Plaintiff refused a pocket search after being arrested in a casino for being in the wrong place reading a magazine. He was handcuffed and in casino holding. The defendant LVMPD officer showed up and attempted to search his pockets, and that led to a shoving and pulling match. The officer spun him around and slammed him into the wall breaking the sheet rock. They went down to the floor, and the plaintiff finally stopped resisting, and he was taken to the jail and then to the hospital where it was discovered that plaintiff’s neck was broken. Davis v. City of Las Vegas, 2007 U.S. App. LEXIS 4580 (9th Cir. February 28, 2007); quoted at length because it is a good analysis of how “force” turns into unconstitutional “excessive force” under Graham:

Here, as in Smith, an assessment of the facts in the light most favorable to Davis shows that his Fourth Amendment rights were violated. We start our analysis by assessing the quantum of force used against Davis. We do so because the “factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure.” Id. at 701 (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). Looking at the facts in the light we must for purposes of this appeal, Officer Miller’s use of force was extremely severe. After Davis refused to consent to being searched, Miller forcefully slammed him head-first against a wall, and then swung him into another wall, also head-first, thereby breaking his neck. Officer Miller then threw Davis face-down onto the floor, placed his knee on his back, and then turned him over and punched him in the face.

Next, we must assess the governmental interest that might justify the use of such force under the Graham factors, starting with an assessment of “the severity [*15] of the crime at issue.” Graham, 490 U.S. at 396. Trespassing and obstructing a police officer, as those offenses were committed by Davis, are by no means such serious offenses as to provide an officer with a reasonable basis for subduing a person by the means employed by Officer Miller. Indeed, these offenses are much less serious than the domestic violence offense at issue in Smith, which we held did not “warrant the conclusion that [the plaintiff] was a particularly dangerous criminal or that his offense was especially egregious.” Id. at 702-03. Here, too, “the nature of the crime[s] at issue provide[] little, if any, basis for the officer[‘]s[] use of physical force.” Id. at 703.

Second, we assess “whether the suspect pose[d] an immediate threat to the safety of the officer[] or others.” Graham, 490 U.S. at 396. Here, Davis posed no immediate threat to Officer Miller or to anyone else. Davis was unarmed, in handcuffs, and never attempted to harm Miller or anyone else in any way. Indeed, even if Davis had wanted to harm Miller, it would have been difficult for him to do so given that he was in handcuffs, was confined within a small area, and was surrounded by security guards. Thus, nothing in the record suggests that Davis posed an immediate threat to Miller’s safety or to that of anyone else.

Next we consider whether Davis was “actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. Although Davis was somewhat uncooperative and resisted Officer Miller’s attempts to search his pockets, at no point during the encounter did he attempt to flee, nor could he have done so in light of the fact that he was in handcuffs, surrounded by security guards, and confined in a small holding area. Thus, Davis was neither actively resisting arrest nor attempting to flee.

Finally, we consider whether Miller could have used other methods to accomplish the search of Davis’s pocket, Smith, 394 F.3d at 703; Chew, 27 F.3d at 1441 n. 5, assuming that he had lawful cause to do so. Viewing the facts in the light most favorable to Davis, it is clear that other, less abusive methods of conducting the search were available. Miller could have attempted to persuade Davis to submit to the search, could have obtained the assistance of the security guards who were present, could have used less force than he did in seeking to attain his objective, or, having already conducted a pat-down, could have simply waited to conduct the search until he had delivered Davis to the jail. Indeed, Miller was reprimanded by the Police Department because he “did not use the minimal amount of force necessary and had options other than punching the suspect in the face who was on the ground in handcuffs to gain compliance.”

In sum, the force used by Officer Miller was severe, the crime Davis had committed was minor, the danger to Officer Miller was minimal as was any risk of flight, and there were many less abusive means through which Miller could have accomplished his objective. Thus, weighing the severity of the force used against the governmental interests at stake, we have no difficulty in concluding that the facts here at issue, viewed in the light most favorable to Davis, demonstrate that Officer Miller’s actions were unreasonable and that Davis’s Fourth Amendment rights were violated.

Summary judgment denied an officer on use of excessive force during arrest because a question of fact remained. Lawler v. City of Taylor, 2007 U.S. Dist. LEXIS 13637 (E.D. Mich. February 28, 2007)*:

Here, neither party has addressed whether Toro perceived Plaintiff as a threat to his safety. Plaintiff was in custody at the police station, and his apprehension and transport to the station occurred without incident. The crime giving rise to Plaintiff’s arrest was not serious, and although Plaintiff became verbally combative, his resistence to Toro’s order appears more a function of his intoxication than a threat to Toro. Based on these facts and the video of the incident, the Court cannot say as a matter of law that Toro’s conduct was objectively reasonable. The circumstances facing Toro at the time he made his initial decision to use force were not particularly “tense,” or “uncertain.” See Graham, 490 U.S. at 396-97. Plaintiff admits that he was told repeatedly by Toro to keep his hands on the counter, and the video shows that Plaintiff failed to follow Toro’s instructions. Plaintiff kept turning toward Toro with arms raised. The video also shows that when Toro physically moved Plaintiff’s arm to the counter, Plaintiff did not cooperate. Only after Toro forcefully put Plaintiff on the ground, did Plaintiff’s resistance become aggressive.

