Tel. Co. of the Northwest, Inc. v. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 64 L. Ed. 2d 319 & n.14 (1980) (citing, with approval, cases in which numerosity was not met with as many as forty class members); Harik v. Cal. Teacher’s Ass’n, 326 F.3d 1042, 1052 (9th Cir. 2003) (vacating certification of classes with less than ten members). Plaintiffs have produced no evidence that the size of the potential class is larger than fifteen members. The text of Rule 23(a)(1) instructs the court to certify a class only where joinder of all of the potential plaintiffs would be impracticable. In this case, joinder seems viable: all potential plaintiffs are in the same geographic area, and the small number of potential class members suggests that doing so would not be unduly burdensome. Accordingly, the court finds that plaintiffs have not satisfied the numerosity requirement at this time.

Police had probable cause to arrest the juvenile for disorderly conduct for fighting on a school bus and remaining combative when taken to the school cafeteria to sort it out, and a small quantity of marijuana was found on him. In Interest of R.P., 2007 PA Super 37, 918 A.2d 115 (2007).*

Defendants were in custody when questioned in their house, separated and in a state of undress. United States v. Daubmann, 474 F. Supp. 2d 228 (D. Mass. 2007):

In this case, the circumstances rightly persuaded Defendants, and would have persuaded any reasonable person, that they were essentially in custody. They were kept physically separated from one another and their freedom of movement was blocked. They were under the constant guard of agents who, as in the case of Donna Daubmann, insisted on maintaining their watch in even the most intimate moments. Adding to the coercive atmosphere was the shocking fact that all three Daubmanns were questioned while in a humiliating state of undress and were not permitted to change into more appropriate attire until the agents concluded their questioning.

Under the circumstances, no reasonable person in the Daubmanns’ situation would believe that he or she was truly free to leave or had any choice but to cooperate with the agents and respond to questions. Therefore, Miranda warnings should have been given prior to any interrogation; because they were not, the Daubmanns’ statements must be suppressed.

The fact that the unwarned statements were used to expand the search with a later search warrant did not require suppression:

In this case, unlike in Patane, where the police recovered a gun as a result of unwarned statements, the Daubmanns’ statements were used to obtain an expanded search warrant. Nonetheless, “this difference is immaterial.” United States v. Phillips, 468 F.3d 1264, 1266 (10th Cir. 2006) (holding that DNA evidence, obtained pursuant to a search warrant, was admissible despite fact that supporting affidavit relied on a defendant’s statements offered in a custodial environment without a Miranda warning).

Because the Magistrate Judge properly relied on the Daubmanns’ voluntary statements in his determination of probable cause, the supplemental search warrants issued on August 28, 2002 had a lawful basis, and the documents seized pursuant to them will not be suppressed.

“Because the police officers’ searches were conducted under the direction and supervision of Midgette’s probation officer, we conclude that they did not violate North Carolina law.” Therefore, the probationer search was valid. “Because Midgette failed to present his other arguments regarding the constitutionality of the North Carolina probation law and the lack of reasonable suspicion to the district judge as objections to the magistrate judge’s report, we conclude that he waived his right to appeal those issues.” United States v. Midgette, 478 F.3d 616 (4th Cir. 2007).*

Indiana holds, based on a 1921 case, that the failure of the officer to file the search warrant affidavit with the magistrate before the issuance of the warrant voids the warrant under state law. State v. Rucker, 861 N.E.2d 1240 (2007):

Furthermore, in State v. Mason, 829 N.E.2d 1010 (Ind. Ct. App. 2005), the detective failed to file the affidavit for twenty-eight days after the issuance of the search warrant. There we stated, “the delay was unnecessary, especially given the clarity the General Assembly employed in the statutory requirement to provide a copy of the search warrant and probable cause affidavit to the judge at the time these documents are presented for approval and signing.” Id. at 1021. Although the statements made in Mason were dicta, we will follow the pronouncement of that case and in doing so, the intent of the General Assembly. Thus, due to Sergeant Ewing’s failure to file the affidavit and warrant before conducting the search, “the warrant was not supported by ‘oath or affirmation,’ as required by the constitutional provision against unreasonable search and seizure, and was illegal.” Id. (quoting Thompson, 130 N.E. at 413).

