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).*

Defendant took his vehicle to a shipping company for transport. The shipping company, however, was already under DEA surveillance for another reason. Officers did a dog sniff on the vehicle, which was negative, and then the interior, which was positive. The officers then got a warrant for the car, removing panels, finding cocaine. The vehicle then was wired for surveillance, including electronic devices to signal when the panels were removed. By turning the vehicle over to the shipper, giving the shipper complete access to the vehicle, the defendant surrendered any expectation of privacy in it. United States v. Macias, 2007 U.S. Dist. LEXIS 29638 (N.D. Ill. April 19, 2007):

Although Macias has presented cases in which canine searches of car interiors constituted unreasonable searches, one crucial fact makes the instant search distinguishable–Macias had turned his car over to the shipping company before the search occurred. The bill of lading that Macias signed required him to provide the shipping company with the keys needed to access all areas of the van, advised him to remove all of his personal effects, disclaimed any liability for theft of items from the van, and advised Macias that other carriers or third-parties employed by the shipping company may be involved in transporting Macias’ vehicle.

Based upon these circumstances, any expectation of privacy Macias had in the interior of his van was unreasonable. He had completely surrendered the van to the shipping company and gave the company the keys needed to access any area of the vehicle. Macias’ agreement to do these things was much like the agreement signed by the defendants in United States v. Young, 350 F.3d 1302 (11th Cir. 2003), in which they gave Federal Express the right to inspect the package they had shipped. In light of Federal Express’ right to inspect the package, the defendants in Young had given up their expectation of privacy, and agents’ subsequent search of the package was not unlawful. Id. at 1307-08. Here, Macias gave more than just the right to inspect–he gave complete access not only to the shipping company but also to any other carrier or third-party they employed. As a result, like the defendants in Young, he gave up any reasonable expectation of privacy in the vehicle while under the shipping company’s control. See also United States v. Ward, 144 F.3d 1024, 1033 (7th Cir. 1998) (passenger had no reasonable expectation of privacy in bag while it was being transported by Greyhound). Based upon the lack of any reasonable expectation of privacy, the agents’ use of a dog to sniff the interior of his van was not an unlawful search.

Officers executing a search warrant for items useful in identity theft permitted a search intense enough to look anywhere in the house where they may be concealed. Looking in a gun case was reasonable. United States v. Armstrong, 2007 U.S. Dist. LEXIS 29539 (D. Minn. April 20, 2007).

Plaintiff’s complaint that challenged the legality of her arrest was barred by Heck, the court taking judicial notice of the state conviction being on appeal, but Heck did not bar the part of the case dealing with alleged excessive force during the arrest. Olson v. Lemos, 2007 U.S. Dist. LEXIS 29679 (E.D. Cal. April 20, 2007).*

Pepper spraying that was justified did not support an excessive force claim where plaintiff was not in discomfort but for the pepper spraying itself. Davis v. Callaway, 2007 U.S. Dist. LEXIS 29468 (D. Conn. April 9, 2007):

Davis has not alleged that, aside from the immediate discomfort he felt, he was otherwise injured by the use of OC. Because Davis has not demonstrated any such further injury, he cannot, on this issue, sustain his action. See McLaurin, 373 F. Supp. 2d at 394 (holding that the allegation against the officer who sprayed the plaintiff with mace was not actionable “because [the] plaintiff has not alleged any injuries from being spayed with mace–aside from the immediate discomfort”). Consequently, with regard to Callaway’s use of force in spraying Davis with OC, the defendants’ motion for summary judgment is GRANTED.

Defendant claimed that the officers timed his arrest to conduct a search incident of his vehicle that otherwise could not have occurred. The court found the officers’ actions objectively reasonable. Alternatively, inevitable discovery would have found the evidence in the vehicle because officers could seize and inventory it. United States v. Pannell, 2007 U.S. Dist. LEXIS 29464 (E.D. N.Y. March 26, 2007):

Nevertheless, defendant Pannell argues that the gun should be suppressed because the postal inspectors waited to arrest him in his car as a pretext to perform a search. Pannell’s argument fails, however, since the Fourth Amendment is concerned only with the objective circumstances surrounding the agents’ actions, not their subjective intent. See Whren v. United States, 517 U.S. 806, 813-14 (1996) (“the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent”) (emphasis in original). “Subjective intent alone … does not make otherwise lawful conduct illegal or unconstitutional.” Scott v. United States, 436 U.S. 128, 138 (1978). The objective circumstance that justified Pannell’s arrest was the warrant issued by Judge Reyes based on probable cause. Accordingly, because the agents stopped defendant’s car pursuant to a valid arrest warrant, the arrest is permitted under the Fourth Amendment without regard to whether it was a pretext to search the car. See Whren, 517 U.S. at 813; United States v. Robinson, 414 U.S. 218, 221 & n.1 (1973) (traffic violation arrest not rendered invalid by fact that it was “a mere pretext for a narcotics search”); United States v. Dhinsa, 171 F.3d 721 (2d Cir. 1998) (“an officer’s use of a traffic violation as a pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional significance”); United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) (“whether the stop was pretextual or not . . . is irrelevant to determining the arrest’s validity”); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994) (arrest based on pretext to justify search for weapons is permitted under Fourth Amendment).

Two police officers involved in the shooting death of 92 year old Kathryn Johnson pled guilty in Atlanta to manslaughter today in state court and federal civil rights charges in federal court, according to the Atlanta Journal-Constitution website this afternoon: Officers plea guilty in killing of elderly woman in her home / Murder charges dropped because men agree to help federal investigation of APD.

Two Atlanta police officers made a second appearance in court today to plead guilty to felonies in the fatal shooting of a 92-year-old woman in her home.

Officers Gregg Junnier and Jason R. Smith made their second stop Wednesday afternoon to plead guilty to violating the civil rights of Kathryn Johnston by killing her during a botched drug raid at her home Nov. 21. 2006.

Earlier in the day, the men were in Fulton Superior Court where they admitted to voluntary manslaughter charges along with several other state felony counts.

Sentencing in both courts has been deferred until later to allow the men to cooperate with a federal investigation into the Atlanta police department’s narcotics unit. The men are expected to serve at least 10 years in prison on the federal charges alone.

Before the hearing before U.S. District Court Judge Julie Carnes the two officers sat side-by-side on a bench. Junnier stared ahead while Smith read silently from a Bible opened to the book of John.

Junnier was direct and spoke clearly as he answered Carnes’ questions.

Smith, with a few tears, could barely be heard as he agree he was guilty to the federal charges.

Atlanta police chief Richard Pennington sat in the back corner of the courtroom watching his officers admit they had broken the law.

“Justice was served,” Pennington said after the pleas. “We don’t condone criminal misconduct. It’s unfortunate any time you have a police officer [who feels] that they have to create false reports to enforce the law. It’s a terrible day. And it’s a sad day for them.”

I posted several articles on this shooting incident on an innocent person’s home, apparently based on false information to obtain a search warrant, and the last is here. To get the other eight posts, just search “www.ajc.com” in this website.

