Tennessee DUI roadblock satisfied its tough constitutional standards of State v. Downey, 945 S.W.2d 102 (Tenn. 1997). State v. Clark, 2006 Tenn. Crim. App. LEXIS 849 (October 20, 2006):

We note that the ultimate question in this case is whether the third prong of the Downey test weighs in favor of the checkpoint’s reasonableness. The witnesses’ testimony established that the MCSD announced the checkpoint in the local newspaper prior to March 12 and that all vehicles traveling in both directions were stopped at the checkpoint. When traffic became congested, Sergeant Tucker temporarily suspended the checkpoint until traffic cleared and the checkpoint could resume. The MCSD set up signs at each end of the checkpoint to warn approaching motorists; the MCSD used safety cones and marked patrol cars with emergency lights; and officers wore safety vests and carried flashlights, demonstrating that the checkpoint was conducted in a safe manner. All of these factors were enumerated in Downey and weigh in favor of finding that the checkpoint did not violate constitutional requirements. Moreover, Sheriff Lewis’ selecting the location for the checkpoint and the MCSD’s setting up and operating the checkpoint in accordance with predetermined guidelines weigh particularly heavily in the State’s favor. See Hicks, 55 S.W.3d at 533 (stating that “the most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field”); Downey, 945 S.W.2d at 110-11 (stating that “[v]irtually every court has emphasized the importance of limiting the discretion of police officers at the scene”).

According to the predetermined guidelines in this case, officers were to approach stopped motorists, identify themselves, and announce the purpose of the checkpoint. Officers then were required to “release the vehicle without further delay” if they saw no signs of intoxication or to detain any driver suspected of impaired driving. The appellant has made no claim that the checkpoint officers failed to follow these procedures. Therefore, we conclude that the level of intrusion to motorists was minimal in this case and that the stopping of motorists at the checkpoint was reasonable. The trial court properly denied the appellant’s motion to suppress the evidence against her.

Private search of former boyfriend’s place did not involve the Fourth Amendment. The police got into it after it happened. State v. Willis, 169 Ohio App. 3d 364, 2006 Ohio 5754, 862 N.E.2d 906 (2d Dist. 2006).*

Defense counsel was not ineffective for not filing a suppression motion after he determined that it would not be successful, which it would not have been. Ex parte Jones, 2006 Tex. App. LEXIS 9563 (Tex. App. – Dallas November 3, 2006).*

New Jersey, recognizing that all cases are to the contrary, finds that, since its state constitution provides greater rights for individuals, there is an expectation of privacy in an internet service provider’s records of screen name owners. State v. Reid, 2007 N.J. Super. LEXIS 11 (January 22, 2007):

Writing on a nearly clean slate, we conclude that defendant had a reasonable expectation of privacy in her ISP account information obtained by Detective Smith from Comcast by means of the invalid subpoena. We do so treading the State constitutional path illuminated by the Court in cases such as McAllister, Hunt and Hempele, decisions which are highly protective of an individual’s right to privacy even when the information sought is, of necessity, in the hands of a third-party. As the Court said in Doe, supra, 142 N.J. at 89-90, 662 A.2d 367, “[w]e have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information” (citations omitted).

By her use of an anonymous ISP address, 68.32.145.220, or “screen name,” defendant manifested an intention to keep her identity publicly anonymous. She could have used her own name or some other ISP address that would have readily revealed her identity, but she did not. Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast. Defendant’s interest in anonymity is both legitimate and substantial, see Doe, supra, 142 N.J. at 87, 662 A.2d 367, and the data on file with Comcast fell within the concept of informational privacy, which we have earlier endorsed.

Comment: Because this case stands alone for this proposition, I do not quote at greater length. The case name is a free link to the opinion which is replete with references to New Jersey having determined that it has a greater right of privacy than that recognized under federal law since a 1907 case, and it develops from there. This is not new for New Jersey because they have rejected several Supreme Court cases that limit the expectation of privacy.

In a federal prosecution for DWI of a civilian under the Assimilative Crimes Act, where Congress has not spoken, under Maryland statutory and common law a military police officer has no authority to pursue a civilian suspect off federal property to make an arrest, even in fresh pursuit. State law had to be applied, too. United States v. Atwell, 470 F. Supp. 2d 554 (D. Md. 2007):

The same restrictions apply to military police officers. See Major Matthew Gilligan, Opening the Gate?: An Analysis of Military Law Enforcement Authority Over Civilian Lawbreakers On and Off the Federal Installation, 161 Mil. L. Rev. 1, 31 (1999). Indeed, the restrictions might even be greater for military law enforcement officers, as military police officers have never been granted broad statutory authority to arrest civilians. Id; Administrative & Civil Law Dep’t, The Judge Advocate General’s School, U.S. Army, JA-221 Law of Military Installations Deskbook at 2-305 (Sept. 1996) (“Congress has not granted any statutory authority to arrest civilian lawbreakers.”). “A firmly rooted principle of American government is that the federal armed forces shall be subordinate to civil authorities.” Gilligan, 161 Mil. L. Rev. at 31. Accord 9 Op. Att’y Gen. 516, 522 (1860)(“[M]ilitary power must be kept in strict subordination to the civil authority, since it is only in the aid of the latter that the former can act at all.”). As a result, while on military property military officers have the same authority that civilian law enforcement officers have, i.e., to maintain order, security, and discipline on a military reservation, see Kennedy v. United States, 585 F.Supp. 1119, 1123 (D.S.C. 1984), such general authority has not been granted for areas where the United States Army does not have exclusive or concurrent jurisdiction.

Officers had probable cause to arrest plaintiff for DWI based on admissions to EMTs which they related to the officers. Therefore, the taking of her blood after an accident under N.Y.’s implied consent law was reasonable, and summary judgment granted. D’Angelo-Fenton v. Town of Carmel, 2007 U.S. Dist. LEXIS 4071 (S.D. N.Y. January 17, 2007).*

In the Amerindo securities fraud case, the search warrant was way overbroad ($25M in securities were at issue in a company that managed $1.2B), and all the records of the company fell within the warrant. Based on 2d Cir. authority, no reasonable officer could have relied upon the search warrant because of its defective overbreadth, and the good faith exception did not save it. The court did, however, sever the evidence seized under the invalid portions from the valid portions. United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (S.D. N.Y. April 4, 2007) (the S.D.N.Y.’s website has a link for special interest cases, but this case was not there when this was posted here; also note that this was not received by Lexis until the day before it was posted here):

Here, the challenged Warrant suffers from both of these deficiencies. To begin, nowhere does the Warrant indicate what specific acts of wrongdoing are being investigated. Paragraph 16 of the Warrant Rider contains an oblique reference to “participants in the fraud schemes,” but this would have been unhelpful to the Inspectors executing the search, as the Warrant does not identify those participants or explain the referenced fraud schemes, nor does it identify the particular transactions and illicit activities upon which the Warrant was founded. Moreover, this omission cannot be cured by reference to the supporting warrant application. The Second Circuit has held that a “sufficiently specific affidavit will not itself cure an overbroad warrant … [unless] it is incorporated by reference in the warrant itself and attached to it,” neither of which occurred here. George, 975 F.2d at 76; see also Groh, 540 U.S. at 557-58, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (refusing to consider warrant application where the “warrant did not incorporate [the application] by reference, nor did . . . the application . . . accompany the warrant”); cf. United States v. Walker, No. 06 Crim. 48E, 2006 WL 3150977, at *4 (W.D.N.Y. Nov. 1, 2006) (reading warrant as including facts set forth in affidavit where warrant stated, “see attached Affidavit as to of [sic] Items to be Seized, all of which are fruits, evidence and instrumentalities of violations of 18 U.S.C. § 922(g)(1) all of which are more fully described in the affidavit filed in support of this warrant which is incorporated herein by reference” (emphasis added)).