Moreover, the record shows that Toro was disciplined for his conduct; and that a commander at the police department testified at Toro’s disciplinary hearing that excessive force was used. Therefore, the Court cannot say as a matter of law that no reasonable person could find that the force was excessive.

Officers in constant communication with confidential informant gave probable cause for stop of the defendant’s vehicle as defendant was doing a drug deal. United States v. Traxler, 477 F.3d 1243 (10th Cir. 2007).*

Showing how unforgiving the law can be, a Fourth Amendment § 1983 claim in Due Process clothing is dismissed without prejudice for not being brought under the Fourth Amendment. Thomas v. City of Detroit, 2007 U.S. Dist. LEXIS 13520 (E.D. Mich. February 28, 2007).*

Washington again rejects federal rule for search incident. Defendant’s car had already been searched incident to his arrest, and he was in custody. Officers then brought in a drug dog for a suspicionless sniff, and the dog alerted. This was an unnecessary expansion of the search incident under the state constitution. State v. Valdez, 152 P.3d 1048 (2007):

But before Dennison called for a K-9 unit he had placed Valdez in the patrol car; there was another officer on the scene; and he had completed his search of the passenger compartment of the vehicle for weapons or destructible evidence. Unlike the officer in Boursaw, he found no weapons, destructible evidence, or evidence of drugs or illegal activity other than loose plastic paneling under the dash. At that point, concerns about officer safety and destruction of evidence did not provide on-going exigent circumstances allowing another warrantless search. Vrieling, 144 Wn.2d at 494; see Stroud, 106 Wn.2d at 152.

Furthermore, it was not until the drug dog alerted while searching the vehicle that probable cause existed to search for the presence of a controlled substance. “Generally, an ‘alert’ by a trained dog is sufficient to establish probable cause for the presence of a controlled substance.” State v. Jackson, 82 Wn. App. 594, 606, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006, 932 P.2d 644 (1997). But here, the drug dog alerted during a second search following Dennison’s initial search after both the driver and passenger were removed from the vehicle; the scene had been secured by two officers; and the initial search only revealed missing screws and loose front seat-area paneling.

The officers could have applied for a warrant to conduct a second search of the vehicle based on the facts the State relies on to justify the K-9 search after Valdez’s arrest and the impoundment of the vehicle. See State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980) (holding that a motor vehicle may be impounded if there is probable cause to believe that it was used in the commission of a felony). But the record before us does not show probable cause sufficient to warrant a second search for drugs based on the presence of loose paneling and screws and a perceived inconsistent statement about the origin of Valdez and Ruiz’s travels. Without the K-9 unit’s alert, the officers would not have removed the cup holder and insulation, revealing the presence of drugs. Although it turned out that the officer’s suspicion was justified, it was not proper under these circumstances to commence an independent second search, focused solely on the presence of illegal substances, by calling in a K-9 unit without some evidence of the presence of drugs.

Driver-owner of car could consent to search of car over objecting passenger. State v. Lucero, 2007 UT App 36, 2007 Utah App. LEXIS 39 (February 8, 2007).

A defendant [almost always] has standing to challenge the search of his person. The state cast the argument in terms of the defendant not having standing in his search in the backyard of a friend’s house, but the issue was really whether he had standing to challenge the search of his own person. The trial court’s suppression order was affirmed. State v. Gabbert, 213 S.W.3d 713 (Mo. App. W.D. February 13, 2007).

There was a fair probability that evidence in a homicide case would be found in defendant’s possession five days after the murder. United States v. Rodriguez, 2007 U.S. Dist. LEXIS 10016 (D. N.D. February 12, 2007).*

Defendant did not show a Franks violation. Pence v. Zifcak, 2007 U.S. Dist. LEXIS 10172 (D. Md. February 7, 2007)*:

Plaintiff may disagree with some of Defendant Zifcak’s conclusions, but there is no evidence that he knowingly or recklessly made false statements. Defendant Zifcak consulted the original investigators to ascertain whether there was any complaint of a physical injury originally and spoke to a doctor whose name and number were provided by Plaintiff. Thus, Plaintiff has not presented evidence sufficient to pursue a Fourth Amendment claim against Defendant Zifcak.

Plaintiffs stated claim for relief that police who had been setting up sweeps of a bar to check customers for identification. For the closely regulated industry exception to apply, then the state liquor control authorities have to be the ones conducting the sweeps, not law enforcement in a manner that created an inference of harassment and discrimination against patrons. Watson v. Abington Twp., 478 F.3d 144 (3d Cir. 2007):

As noted above, “the regulated industries exception is a narrow one, and … a warrantless search can be placed within that exception only if it is in fact made pursuant to and in enforcement of the regulatory scheme.” Shaefer, Michael & Clairton Slag, Inc., 637 F.2d at 204. The regulatory scheme at issue here only permits warrantless inspection by specified categories of individuals, and the officers of the Abington Township Police Department are not among those individuals–especially absent evidence that they were authorized by the PLCB. 47 Pa. Stat. Ann. § 5-513; Black, 530 A.2d at 430. Thus, viewing the allegations in the light most favorable to the Plaintiffs, the sweeps were not in accordance with the regulatory scheme, and the District Court erred in finding that the closely regulated industry exception to the warrant requirement applied based on the record before it. By alleging that Abington Township police officers entered the premises without a warrant, the Plaintiffs have alleged sufficient facts to survive a 12(b)(6) motion. We therefore vacate the District Court’s dismissal of their Fourth Amendment claim.