W.Va. holds that surreptitious single party recording in the target’s home violates the state constitution, overruling prior authority from 1986 that did not consider the state constitution, rejecting United States v. White on state constitutional grounds and adopting Justice Harlan’s dissent, and analyzing cases from several states. State v. Mullens, 2007 W. Va. LEXIS 10 (February 28, 2007), an important and invaluable opinion on this court’s views of the erosion of individual privacy as technology advances, giving meaning to the Katz doctrine that “Fourth Amendment protects people, and not places”:

In a six to three decision, the United States Supreme Court reversed the decision of the Court of Appeals. Thus, the judgment in White was rendered in a plurality opinion. The plurality opinion justified the Court’s judgment as follows:

“No warrant to ‘search and seize’ is required … when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence.

“. . .

“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.”

White, 401 U.S. at 749-51, 91 S.Ct. at 1125-26, 28 L. Ed. 2d at 457-58 (internal citations omitted).

The decision in White stands for the proposition that a person does not have an expectation of privacy regarding conversations held in his/her home with a third party. Without such an expectation of privacy, under White the Fourth Amendment does not require the police to obtain judicial authorization to send an informant wearing an electronic surveillance device into the home of another person. See also United States v. Eschweiler, 745 F.2d 435 (7th Cir. 1984); (holding that informant’s use of electronic surveillance device in defendant’s home did not violate the Fourth Amendment); United States v. Hankins, 195 Fed. Appx. 295 (6th Cir. 2006) (same); United States v. Brathwaite, 458 F. 3d 376 (5th Cir. 2006) (same); United States v. Davis, 326 F.3d 361 (2nd Cir. 2003)(same).

Three Justices dissented from the majority’s judgment in White. All three Justices believed that the Fourth Amendment required federal officials to obtain a warrant before attaching an electronic surveillance device to an informant, for the purpose of capturing conversations with a suspect, regardless of where the conversations were held. The position taken by the dissenters was articulated best in the dissenting opinion of Justice Harlan. In his dissent, Justice Harlan made the following observations:

“The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. … The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.

“Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity–reflected in frivolous, impetuous, sacrilegious, and defiant discourse–that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.

…

“Finally, it is too easy to forget–and, hence, too often forgotten–that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its ‘risk analysis’ solely in terms of the expectations and risks that ‘wrongdoers’ or ‘one contemplating illegal activities’ ought to bear, the plurality opinion, I think, misses the mark entirely. … The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that … would prevent public officials from engaging in that [third-party bugging] practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest [the majority] fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield ‘wrongdoers,’ but to secure a measure of privacy and a sense of personal security throughout our society.

“The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society.”

White, 401 U.S. at 787-90, 91 S. Ct. at 1143-45, 28 L. Ed. 2d at 478-80 (Harlan, J., dissenting) (internal citations omitted).

In addition to the dissenters in White, scholars have argued that the Fourth Amendment should require a warrant to be issued before the police send an informant into a suspect’s home while wearing an electronic surveillance device. The following is a cursory review of the criticisms of White by some scholars:

“Justice Harlan’s dissent in United States v. White warned against unsupervised use of government power to spy on the people. He urged that electronic and false-friend surveillance … be permitted only under the warrant requirements of the Fourth Amendment, so that government intrusion is possible only if a magistrate agrees with the government that there is probable cause. Respect for the principles that underlie the Fourth Amendment and the rebellion that produced it, demands no less. … By declaring that one has no reasonable expectation of privacy when speaking with another, the Court removes conversation from the protections of the Fourth Amendment, leaving government power unchecked. The Amendment becomes an empty, and mocking, promise. The Court has thus abdicated the judicial function in an area so sensitive that it lay at the heart of the revolution.”

Donald L. Doernberg, “Can You Hear Me Now?”: Expectations of Privacy, False Friends, and the Perils of Speaking under the Supreme Court’s Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253, 306-08 (2006).

“Unless the White plurality truly is willing to saddle American society with the universal risk that every conversation may be electronically monitored, then the White plurality view is not only illogical and unreasonable–it is absurd. Moreover, it defies common sense as well as the common understanding of Americans who yet have some sensitivity to the ‘qualitative difference’ between electronic surveillance and conventional police investigation.”

Mona R. Shokrai, Double-Trouble: The Underregulation of Surreptitious Video Surveillance in Conjunction with the Use of Snitches in Domestic Government Investigations, 13 Rich. J.L. & Tech. 3, 58 (2006) (quoting Tom P. Conom, Privacy and the Fourth Amendment in the Twenty-First Century, 19 Champion 13, 18 (1995)).

“The White plurality, without any discussion or analysis of the doctrinal shift announced in [Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] reaffirmed prior holdings that authorized unchecked surveillance of private conversations and unbridled invasions of private homes and offices whenever informants are available to gather information for the government. If the ‘Fourth Amendment protects people, and not places,’ as Katz insisted, then why is the Amendment inapplicable against government efforts to record conversations or infiltrate homes or offices using secret informants? If the Fourth Amendment restrains the discretion of the police to wiretap or ‘bug’ private conversations (conducted in telephone booths), it is not apparent why that same provision is inapplicable when the police monitor and record private conversations through the use of a secret informant deliberately position(ed) to hear those conversations. After all, a secret informant acts as a ‘human bug’ for the government.”

Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-first Century, 72 Miss. L.J. 51, 76 (2002).

“It cannot be denied that one risks public revelation of private thoughts any time one takes on a confidante. Once again, however, the Court’s assumption of the risk/implied consent analysis takes on an air of fantasy. … The Court’s analysis in its undercover cases is based on a dangerous premise: that we should expect no privacy from the government when we do not expect it from others. If this premise were taken seriously, the only sphere of privacy still protected from unnecessary government intrusion would be what we kept to ourselves. …

“Furthermore, undercover activity is more likely than other types of searches to occasion prolonged insinuation into people’s privacy. In the typical search and seizure scenario, the target can minimize the intrusion by consenting to particular actions or proving his or her innocence in some way. When the government proceeds covertly, however, these options are not available. Added to this denigration of individual interests is the damage undercover police work causes to the democratic state’s objective of remaining legitimate. First, because it relies on fraud and deceit, covert investigation undermines trust in the government. More importantly, it increases distrust of everyone, since anyone could be a government agent. …

“… Thus, undercover activity undercuts both the state’s interest in maintaining the allegiance of its citizenry and its objective of nurturing an open, democratic society.

“Because of these possible effects, one might argue that undercover activity should be banned. … At the least, judicial authorization should be obtained prior to any nonexigent undercover activity. …

Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 103-05 (1991). See also Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 Wash. U. L.Q. 573, 617 (1996) (“[W]hen I open my front door to a friend, to an overnight delivery worker, or to a complete stranger, access is afforded only to those whom I knowingly admit. If the police want access to my home, they should follow lawful procedure. At times, stealthy entries may be necessary; but under the Constitution, the police cannot decide by themselves when they will enter a home.”).