The Warrant also contained a general, catch-all provision. As noted, paragraph one of the Rider authorizes the seizure of all “[c]orporate records” concerning any of the Amerindo entities, including Amerindo Cayman. Although the Warrant explains that this catch-all provision “includes” items such as “records concerning the formation of … the Amerindo entities,” “client lists, client files, investment brochures,” and “correspondence,” the Warrant explicitly states that the seizure power is “not limited to” such items. Indeed, nowhere is this catch-all provision in any way circumscribed, a problem that is amplified by the fact that other paragraphs in the Warrant do contain limitations — for example, to documents related to the fraud schemes (paragraph 16) or to specific individuals (paragraph 6) — which would indicate to a reasonable officer that paragraph one, lacking such explicit restrictions, is therefore unbounded. Moreover, this patent lack of particularity is only compounded by the absence of any date restriction on the items to be seized. See Roberts, 656 F. Supp. at 935 (noting the absence of a “limit as to the dates of the documents to be seized” in determining lack of particularity).

At bottom, the Warrant, most notably in the first paragraph of the Rider, provides for the seizure of a virtually unlimited body of documents. As such, it left unacceptably broad discretion to the officers executing the search. As the Roberts court held, “[w]ith no limit as to the owners of the documents, no limit as to the dates of the documents to be seized, and no restriction to any specific wrongful transaction to which the documents were related, the warrant in this case authorized a general, exploratory rummaging in a person’s belongings.” Roberts, 656 F. Supp. at 935 (internal citations and quotations omitted). The Court therefore finds that portions of the Warrant violated the particularity requirement of the Fourth Amendment.

3. Good Faith

A finding that the Warrant was invalid does not end the inquiry. If the executing officers conducted the search “in good faith and in objectively reasonable reliance on the warrant,” the evidence produced by that search will not be suppressed. Buck, 813 F.2d at 592. This so-called “good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Leon, 468 U.S. at 922 n.23. The “standard of reasonableness … is an objective one, … [that] requires officers to have a reasonable knowledge of what the law prohibits.” George, 975 F.2d at 77 (quoting Leon, 468 U.S. at 919-20). In assessing the good-faith exception, “[t]he burden is on the government to demonstrate the objective reasonableness of the officers’ good-faith reliance.” United States v. Santa, 180 F.3d 20, 25 (2d Cir. 1999); accord George, 975 F.2d at 77.

. . .

In Buck, the Second Circuit addressed the application of the good-faith exception under circumstances similar to those here. There, the court invalidated a warrant for failure to meet the Fourth Amendment’s particularity requirement. 813 F.2d at 591-92. Unlike the Warrant here, the warrant in Buck included a description of the crime; however, it also authorized the broad seizure of “any papers, things or property of any kind relating to the previously described crime.” Id. at 590. The Second Circuit held that such a warrant “left it entirely to the discretion of the officials conducting the search to decide what items were to be seized, and thus was not permissible under the Fourth Amendment.” Id. at 592. The Buck court then addressed the good-faith exception. Reasoning that the executing officers could not have “anticipate[d the court’s] holding … that the particularity clause of the Fourth Amendment prohibits the use of a catch-all description in a search warrant,” the court applied the good-faith exception and did not suppress the evidence. Id. at 593. Relevant to the pending motion, however, the Buck court added the following words of guidance: “Of course, our decision today means that, with respect to searches conducted hereafter, police officers may no longer invoke the reasonable-reliance exception to the exclusionary rule when they attempt to introduce as evidence the fruits of searches undertaken on the basis of warrants containing only a catch-all description of the property to be seized.” Id. at 593 n.2.

. . .

5. Severance

As a last line of defense, the Government argues that even if portions of the Warrant are unconstitutionally broad or otherwise insufficiently particularized, and even if the good-faith exception does not apply, the Court should, at most, sever the invalid portions of the Warrant and permit it to keep items seized pursuant to the valid portions. This the Court will do.

The Court also helpfully took it upon itself to explain the application of traditional Fourth Amendment analysis to electronic media:

A number of courts and academic commentators have suggested that searches of computers raise unique Fourth Amendment issues. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999); United States v. Tamura, 694 F.2d 591 (9th Cir. 1982); [*112] Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). For example, a single computer is capable of storing immense amounts of information: “Computer hard drives sold in 2005 generally have storage capacities of about eighty gigabytes, roughly the equivalent to forty million pages of text — about the amount of information contained in the books on one floor of a typical academic library.” Kerr, supra, at 542. Computers also often contain significant “intermingling” of relevant documents with “documents that the government has no probable cause to seize.” In the Matter of the Search of: 3817 W. West End, First Floor Chicago, Illinois 60621, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004); see also Ralph Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994). Increasingly, even office computers are used as “postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more,” Kerr, supra, at 569, a phenomenon that is only compounded in a networked world, where a “single physical storage device can store the private files of thousands of different users.” Id. at 556.

Another potential complication regarding computer searches is the fact that often, because of time restraints and insurmountable technical limitations, such searches cannot be carried out at the time the warrant is executed at the premises. See United States v. Hill, 459 F.3d 966, 974-75 (9th Cir. 2006) (observing that “there is a serious risk that the police might damage the storage medium or compromise the integrity of the evidence by attempting to access the data at the scene,” and that taking the time needed to search a computer at the scene “would not only impose a significant and unjustified burden on police resources, it would also make the search more intrusive”). Instead, “it is frequently the case with computers that the normal sequence of ‘search’ and then selective ‘seizure’ is turned on its head,” as computer hardware is seized from a suspect’s premises before its content is known and then searched at a later time. 3817 W. West End, 321 F. Supp. 2d at 958; see also Hill, 459 F.3d at 974 (holding that “the police were not required to bring with them equipment capable of reading computer storage media and an officer competent to read it”). Moreover, as was the case here, computer searches are often not executed on a seized computer itself, but rather on a government computer that contains a “mirror-image” copy of a target machine, copies that can generally be made without exposing the underlying data to the eyes of government agents. See Kerr, supra, at 560. Thus, the fear of some is that law enforcement officers, unencumbered by the type of time pressures attendant to doing a search of a physical premises, might be tempted to rummage through a computer’s files well beyond the scope of a warrant. See id. at 571 (“Many computers may contain a wealth of evidence of low-level crimes, and probable cause to believe a person has engaged in a minor offense may justify an exhaustive search of his hard drive that will expose a great deal to government observation.”).

On the other hand, the computer has become the modern criminal’s best friend. It is used to communicate to cohorts, ensnare victims, and generally to prepare and orchestrate criminal conduct. The computer facilitates the terrorist organization’s ability to train its members, spread propaganda and case its targets, just as it helps the identity thief locate his victims, the pornographer to collect and view child pornography, and the fraudster to generate fake documents. And, it is precisely because computer files can be intermingled and encrypted that the computer is a useful criminal tool. Nefarious documents can be given innocuous names, or can be manipulated, hidden or deleted with great ease. See Hill, 459 F.3d at 978 (“Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer.”); United States v. Hunter, 13 F. Supp. 2d 574, 583 (D. Vt. 1998) (“Computer records are extremely susceptible to tampering, hiding, or destruction, whether deliberate or inadvertent.”). It therefore is unsurprising that some of the most important evidence of criminal conduct is often found buried in computers. As a result, it also should not be surprising that a person who uses a computer, or any electronic device, as an instrumentality of crime might discover that a magistrate judge would find probable cause to search that computer, just as it should not shock the user of a telephone that a judge would approve interceptions of calls over that telephone or the home owner that a judge would approve a search throughout a house believed to contain evidence of a crime. See United States v. Gray, 78 F. Supp. 2d 524, 528 (E.D. Va. 1999) (noting that “agents authorized by warrant to search a home or office for documents containing certain specified information are entitled to examine all files located at the site to look for the specified information”).