Excessive force claim fails because the officers were trying to arrest decedent when there was a struggle for an officer’s gun. Henning v. O’Leary, 477 F.3d 492 (7th Cir. February 16, 2007):

Here, there can be no doubt that O’Leary had the requisite reasonable cause. In the tense struggle that followed Henning’s refusal to submit to the officers’ attempts to handcuff him, Peterson’s gun got loose, and at least two officers believed Henning had his hands on or near it. Police officers cannot be expected to wait until a resisting arrestee has a firm grip on a deadly weapon and completely freed himself from officers trying to subdue him before taking action to ensure their safety. Nor can they be required to take a less deadly shot where none is available that would not place someone else also in jeopardy.

The Hennings dispute the officers’ characterization of the events, but they offer no real evidence to contradict it. They did not depose Dvorak (perhaps he can’t be found), the only nonpolice eyewitness to what happened, and they otherwise rely only on some minor inconsistencies in the three officers’ stories. Yet minor inconsistencies are not unusual–indeed exact, step by step recall of this incident by three different officers would be unusual. Absent something else, the Hennings really offer nothing to corroborate their version of the events–certainly not enough to get them to a jury. “[T]he plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), and the Hennings have failed to do so.

Officers had qualified immunity for alleged false arrest of plaintiffs. After a near altercation in an IHOP restaurant for being loud and obnoxious, defendant off duty officers told the plaintiffs to go outside to talk about it more, and, once outside, the plaintiffs’ conduct escalated to aggressive, and that gave probable cause to arrest. Roberts v. City of Hapeville, 2007 U.S. Dist. LEXIS 10508 (N.D. Ga. February 15, 2007).*

Plaintiff stated a claim for relief for allegedly being kicked while on the floor during an arrest during a police raid. If true, it was unnecessary force. Davis v. City of New York, 2007 U.S. Dist. LEXIS 10555 (E.D. N.Y. February 15, 2007).*

The Massachusetts Supreme Court reversed a trial court holding that the Fourth Amendment and Massachusetts Constitution governed searches by private school officials. The trial court found no reason to distinguish between public and private school students, but the Supreme Court found that it was a significant difference. This simply is not “state action” for search and seizure purposes. Commonwealth v. Considine, 448 Mass. 295, 860 N.E.2d 673 (January 31, 2007).

There was probable cause to arrest the defendant based on his actions while surveilling another person for whom the officers had probable cause. United States v. Pena, 2007 U.S. Dist. LEXIS 6519 (N.D. Ill. January 24, 2007).*

Officers who detained a passenger in a car who was intoxicated and apparently suffering from a mental disorder acted reasonably in a § 1983 case. Polcyn v. Martin, 2005 U.S. Dist. LEXIS 44416 (D. S.C. October 17, 2005):

The Court finds that the facts of the instant case align more closely with those in Gooden and S.P. than with those in Bailey. Here, Defendants responded to an emergency call from Nicholson, who exhibited concern for Polcyn’s safety. Further, Defendants possessed information which indicated that Polcyn was suffering from a bipolar disorder and had a drinking and, possibly, a drug problem. In contrast with Bailey, Defendants found Polcyn not in a place of safety, such as her home, but in a vehicle with a stranger who indicated that he had no desire to transport her any further and that he had just picked her up as she walked down the side of the road. Also, unlike Bailey, Polcyn did not deny that she suffered from a mental condition. In addition, Defendants had been informed that Polcyn had been intoxicated while walking down the side of a roadway. Based upon these facts, “[r]easonable officers, relying upon … Gooden [and S.P.] and the other circuit court decisions addressing similar situations, would have concluded that involuntarily detaining [Polcyn] was not only reasonable, but prudent.” Id. at 267. In sum, given the facts known to Defendants and the totality of the circumstances, Defendants had information which would have led a reasonable officer to make a “practical, nontechnical” determination, Gates, 462 U.S. at 231, that Polcyn was a potential danger to herself or others. Therefore, Defendants did not violate Polcyn’s Fourth Amendment rights.

Officer who witnessed an accident and saw the injured defendant remove a clear plastic bag to secrete it in the car had probable cause to search for the bag because it was apparent that it likely contained drugs. Wiede v. State, 214 S.W.3d 17 (January 31, 2007), rev’g 163 S.W.3d 239 (Tex. App. – Austin 2005).

Motion to terminate a 1982 consent decree against strip searches at a county jail is granted under the Prison Litigation Reform Act, 18 U.S.C.S. § 3626(b)(1)(A)(iii). The fact that there were some complaints of unconstitutional strip searches in the last few years is insufficient to keep the case in court. Regan v. County of Salt Lake, 2006 U.S. Dist. LEXIS 89472 (D. Utah December 11, 2006):

Plaintiffs’ meager allegations that the existence of two lawsuits against Salt Lake County alleging improper strip searches, which were settled in 1999, as well as certain “ambiguous and/or highly invasive” provisions of the Salt Lake County Jails Policy Manual “suggest” that there are current and ongoing violations of detainees’ federal rights are not a sufficient basis upon which the court could make written findings that the prospective relief contained in the Consent Decree remains necessary to prevent Defendants from engaging in a current and ongoing violation of detainees’ federal rights. Because Plaintiffs have not alleged specific facts which, if true, would amount to a current and ongoing constitutional violation, the court, in its discretion, finds that an evidentiary hearing is not necessary in this case and that pursuant to the PLRA, the Consent Decree should now be terminated. Therefore, IT IS ORDERED that Defendants’ Second Motion to Terminate is hereby GRANTED.