Notwithstanding the criticisms of White, the decision remains the law for Fourth Amendment purposes. Thus, insofar as the circuit court found that the Fourth Amendment was not violated by the conduct of the police in this case, that ruling was correct.

The court then analyzes the issue of single party conversation bugging under state statute and concludes that it was valid. But, then turning to the state constitution, it concludes that it was not.

2. One-party consent to electronic surveillance in the home of a suspect and the search and seizure provision of the West Virginia Constitution. Although we have concluded that the conduct complained of in the instant case was lawful under the [statute], we must now decide whether the search and seizure provision of our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. Article 3, § 6 of the West Virginia Constitution provides:

“The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.”

We have indicated that the purpose of article 3, § 6 “is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement officers, so as to safeguard the privacy and security of individuals against arbitrary invasions [by governmental officials].” State v. Legg, 207 W. Va. 686, 692, 536 S.E.2d 110, 116 (2000) (internal quotations and citations omitted). This Court has also held that “[t]he provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syl. pt. 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979). Therefore, the mere fact that the Fourth Amendment has been interpreted as allowing one-party consent electronic surveillance in the home of a suspect does not mean that this Court is required to interpret article III, § 6 in the same manner. “This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart.” State ex rel. Carper v. West Virginia Parole Bd., 203 W. Va. 583, 590 n.6, 509 S.E.2d 864, 871 n.6 (1998). In other words, we may “interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees.” Peters v. Narick, 165 W. Va. 622, 628 n.13, 270 S.E.2d 760, 764 n.13 (1980).

The order of the circuit court and the briefs of the parties failed to cite to any prior decision of this Court addressing the issue of whether our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. However, this Court has previously addressed the issue. The issue arose in a case that was decided approximately one year before the Act was created.

In State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), the police had information that the defendant was selling drugs. As a result of this information the police, without a warrant, placed a radio transmitter on the informant and sent him to the defendant’s home. While in the defendant’s home, the informant purchased drugs, and the transaction was monitored and recorded by the police. The defendant was subsequently prosecuted and found guilty of drug trafficking. One of the issues raised on appeal was that it was error to introduce the tape recording of the drug transaction. The defendant alleged that the tape recording was made in violation of article III, § 6 because the police did not obtain a warrant to have the informant enter his home with an electronic surveillance device. This Court disagreed. In doing so, this Court very briefly looked at its prior decision that involved one-party consent surveillance outside the home. Based upon that decision the Court tersely reasoned as follows:

“The Court also believes that the defendant’s contention that the surveillance was made without a warrant and uninvited constituted an illegal search and seizure is without merit. …

. . .

“Taking the [prior decision into consideration], it is clear that a warrantless electronic recording of a defendant’s conversation made before his Sixth Amendment right to counsel has attached, and made with the consent of a participant to the conversation who, unknown to the defendant, is acting in concert with the police, does not violate the prohibition against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and by article III, section 6 of the West Virginia Constitution.

“Clearly the tape involved in the case presently before the Court was made with the knowledge and consent of [the informant]. At the time the defendant had neither been arrested nor indicted. … We believe that the tape was admissible into evidence.”

Thompson, 176 W. Va. at 305-06, 342 S.E.2d at 273-72.

We are troubled by the complete lack of any analysis in Thompson on the issue of the expectations of privacy in the home. In reaching the conclusion that article III, § 6 allows the police to invade the privacy of a citizen’s home, through an informant wearing an electronic surveillance device without judicial authorization, the Thompson opinion did not provide one sentence discussing the privacy in the home that article III, § 6 is designed to protect. Thompson assumed, without discussion, that no difference existed between a person’s reasonable expectations of privacy in his/her home, versus the privacy a person expects outside the home. See State v. Peacher, 167 W. Va. 540, 567-68, 280 S.E.2d 559, 578 (1981) (“A person’s expectation of privacy in his automobile is less than that which he would have in his home[.]”). This assumption by Thompson guts article III, § 6 and makes it a hollow constitutional protection from unreasonable searches and seizures in the home.

“There is no question … that activities which take place within the sanctity of the home merit the most exacting [article III, § 6] protection.” State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726 (1996). This Court has long held that article III, § 6 “protect[s] the rights of citizens from unreasonable searches and seizures in their houses.” State v. McNeal, 162 W. Va. 550, 555, 251 S.E.2d 484, 488 (1979). For this reason, the jurisprudence of this Court addressing article III, § 6 has “drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” State v. Craft, 165 W. Va. 741, 755, 272 S.E.2d 46, 55 (1980) (internal quotations and citation omitted). That is, with limited exceptions, “any search of a person[‘s] … dwelling on mere suspicion and the seizure of any article found as a result thereof, without … a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.” Syl. pt. 1, in part, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972). See also State v. Slat, 98 W. Va. 448, 449, 127 S.E. 191, 192 (1925) (“Any search of a person’s house without a valid search warrant is an unreasonable search, under section 6, art. 3, [of the] Constitution of West Virginia[.]”). We underscored the significance of the expectations of privacy in the home in State v. W. J. B., 166 W. Va. 602, 612, 276 S.E.2d 550, 556 (1981):

“[T]here is still basic vitality to the ancient English rule that a man’s home is his castle, and he has the right to expect some privacy and security within its confines. This rule arises from a societal recognition that the home shelters and is a physical refuge for the basic unit of society[,] the family. In the criminal law there is a marked recognition of this fact, as shown by the difference in the right to arrest a criminal without a warrant[,] as between his home and a public place.”

W. J. B., 166 W. Va. at 612, 276 S.E.2d at 556.

This Court’s long history of protecting the sanctity of the home from warrantless searches and seizures counsels against allowing Thompson to stand. In Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), this Court held:

“An appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law.”

Our decision to depart from stare decisis is based upon a “serious judicial error” in the Thompson opinion. That error was the complete obliteration of the bright line this Court has historically drawn between searches and seizures in the home, versus searches and seizures outside the home. Thompson failed to acknowledge the existence of this distinction. Consequently, we now hold that it is a violation of West Virginia Constitution article III, § 6 for the police to invade the privacy and sanctity of a person’s home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person’s home without first obtaining a duly authorized court order pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.

We are mindful that, in addition to Thompson, the wording of the state’s electronic surveillance Act permits an informant to enter the home of a suspect with a recording device without judicial authorization. However, our rejection of the Thompson decision does not require invalidation of the one-party consent provision of the Act. It is a longstanding fundamental principle of law that “[w]herever an act of the Legislature can be so construed and applied as to avoid a conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts.” Syl. pt. 3, Slack v. Jacob, 8 W. Va. 612 (1875). See State v. Siers, 103 W. Va. 34, 36, 136 S.E. 504, 505 (1927) (“[I]t is a rule of constitutional interpretation that, when two constructions may be placed upon a statute, one of which renders it constitutional and the other unconstitutional, it is the duty of the courts to so limit the statute as to make it comply with constitutional requirements.”). Our ruling today merely limits the one-party consent provision of the Act from being used to send an informant into the home of a suspect to record communications therein without having obtained a search warrant authorizing such conduct. Therefore we hold that, Article III, § 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one-party consent to electronic surveillance provisions of W. Va. Code § 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005).