The Second Circuit has yet to comprehensively address the unique issues raised by computer searches, and few district courts in this circuit have had occasion to address the topic. Nevertheless, some guiding precepts have emerged in this circuit and others. As an initial matter, although searches of computers present unique constitutional challenges, the ultimate Fourth Amendment standard is the same for both computer and hard-copy searches: reasonableness. See Hill, 459 F.3d at 974 (“As always under the Fourth Amendment, the standard is reasonableness.”). At bottom, then, there is neither a heightened nor a reduced level of protection for information stored on computers, as there is “no justification for favoring those who are capable of storing their records on computer over those who keep hard copies of their records.” Hunter, 13 F. Supp. 2d at 584; accord Gray, 78 F. Supp. 2d at 529.

The cases and commentary also draw a distinction between the electronic storage device itself and the information which that device contains. Thus, when the government seeks to seize the information stored on a computer, as opposed to the computer itself, that underlying information must be identified with particularity and its seizure independently supported by probable cause. See Carey, 172 F.3d at 1275 (“Officers [should] specify in a warrant which type of files are sought.”); United States v. Riccardi, 405 F.3d 852, 862-63 (10th Cir. 2005) (holding that warrant which “permitted the officers to search for anything — from child pornography to tax returns to private correspondence,” was “precisely the kind of wide-ranging exploratory search that the Framers intended to prohibit” (internal quotations omitted)); Hunter, 13 F. Supp. 2d at 584-85 (invalidating a warrant for failure to identify with particularity the underlying information to be seized); In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11, 12 (S.D.N.Y. 1994) (holding, in the context of a grand jury subpoena, that specificity is required with respect to the categories of information requested, not merely the storage devices). This is consistent with the Government’s own published practices, as set forth in a 2002 manual issued by the United States Department of Justice, Criminal Division. See Computer Crime and Intellectual Prop. Section, Crim. Div., U.S. Dep’t of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2002), available at www.cybercrime.gov/s&smanual2002.htm, (hereinafter “DOJ Manual”). The DOJ Manual instructs agents that “[i]f the probable cause relates only to the information … the warrant should describe the information, rather than the physical storage devices which happen to contain it.” Id. at 42.

This is not a new rule, but merely an application of the traditional Fourth Amendment requirement that the Government establish that there is probable cause that the materials sought will contain evidence of crime, and then specify with reasonable particularity the materials to be seized. See United States v. Brooks, 427 F.3d 1246, 1253 (10th Cir. 2005) (upholding warrant “that authorized officers to search through computer files for particular items specifically related to child pornography”). In meeting this burden, the Government obviously will need to persuade an issuing magistrate judge that there is reason to believe that the target computer was used to facilitate the crime, or otherwise will contain evidence of that crime. See Hill, 459 F.3d at 975 (“Although computer technology may in theory justify blanket seizures for the reasons discussed above, the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand.”). However, this does not require the Government to establish that a majority of the computer files are related to the suspected criminal conduct, as long as what is to be seized is set forth with sufficient particularity. See Gray, 78 F. Supp. 2d at 528; Hunter, 13 F. Supp. 2d at 583. Indeed, given all the operating software and other basic files stored on most computers, it should not be expected that most files will be suspicious. See Hill, 459 F.3d at 974 (noting that “computers in common use run a variety of operating systems — various versions of Windows, Mac OS and Linux, to name only the most common”).

The defendant was believed to have sent child porn to an unwilling recipient who reported it to the authorities. A subpoena to Yahoo! revealed the owner of the IP address associated with the user account. This was sufficient justification for issuance of a search warrant for the physical address, notwithstanding the fact that others could have been using wireless at that address. The place to be searched was also a multiple occupancy unit, and the officers complied with Garrison. United States v. Perez, 2007 U.S. App. LEXIS 8366 (5th Cir. April 12, 2007):

In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at 7608 Scenic Brook Drive. The affidavit presented to the magistrate included the information that the child pornography viewed by the witness in New York had been transmitted over the IP address 24.27.21.6, and that this IP address was assigned to Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas 78736.

Perez argues that the association of an IP address with a physical address does not give rise to probable cause to search that address. He argues that if he “used an unsecure wireless connection, then neighbors would have been able to easily use [Perez’s] internet access to make the transmissions.” But though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence. See United States v. Grant, 218 F.3d 72, 73 (1st Cir. 2000) (stating that “even discounting for the possibility that an individual other than [defendant] may have been using his account, there was a fair probability that [defendant] was the user and that evidence of the user’s illegal activities would be found in [defendant’s] home”) (emphasis in original). “[P]robable cause does not require proof beyond a reasonable doubt.” Brown, 941 F.2d at 1302. Perez also argues that evidence that illicit transmissions were made does not give rise to probable cause that physical evidence would be located at the residence. However, the New York witness stated that the images she observed appeared to be videos played on a television screen transmitted via a web cam. There was therefore a basis to believe that the suspect would have such videos in his residence. Moreover, Britt stated in his affidavit that, in his experience, persons interested in child pornography typically retain numerous images of child pornography as well as “material documenting the arrangements, the introduction, and tasks to consummate the acquisition of child pornography.” Based on this information, there was probable cause to believe that physical evidence of violations of the child pornography laws would be located at 7608 Scenic Brook Drive.

Search warrant was validly issued on the co-conspirator’s statement that she saw meth ingredients in defendant’s house. United States v. McAtee, No. 06-1698 (8th Cir. April 12, 2007):

The affidavit exhibits several indicia of reliability. First, it is notable that the information did not come from an anonymous or confidential informant. See Reivich, 793 F.2d at 959. Second, Jodie had just been observed purchasing large quantities of pseudoephedrine, thus, “the question was not whether a crime was being committed, but only where and by whom.” Id. Third, the statements by Jodie that she had been given methamphetamine and that illegal activity was most likely occurring in her home are statements against her own penal interest, which lends credibility to her statements. See United States v. Harris, 403 U.S. 573, 583-84 (1971). Fourth, Jodie’s statements consisted of detailed and specific allegations regarding materials she had seen in her home as well as actions by McAtee. As the Supreme Court has noted, the “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the] tip to greater weight than might otherwise be the case.” Gates, 462 U.S. at 234.

Considering all of the circumstances regarding Jodie’s statements to the police, there was probable cause for searching her home.

Plaintiff’s decedent committed suicide after being released from custody, and the court can find no law that a claim is stated, so qualified immunity would apply as well. Garcia v. Jim Wells County, 2007 U.S. Dist. LEXIS 24264 (S.D. Tex. March 30, 2007):

Marcos Garcia committed suicide after defendants released him from custody. Plaintiffs have not cited a single Supreme Court or Fifth Circuit case to support their theory of liability that defendants violated the Fourteenth Amendment by releasing Marcos from the Jim Wells County Jail without first providing mental health assistance. After surveying their jurisprudence, the Court finds that neither the Supreme Court nor the Fifth Circuit have held that the Fourteenth Amendment offers protection to former detainees who commit suicide at home after release from jail custody. Because former detainees who commit suicide at home after release are not afforded the protection of the Fourteenth Amendment, plaintiffs have not alleged a constitutional violation. Defendants Lopez, Garza, Wright, and Montalvo are entitled to qualified immunity for that reason. Defendants Flores and Villareal are entitled qualified immunity for a more basic reason: plaintiffs have not alleged a constitutional violation committed by Flores and Villareal because they have not even shown that defendants Flores and Villareal interacted at all with Marcos during his detention. The Court finds that all six individual deputies are entitled to qualified immunity.