Indiana reiterates that inventory searches are better conducted at the impound lot rather than at the scene. Widduck v. State, 2007 Ind. App. LEXIS 355 (February 28, 2007):

Thus, impoundment of the Durango was proper, and we believe, under the circumstances, would have been preferable. Moreover, as this court has previously noted, inventory searches conducted at the impound lot by an officer assigned to such duties are greatly preferred to searches conducted at the scene, without a warrant, by the arresting officer. See Edwards v. State, 762 N.E.2d 128, 134 (Ind. Ct. App. 2002), aff’d on reh’g by 768 N.E.2d 506, trans. denied.

However, the touchstone of Fourth Amendment analysis is “reasonableness.” See, e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). While we believe this case to be a “close call,” the record before us is devoid of any indicia of pretext or subterfuge for general rummaging. Under the particular facts and circumstances of this case, we cannot conclude Officer Stargel’s subsequent decision to allow the driver to leave with the vehicle renders the initial inventory search unreasonable. Therefore, we conclude that the trial court did not abuse its discretion when it admitted the crack pipe into evidence.

Failure to use a turn signal is a valid basis for a stop. State v. Sneed, 2007 Ohio 853, 2007 Ohio App. LEXIS 744 (4th Dist. February 26, 2007).*

In the context of a “trespass” at a fire scene at defendant’s home by crossing a police line of the proverbial yellow tape, the defendant was shown to have been dispossessed by consent and then entered without appropriate permission. The court viewed it as a search issue, as well. State v. White, 211 Ore. App. 210, 154 P.3d 124 (2007)*:

We conclude that, viewing the evidence in the light most favorable to the state and giving the state the benefit of all reasonable inferences, the factfinder could reasonably find from the circumstances that the scope of defendant’s consent included exclusion from his property. First, the evidence indicates that the purpose of the consent form was to allow the police to conduct a fire investigation. A reasonable person could find that defendant understood that, when the police are investigating a fire, it is important to keep contamination of the scene to a minimum, which requires that persons other than the police must stay off the property. Additionally, at the time defendant signed the form, the crime-scene investigation tape explicitly stating, “FIRE LINE DO NOT CROSS,” had been secured around defendant’s residence, providing a further indication that the investigation to which defendant was consenting would involve barring unauthorized persons from the residence. Finally, the investigator had already explained to defendant that, once the investigation was underway and the tape was secured, he would not be allowed onto the property. Accordingly, in light of the particular circumstances of this case, it is reasonable to infer that the scope of defendant’s consent included exclusion from his property.

There may be other reasonable inferences that would support a finding that defendant’s scope of consent did not encompass dispossession. However, when at least one inference supports a verdict against a defendant, as is the case here, it is for the factfinder to choose between the competing inferences, and a motion for a judgment of acquittal should be denied. State v. Derry, 200 Ore. App. 587, 591, 116 P.3d 248 (2005), rev den, 340 Ore. 34 (2006).

Finally, defendant argues that, even if he had consented to dispossession, he revoked that consent when he entered his property. We disagree. The investigator testified that the form defendant signed outlined the procedure by which to revoke consent, indicating that, in order to revoke, defendant needed to tell the police that he wanted them out of his house. There is no evidence in the record that defendant made any such statement to anyone when he entered his property in violation of the officer’s direction to stop. Accordingly, the trial court correctly denied defendant’s motion for judgment of acquittal.

In an ineffectiveness claim for not filing a motion to suppress, defense counsel has a duty to file any arguable motion to suppress, but defendant still has to show prejudice by the failure to do so. State v. Montgomery, 2007 Tenn. Crim. App. LEXIS 168 (February 26, 2007)*:

This Court has stated that, if arguable grounds exist to suppress incriminating evidence, then an attorney, as a zealous advocate for the client, should move to suppress that evidence. See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183, 1998 Tenn. Crim. App. LEXIS 554, 1998 WL 242449, at *6 (Tenn. Crim. App., at Nashville, May 15, 1998), no Tenn. R. App. P. 11 application filed. However, even if the seizure of the evidence provided arguable grounds for a motion to suppress, and his attorney’s failure to file the motion was deficient performance, the Petitioner must demonstrate that he was prejudiced by the deficiency. In order to demonstrate prejudice, the Petitioner would have to prove that the evidence was inadmissible by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).