Turning to the facts of this case, there is no dispute. The police failed to obtain judicial authorization to send the informant into Mr. Mullens’ home while the informant was wearing an electronic surveillance device. Consequently, the trial court should have granted Mr. Mullens’ motion to suppress the electronic surveillance recordings obtained in his home by the informant. Insofar as Mr. Mullens entered a conditional plea of guilty, on remand he may exercise his right to withdraw the guilty plea and let a jury decide his fate.

(Dissenting opinion filed April 13, 2007)

On Smoking Gun’s website there are videos. For a prison post-visitation strip search, go to “Uncle Sam” and click on “Strip Search 101.” It explains the why and where of strip searches.

I received this from TSG today.

Defendant’s lack of standing in the room searched meant that he would lose on the search issue so his counsel could not have been ineffective. Davis v. State, 2007 Tenn. Crim. App. LEXIS 320 (April 19, 2007).

Back on January 19th, SCOTUS granted cert in Brendlin v. California, posted here and docket here.

The question presented is: “Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop.”

The petitioner’s brief is here and the State of California’s brief is here.

From my previous post: “The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: ‘Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy’s authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs.’ [The free link to the California Supreme Court opinion is now dead.]”

A field sobriety test, after a stop based on reasonable suspicion, is not an unlawful seizure. Arthur v. State, 216 S.W.3d 50 (Tex. App. — Ft. Worth 2007):

The scope of the detention must be carefully tailored to its underlying justification. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26, 75 L. Ed. 2d 229 (1983). The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. Id. The scope of the detention must be temporary and last no longer than necessary to effectuate the purposes of the stop. Id. Furthermore, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicions within a short period of time. Id.

Here, Officer Berry observed Appellant’s car weaving out of its lane of travel and speeding. These articulable facts, combined with Appellant’s admission that she had been drinking, were sufficient to give Officer Berry a reasonable suspicion to detain Appellant further to administer field sobriety tests. See id. The administration of the field sobriety tests was the least intrusive means by which Officer Berry could verify or dispel his suspicion that Appellant had been driving while intoxicated. See id. This minimal intrusion into Appellant’s personal freedom was reasonable under the circumstances. See id. Accordingly, we hold that Appellant’s Fourth Amendment rights and her rights under article one, section nine, of the Texas Constitution were not violated by Officer Berry’s temporary detention of Appellant and his request that she perform field sobriety tests.

Taking defendant to a police car to put him in did not elicit an incriminating response. Russell v. State, 215 S.W.3d 531 (Tex. App. — Waco 2007).*

Where the officer overextended the scope of consent, the search was unlawful. The defendant disclaimed ownership of a suitcase in the vehicle, but only after the stop had become unreasonable, so the motion to suppress was properly granted. State v. Veltri, 136 Wn. App. 818, 150 P.3d 1178 (January 25, 2007).

(Cases arrived after 8 a.m. again.)

“Custody” for Fifth Amendment is different than a “seizure” under the Fourth Amendment. Defendant was not seized, but he consented to go with the officers. United States v. Bowen, 2007 U.S. Dist. LEXIS 15744 n.5 (E.D. Pa. March 6, 2007):

Technically, Defendant argues that he was “in custody” when he consented to the search. However, it is apparent from Defendant’s submission that he understands the Fifth Amendment concept of “custody” to be synonymous with the Fourth Amendment concept of “seizure.” While the concepts of “custody” and “seizure” are similar, compare Steigler v. Anderson, 496 F.2d 793, 798-99 (3d Cir. 1974), with United States v. Mendenhall, 446 U.S. 544, 552 (1980), the legal significance of each is different. A person “in custody” can voluntarily consent to a search; custody is one factor in determining whether consent is voluntary. “[T]he fact of custody alone is never enough to demonstrate coerced consent.” United States v. Forbes, 181 F.3d 1, 6 (1st Cir. 1999) (citing United States v. Watson, 423 U.S. 411, 424 (1976)). However, under the terms of the Fourth Amendment, if a defendant is seized and that seizure is unlawful, then evidence recovered thereafter may be excludable under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 486 (1963) (consent must constitute an intervening act of free will in order to overcome exclusion). Defendant in effect makes a species of this latter Wong Sun argument, by explaining, “[w]hen a person manifests his consent contemporaneously with an illegal seizure, ‘the conduct of the person seized is not free from the taint of his unlawful detention and, thus, is insufficient to show consent.'” (Def.’s Supplemental Mem. of Law in Supp. of Mot. to Suppress Evidence at 22 (quoting United States v. Martel, 966 F. Supp. 317, 322 (D.N.J. 1997) (internal citations omitted)).)

Use of an ankle restraint move to subdue plaintiff broke his ankle, and he obtained a $301,000 verdict which was sustained on appeal. Jennings v. Jones, 479 F.3d 110 (1st Cir. 2007):

On appeal, Jennings challenges the court’s determinations on his Fourth Amendment claim. After careful review, we conclude that the court erred in granting qualified immunity to Jones. First, viewing the evidence in the light most favorable to the jury verdict, we conclude that the record establishes that Jones violated Jennings’ constitutional right to be free of excessive force. Second, we find that this right was clearly established at the time of Jennings’ injury. Third, we conclude that a reasonable officer in Jones’ position would have believed that his actions violated Jennings’ constitutional right. Finally, because Jones failed to obtain a conditional ruling on his motions for a new trial and a remittitur before the district court and failed to raise these motions on appeal, we find that he has abandoned these motions. Consequently, we vacate the judgment of the district court and order reinstatement of the jury award.

Defendant’s stop for a minor traffic offense in a national park was justified, notwithstanding that it was minor. The officer could then smell marijuana during the stop, and this was probable cause. United States v. Harvey, 2007 U.S. Dist. LEXIS 15791 (W.D. Va. March 6, 2007).*

Conclusory request for a Franks hearing was not a “substantial preliminary showing.” United States v. Vallejo, 2007 U.S. Dist. LEXIS 15555 (E.D. Wis. March 5, 2007)*:

[T]he court finds that Mejia has failed to make the requisite substantial preliminary showing and therefore is not entitled to an evidentiary hearing. Mejia simply makes conclusory assertions about the reliability of the informants that are undeveloped and unsupported. The defendant implies that because the CI may not have been an eyewitness to related events, this makes the CI unreliable. Such conclusory assertions are insufficient. Additionally, suppression is appropriate only if the allegedly false information would have undermined the probable cause determination. Franks, 438 U.S. at 156. Even though the search warrant is contained [*10] in the discovery materials, neither party has provided this court with a copy. Thus, Mejia has failed in his burden of demonstrating that the allegedly false statements were necessary to the finding of probable cause. Therefore, the court shall deny Mejia’s request for a Franks hearing. (Docket No. 767).