Questions of fact remained for trial of whether a police officer accidentally shot the plaintiff and whether it was a bullet from his gun. Hickenbottom v. Nassan, 2007 U.S. Dist. LEXIS 24336 (W.D. Pa. March 30, 2007).*

Plaintiffs’ motion for summary judgment for excessive forced used in their arrest outside a Rolling Stones concert was denied. There are disputed facts as to whether the force was necessary or whether officers were entitled to qualified immunity. Phillips v. Stevens, 2007 U.S. Dist. LEXIS 24448 (S.D. Ohio March 29, 2007).*

In a convoluted RICO conspiracy claim brought by an NYPD officer against the city and others, one claim dealt with invasion of privacy. The court held that the officer had a lower expectation of privacy as a result of his voluntarily becoming a police officer. The case involved detox. Buneo v. City of New York, 2007 U.S. Dist. LEXIS 24766 (E.D. N.Y. March 30, 2007):

Plaintiff further claims that City Defendants’ actions resulted in a violation of his constitutional right to privacy. However, as City Defendants correctly point out, Plaintiff, as a police officer, is not entitled to the same privacy rights as the average citizen. “The privacy expectations of any particular group is markedly diminished by such factors as the employees’ voluntary pursuit of a position they know to be pervasively regulated for reasons of safety and the employees’ acceptance of severe intrusions upon their privacy.” Seelig v. Koehler, 76 N.Y.2d 87, 91 (1990) (citing National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 618 (1989)).

Plaintiff voluntarily joined the NYPD, an organization that is not only highly regulated, but whose regulations are often predicated on the numerous safety concerns it faces as the primary protector of New York City. Because police officers’ work is, by definition, safety-sensitive, it is a justifiable intrusion upon a police officer’s privacy to ensure that he or she is mentally and physically fit to carry out the duties and responsibilities required of a member of the service. See Biehunik v. Felicetta, 441 F.2d 228, 231 (2d Cir.1971). By joining such an organization, Plaintiff implicitly accepted greater intrusions upon his privacy. See, e.g., Poole v Stephens, 688 F. Supp. 149, 155 (D.N.J. 1988) (finding that correction officers’ privacy expectation was diminished by the safety considerations of their work). To the extent that Plaintiff’s § 1983 action is predicated upon an unconstitutional intrusion on his privacy, that claim is dismissed as a matter of law. [And he does not prevail.]

District court’s finding that defendant understood English enough to consent and read and signed the Spanish language side of the consent form was not clearly erroneous. United States v. Ramos-Gonzalez, 2007 U.S. App. LEXIS 7660 (5th Cir. April 3, 2007)* (unpublished).

The search warrant was not stale. While the primary information was five months old, there was at least some evidence in the affidavit of drug sales from and related possession in defendant’s house after that. United States v. Perry, 2007 U.S. Dist. LEXIS 24540 (E.D. Mich. April 3, 2007).*

An officer does not need reasonable suspicion to stop and ask for identification, but, in this case, the officer did have reasonable suspicion because the defendant matched the description of a bank robber. United States v. Askew-Bell, 2007 U.S. Dist. LEXIS 24679 (N.D. Ill. April 2, 2007).*

Federal deputy marshal’s executing a court order for forfeiture had immunity under the order. Jebril v. United States, 2007 U.S. Dist. LEXIS 24542 (E.D. Mich. March 30, 2007).*

False imprisonment is a due process claim rather than an unreasonable seizure claim. Bracknell v. Montgomery County Comm’n, 2007 U.S. Dist. LEXIS 23981 (M.D. Ala. March 29, 2007):

Plaintiff is in essence complaining that he was falsely imprisoned by Savage. A false imprisonment claim is properly analyzed under the Fourteenth Amendment, rather than under the Fourth Amendment protection against unlawful search and seizure. See Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir. 1993)(holding that the plaintiff must establish that an imprisonment “worked a violation of fourteenth amendment due process rights.”); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980) (noting that the fourteenth amendment governs false imprisonment actions); Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (due process clause of the fourteenth amendment protects an individual from detention after his release date). Because Plaintiff’s claims are properly analyzed under the framework of substantive due process of the Fourteenth Amendment, his Fourth Amendment claims are DISMISSED.

Officers could reasonably believe they had probable cause under the search warrant, and the warrant was particular enough (“gambling paraphernalia”). Therefore, they were entitled to qualified immunity. Murray v. City of Lavonia, 2007 U.S. Dist. LEXIS 23682 (M.D. Ga. March 30, 2007).*

The statute of limitations on a seizure does not really start to run until the seizure abates, so it continues through the possession. Herrin v. Dunham, 2007 U.S. Dist. LEXIS 24202 (E.D. Mich. March 30, 2007):

The plaintiffs allege an unconstitutional seizure of their property. “[A] seizure of property occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property’ …. This expansive definition is necessary because a seizure threatens an individual’s distinct interest in retaining possession of his or her property.” Thomas v. Cohen, 304 F.3d 563, 569-70 (6th Cir. 2002) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). The seizure of property continues until the interference ends. Although the property at issue in this case was seized initially on July 13, 2001, the county retained possession of the property until February 2, 2005, when two trailers and an asphalt roller were released to the plaintiffs. The plaintiffs allege “that no other property has yet been returned to” them. Pl.’s Compl. at P 9. The seizure of these items continued until their release. Therefore, the statute of limitations has not expired on these claims. The magistrate judge’s report must be rejected in so far as it suggests otherwise, and the plaintiffs’ objection is sustained.

The savings statute to civil rights claims dismissed without prejudice does not extend the statute of limitations as to civil rights claims not brought in the original action. Fuller v. Cuyahoga Metro. Hous. Auth., 2007 U.S. Dist. LEXIS 24144 (N.D. Ohio March 30, 2007).*

Eleven state search warrants were executed in Omaha, and the case went federal. First came a Franks challenge that was rejected because of negligent misstatements that did not affect probable cause. Second, some defendants did not have standing as to some of the places searched. Third, on the four corners of the affidavits, there was probable cause. Fourth, typo as to one address in the warrant was not material where the affidavit which was correct was attached and the correct place was searched. Fifth, the no-knock warrants issued here were justified on facts, but Hudson foreclosed application of the exclusionary rule. Sixth, nighttime search warrants for storage buildings were sought so all the searches would not be compromised by witnesses [nighttime search rule is really designed to protect occupants of home, not an unoccupied storage building]. Seventh, one warrant return was a day late, and there was no prejudice from it. Eighth, one defendant was stopped to prevent compromising one of the searches, and she validly consented, despite the alleged illegal search. Ninth, search of an impounded vehicle intended for forfeiture produced 250 lbs of marijuana, and it was validly searched. Tenth, the officers objectively relied on the warrants for good faith exception purposes. United States v. Giles, 2006 U.S. Dist. LEXIS 95099 (D. Neb. November 17, 2006) (U.S.M.J.’s R&R).

Defendant was asked for consent and declined, but was allowed to go inside to get a sweatshirt on, and he was followed in by the officer. Inside, the officer asked for consent again, and got it. The court found the consent voluntary on the totality. United States v. Lizardo-Figueroa, 2007 U.S. Dist. LEXIS 8274 (D. Kan. January 22, 2007).*

2255 petitioner’s waiver of all rights during guilty plea was a waiver of his search claim. The court finds dubious that he would have gone to trial if he won the motion. Also, his father’s after-the-fact affidavit that he was coerced into consent was hardly credible. United States v. Gonzales, 2007 U.S. Dist. LEXIS 8112 (S.D. Tex. January 14, 2007):

As an initial matter, the after-the-fact claim of duress from the defendant’s father is of questionable validity. It is curious that Gonzales never brought the issue to the Court’s attention during his criminal proceedings, despite the fact that he corrected what he perceived as other misstatements. … At no point, however, did Gonzales object to the assertion that his father had consented to the second search of the vehicle. Thus, assuming the veracity of Gonzales, Sr.’s affidavit, it is unclear whether Gonzales himself even knew about the circumstances of the second search prior to entering his plea.

Officer stopped a car in an area known for teenage drinking, and the defendant got out of the car with marijuana residue on his pants. This was probable cause for a search of the person, and defendant’s reliance on Terry was misplaced. State v. Hunter, 949 So. 2d 649 (3d Cir. 2007).

The Kansas Supreme Court held that the smell of ether alone coming from a car after a traffic stop did not justify a search of the car. It was as consistent with lawful activity as unlawful activity. The court distinguishes cases where the smell of ether was corroborating an informant’s story. State v. Ibarra, 282 Kan. 530, 147
P.3d 842 (2006) (citing Annot., Validity of Warrantless Search Based in Whole or in Part on Odor of Narcotics other than Marijuana, or Chemical Related to Manufacture of Such Narcotics, 115 A.L.R.5th 477, and discussing cases from many states).