Wildlife officer had reasonable suspicion for stopping a vehicle on a hunting road near the entrance to a hunting area where the occupants of the vehicle were wearing hunting clothes when stopped. He was found to be DUI. Schlegel v. State Dep’t of Licensing, 153 P.3d 244 (2007).*

From March 8, 2006 post, a case affirmed on appeal to the state supreme court on the same grounds: State v. Bruski, 2007 WI 25, 727 N.W.2d 503 (February 22, 2007). The prior post:

Defendant found nodding off in car behind a store who did not know the name of the registered owner lacked standing. State v. Bruski, 2006 WI App 53, 289 Wis. 2d 704, 711 N.W.2d 679 (App. February 7, 2006) (“Bruski has failed to show that he had an objectively reasonable expectation of privacy in the car. The evidence only shows that he was found in a vehicle he did not own. He offered no evidence as to why he was in the vehicle, or that he had authorization to be in the vehicle. Bruski could not even fully identify the person from whom he had allegedly obtained the vehicle, and he certainly did not have the registered owner’s permission to use the car.” (consent of true owner was not even addressed)).

Affirming, the Wisconsin Supreme Court said:

Related to the vehicle, we conclude that Bruski did not have a reasonable expectation of privacy. His conduct indicates that he did not have an actual expectation of privacy. In his initial conversation with Officer Olson, he indicated that he did not know how he had gotten to his current location. After Ms. Smith and Officer Olson had asked Bruski about the whereabouts of the keys, and Officer Beauchamp entered Ms. Smith’s vehicle to search for the keys, Bruski did nothing to indicate that he expected privacy related to the vehicle. There is not any indication from his conduct that he had an actual expectation of privacy in the vehicle.

Even if Bruski did have an actual expectation of privacy, he still would not have a Fourth Amendment claim. The totality of the circumstances does not support Bruski having a legitimate or justifiable expectation of privacy in Ms. Smith’s vehicle.

First, Bruski had no property interest in the vehicle. His only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. The fact that he did not even know Ms. Smith’s daughter’s last name suggests that he did not have any relationship with the owner of the vehicle that would support a conclusion that he had a property interest in Ms. Smith’s vehicle.

Second, Bruski took no precautions customarily associated with those seeking privacy. He did not even know how he had gotten to his current location, let alone taken steps to retain his privacy. Although he argues that parking the car behind a residence constitutes an effort to retain his privacy, this lacks persuasiveness given that he did not even acknowledge being the person to drive the vehicle to that location.

Third, Bruski lacked the right to exclude others from the vehicle. He did not own the vehicle. He did not establish any possessory interest in the vehicle. As mentioned above, but also relevant to this factor, his only connections to the vehicle were that he passed out in it and claimed to know the owner’s daughter. His lack of knowledge about how he got to his current location also undermines his authority to exclude others from the vehicle.

Finally, Bruski’s claim of privacy in Ms. Smith’s vehicle is not consistent with historical notions of privacy. …

Hot pursuit justified police entry into defendant’s premises. Dorkoski v. Pensyl, 2007 U.S. Dist. LEXIS 17114 (M.D. Pa. March 9, 2007):

Hot pursuit involves following an individual from a public place into a private place. United States v. Santana, 427 U.S. 38, 42-43 (1976). The doctrine applies when the pursuit is immediate and fairly continuous from the scene of the crime. Welsh, 466 U.S. at 753. Although hot pursuit of a suspect must be fairly continuous, it is not necessary that the suspect be kept physically in view at all times. See e.g., U.S. v. Miller, 449 F.2d 974 (D.C. Cir. 1970); People v. Escudero, 592 P.2d 312 (Cal. 1979). In addition, a “hot pursuit” need not be “an extended hue and cry in and about [the] public streets.” Santana, 427 U.S. at 42-43. Further, “it is not necessary under cases defining hot pursuit that each defendant be in flight in order to sustain warrantless arrests of persons in their homes by pursuing police officers.” Jones v. Waters, 570 F.Supp. 1292, 1297 (E.D. Pa. 1983). Where police officers know where a suspect is, but decide that it would be dangerous to enter without reinforcements, the officers are justified in waiting to enter until reinforcements arrive. See U.S. v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001)(comparing U.S. v. Linsey, 877 F.2d 777, 779 (9th Cir. 1989)). Under such circumstances, the “continuity” of the chase is delayed, but not broken. Id. (citing United States v. Lindsay, 506 F.2d 166, 173 (D.C. Cir. 1974)).