Plaintiff raised a sufficient fact issue that a traffic stop may have been invalid to overcome qualified immunity. Woods v. Hillin, 2007 U.S. Dist. LEXIS 15463 (D. Utah January 9, 2007)*:

Here, Plaintiff contends that he was not committing any traffic violations and that he was driving under the posted speed limit when he passed Deputy Hillin. Accordingly, Plaintiff asserts that the traffic stop, from its inception, was unreasonable under the Fourth Amendment. Viewing the facts in a light most favorable to Plaintiff, the court finds that Deputy Hillin’s stop of Plaintiff’s vehicle may have violated Plaintiff’s clearly established right to be free from unreasonable seizure. Thus, Plaintiff has established both prongs of the qualified immunity analysis: (1) Deputy Hillin’s conduct may have violated a constitutional right and (2) the right was clearly established at the time of the violation. Therefore, the court finds that Defendants are not entitled to qualified immunity.

Dog sniff of interior of car was valid where the dog jumped into the car on his own. United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007):

The reasoning of Stone was followed in United States v. Watson, 783 F. Supp. 258 (E.D. Va. 1992), where the district court denied a defendant’s motion to suppress narcotics discovered in his open vehicle while it was parked in a valet-parking location of a hotel with the driver’s-side door open. In that case, a canine officer kept the vehicle under observation while other officers were searching defendant’s hotel room and, ultimately, in placing the defendant under arrest following the discovery of narcotics within the hotel room. Following the arrest, a police officer came downstairs to coordinate with the canine officer and, while there, asked the officer to “do a search of the car.” Id. at 262. At this point, “[t]he drug-sniffing dog proceeded to climb into the car where he ‘started biting on the passenger seat, indicating that he hit on some type of narcotic smell, either on that seat or underneath it.'” Id. Thereafter, an officer “popped the trunk lever located next to the driver’s seat” and the dog jumped in the trunk of the car, where he bit on a plastic foam food container. Id. The officer proceeded to open the container and discovered approximately $16,000 in bundled cash. Id.

Noting that it was clear that the officers were entitled to use the dog to conduct an exterior sniff of the vehicle, the court found that “[t]he next question … is whether by jumping in the open passenger door, the dog caused what is supposed to be a very limited encounter to escalate into a violation of the Fourth Amendment.” Id. at 265. Relying exclusively on Stone, the district court concluded that the search was lawful because the court had been presented “with no evidence that the dog was encouraged to jump in the car by its handler.” Id. Finding that the dog’s act of alerting to the passenger seat provided probable cause to believe the automobile contained narcotics, the court upheld the subsequent search of the foam container in the trunk and the seizure of the cash located therein. Id.

The reasoning of Stone has been applied in similar and analogous contexts in other cases involving canine sniffs that became relatively more invasive as the sniff progressed. See, e.g., United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (upholding a canine sniff of the interior of an apartment that revealed crack cocaine where the police and canine were in the apartment lawfully to look for a suspected intruder, where dog may have moved dresser drawers in the course of the sniff, thereby exposing the contraband contained in the drawers to plain view; the court found that the dog’s “instinctive actions” in moving the dresser drawers did not render the sniff constitutionally infirm); United States v. Lyons, 957 F.2d 615, 616-17 (8th Cir. 1992) (upholding the seizure of narcotics discovered in defendant’s bag after drug-detecting canine alerted to, and immediately tore into, the bag in the course of a sniff; relying on Stone and rejecting defendant’s argument that the dog’s independent act of tearing into the bag tainted the sniff and subsequent seizure); United States v. Lyons, No. 05-3099, 2006 U.S. Dist. LEXIS 14454, *11-21 (D. Neb. Feb. 15, 2006) (upholding a dog sniff where the dog’s nose penetrated the vehicle’s open window, even where officer directed dog to sniff window area, finding that the dog detected the odor of drugs while outside the vehicle and the act of sticking its head inside the car was not directed by the handler but was “initiated by the dog himself”); United States v. Lewis, No. 05-69, 2005 U.S. Dist. LEXIS 38142, *25-26 (W.D. Mich. Dec. 27, 2005) (after questioning sua sponte whether a dog’s entry into a vehicle tainted the validity of a dog sniff, the court concluded that a dog’s sniff of vehicle’s interior was lawful because the evidence established that the driver’s side window was down when the sniff commenced and, apparently, because the court found dog’s entry into the vehicle was prompted by the odor of the narcotics that were contained therein rather than the actions of its handler); see also United States v. Liberto, 660 F. Supp. 889, 891 (D.D.C. 1987) (predating Stone) (where narcotics dog sniffing in a public passageway outside the defendant’s train compartment lunged into his open roomette and sniffed in the direction of a suitcase located on a rack above the floor, held that the lunge was not a search under the Fourth Amendment, relying on Place). But cf. United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998) (suppressing contraband discovered in a van following a canine sniff of the interior where officers lacked any reasonable suspicion that the van contained narcotics and where officers opened the van’s door, allowed the open van to sit on the side of the road while they waited for a canine unit to arrive, and where the dog’s handler unleashed the dog as it neared the open door; distinguishing Stone because the evidence demonstrated that the officer endeavored to facilitate a sniff of the van’s interior).

As the foregoing demonstrates, the majority of federal courts that have confronted questions similar to that presented in this case have concluded that canine sniffs of the interior of a vehicle or other container are lawful, but suggest that such interior sniffs may become constitutionally infirm in the event that the interior sniff is accomplished or facilitated by the officer-handler.

Comment: And, of course, the officer always testifies that the dog jumped in the car on its own, and the officer never encouraged it. Right. In fact, in the videos I’ve been seeing in court, the officer suspiciously turns the audio on and off at various times. Thus, even with a videotape, the officer could tell the dog to jump into the open door or window and then just deny it because there is no sound and one cannot see his mouth move because of his body being turned. They do know, after all, that they are being videotaped.

A Franks violation was not shown by reference to “items” on defendant’s criminal history because it did not suggest convictions or by leaving out that there was another apartment nearby which could explain the unusual traffic going to and coming from defendant’s apartment. United States v. Santos, 2007 U.S. Dist. LEXIS 3723 (D. Mass. January 17, 2007).*

Plaintiff failed in his claim of false arrest because there was probable cause for his detention by the police where he went to work at 3:00 a.m. by crawling over a back fence from behind a neighboring K-Mart that was also closed. It had all the appearances of a crime in progress, although plaintiff had permission to enter the property as he did and had in the past with the permission of his boss. Harris v. City of Southaven, 2007 U.S. Dist. LEXIS 3844 (N.D. Miss. January 17, 2007).*

Defense counsel was not ineffective for not arguing that seizure of allegedly illegally seized shotgun should be excluded from sentencing because circuit law already permitted illegally seized evidence to be admitted unless “such evidence might be excluded if the police intentionally violated the Fourth Amendment for the purpose of sentence enhancement,” which the court already found the officers did not. Guzman v. United States, 2007 U.S. Dist. LEXIS 3823 (D. R.I. January 17, 2007).