The 9 page affidavit for the search warrant in this case made only a fleeting mention to defendant’s car. When describing the places to be searched with the reasons why there was probable cause, there was no connection shown to the car, so there was no probable cause to search the car. Turning to the good faith exception, the court finds that it does not apply because the police, who prepared the affidavit, were effectively blaming the magistrate for the affidavit’s deficiencies. The good faith exception did not apply. United States v. Harvey, 2006 U.S. Dist. LEXIS 88590 (D. V.I. November 29, 2006):

The Zimmerman Court noted that “[g]ood faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.” Id. (quoting United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)). This is particularly true where the affiant is also one of the executing officers.

In Zimmerman, the officer who applied for the warrant was also the author of the supporting affidavit and was one of the executing officers. Id. The court reasoned that

“it is somewhat disingenuous, after having gone to the magistrate with the paltry showing seen here, to suggest . . . that at bottom it was the magistrate who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.”

Id. This disingenuousness aside, the Zimmerman Court noted that, “[t]he good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts.” Id. (quoting Reilly, 76 F.3d at 1273). Moreover, “[t]he objective standard ‘requires officers to have a reasonable knowledge of what the law prohibits.'” Id. (quoting Leon, 468 U.S. at 919-20 n.20).

Except for its initial mention in the list of items to be seized, the affidavit in this case makes no mention of the Acura or its involvement in the drug conspiracy under investigation. Here, as in Zimmerman, the one purported reference to the item to be seized occurs at the end of a lengthy affidavit. The reference to a “car” in Paragraph 27 is more vague and fleeting than the reference to adult pornography in the Zimmerman affidavit that the court held to be “marginal evidence at best.” Id. at 437. Additionally, like the pornography reference in Zimmerman, the nebulous reference to “a car” in this case was outdated, as it was based on events that allegedly took place five months prior to the seizure.

Agent Goldfinger was the affiant and one of the executing officers in this case. Especially given his extensive involvement in the Title III investigation, Agent Goldfinger should have known that the marginal evidence contained in the affidavit could not support probable cause to seize the Acura. Thus, it would be “somewhat disingenuous” for the government to claim that the DEA agents were acting in good faith reliance on the magistrate’s decision to issue the warrant.

The Florida First District Court of Appeals suppresses a search under precedent it has to follow but argues that a traffic stop that led to a suspicionless dog sniff that led to a search of the car that produced nothing permitted a search of the driver. It certifies the following issue to the Florida Supreme Court: “Whether, under the Fourth Amendment of the United States Constitution, a trained narcotics-detection dog alert of a vehicle provides probable cause to search the vehicle’s driver who is also the sole occupant of the vehicle?” State v. Griffin, 949 So. 2d 309 (Fla. App. 1st Dist. 2007, released for publication March 8, 2007).

Informants’ tips were sufficient to show probable cause for defendant’s stop under Gates. United States v. Hernandez, 2007 U.S. Dist. LEXIS 11405 (E.D. Wis. February 15, 2007):

The government relies on Illinois v. Gates, 462 U.S. 213 (1983), to support its contention that the information provided by CI # 1 was sufficient to establish probable cause that Hernandez had been selling drugs. It notes that in Gates the Supreme Court held that a highly detailed tip from an anonymous informant that was corroborated by independent police work could establish probable cause. Id. at 246. But this case differs from Gates in that the informant is not anonymous, merely confidential. The distinction is significant. An anonymous informant is one whose identity is unknown, even to law enforcement. A confidential informant, on the other hand, is one whose identity is known to law enforcement but is kept confidential, at least initially, so as to maintain the informant’s effectiveness or protect him or her from retaliation. A confidential informant who provides false information can be exposed and charged with obstructing an officer, or worse. An anonymous informant who spreads lies is untouchable. It is for this reason that a substantial amount of corroboration is required in order for information provided by an anonymous informant to support a finding of probable cause. See, e.g., Gates, 462 U.S. at 243-44. But when a law enforcement officer receives information from a confidential informant, he will often have additional bases upon which to evaluate the reliability of the information provided.

Brief additional detention from asking questions of whether there was contraband in the car and whether the officer could search did not unconstitutionally extend the stop because of reasonable suspicion. United States v. Verde, 2007 U.S. Dist. LEXIS 11463 (W.D. La. January 8, 2007):

During the hearing, Davis admitted that he had not detected any other criminal activity. Rather, his suspicions were aroused by the party’s conflicting stories, the defendants’ lack of knowledge of their uncle’s address (when that was their professed destination), nervousness, and Mr. Hernandez’s failure to make eye contact. Moreover, the defendants were stopped on a known drug corridor at a late hour.

Defense counsel at trial was ineffective for not filing a motion to suppress that would have prevailed on protective sweep. Habeas relief granted. State courts’ conclusions were contrary to clearly established Fourth Amendment law under Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Howie v. Crow, 2006 U.S. Dist. LEXIS 82283 (W.D. N.C. November 9, 2006).

Question of PC need not be decided in this case because it is clear that the GFE applied. United States v. Jimenez, 205 Fed. Appx. 656 (10th Cir. 2006)* (unpublished). Comment: This is not the preferred method of resolving good faith exception claims, and I vehemently disagree with punting the PC issue without thinking. But, if the court, in its gut, knows that PC was present, why spend a long time discussing it when the GFE claim is obvious? If so, they should at least just mention something like “we believe probable cause was present, but we do not address it because the good faith exception obviously applies.”

Even if information illegally obtained from an illegal search was removed from the affidavit for the search warrant, there still would be probable cause for the warrant. United States v. Lawrence, 205 Fed. Appx. 786 (11th Cir. 2006)* (unpublished). The same result occured in Ohio on November 9th. State v. Newell, 2006 Ohio 5980, 2006 Ohio App. LEXIS 5903 (2d Dist. November 9, 2006) (emergency entry in response to a shooting in progress; police re-entered after situation was resolved, and that was purged from the affidavit still leaving PC).

On November 4th there is a post about Microsoft creating software that permits tracing back webcasts of child porn that was used in Ontario to rescue a child from a live production. Related to that, and just before that article was published, there was an opinion from the District of Idaho involving a live transmission of child porn from Edmonton to Idaho which the police became aware of, and they obtained a search warrant in Idaho. United States v. Banks, 2006 U.S. Dist. LEXIS 82368 (D. Idaho October 27, 2006). The issue here was particularity: When the affidavit for the search warrant states the crime under investigation, the fact parts of the material sought do not specify a crime within them does not matter because it relates back to the overall possible crime mentioned in the affidavit:

By contrast, in this case, it is quite clear from the face of the warrant that the search related to criminal possession, production and/or transportation of child pornography and the visual depiction of minors engaged in sexually explicit conduct. As defendant himself observes, the ten sections to which he does not object contain explicit and repeated mention of this specific criminal conduct. (Reply at 5.) Defendant’s hyper-technical reading of the cases above runs afoul of Supreme Court authroity, which has stated clearly that courts are to read a “warrant in a common sense fashion.” Cardwell, 680 F.2d at 77 (citing United States v. Ventresca, 380 U.S. 102 (1965)); Andresen v. Maryland, 427 U.S. 463, 479-482 (1976) (rejecting a particularity challenge because the relationship between the items to be seized and the alleged criminal conduct was “clear from the context”). In this instance, there is a clear, commonsense, logical nexus between the items described in those six categories and the crimes listed elsewhere throughout in the warrant. Indeed, many of the disputed categories authorize seizure of items which are directly necessary for adequately processing and searching items listed in the undisputed categories. Therefore, the May 21, 2005, warrant has given a more than adequate “indication of the alleged crime to which the seized [items] pertained.” Kow, 58 F.3d at 427.