Defendant was stopped for a traffic offense, and he was driving without a valid license. The officer gave him a warning and let the passenger drive. He said they were free to go. As the defendant was going back to his car, the officer mentioned there being “trouble” with guns and contraband and asked for consent, which the defendant agreed to. A drug dog alerted, and a search found cocaine. The search was valid. Garvin v. State, 283 Ga. App. 242, 641 S.E.2d 176 (December 13, 2006).*

In an IAC claim, the court found ample probable cause to believe that the defendant had illegal drugs in his house. The fact the warrant did not specify stolen property would not have changed the outcome. Edwards v. State, 2006 Iowa App. LEXIS 1723 (May 10, 2006).*

The Wisconsin Court of Appeals refuses to reject Miller on there being no reasonable expectation of privacy in bank records under its state constitution. State v. Popenhagen, 2007 WI App 16, 728 N.W.2d 45 (December 12, 2006).* [The reason that the state constitutional provision is virtually identical to the Fourth Amendment is never a controlling factor at all, except where a court can’t think of a better reason.]

Anonymous call about a shooting incident that produced a witness at the scene who pointed out that the shooter went thataway was corroboration which that officer radioed to another which led to a stop. United States v. Traylor, 2007 U.S. Dist. LEXIS 5708 (S.D. Ill. January 26, 2007).

Investigatory stop of a DUI suspect after his having allegedly driven his car into a ditch when he was seen as a passenger in another car was valid. Hartman v. State, 152 P.3d 1118 (Alaska January 26, 2007):

[Officer] Tuckwood therefore had a reasonable suspicion that someone had been driving the Honda while under the influence and that the intoxicated driver of the Honda was likely in the Ford Taurus when Tuckwood stopped it. Although Hartman was now a passenger in the Ford Taurus, this is not enough to show that he no longer posed an imminent public danger. Passenger status did not automatically establish a non-driving intention on Hartman’s part. Nor was Hartman’s non-ownership of the Ford Taurus determinative absent evidence that the owner of the vehicle was unwilling to give him a chance to drive. In view of Hartman’s continuing access to the Taurus, Tuckwood’s belief that Hartman posed an imminent public danger was reasonable. Therefore, under these circumstances, the investigatory stop was legal.

Officer’s call to EPIC about defendant’s immigration status did not unreasonably extend the stop because of the evidence of possible wrongdoing that the officer observed. United States v. Urrieta, 2007 U.S. Dist. LEXIS 5669 (M.D. Tenn. January 24, 2007).

Officers had reasonable suspicion for a stop of the defendants based on their observations. United States v. Saenz, 474 F.3d 1132 (8th Cir. January 29, 2007):

Here, the officers had more than a mere hunch to justify the stop. See Terry, 392 U.S. at 27. The officers knew of the wire transfer from Hernandez to Melissa Saenz, they had received information from a confidential source that she was visiting St. Charles, and they confirmed the presence of Emilio Saenz’s vehicle at Hernandez’s house. The officers also witnessed the blue pickup truck enter the garage and leave thirty minutes later, consistent with the unloading or loading of drugs or drug profits.

We conclude that the officers had reasonable suspicion to pull over the truck. Moreover, that suspicion did not dissolve after they talked with Emilio and Melissa Saenz because neither could name the sale price of the red truck which they both said they had sold to Hernandez and they gave conflicting responses about the location of the money they claimed to have received from the vehicle sale. We conclude the district court did not err in denying the motion to suppress.

Named informant actually signed the search warrant, and it was based on personal information so probable cause was shown. Officers went to the defendant’s premises and found him outside and arrested him. They did not have the search warrant in hand but it was coming. They used defendant’s key to enter the house and look for confederates who might destroy the drugs being sought while waiting for the warrant to arrive, and this was lawful under Segura. People v Osorio, 2006 NY Slip Op 8457, 2006 N.Y. App. Div. LEXIS 15969 (4th Dept. November 17, 2006).

Officers heard defendant on a wire admit to possessing stolen property and wanting to trade it for meth and having guns. “Johnson and Lebo stated that the Defendant had made threats about killing the cops if they came out. Considering the totality of the circumstances, it was reasonable to believe that contraband and/or stolen property was at the Defendant’s residence and that the circumstances required that they go to the mobile home without a warrant.” [Note that the court says “to” not “into.”] The police then went to his house and kicked the door to announce as a knock and talk. The defendant let them in [it seems to me more like they barged in when the door was opened]. The USMJ’s R&R that defendant consented is adopted. United States v. Medley, 2007 U.S. Dist. LEXIS 1175 (E.D. Mo. January 5, 2007).*

Plaintiff consented to entry but claimed that she did not consent to search. Court finds implicit consent from failure to object and finds apparent authority to implicitly consent to the search of her daughter’s room. Owens v. Town of Delhi, 469 F. Supp. 2d 403 (W.D. La. 2007)* (Note: This case proceeds entirely on the judge’s and government’s assumption that a person knows that they can object when an armed police officer is going through their stuff who essentially barged in. It is all implied consent from failure to object.)