The California Supreme Court held yesterday that an anonymous 911 call about a man waving a gun that put the caller in fear the gun would be used which also gave details was sufficient for police when they corroborated details when they arrived. Public safety permits it. People v. Dolly, 40 Cal. 4th 458 (February 1, 2007):

After balancing the public interest in safety and the individual’s right to personal security free from arbitrary interference by law enforcement officers (see People v. Thompson (2006) 38 Cal.4th 811, 827), we determined in Wells that the relative urgency presented by drunk or erratic drivers could justify an investigatory detention based on an anonymous tip despite the absence of corroborating evidence of illegal activity. A tip’s reliability, we observed, need not depend exclusively on its ability to predict the suspect’s future behavior (see, e.g., Alabama v. White (1990) 496 U.S. 325, 332, 110 L. Ed. 2d 301 (White)) or the officer’s ability to corroborate present illegal activity (see, e.g., People v. Butler (2003) 111 Cal.App.4th 150, 162). Rather, the tip’s reliability depends upon an assessment of “the totality of the circumstances in a given case.” (Wells, supra, 38 Cal.4th at p. 1088; accord, U.S. v. Perkins (4th Cir. 2003) 363 F.3d 317, 325 [“A rigid rule demanding the presence of predictive information is thus unjustified by White and J. L., and it would be wholly inconsistent with the flexible nature of reasonable suspicion analysis”].)

Accordingly, Wells relied on the totality of the circumstances in distinguishing J. L. We explained first that a report of a possibly intoxicated driver weaving all over the roadway posed “a far more grave and immediate risk to the public than a report of mere passive gun possession.” (Wells, supra, 38 Cal.4th at p. 1087.) “‘[A]n anonymous report of an erratic or drunk driver on the highway presents a qualitatively different level of danger, and concomitantly greater urgency for prompt action. In the case of a concealed gun, the possession itself might be legal, and the police could, in any event, surreptitiously observe the individual for a reasonable period of time without running the risk of death or injury with every passing moment. An officer in pursuit of a reportedly drunk driver on a freeway does not enjoy such a luxury.’ ” (Id. at p. 1086, quoting State v. Boyea (Vt. 2000) 171 Vt. 401, 765 A.2d 862, 867.)

We said next that “doubts regarding the tipster’s reliability and sincerity are significantly reduced in the setting of a phoned-in report regarding a contemporaneous event of reckless driving presumably viewed by the caller. Instances of harassment presumably would be quite rare.” (Wells, supra, 38 Cal.4th at p. 1087.) Indeed, “the relatively precise and accurate description given by the tipster in the present case regarding the vehicle type, color, location, and direction of travel, all confirmed by the investigating officer within minutes of receiving the report, enhanced the reliability of the tip.” (Id. at p. 1088.) Based on that level of detail and the officer’s ability to corroborate it, we inferred that the observation of reckless driving must have come from a passing motorist. (Ibid.) In light of the tip’s detailed and contemporaneous description, the officer’s ability promptly to corroborate its innocent details, and the danger posed by a motorist under the influence, we were “convinced” in Wells “that the officer’s traffic stop was justified by reasonable suspicion of criminal activity.” (Ibid.)

Consideration of these (and other factors) convinces us that the detention should be upheld in this case.

Complaint stated a cause of action for race based DNA sampling when police were looking for a serial rapist. Plaintiff’s allegations concerning the encounter at his home, however, were insufficient to state a claim for relief that the encounter was nothing more than consensual with him free to refuse. Monroe v. City of Charlottesville, 471 F. Supp. 2d 657 (W.D. Va. 2007).

Arrest warrant justifed entry under Payton and others present could not insist on a search warrant. State v. Wallace, 950
So. 2d 135 (2d Cir. 2007).

Officers employed a knock and talk strategy which failed, so they decided that they had exigent circumstances and entered. The District Court found exigent circumstances, but the Fifth Circuit disagreed. United States v. Gomez-Moreno, 479 F.3d 350 (5th Cir. 2007):

The district court found exigent circumstances and rejected Gomez-Moreno’s argument that the officers created them. Specifically, the district court concluded that exigent circumstances arose when the man exited the back door of the front house, saw the officers, and ran back inside. According to the district court, it was this situation, when coupled with the anonymous tip, the activities detected during surveillance, and the people that the officers saw through the window in the back house, that created probable cause and exigent circumstances. The district court concluded that these exigent circumstances permitted the officers to secure the house to protect their safety and the safety of those inside.

Not so fast. Reviewing the district court’s holding for clear error, we are “left with a firm and definite conviction that a mistake has been committed.” See In re Missionary Baptist Found., 712 F.2d at 209 (quoting United States Gypsum, 333 U.S. at 395). Here, the officers’ “knock and talk” strategy failed. In the first place, the officers improperly executed the “knock and talk” strategy, and secondly, the “knock and talk” did not result in someone voluntarily coming to the door. The purpose of a “knock and talk” is not to create a show of force, nor to make demands on occupants, nor to raid a residence. Instead, the purpose of a “knock and talk” approach is to make investigatory inquiry or, if officers reasonably suspect criminal activity, to gain the occupants’ consent to search. Jones, 239 F.3d at 720. Here, the officers did not engage in a proper “knock and talk” but instead created a show of force when ten to twelve armed officers met at the park, drove to the residence, and formed two groups–one for each of the two houses–with a helicopter hovering overhead and several officers remaining in the general area surrounding the two houses. When no one responded to the officers’ knocking, the officers impermissibly checked the knob on the door to the front house to determine if it would open, and simultaneously, at the back house, announced their presence while demanding that the occupants open the door. When officers demand entry into a home without a warrant, they have gone beyond the reasonable “knock and talk” strategy of investigation. To have conducted a valid, reasonable “knock and talk,” the officers could have knocked on the front door to the front house and awaited a response; they might have then knocked on the back door or the door to the back house. When no one answered, the officers should have ended the “knock and talk” and changed their strategy by retreating cautiously, seeking a search warrant, or conducting further surveillance. Here, however, the officers made a show of force, demanded entrance, and raided the residence, all in the name of a “knock and talk.” The officers’ “knock and talk” strategy was unreasonable, and accordingly, the officers created the exigent circumstances.

The district court erred in finding that exigent circumstances justified entry into the front house when the man exited the back door to the front house, saw the officers, and ran back into the house. According to the officers, they followed the man into the house because they needed to surprise the occupants and any potential armed smugglers to divert a possible shoot-out. This argument fails because the officers had already lost any element of surprise when they announced their presence, knocked on the doors, and demanded entry.

Defendant was stopped with reasonable suspicion, and officer told him to drop his duffle bag. When it hit the floor, it made a thud, so the officer was entitled to look for a gun. United States v. LePage, 477 F.3d 485(7th Cir. 2007).