Voluntariness of Miranda warning and consent to search was supported by the record. People v Knudsen, 2006 NY Slip Op 8149, 2006 N.Y. App. Div. LEXIS 13361 (2d Dept. November 8, 2006).*

“Second look” at property lawfully seized while in the property room was valid. The defendant did not contest the initial seizure because it was valid. The second look came days later when it was discovered that there might be something there that was unimportant at the time of the initial seizure, and it was valid, too. United States v. Aldaco, 477 F.3d 1008 (8th Cir. 2007).

Valid traffic stop led to reasonable suspicion. United States v. Jimenez, 478 F.3d 929 (8th Cir. 2007):

The conflicting stories regarding the travel plans; the fact that Ms. Jimenez was planning to leave the vehicle in Minneapolis; the lack of tickets, money, and plans to return home after leaving the car; her nervousness when speaking with Officer Oetter; and the fact that the vehicle’s kick panel and molding had been removed and were visible in the back seat of the car all support the officer’s decision to further investigate. … While these and the other factors noted in the record standing alone individually may not be enough to raise a reasonable suspicion, when considered together, they are sufficient to warrant Officer Oetter’s further investigation.

In a § 1983 action where the defendant was convicted, the action is limited to the unreasonable detention and search only, and not to the conviction. Davenport v. County of Suffolk, 2007 U.S. Dist. LEXIS 12696 (E.D. N.Y. February 23, 2007):

There is no question that Townes prevents Davenport from recovering damages for his subsequent arrest and prosecution based upon his unreasonable search and seizure claim. However, unlike the plaintiff in Townes, Davenport does not limit the damages sought to his arrest and conviction, but also seeks damages from the alleged unreasonable stop and seizure prior to his arrest. The Second Circuit recognized that, if the plaintiff in Townes had sought damages from the stop and initial search of his person, such damages would have been available. Id. (“[Plaintiff’s] only possible damage claim would be limited to the brief invasion of privacy related to the seizure and initial search of his person.”). More specifically, “[v]ictims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy– including (where appropriate) damages for physical injury, property damage, injury to reputation,” and related damages. Id. at 148. Therefore, such damages are clearly available to Davenport if he can prove that a Fourth Amendment violation of his rights occurred during the initial stop and search of his person prior to arrest. Under Second Circuit law, Davenport is entitled to a trial even if he is only able to recover slight or nominal damages. Id. at 146; see also Gonzalez v. City of Schenectady, No. 00-CV-0824, 2001 WL 1217224, at *9 (N.D.N.Y. Sept. 17, 2001) (where plaintiff sought damages for alleged invasion of privacy before marijuana discovered, “[w]hether a jury would award compensatory damages for the brief detention suffered by the Plaintiff is . . . a question of fact”). Accordingly, the Court denies summary judgment as to plaintiff’s unreasonable search and seizure claim.

In Utah, one judicial district destroyed search warrant papers and let the police be the repository of all search warrant papers. The Utah Supreme Court granted an extraordinary writ against the local courts ordering that they must keep the records to protect the integrity of the warrants and supporting papers. Anderson v. Taylor, 2006 UT 79, 2006 Utah LEXIS 213 (December 5, 2006):

[*P21] The issues raised by this petition are similar to those that confronted this court in In re Criminal Investigation. In that case, this court faced myriad challenges to the constitutionality of the Subpoena Powers Act. 754 P.2d at 636. Among those challenges was the claim that the Act failed to provide for adequate records of subpoenas issued pursuant to the Act. Id. at 644. While acknowledging that the Act did not include a provision expressly requiring the maintenance of investigatory records, the court relied on various provisions of the Act suggesting that the legislature had anticipated detailed record-keeping. Id. at 653. The court further noted that adequate records were necessary in order for the courts to fulfill their constitutional role of protecting against abuse of subpoenas issued under their authority. Id. The court then called upon its inherent supervisory authority to require that all investigations under the Act be fully documented and that “such documentation . . . be maintained by the district court authorizing the investigation.” Id.

[*P22] We adopt a similar approach here. Giving law enforcement sole custody of all affidavits and warrants up through the point where the warrant has been executed and a return filed is inherently problematic for at least two reasons. First, it leaves the court without any record of the subpoena or the materials supporting its issuance until after the subpoena is executed and a return filed. Second, it allows for the possibility that affidavits and other court records may be mishandled or even altered without detection. When the records upon which the magistrate acts in issuing a warrant are handled by persons other than court personnel prior to being filed with the court, the court has no basis for confidence in the accuracy, authenticity, or completeness of those documents. In the matter of warrants for the search and seizure of persons or property, more is required. We accordingly require that magistrates issuing search warrants retain in their custody copies of all search warrants issued, as well as the material supporting search warrant applications, rather than surrendering to law enforcement the only copies of such material.

[*P23] To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material. Nevertheless, we are without the information necessary to prescribe the particular procedures to be followed in maintaining and disclosing such records. Those particulars are best addressed by study and examination in the context of our rule-making process. We therefore refer those particulars to our Advisory Committee on the Rules of Criminal Procedure for further consideration.

Officer acting on another’s information was correct in making a stop, but, without the other officer testifying at the suppression hearing, there is no way to determine whether there was reasonable suspicion for detaining the defendant. The state had to justify the actions of the officer in court, and it was not the officer’s fault. People v. Moorman, 369 Ill. App. 3d 187, 307 Ill. Dec. 428, 859 N.E.2d 1105 (2d Dist. November 29, 2006, released for publication January 19, 2007).*

IAC allegation that defense counsel was ineffective for not filing a motion to suppress on lack of apparent authority of another to consent to the search that led to evidence in his case did not show that the motion would have been successful, so petitioner cannot prevail. State v. Stringer, 949 So. 2d 464 (La. App. 3d Cir. 2006, released for publication January 4, 2007).*

An issue which has appeared a couple of times recently, such as Jan. 18th’s post, is an apparent willingness to engage in real fact analysis and expand the rights of social guests: social guest standing where the guest was not an overnight guest. Finding standing where the social guest was a good friend who hung out at his friend’s house and spent the night is United States v. McKinney, 470 F. Supp. 2d 1226 (D. Kan. 2007). “Ultimately, the court must determine whether [the defendant], as a social guest, had an ‘ongoing and meaningful connection to the residence.'”

Although Mr. McKinney did not permanently live at Mr. Newsom’s residence, Mr. Newsom’s testimony indicates that the two had known each other for about two years and that Mr. McKinney visited Mr. Newsom socially about once a month to watch ball games or barbeque. Furthermore, although Mr. McKinney did not have a key or keep any personal belongings at the residence, he had spent the night there about five or six times in the two years prior to the night of the search. On two or three occasions, Mr. Newsom allowed Mr. McKinney to use the residence in Mr. Newsom’s absence. Mr. McKinney also kept his vehicle in Mr. Newsom’s garage and there was no indication that Mr. Newsom received any money in exchange for this.

In support of his argument that he had standing to object to the search as a social guest, Mr. McKinney relies heavily on the Tenth Circuit’s opinion in United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003). The defendant in Rhiger had known the homeowner about two weeks, had stayed overnight at the residence three or four times, and on the day of the search had entered the unoccupied residence unannounced to take a nap. Id. at 1286. A neighbor testified he had seen the defendant’s car at the residence for several days and receipts left by the defendant were found in the residence. Id.

The Tenth Circuit began its analysis with the Supreme Court decision in Minnesota v. Carter, 525 U.S. 83 (1998), which held that an individual present at another’s property for purely commercial reasons has no expectation of privacy to challenge a search of that property. Id. citing Carter, 525 U.S. at 90-91. The Circuit also observed that “the Court pointedly contrasted the status of a guest who has a ‘degree of acceptance into the household’ from a guest present for ‘purely commercial’ reasons, noting the former possessed a far greater expectation of privacy in the premises than the latter.” Id. at 1286 (citing Carter, 525 U.S. at 90). The Circuit ultimately concluded that the defendant in Rhiger had “‘an ongoing and meaningful connection’ to [the residence] as a social guest” and therefore had a legitimate expectation of privacy in the residence. Id. at 1287.