Inmate’s § 1983 action for harassing searches was barred under PLRA for lack of exhaustion. The state provided an ALJ process which was not taken advantage of. Hills v. Kershaw Correctional Inst. Officers, 2006 U.S. Dist. LEXIS 94541 (N.D. S.C. November 27, 2006).*

Officer’s reasonable suspicion for a trash search as required under Litchfield was shown in the affidavit for probable cause that was used to get a search warrant for his premises. Eshelman v. State, 859 N.E.2d 744 (Ind. App. January 10, 2007).

Defendant consented to a patdown, and continued stop was based on reasonable suspicion. “Officer Andrew Tischer testified at the suppression hearing that he stopped Lewer’s car and that after the stop he asked Lewer for identification and that Lewer gave him either a driver’s license or a state identification card, but that he was ‘not a hundred percent sure which one.’ Tischer told the trial court that Lewer ‘wouldn’t look me in the eyes[, his] hands were visibly shaking, and his voice stumbled as I spoke with him.’ Tischer also testified that Lewer’s ‘right hand was making continued movements towards his right pants pocket and his right jacket pocket.’ At this point, Tischer testified that he asked Lewer to get out of the car because he thought that Lewer might have a weapon. Tischer estimated that one to one and one-half minutes had passed from when he walked up to Lewer’s car and when he asked Lewer to get out of the car.” Heroin was validly found during the consensual patdown which defendant knew was for more than just weapons. State v. Lewer, 2006 Wisc. App. LEXIS 1223 (December 27, 2006).

The Western District of Wisconsin sustains a search under a telephonic authorization where there was an oversight and there was no written memorialization of the warrant. The good faith exception should apply, but, even if it did not, Hudson does not require exclusion. United States v. Aguilera, 2007 U.S. Dist. LEXIS 12823 (W.D. Wis. February 22, 2007). Because this is such an interesting issue which caused the District Court some difficulty, I quote at length:

Of course, there was no warrant here, so it likely undersells the scope of the error to characterize it as a foible in the administration of Rule 41. On the other hand, notwithstanding the violation of Rule 41(e), this warrantless search was not unreasonable under the totality of the circumstances. Prior to entering defendants’ residence to search, the agents presented to the court an affiant who recited under oath the facts establishing probable cause. This court independently assessed the facts and determined that there was probable cause for the requested search. Both the residence to be searched and the items to be seized were described with particularity. The court explicitly set out the limits of Agent Chamulak’s authority to search. The agents’ time of entry is commemorated on the return, which also specifies all items seized. The government provided the defendants, through counsel, with copies of the inventory. As a practical matter, the absence of a written warrant at the time of entry had no real-life ramifications: both defendants had been arrested and detained by agents earlier that same evening. No one was in the residence when the officers arrived; even if a duplicate warrant had been prepared, there was no one home to whom the agents could have presented it to assure them that this was a judicially authorized search. Cf. Katz v. United States, 389 U.S. at 356 n. 16 (Rule 41(d) does not invariably require service of a copy of the warrant before the search takes place). Acknowledging the importance of having a physical warrant, “it is hard to imagine how the actual search could have been carried out any more reasonably.” Groh, 540 U.S. at 577 (Thomas and Scalia, JJ., dissenting).

Apart from the objective reasonableness of what actually occurred, the government argues that pursuant to Leon, evidence seized in violation of the Warrant Clause should be suppressed only when the agent lacked a good faith belief in the validity of his warrant. 468 U.S. at 920-22. The government bears the initial burden of establishing the officers’ good faith, but the agent’s decision to seek a warrant from the court is prima facie evidence of good faith.

Defendants respond that Leon presumes the issuance of an actual warrant; here there was none, so Leon cannot apply. How could Agent Chamulak presume a [*13] non-existent warrant to be valid? Defendants then quote Arizona v. Evans, 514 U.S. 1, 20, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) for the proposition that “the reasoning in Leon assumed the existence of a warrant; it was, and remains wholly inapplicable to warrantless searches and seizures.” But this quote is from the dissent. The Court’s opinion was to the contrary, applying the reasoning of Leon to negligent record-keeping by government clerical employees that resulted in an unlawful arrest. The Court noted that its more recent case law had rejected reflexive application of the exclusionary rule, emphasizing instead that the issue of exclusion is separate from whether the Fourth Amendment had been violated. Exclusion is appropriate only if the remedial objectives of the rule are thought most efficaciously served. Evans, 514 U.S. at 14. The Court found that the good faith doctrine could be applied to errors for which the court was responsible. Id. at 14-15. See also Massachusetts v. Sheppard, 468 U.S. 981, 988, 104 S. Ct. 3424, 82 L. Ed. 2d 737 (1984)(where judge assured officers he would edit and correct a defective draft warrant but failed adequately to do so, officers’ mistaken belief in warrant’s validity still was objectively reasonable).