Officer responding to a call about a gun pointing incident had specific information as to the car. They found the car, and that gave them cause to stop the car. When they stopped the car, there were furtive movements inside, and the officer believed he heard the sound of a gun hitting metal. That justified a patdown which validly produced cocaine. United States v. Bradley, 2007 U.S. Dist. LEXIS 10050 (E.D. Ark. February 13, 2007).*

Court credits the testimony of officers that consent was validly given. As to the reason for the stop of defendant’s vehicle, the officer conceded that he was looking for an excuse, and defendant’s rolling through a stop sign was cause. United States v. Kimbrough, 2007 U.S. Dist. LEXIS 9985 (E.D. Mich. February 13, 2007).*

Franks allegation in a § 1983 case failed because the officer at worst was somewhat negligent in ascertaining possibility of changes of conditions regarding issuance of an insurance policy that was a motive for insurance fraud. Porter v. Gray, 2007 U.S. Dist. LEXIS 10143 (W.D. Pa. February 13, 2007).*

An anonymous 911 call about a home invasion robbery by two men and a woman brought the police who were able to corroborate essential details at the scene, and the corroboration was sufficient for the entry and subsequent search that led to syringes in plain view. State v. Wilson, 2007 Ohio 353, 2007 Ohio App. LEXIS 299 (12th Dist. January 29, 2007):

The caller indicated that two white men and a white female were breaking into a specific apartment, and police arrived to find evidence of a forced entry into that apartment. A white male came to the door as police were reacting to what they perceived to be a discovered forced entry. Some, and eventually all, of the statements of the anonymous caller were corroborated by police observation or investigation. Further, the evidence supported the belief by the police that the exigent circumstances continued and an additional suspect and weapon were still inside the residence.

Consent for search of defendant’s home was not shown to be voluntary. Officer asked three times and defendant insisted on talking on the porch. The officer demanded to speak inside, and defendant let him, but it was not consensual. People v. Plante, 308 Ill. Dec. 856, 862 N.E.2d 1059 (3d Dist. 2007):

Defendant did not consent to Bass’s third entry into the home. Defendant never told Bass that he may enter the home on his third attempt and specifically asked if they could speak outside. The State relies on defendant’s “nonverbal conduct” in walking back into the home after Bass demanded to speak inside to support its theory of consent. While “‘there is little authority as to what constitutes consent in the absence of an express verbal statement'” (Anthony, 198 Ill. 2d at 202, quoting People v. Henderson, 142 Ill. 2d 258, 298, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990)) the supreme court has recognized that “‘mere acquiescence to apparent authority is not necessarily consent'” (Anthony, 198 Ill. 2d at 202, quoting People v. Kelly, 76 Ill. App. 3d 80, 87, 394 N.E.2d 739, 31 Ill. Dec. 537 (1979)). Bass admitted that he told defendant “I am going to talk to you inside.” This is not a request. It is an evident display of “apparent authority” to which defendant merely acquiesced.

The State’s repeated assertion that Bass never “yelled, screamed, *** threatened [or] touched” defendant is both unavailing and misplaced. Consent may not be “extracted ‘by explicit or implicit means, by implied threat or covert force.” (Emphasis added.) Anthony, 198 Ill. 2d at 202, 761 N.E.2d at 1192, quoting Bustamonte, 412 U.S. at 228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048 (1973). Bass’s tactics were more than “subtly coercive.” Bass at minimum implied that force would be employed to secure his final entry when he blocked defendant in the door to the residence and stated affirmatively his intent to enter in spite of defendant’s request to speak outside.

Dirty license plate was not cause for a stop that led to the defendant being ordered out of the car and the officer seeing drug paraphernalia. 75% of the license plate was visible [and a computer check would verify its validity]. State v. Brooks, 2007 Ohio 344, 2007 Ohio App. LEXIS 302 (11th Dist. January 26, 2007).

There is normally no expectation of privacy in a stolen vehicle, but the Indiana Court of Appeals finds standing in a locked metal box defendants had in a stolen vehicle, analogizing it to a purse which has been left in a stolen vehicle during a stop. State v. Winkle, 859 N.E.2d 1244 (Ind. App. January 17, 2007).

Chiropractor’s claim he was searched before a state chiropractic board hearing was barred by the statute of limitations because the claim ran from when the search occurred, not when he learned it was illegal. Pearce v. Romeo, 2007 U.S. Dist. LEXIS 3100 (N.D. Cal. January 3, 2007).*

In a habeas ineffectiveness claim on a search issue, the court necessarily must get to the merits of the search issue. Here, there was reasonable suspicion for the stop, and the petitioner would fail on the merits of the issue, so counsel was not ineffective. Palacios v. Burge, 470 F. Supp. 2d 215 (E.D. N.Y. 2007)*:

“Where defense counsel’s failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

Strip search class action failed: Jail inmates received were stripped down to their underwear for a clothing search, and transferees from other jails or courts were strip searched on arrival. These were reasonable. Sutton v. Hopkins County, 2007 U.S. Dist. LEXIS 3150 (W.D. Ky. January 11, 2007).*

DNA swab of hands of a man in jail overnight who was accused of a sex offense after he was arrested was valid. Victim’s DNA was found on his hands. State v. Madplume, 2007 MT 11, 335 Mont. 290, 150 P.3d 956 (January 23, 2007).

Discarding contraband while running from the police is not an illegal seizure under Hodari D. United States v. Barham, 2007 U.S. Dist. LEXIS 4238 (E.D. Pa. January 19, 2007).*

Fourth Amendment claim not pursued by defense counsel would have failed on the merits so defense counsel could not be ineffective. Palacios v. Burge, 2007 U.S. Dist. LEXIS 4337 (E.D. N.Y. January 18, 2007).*

Officers responding to an assault in progress with a description of those involved had reasonable suspicion to detain the defendant since he was at the place and fit the description. United States v. Simmons, 2007 U.S. Dist. LEXIS 4376 (S.D. N.Y. January 17, 2007).*

DNA was taken from the defendant on a 2003 conviction and again by search warrant in 2004 for the crime under which he was charged. The court essentially held that it did not matter which sample was used but found the 2003 sample was lawfully taken [just as every other court has]. State v. Williams, 2007 Ohio 212, 2007 Ohio App. LEXIS 211 (11th Dist. January 19, 2007).*

When one student alleged that another had raped her at a public school, the school resource officer was able to investigate, and his questioning and requesting that a student remove his shirt to look for scratches or other evidence of the alleged assault was sufficiently based on reasonable suspicion. The reasonableness standard for school resource officers has been applied by numerous other courts, and the Seventh Circuit would apply it here. Wilson v. Cahokia Sch. Dist. # 187, 470 F. Supp. 2d 897 (S.D. Ill. 2007).