In this case, the friendship between Mr. McKinney and Mr. Newsom may not be as close as the friendship Mr. Rhiger had with his host. Mr. Rhiger had only known the host two weeks and spent the night at his residence three or four times. In this case, Mr. McKinney stayed the night at Mr. Newsom’s residence only five or six times over the course of two years. However, the court does not think the relative “closeness” of the friendship is significant. The question is whether Mr. McKinney was more like one who is present for “purely commercial reasons” or whether he was a guest who had a sufficient “degree of acceptance” in Mr. Newsom’s home. Ultimately, the court must determine whether Mr. McKinney, as a social guest, had an “ongoing and meaningful connection to the residence.”

This case is different from the purely commercial relationship in Carter. 525 U.S. at 83. Although Mr. Newsom worked on Mr. McKinney’s car while it was stored at the residence, the facts do not indicate that Mr. Newsom received any significant compensation. Furthermore, similar to the facts in Rhiger, Mr. McKinney stayed the night at Mr. Newsom’s residence several times and visited him socially quite a few times over the course of their friendship. Although he had to have Mr. Newsom’s permission, Mr. Newsom would allow Mr. McKinney to be in the residence when he was not home. All of these facts indicate that Mr. McKinney experienced a “degree of acceptance” in Mr. Newsom’s residence.

Based on the Tenth Circuit’s reasoning in Rhiger, the court concludes that Mr. McKinney had an “ongoing and meaningful connection” to Mr. Newsom’s residence. Accordingly, he had a legitimate expectation of privacy in the residence and he has standing to challenge the search of Mr. Newsom’s home. Because Mr. McKinney has established that he had a legitimate expectation of privacy in Mr. Newsom’s home, the court must go on to determine the validity of Mr. Newsom’s consent to the search and whether the officers in this case exceeded the scope of that consent.

Probable cause as to a vehicle means it is searchable under the automobile exception because there is no separate exigency requirement. United States v. Freemyer, 2007 U.S. App. LEXIS 1212 (9th Cir. January 16, 2007)* (memorandum).

A Virginia ABC permittee sued in federal court to challenge the ABC’s action against his liquor permit based, in part, on an alleged search and seizure. The E.D.Va. held that Younger abstention did not bar the action, that he proceeded to lose on the merits anyway. Ruttenberg v. Jones, 464 F. Supp. 2d 536 n.2 (E.D. Va. December 13, 2006):

As a preliminary matter, defendants’ motion to abstain or stay this matter pending resolution of plaintiffs’ appeal to the ABC Board and the Circuit Court for Prince William County, Virginia is unpersuasive. Specifically, Younger abstention is appropriate only where (i) there is an ongoing state judicial proceeding; (ii) the proceeding implicates important state interests; and (iii) there is an adequate opportunity to present the federal claims in the state proceeding. Cinema Blue v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989). Here, however, Younger abstention is inappropriate because it does not appear that plaintiffs can raise their federal constitutional claims in the pending ABC Board proceedings. Even assuming, plaintiffs may raise constitutional issues before the Circuit Court for Prince William County, Virginia, that does not suffice to require abstention of this entire matter. Defendant’s argument for Colorado River abstention merits the same fate. Colorado River abstention “allows a district court to abstain from adjudicating a controversy before it in favor of parallel state proceedings only under exceptional circumstances for reasons of wise judicial administration.” Colorado River v. United States, 424 U.S. 800, 817-18 (1976). No such exceptional circumstances are apparent here. Finally, Burford provides that a federal court has the inherent right to abstain from cases if, in its sound discretion, it finds that its exercise of jurisdiction “may be prejudicial to the public interest, for it is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.” Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943). There being no good cause to abstain, Burford abstention is inappropriate. Accordingly, neither a stay nor abstention is appropriate, especially given the result reached here.

Update: I received an e-mail from counsel for the plaintiff in this case, and he pointed out something that I regretfully overlooked

I took note of the 16 December entry in your blog re Ruttenberg v. Jones (Eastern District of Va.) and its ruling re the Younger Abstention. I believe, however, that of more importance with respect to the 4th Amendment is the fact that the Court dismissed Ruttenberg’s 4th Amendment claim even though, as the complaint alleges, the authorities knew in advance of the search and seizure that they were going to violate Mr. David Ruttenberg’s 4th Amendment rights.

The authorities were operating on false information that Mr. David Ruttenberg’s office contained drugs and child pornography. Apparently, however, they were unable to get a search warrant for the office. Accordingly, the search, with more than 50 armed officers, was conducted in the guise of an ABC inspection. Nothing illegal was found in Mr. Ruttenberg’s office (or for that matter in the entire premises which was a billiard parlor). The ABC, which took part in the search, admitted under oath at the ABC hearing, that they knew the office searched was not part of the licensed premises and therefore not subject to ABC inspection.Nonetheless, they went ahead with the search, and the seizure of two unopened bottles of vodka. In the Eastern District’s zeal to protect the police, the Court ignored a clear, intentional violation of 4th Amendment rights. There is something scary about that.

More from the case:

Thus, the threshold question is whether, the facts alleged show that defendants’ conduct violated the Fourth Amendment. See Saucier, 533 U.S. at 201. As plaintiffs concede, RNR is subject to warrantless administrative searches under 3 Va. Admin. Code § 5-50-70(B), which provides that the ABC Board and its special agents “shall be allowed free access during reasonable hours to every place in the Commonwealth where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place,” and 3 Va. Admin. Code § 5-50-70(C), which provides that, “[i]n addition to special agents, other law-enforcement officers in the performance of their official duties shall be allowed free access to any retail licensed establishment for the purpose of observation of activities on those licensed premises during reasonable hours.” Plaintiffs do not challenge the ABC Board’s search authority, but rather contend that the search was unreasonable given the manner in which it was conducted. In particular, plaintiffs allege (i) that Detective Lugo instigated the ABC raid to harm plaintiffs’ business by seeking evidence of drug use and distribution at RNR; (ii) that over 50 police officers, including SWAT team members, were used to conduct the search; (iii) that law enforcement officers entered David Ruttenberg’s private office; and (iv) that patrons were ordered to line up against the wall to be searched.

To be sure, the Fourth Amendment requires that warrantless administrative searches, as here, be reasonable. New York v. Burger, 482 U.S. 691 (1987). In this case, it is doubtful that plaintiffs’ allegations establish an unreasonable administrative search and hence a Fourth Amendment violation. First, plaintiffs’ allegation that Detective Lugo was motivated by an improper desire to uncover evidence of drug use and drug transactions at RNR to cause the ABC Board to raid RNR does not suffice to render unreasonable an otherwise reasonable search. As the Sixth Circuit has stated, “the fact that the true motivation for the warrantless search may have been to gather evidence capable of supporting convictions under the criminal laws is not enough to make the search unreasonable.” Hamilton v. Lokuta, No. 92-2361, 1993 U.S. App. LEXIS 29172 at *7 (6th Cir. 1993) (citing Burger, 482 U.S. at 715) (noting that the “presumed desire to put [plaintiff] out of business may or may not have been justified, but we do not believe that it could suffice to defeat [defendant’s] qualified immunity defense”). Second, as numerous courts have noted, there is no “constitutional significance in the fact that police officers, rather than ‘administrative’ agents are permitted to conduct the [administrative] inspection.” Burger, 482 U.S. at 717. Third, it is doubtful that defendants exceeded the scope of a permissible administrative search by entering David Ruttenberg’s private office, as this office is located on the premises of RNR. This is so because the ABC Board and its special agents are allowed “free access” to “every place in the Commonwealth where alcoholic beverages are . . . stored, offered for sale or sold.” 3 Va. Admin. Code. § 5-50-70(B). Finally, because the Fourth Amendment right to be free from unreasonable searches is a personal right, which cannot be asserted vicariously, plaintiffs cannot claim that the search was unreasonable because patrons, who are not parties to this suit, were subjected to an allegedly unreasonable search. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); Crosby, 187 F.3d at 1346 (analyzing defendant’s qualified immunity claim and stating that plaintiff’s “cannot assert Fourth Amendment claims based on governmental intrusions on the rights of others than themselves”). Given these considerations, it is doubtful that defendants violated plaintiffs’ Fourth Amendment rights by conducting the administrative search. In any event, where, as here, “there is a legitimate question as to whether an official’s conduct constitutes a constitutional violation, the official is entitled to qualified immunity.” Martin v. St. Mary’s Dep’t of Soc. Servs., 346 F.3d 502, 505-06 (4th Cir. 2003).