So, it is not clear whether the good faith doctrine applies on these facts. On the one hand, there was no actual warrant. Shouldn’t this have been a huge red flag? But on the other hand, the agent was attempting to obtain a warrant and relied in good faith on the AUSA guiding him through the telephonic warrant application process, and then he relied on this court’s verbal authorization that he could search defendants’ residence. A midnight telephonic warrant obviously was out of the mainstream for all involved, so the agent cannot be blamed for not knowing the requirements of the subpart of a rule that both the prosecutor and the court neglected to invoke and follow. If an experienced federal prosecutor and two-term magistrate judge did not read deeply enough into Rule 41 to discover and comply with the requirements of subpart (e), this error cannot be laid at the agent’s feet.

The fact that the DEA and the U.S. Attorney’s Office went to the trouble of obtaining late night telephonic authorization from the court establishes that they were trying to comply with the rules and the Warrant Clause as they understood them. This resulted in a recorded 26-minute conversation with the court during which the government’s probable cause, the specific location and description of the residence, and the items to be seized were discussed in great detail prompting the court to conclude, “The bottom line is you’ve got judicial authorization. It is so ordered. You can send your team in right now.” Dkt. 9 at 17. To the extent this directive might have violated the Fourth Amendment, this judicial officer blew it and so did the prosecutor, albeit inadvertently. (As the government points out, there was nothing to gain by not preparing a written warrant and it would have been simple to do if we had thought to do it). But there was nothing else that Agent Chamulak or his colleagues could have done or reasonably could have been expected to do in light of the court’s authorization, with which the AUSA was concurring.

Assuming, arguendo, that the good faith doctrine is inapplicable to this situation, suppression still is inappropriate. In United States v. Harju, 466 F.3d 602, 605 (7th Cir. 2006), the court observed that “the prime purpose of the [exclusionary] rule, if not the sole one, is to deter future unlawful police conduct,” and noted that this focus on deterrence led the Supreme Court recently to contract the rule’s scope. See Hudson v. Michigan, 126 S.Ct. 2159, 2168, 165 L. Ed. 2d 56 (2006). The court in Harju quoted at length from United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), noting that even if there were a violation of a defendant’s fourth amendment rights, a court must weigh carefully the costs and benefits of preventing the use of inherently trustworthy evidence obtained in reliance on a search warrant, issued by a detached and neutral magistrate, that ultimately was found to be defective; therefore, the rule should operate to exclude evidence only when it will deter police misconduct. Harju, 466 F.3d at 605. Here, the AUSA and this court inadvertently failed to heed Rule 41(e); the police did nothing wrong. No remedial purpose would be served by suppressing this evidence.

The magistrate issuing a search warrant against the defendant was not neutral and detached because of a prior relationship with the accused that compromised judicial neutrality. State v. Edman, 281 Conn. 444, 915 A.2d 857 (2007):

Having concluded that we properly may consider whether Judge Wollenberg’s personal interest in the case was sufficient to have deprived him of his status as a neutral and detached magistrate, we return to the specific facts upon which the trial court made its legal determination. As the Appellate Court articulated, “the [trial] court determined [that Judge Wollenberg had a sufficient personal interest that he cannot be deemed to have been impartial] when it stated in its oral decision that [u]tilizing what [the defendant] calls a reasonable man standard, a reasonable man looking at impartiality might be forced to conclude, based on the defendant’s assertions regarding his keen friendship with Judge Wollenberg, that the judge would be incapable of finding probable cause against the defendant. The state did likewise by stating in its brief [to the Appellate Court] that if anything, based on the friendship alleged in the affidavit, Judge Wollenberg would have had more of a stake in assuring either that the search warrant not issue or that it was valid and supported by ample probable cause. … By making those statements, the court and the state acknowledged that an inherent temptation existed for Judge Wollenberg to treat the case differently from any other case. Whether that temptation was to tip the scale in one direction or the other, the balance could not remain nice, clear and true between the [s]tate and the accused. … Moreover, having what the state described as a stake in the matter cuts against the very grain of the fourth amendment notion of neutrality and detachment.” (Citation omitted; internal quotation marks omitted.) State v. Edman, supra, 90 Conn. App. 831.

Additionally, like the Appellate Court, “[w]e need not determine whether the defendant’s mere threat of litigation against Judge Wollenberg was sufficient to have deprived him of his status as a neutral and detached magistrate. We also need not determine whether the defendant’s relationship with Judge Wollenberg, standing alone, was sufficient to have done so. Stated differently, we need not … separate the allegations in analyzing Judge Wollenberg’s neutrality and detachment. It is the unique confluence of factors [of Judge Wollenberg’s personal relationship with the defendant combined with the threat of litigation] that leads us to conclude that Judge Wollenberg did not qualify as the neutral and detached magistrate guaranteed by the fourth amendment.” Id., 833-34.

. . .

Nevertheless, we must be mindful that “[d]etachment and neutrality are the essence of judicial behavior. In each case within his or her jurisdiction, the judge is required to find the facts fairly and impartially, to identify the applicable rule of law by reference to his education, training and experience, and finally to apply the rule to the facts and achieve a result. This we call an adjudication. These things each judge … must do without fear or favor, letting the chips fall where they may.

. . .

Therefore, we conclude, in answer to the first certified question, that the Appellate Court properly determined that the defendant had been deprived of the right to a neutral and detached magistrate.