Although the Seventh Circuit Court of Appeals has not spoken to the issue, the weight of authority holds, and the Court agrees, that a search of a student on school grounds by a school resource officer at the request of school officials should be deemed a search by a school employee for Fourth Amendment purposes and thus is subject to the reasonableness standard, not the probable cause standard. See, e.g., In re William V., 4 Cal. Rptr. 3d 695, 699-700 (Cal. Ct. App. 2003) (a police officer on assignment to a school as a resource officer was a “school official” for purposes of the Fourth Amendment, and thus his search of a student was analyzed under the T.L.O. reasonableness standard); State v. N.G.B., 806 So. 2d 567, 568-69 (Fla. Dist. Ct. App. 2002) (reasonableness, not probable cause, was the appropriate standard by which to assess the legality of a search of a student by a school resource officer, where the investigation was initiated by the school’s vice principal who enlisted the officer’s assistance); State v. Whorley, 720 So. 2d 282, 283 (Fla. Dist. Ct. App. 1998) (a search of a student by a school resource officer must be justified at its inception, and the search must be reasonably related in scope to the reason for the search); People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996) (the reasonableness standard, not the probable cause standard, applied to determine whether a police liaison officer, who was a staff member at an alternative school for students with behavioral disorders, violated a student’s Fourth Amendment rights by searching a flashlight possessed by the student, who was suspected of involvement with drugs); In re Josue T., 989 P.2d 431, 436-37 (N.M. Ct. App. 1999) (applying the reasonableness standard where a school resource officer conducted a search of a student at the request of a school official); In re Angelia D.B., 564 N.W.2d 682, 687 (Wis. 1997) (citing Cason v. Cook, 810 F.2d 188, 191-92 (8th Cir. 1987)) (the reasonableness standard, not the probable cause standard, applied to a search conducted by a school liaison officer, at the request of and in conjunction with school officials, of a student reasonably suspected of carrying a dangerous weapon on school grounds; the officer became involved in the investigation only after school officials requested his assistance, and, throughout the course of the investigation, he acted in conjunction with school officials on school grounds).

Turning then to the search at issue in this case, the Court discerns no genuine issue of fact as to the reasonableness of the search. The search obviously was justified at its inception, as Adams had reported to Prince that she had been sexually assaulted by another student, an incident which clearly demanded prompt investigation by school officials. Further, the record demonstrates that the search was reasonably related in scope to the reason for the search, in light of the factors outlined in Vernonia.

Defendants were driving a rented SUV from Seattle east, and they ran it off the road and onto its side in a blizzard in North Dakota. An officer came upon the vehicle with no one around, and checked and found no accident having been reported with it. He found it open and he sought to ascertain whose vehicle it was from looking through the glove box and then inventorying the contents. The court found the officer’s determination that the vehicle was a “hazard” was reasonable because people might have stopped to render aid since it was 40 feet from the highway and visible. His inventory of the vehicle was sufficiently standardized to pass constitutional muster. United States v. Thi Le, 474 F.3d 511 (8th Cir. January 22, 2007)*

An anonymous tip that was uncorroborated failed to justify granting summary judgment for a police officer in a false arrest case. Diaz v. Jenne, 2007 U.S. Dist. LEXIS 4049 (S.D. Fla. January 19, 2007).*

Officer’s talking with plaintiff to gather information from him prior to the plaintiff’s arrest was not a seizure because plaintiff was not restrained at that point. At some point, however, the situation escalated into a handcuffing, and the justification for it is unclear, so the officer’s motion for summary judgment is denied as to that part of it. Morales v. Taveras, 2007 U.S. Dist. LEXIS 4081 (E.D. Pa. January 18, 2007).*

The plaintiff was in a lawsuit with the Township of Montrose, Michigan, and he came to a township council meeting to discuss it and complain about his treatment by city officials. In a dialogue with a township officer while at the podium he said “That’s why you’re in a God damn lawsuit—.” After he was done speaking, the defendant officer arrested him outside for disorderly conduct and using profane language. The District Court found for the officer [and that was a real stretch], but the Sixth Circuit reversed, finding that this was classic free speech, and the arrest was without probable cause and plaintiff stated a claim for retaliation against his political speech in a public forum. Leonard v. Robinson, 07a0051p.06 (6th Cir. February 2, 2007):

We will not grant immunity to a defendant if no reasonably competent peace officer would have found probable cause. See Malley v. Briggs, 475 U.S. 335, 341 (1986). In other words, “[i]t is clearly established that arrest without probable cause violates the Fourth Amendment.” Klein v. Long, 275 F.3d 544, 550 (2001) (quoting Donovan v. Thames, 105 F.3d 291, 297–98 (6th Cir. 1997)). Where the reasonableness of an officer’s actions hinge on disputed issues of fact, “the jury becomes the final arbiter of … immunity, since the legal question of immunity is completely dependent upon which view of the facts is accepted by the jury.” Brandenburg v. Cureton, 882 F.2d 211, 215–16 (6th Cir. 1989).

“[G]overnment officials in general, and police officers in particular, may not exercise their
authority for personal motives, particularly in response to real or perceived slights to their dignity.” Bloch v. Ribar, 156 F.3d 673, 682 (6th Cir. 1998) (quoting Duran v. Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)). For a plaintiff to state a claim for First Amendment retaliation, he must show that the injury was material, Bloch, 156 F.3d at 678 (that the injury “would likely chill a person of ordinary firmness from continuing to engage in that activity”), “that his conduct was constitutionally protected,” and that it was a “motivating factor” behind the government’s actions. Adair v. Charter County of Wayne, 452 F.3d 482, 492 (6th Cir. 2006); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). A “motivating factor” is essentially but-for cause—“without which the action being challenged simply would not have been taken.” Greene, 310 F.3d at 897.

Probable cause is clearly relevant to Leonard’s First Amendment retaliation claims. See Hartman v. Moore, 126 S. Ct. 1695, 1699 (2006). In Hartman, the Supreme Court determined that probable cause is an element of a malicious prosecution charge brought as constitutional tort under Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388 (1971). Hartman, 126 S. Ct. at 1699. Although there are differences between wrongful arrest and malicious prosecution, see id. at 1705 (noting that “the causal connection required here is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another”), there is an obvious similarity in that “the significance of probable cause or the lack of it looms large,” id. at 1706. Hartman, therefore, calls into question our cases holding that “probable cause is not determinative of the [First Amendment] constitutional question.” See Greene, 310 F.3d at 895. Yet, we need not decide whether Hartman adds another element to every First Amendment claim brought pursuant to § 1983 because, when viewed in the light most favorable to the plaintiff, we find that the facts of this case demonstrate an absence of probable cause.

The police had a reasonable belief in the apparent authority to enter to look for the defendant inside what turned out to be a two family unit. The defendant was a suspect in a murder, and they had reason to believe he was hurt stabbing his victim 56 times. They found him bleeding, hiding under a table in the basement. The search was valid. People v Porter, 37 A.D.3d 1165, 829 N.Y.S.2d 305 (4th Dept. 2007).*

Defendant’s Alford guilty plea waived his search issue. State v. Montgomery, 2007 Ohio 439, 2007 Ohio App. LEXIS 388 (2d Dist. February 2, 2007).*

Officer had probable cause for a stop after pulling up next to defendant’s car and seeing him drinking beer with a foam head from a glass. State v. Davis, 2007 Ohio 408, 2007 Ohio App. LEXIS 359 (8th Dist. February 1, 2007)* (Well, duh!).