WTO protester arrest case in Seattle goes forward because the defense cannot show that any of the arrestees were on notice of the Mayor’s Emergency Order not to congregate and to disperse before arresting them since it was not properly publicized and the arrest records all had photocopied statements of fact that they failed to disperse based on the Mayor’s order. Hickey v. City of Seattle, 2006 U.S. Dist. LEXIS 90145 (W.D. Wash. December 13, 2006).*

Officer went to a location of a potential shooting suspect and saw that people were loading a moving truck, and he was afraid that the suspect could have been the one moving. He could smell burnt marijuana, and he conducted a patdown. The officer’s justification for a patdown was that those who smoke marijuana might be armed, and the appellate court could not say that acceptance of this conclusion by the trial court was clearly erroneous. Brown v. State, 283 Ga. App. 250, 641 S.E.2d 551 (2006).* (Comment: This is really a stretch. Dealer, yes; smoker, no. Was the officer afraid that a bag of potato chips or a Twinkie would be pulled on him?)

Consent to search that started with a canine “free-air search” did not expand the consent. Noble v. State, 283 Ga. App. 81, 640 S.E.2d 666 (December 15, 2006).* (Comment: Note the use of “free-air search” by the Georgia courts is designed to move the subject of the dog sniff away from the car but to the air around it in an effort to keep a dog sniff out of the Fourth Amendment realm. Yes, it is technically just air, but this use of a new phrase seems to me like the court is trying too hard to sustain the search by creating new phrases that connote lack of rights.)

Record brought up on appeal by the State did not support the conclusion that the green leafy matter seen in the defendant’s vehicle could be seen from outside the vehicle in a bona fide plain view, particularly where the officer who allegedly made the plain view was not even called by the State at the suppression hearing. Commonwealth v. King, 67 Mass. App. Ct. 823, 858 N.E.2d 308 (December 15, 2006).*

Valid traffic stop led to plain view of crack in a baggie in defendant’s hand, and that was probable cause. State v. Thomas, 2006 Ohio 6612, 2006 Ohio App. LEXIS 6525 (2d Dist. December 8, 2006).*

“Plain feel” is determined by the totality of circumstances. A felt pill bottle has innocent uses, but an officer could legitimately believe it contains contraband. Hallcy v. State, 2007 OK CR 2, 153 P.3d 66 (February 15, 2007):

[*P11] We find the totality of the circumstances analysis for determining probable cause in “plain feel” cases is the better approach to apply. Such analysis does not limit the conclusion drawn to information garnered from the officer’s tactile perception of the object, but allows that touch to be considered in light of the officer’s training and experience and other attendant circumstances. For instance, a medicine bottle is a container with obvious legitimate uses for prescription medication or other small objects, but which can also be put to an illicit use. “An officer’s tactile identification of a pill bottle, standing alone, does not give rise to probable cause to seize the bottle or open it to reveal its contents.” Ball, 803 A.2d at 980. When, however, an officer is presented with a readily recognizable object that has innocent as well as illicit uses, such as the medicine bottle in this case, the officer’s training and experience and other attendant circumstances can inform his perception. Id. at 981.

[*P12] Hallcy relies on several cases from this Court (decided before Dickerson) in arguing that under Oklahoma law an officer’s discerning touch of a legal item gives rise to no more than a reasonable suspicion that the item contains contraband. He asserts that once the officer has assured himself that the item felt was not a weapon the search must end. These cases were decided before Dickerson and to the extent they are inconsistent with the holding in this case, they are overruled.

Defendant on house arrest was technically in custody, but it was only the custody of his probation officer. The facts of his consent show that it was truly voluntary. “And while the defendant was not legally free to leave his property, he could have asked the police officers to leave and obtain a warrant before returning, at least up until the officers had independent probable cause to act.” United States v. Cano, 2007 U.S. Dist. LEXIS 11107 (W.D. N.C. February 9, 2007).*

A fair reading of the affidavit for a search warrant for defendant’s home computer showed probable cause based on reports from citizen informants who saw it when using the computer. The trial court and state court of appeals concluded that it did not. State v. Koen, 152 P.3d 1148 (February 16, 2007).* (Comment: The only surprise about this case is the fact that the trial judge and the court of appeals did not find probable cause. The facts recounted in the affidavit are more compelling than many I have read, and it had citizen informers relating having recently seen child porn on defendant’s home computer when they were visiting his house. To not find probable cause would be to subject the affidavit to a hypertechnical reading, and, even then, the good faith exception should have saved it.)

A person who calls 911 and can be identified by her telephone number, identifies herself as a neighbor’s daughter, and police were able to call her back was not an anonymous tipster because she made herself responsible for the veracity of the information. United States v. Thompson, 2007 U.S. Dist. LEXIS 13183 (N.D. Okla. February 26, 2007):

n1 Defendant refers to this female caller as an anonymous tipster. The Court finds that, although the female caller’s name is unknown, she is not an anonymous tipster. The female caller identified herself as the daughter of the woman who lived at 4686 North Main Street. Further, she appears to have provided the police with her phone number (or at least the police had a record of her phone number) because they were able to contact her after the initial call. While the police did not know the female caller’s name, they had sufficient information to determine her identity. In this way, the caller was not anonymous and could be held responsible if her allegations turned out to be fabricated. See Florida v. J.L., 529 U.S. 266, 270 (2000)(“Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to fabricated, … an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”).

Congress’s authority to establish post offices does not provide exclusive federal authority over search of mail such that state regulators over untaxed tobacco cannot search mail shipments of tobacco products to a federally recognized Indian tribe. Keweenaw Bay Indian Community v. Rising, 477 F.3d 881(6th Cir. February 28, 2007).

Search incident of bag on which defendant was lying before arrest was valid although he was handcuffed and moved to another part of the room at the time of the search. United States v. Derrick, 2007 U.S. App. LEXIS 4398 (11th Cir. February 27, 2007)* (unpublished).

Dispute of fact on excessive force in throwing plaintiff to the ground during an arrest or nudging him to get down precluded summary judgment. David v. Hageman, 2007 U.S. Dist. LEXIS 13358 (C.D. Ill. February 27, 2007).*

Abandoning a firearm while fleeing arrest is not the product of a seizure under Hodari D. United States v. Billups, 2007 U.S. Dist. LEXIS 13311 (N.D. N.Y. February 26, 2007). Here, guilt is another question:

Applying Hodari D. and Swindle to the facts of this case leads to the inescapable conclusion that Defendant was not seized for purposes of the Fourth Amendment until the police officers tackled him. Thus, the firearm, which Defendant abandoned before the officers tackled him, is not a product of a Fourth Amendment seizure. Accordingly, the Court denies Defendant’s motion to suppress the gun which the K-9 search uncovered beneath a plastic garbage bag. n2

n2 The Court notes, however, that, based upon the facts adduced at the suppression hearing, in particular the fact that the firearm was not swabbed for prints and, therefore, there is no evidence that Defendant ever handled the firearm, and the fact that none of the witnesses were able to explain how the firearm, which Defendant allegedly tossed as he was running, ended up beneath a garbage bag, the Court has some reservations about whether the Government will be able to prove, beyond a reasonable doubt, that this gun was in Defendant’s possession at the time of the incidents in question.