Officers had reasonable suspicion to stop defendant’s car based on a radio call that a woman was forced into a car at a fast food restaurant, and defendant’s car matched the description and location. Drug paraphernalia was found after defendant was arrested for disorderly conduct. State v. Sparks, 2007 Ohio 800, 2007 Ohio App. LEXIS 723 (2d Dist. February 23, 2007).*

The most significant case of the week, maybe the month, is this one from Iowa on Friday, State v. Lane, 2007 Iowa Sup. LEXIS 5 (January 19, 2007) (case name is free link), where the Iowa Supreme Court rejected Wong Sun for a Brown v. Illinois attenuation analysis (all of which seemed a little overdone under the circumstances which I save for the comment below). Remember, Wong Sun applied to searches and Brown applied to confessions, but the Iowa court found that Brown fit this case better, and it goes to great lengths to justify it. This was not, however, a great leap because the court cites other cases which have done the same.

We must address several factors to determine if Hogan’s consent was an exploitation of the previous illegality. In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2262-63,45 L. Ed. 2d 416, 427 (1975), the United States Supreme Court identified important factors to consider in a confession case. These factors included the temporal proximity between the illegality and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. at 603, 95 S. Ct. at 2262-63, 45 L. Ed. 2d at 427; see State v. McCoy, 692 N.W.2d 6, 24 (Iowa 2005) (applying those factors). The present case, of course, is not a confession case, but a consent case. Nevertheless, the issues in each case are similar: whether the confession, or consent, is an exploitation of the prior illegality. The United States Supreme Court has recognized this similarity, see Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326, 75 L. Ed. 2d 229, 238-39(1983), and other courts have consistently applied the factors identified in Brown to consent cases, see, e.g., Rodriguez, 945 P.2d at 1364 (analyzing the three factors identified in Brown); Hight, 781 A.2d at 14 (“[W]e find instructive the [three] factors considered relevant by the United States Supreme Court [in Brown].”); Borges, 511 N.E.2d at 59-60 (ordering the trial court to consider the issue according to, inter alia, the factors set forth in Brown); Hansen, 63 P.3d at 665-66 (“The United States Supreme Court has noted three factors that have particular relevance in reviewing the facts: [temporal proximity, intervening circumstances, and the purpose and flagrancy of the illegal conduct].”).

On temporal proximity, the court found the factors weighed in favor of attenuation because a fair amount of time apparently had passed. On presence of intervening circumstances, the court found that the defendant was advised of his right to refuse consent. On the purpose and flagrancy of the police misconduct, the court also found that that weighed in favor of attenuation. On a fourth question of “additional factors,” the court found that the fact that the illegal entry was of another building unrelated to the premises searched. The court added that this had nothing to do with the good faith exception to the exclusionary rule.

Comment: Maybe it’s just me, but I don’t see how the defendant had standing to complain of the first search anyway. Maybe I missed something. Or maybe the court did because they wanted to create this rule.

Avoiding a drunk driving roadblock is not reasonable suspicion without more, such as observing the defendant weaving. Here, there was no reasonable suspicion. State v. Heapy, 113 Haw. 283, 151 P.3d 764 (2007).

Crossing the fog line once in Kansas is not justification for a stop without more, such as weaving. State v. Ross, 149 P.3d 876 (Kan. App. January 19, 2007).*

Officers are justified in running wants or warrants on any traffic stop to know who they are dealing with for officer safety. United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. November 7, 2006):

The next question then is whether the officer was justified in using Mr. Villagrana-Flores’s identity to run a warrants check during the course of the Terry stop. In other words, we must determine whether running the warrants check was “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20-21. We have previously held, in the context of traffic stops based on reasonable suspicion alone, that a “motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with such prior criminal history.” United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc). Several of our sister circuits have similarly held. See United States v. Brigham, 382 F.3d 500, 507-08, 507-08 n.5 (5th Cir. 2004) (en banc) (holding similarly and collecting cases). We explained in Holt that “[t]he justification for detaining a motorist to obtain a criminal history check is, in part, officer safety” because “[b]y determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop.” 264 F.3d at 1221-22. As long as the detention is for a short period, “the government’s strong interest in officer safety outweighs the motorist’s interests.” Id. at 1221.

Officer safety, however, is just as strongly implicated where the individual being detained for a short period of time is on foot, rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen’s interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot. Moreover, permitting a warrants check during a Terry stop on the street also “promotes the strong government interest in solving crimes and bringing offenders to justice.” See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). Indeed, an identity’s utility in “inform[ing] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,” Hiibel, 542 U.S. at 186, would be non-existent without the ability to use the identity to run a criminal background check. Thus, we hold that Mr. Villagrana-Flores’s Fourth Amendment rights were neither violated when his identity was obtained during a valid Terry stop nor when his identity was shortly thereafter used to run a warrants check.

Stop lacked reasonable suspicion. Defendant was merely sitting in a car idling on the street. United States v. Duty, 204 Fed. Appx. 236 (4th Cir. 2006) (unpublished):

We find that Winston lacked the reasonable suspicion necessary to seize Duty. The only evidence presented was that Duty was sitting in an idle car on a private street, and looked at Winston when she drove by. Such evidence plainly does not provide a basis for reasonable suspicion.

Accordingly, the seizure was invalid because Winston did not possess articulable, reasonable suspicion that criminal activity was afoot when she pulled behind Duty with the emergency lights activated. Because the seizure was illegal, the district court erred in denying Duty’s motion to suppress evidence.