In this case, the court finds that exigent circumstances existed, which justified the defendants’ warrantless entry into the plaintiff’s property. To this extent, the record establishes that Kip had assaulted Mr. Gilligbauer, threatened to kill him, and brandished either a baseball bat or a pipe at the time. While the police were investigating the incident, Kip returned to the scene of the crime and taunted Mr. Gilligbauer and the officers. Kip was noted to have a red substance on his face, which was believed to be blood. When defendant Wolfe pursued Kip in his police cruiser with lights and siren activated, Kip led defendant Wolfe on a high speed chase through Shamokin and into neighboring Coal Township.

When the vehicle chase came to an end, Kip exhibited erratic behavior and charged at defendant Wolfe, asking “Why don’t you just shoot me?” Afterwards, defendant Wolfe attempted to physically subdue Kip, at which time Kip attempted to strike defendant Wolfe. Kip was pepper sprayed. He then ran from defendant Wolfe and a foot chase ensued, which ultimately ended at the plaintiff’s property.

Punitive damages claim in police shooting death case survived summary judgment based on allegations of wilfullness. Martin v. Davis, 2007 U.S. Dist. LEXIS 16975 (E.D. La. March 8, 2007).*

“Custody” for purposes of Miranda requires more than just being the target of an investigation. Custody must be communicated. United States v. Fred, 2006 U.S. Dist. LEXIS 95639 (D. N.M. August 11, 2006):

Pursuant to this understanding, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have held that an individual is not “in custody” for Miranda purposes simply because the individual is the target of an investigation or a suspect in a crime. See, e.g., Stansbury v. California, 511 U.S. at 319 (“We hold, not for the first time, that an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody.”); United States v. Leach, 749 F.2d 592, 599-600 (10th Cir. 1984)(refusing to classify defendant as “in custody” merely because he was the target of a counterfeit note investigation). For an individual’s status as a suspect to be relevant, the questioning officer must convey his knowledge or belief with regard to that status, by word or deed, in such a manner as to “affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her ‘freedom of action.'” Stansbury v. California, 511 U.S. at 325.

Officer’s observation that the defendant’s vehicle was proceeding in a straight line close to the lane divider markings did not provide an objectively reasonable and particularized suspicion that the driver was operating the vehicle while impaired. State v. Hess, 154 P.3d 557 (2006).*

Officers asked for defendant who the householder said was “right over there.” This was not consent and was ambiguous, so government did not prove consent to enter to arrest the defendant. United States v. Castapheny, 2007 U.S. Dist. LEXIS 32872 (S.D. W.Va. May 3, 2007).

Protective sweep that lasted too long was unreasonable. And, inevitable discovery does not apply because there was no ongoing line of investigation that would have inevitably led to finding the drugs. United States v. Ibarra, 2007 U.S. Dist. LEXIS 32901 (D. S.D. May 3, 2007):

The Magistrate’s Report and Recommendation correctly concluded that this Court is limited by the Eighth Circuit’s interpretation of Buie in the Waldner case. The “sweep” in the case at hand lasted longer than what was necessary to dispel any reasonable suspicion of danger, and extended beyond a “cursory inspection” of any potentially dangerous space within the trailer home. Further, at the time Officer Ellman discovered the narcotics on the plate he could no longer have possessed “a reasonable belief based on specific and articulable facts that the area to be swept harbor[ed] an individual posing a danger.” Buie, 494 U.S. at 337. For these reasons the Magistrate’s Report and Recommendation correctly rejects the Government’s position that the search was valid under the protective sweep doctrine.

. . .

In addition, this Court does not find that in the facts of this case there existed “an ongoing line of investigation that is distinct from the impermissible or unlawful technique,” so as to satisfy the second factor of the inevitable discovery exception to the exclusionary rule. See United States v. Villalba-Alvarado, 345 F.3d 1007, 1020 (8th Cir. 2003). Although Officer Ellman when identifying individuals in the back room discovered that one of the women had an outstanding arrest warrant, this incident does not constitute a substantial, alternative line of investigation that the officer was pursuing at the time his conduct exceeded the scope of a valid protective sweep. Having satisfied neither of the two factors, the facts of this case do not support the inevitable discovery exception to the exclusionary rule.

Evidence seized during unlawful search cannot constitute proof against the victim of the search, and this exclusionary prohibition extends to both direct and indirect products of the unlawful search. Wong Sun v. United States, 371 U.S. 471 (1963). Since this Court has determined that the officer’s conduct exceeded the scope of a Constitutionally valid protective sweep at the time the drugs on the plate were found in the bedroom, and since this Court has found that the inevitable discovery exception to the exclusionary rule does not apply, this Court concludes that evidence of the drugs on the plate shall be suppressed, and the evidence of other drugs and drug related items that were found in the trailer as well as Defendant’s statements that were made after being confronted with the evidence of the drugs on the plate, shall be suppressed as the fruit of the unlawful search.

The question of consent for entry to arrest was fact bound, as defendants concede, so summary judgment was precluded. Stokes v. City of New York, 2007 U.S. Dist. LEXIS 32787 (E.D. N.Y. May 3, 2007).*

Posting plaintiff on a “Mug/Drug website” with a disclaimer that the individuals posted had been arrested but not convicted did not state a § 1983 claim. It did not state a state claim for defamation because it was true. Blake v. Minner, 2007 U.S. Dist. LEXIS 32819 (D. Del. May 1, 2007).*

Government showed sufficient reasonable cause to seize money as possible drug money to survive motion to dismiss a forfeiture action under CAFRA (essentially the same probable cause to seize it in the first place). United States v. $50,040 in United States Currency, 2007 U.S. Dist. LEXIS 32840 (N.D. Cal. April 19, 2007):

This order looks to the totality of the circumstances to evaluate the sufficiency of the complaint. Mondragon, 313 F.3d at 866. In the instant case, the $ 50,040 consisted of 118 hundred-dollar bills, 108 fifty-dollar bills, 1641 twenty dollar bills and 2 ten-dollar bills. The currency “was divided into 50 individually rubber-banded stacks” contained in “two separate heat-sealed pouches,” further sealed in a computer box (Compl. PP 9). Although strong evidence, a large sum of money, by itself, is insufficient to show a connection to drugs. United States v. Currency, U.S. $42,500.00, 283 F.3d 977, 981-982 (9th Cir. 2002). But other factors present here suggest a connection to drugs. Courts have found the manner of packaging used in this case to be consistent with drug trafficking. Id. at 982 (wrapping money in cellophane was commonly used to conceal drug odor and avoid detection by drug dogs); United States v. $242,484.00 in U.S Currency, 389 F.3d 1149, 1161-1163 (11th Cir. 2004) (rubber-banded money sealed in cellophane-like material and Christmas wrap was consistent with drug couriers). The narcotic detection canine alerted to the package. $42,500.00, 283 F.3d at 982 (whether there is a sophisticated dog alert is an important factor). When questioned, the claimant gave inconsistent statements. The addressee denied knowing the claimant and disclaimed the package. United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212 1216-1217 (9th Cir. 2001) (inconsistent statements and discrepancies in stories support an inference that the money was drug-related). The totality of these allegations support a reasonable belief that the currency was connected to drugs. Mondragon, 313 F. 3d at 866 (the sum, unusual packaging in sealed plastic bags and drug dog alert on money found sufficient). The complaint is detailed enough that Moss could have commenced a meaningful investigation and drafted a responsive pleading. Finding that the complaint sufficiently states a claim under both Rule G and Rule E(a)(2), this order denies claimant’s motion to dismiss.

The Supreme Court decided Scott v. Harris today holding that a police officer ramming a fleeing suspect’s car that left the suspect paralyzed was reasonable under Tennessee v. Garner. The opinions page on the Supreme Court’s website includes a link to the police car video (also linked via NY Times article). The Westlaw cite for the opinion is 2007 WL 1237851. The opinion was 8-1, authored by Scalia, dissent by Stevens.

The Court’s syllabus is here:

Deputy Timothy Scott, petitioner here, terminated a high-speed pursuit of respondent’s car by applying his push bumper to the rear of the vehicle, causing it to leave the road and crash. Respondent was rendered quadriplegic. He filed suit under 42 U.S.C. §1983 alleging, inter alia, the use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. The District Court denied Scott’s summary judgment motion, which was based on qualified immunity. The Eleventh Circuit affirmed on interlocutory appeal, concluding, inter alia, that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U.S. 1; that the use of such force in this context would violate respondent’s constitutional right to be free from excessive force during a seizure; and that a reasonable jury could so find.

Held: Because the car chase respondent initiated posed a substantial and immediate risk of serious physical injury to others, Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Pp. 3-13.

(a) Qualified immunity requires resolution of a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U. S. 194, 201. Pp. 3-4.

(b) The record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff’s version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion. Pp. 5-8.

(c) Viewing the facts in the light depicted by the videotape, it is clear that Deputy Scott did not violate the Fourth Amendment. Pp. 8-13.

(i) Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” The Court there simply applied the Fourth Amendment’s “reasonableness” test to the use of a particular type of force in a particular situation. That case has scant applicability to this one, which has vastly different facts. Whether or not Scott’s actions constituted “deadly force,” what matters is whether those actions were reasonable. Pp. 8-10.

(ii) In determining a seizure’s reasonableness, the Court balances the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests allegedly justifying the intrusion. United States v. Place, 462 U.S. 696, 703. In weighing the high likelihood of serious injury or death to respondent that Scott’s actions posed against the actual and imminent threat that respondent posed to the lives of others, the Court takes account of the number of lives at risk and the relative culpability of the parties involved. Respondent intentionally placed himself and the public in danger by unlawfully engaging in reckless, high-speed flight; those who might have been harmed had Scott not forced respondent off the road were entirely innocent. The Court concludes that it was reasonable for Scott to take the action he did. It rejects respondent’s argument that safety could have been assured if the police simply ceased their pursuit. The Court rules that a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Pp. 10-13.

Officer Scott’s brief is here, and Harris’s brief is here.

Defendant was a passenger in a car that was stopped, and the officer did a background check on the passenger, and that impermissibly extended the stop. People v. Andrews, 2007 Ill. App. LEXIS 381 (3d Dist. April 19, 2007):

In this case, no issue exists concerning the lawfulness of the initial stop. Rather, this appeal concerns the lawfulness of the officer’s conduct following the initial stop. Officer York’s initial questioning of the driver and request for identification was justified. Those queries were reasonably related to the initial purpose of the encounter; the investigation of a traffic violation. However, the background check of defendant was not related to the initial justification for the stop. Defendant was simply a passenger in the truck and was not implicated in the traffic violation. Further, the background check was not supported by any reasonable, articulable suspicion that defendant had committed or was about to commit a crime. Officer York neither saw nor suspected that defendant had committed any wrongdoing.

In the absence of a reasonable articulable suspicion, we must consider whether the check impermissibly prolonged the detention or changed the fundamental nature of the stop. The record does not resolve clearly how long the background check prolonged the detention. York testified that he returned to the squad car and ran a background check on both defendant and his son at the same time. York did not testify that the check performed on defendant was completed before the check on the driver. The background check on defendant could well have lengthened the duration of the detention if the officer had to wait for the results of the check.

Regardless of the duration of any extended detention, however, the background check was impermissible because it changed the fundamental nature of the traffic stop. The check converted the stop from a routine traffic stop into an inquiry into defendant’s past misconduct. People v. Miles, 343 Ill. App. 3d 1026 (2003) (officers impermissibly prolonged stop and increased confrontational nature because questions asked of passenger were not related to purpose of the stop). People v. Jones, 346 Ill. App. 3d 1101 (2004).

Plaintiff sued under § 1983 over getting a traffic ticket when plaintiff pulled in behind the officer who had pulled over the person he was following. The officer could go back to talk to the plaintiff and that was a reasonable investigative detention, for officer safety if nothing else. Idahosa v. Creve Coeur Police Dep’t, 2007 U.S. Dist. LEXIS 29284 (C.D. Ill. April 20, 2007).*

Probable cause to search a vehicle on the highway continues to a search that occurs instead at the stationhouse. United States v. Stelmach, 2007 U.S. Dist. LEXIS 29255 (D. Mass. April 20, 2007).*

Warrant was likely overbroad under state caselaw because it generically described illegal drugs as the thing to be seized, but the affidavit referred to crack cocaine and that was all that was seized, so the court declined to suppress. State v. Armstead, 2007 Ohio 1898, 2007 Ohio App. LEXIS 1751 (9th Dist. April 23, 2007).*