911 call of a domestic disturbance and a man with a gun justified a stop of a man that matched the description. United States v. Hicks, 2006 U.S. Dist. LEXIS 81154 (N.D. Ind. November 6, 2006):

Here, the 911 caller was reporting an ongoing emergency – a domestic dispute in which the perpetrator was armed with a gun – and therefore Officer Tinsley was entitled to presume that the caller’s information was reliable without further corroboration. Furthermore, there is no indication that Officer Tinsley was aware of the caller’s inconsistent information, particularly since there was no mention of the caller in the dispatch. See Lenoir, 318 F.3d at 729. Accordingly, Officer Tinsley was entitled to rely on the dispatch report as reliable information that an ongoing emergency was occurring at 4033 Buell.

On de novo review of whether there was reasonable suspicion for a traffic stop, having reviewed the transcript and the videotape of the stop, the Eighth Circuit disagrees with the district court that there was no objective basis for a stop for driving over the fog line for 10-15 seconds and reverses. United States v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. January 26, 2007):

To the contrary, under the circumstances of this stop–the 10 to 15 second crossing of the fog line, the time of day (morning), the clear weather conditions, the fact that there was a full lane of travel between Herrera-Gonzalez and the tow trucks, the lack of any additional adverse conditions that would have made it impractical for Herrera-Gonzalez to keep his car in the lane, and the fact that Herrera-Gonzalez returned to his lane to avoid the bridge and then continued within his lane as he passed the tow trucks–and given the obvious difficulty of observing from a patrol car whether a driver has ascertained that his move can be safely made, we conclude that Faiferlick had an objectively reasonable basis to believe that a violation of the Iowa statute had occurred. See Alvarado, 430 F.3d 1305, 1309; cf. Washington, 455 F.3d at 828 (noting that where there is a basis in state law for an officer’s actions and some ambiguity exists that caused the officer to make the mistake, it may still be objectively reasonable). We recognize that this is a relatively close question, but we believe that based on what he reasonably knew at the time of the stop, Smart, 393 F.3d at 770, Faiferlick “could have formed” a reasonable suspicion that Herrera-Gonzales had committed a traffic violation, Martin, 411 F.3d at 1001. Accordingly, we conclude that the traffic stop was lawful.

On de novo review of consent, the Fifth Circuit states its test and attempts to focus on the recurring question of courts which “ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found.” United States v. Arias-Robles, 477 F.3d 245 (5th Cir. 2007):

Voluntariness of consent is a finding of fact reviewed for clear error, but where there are “virtually no uncontested facts,” review is “essentially de novo.” Where a defendant challenges the voluntariness of consent to search, the Government must prove voluntariness by a preponderance of the evidence. A court should consider the totality of the circumstances, focusing on six factors: 1) the voluntariness of the defendant’s custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the defendant’s cooperation with the police; 4) the defendant’s awareness of his right to refuse consent; 5) the defendant’s education and intelligence; and 6) the defendant’s belief that no incriminating evidence will be found. Although all factors are relevant, none is dispositive.

. . .

Marshaling all six factors, we cannot say that the district court erred in concluding that Arias’s consent was voluntary. Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer’s request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant’s alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no “Miranda requirement” attending a simple request for permission to search.

Search incident of a cellphone’s text messages was valid, and they could be admitted at trial. United States v. Finley, 477 F.3d 250 (5th Cir. 2007):

B. Search Incident to Lawful Arrest

Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee’s person; they may also, without any additional justification, look for evidence of the arrestee’s crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee’s person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee’s reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee’s person).

Finley concedes that the officers’ post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container,n6 the police had no authority to examine the phone’s contents without a warrant. He relies on Walter v. United States, 447 U.S. 649 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley’s cell phone pursuant to his arrest.n7 Cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding retrieval of information from pager as search incident to arrest). The district court correctly denied Finley’s motion to suppress n8 the call records and text messages retrieved from his cell phone.

n6 Finley cites United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (analogizing numbers in pager’s memory to contents of closed container). Although Finley relies on this case, the Chan court concluded that police officers may, incident to the defendant’s arrest, retrieve numbers from the memory of a pager seized from the defendant’s person. See id. at 535-36.

n7 The fact that the search took place after the police transported Finley to Brown’s residence does not alter our conclusion. Cf. United States v. Edwards, 415 U.S. 800, 803 (1974) (“[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”). In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant’s person is still incident to the defendant’s arrest. United States v. Ruigomez, 702 F.2d 61, 66 (5th Cir. 1983) (citing Edwards, 415 U.S. at 804). Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.

Incorporation of affidavit to cure deficiencies in the particularity clause in Tennessee requires physical attachment, and “See attached affidavit” is not sufficient. In that case, only the warrant itself can be considered. Here, however, the officers had justification for a search under the automobile exception, so the defective warrant becomes irrelevant. State v. Sherwood, 2007 Tenn. Crim. App. LEXIS 58 (January 26, 2007):

However, in Tennessee, an affidavit “is not considered an actual part of the warrant, even if it appears on the same printed form as the warrant” without incorporation by the warrant itself. Lowe, 949 S.W.2d at 303 (citing State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim. App. 1992)). In the instant case, the warrants in question do not specifically incorporate or reference the attached affidavits. Rather, the directive to “see attached affidavit,” i.e. the “Affidavit of Probable Cause,” is made in the affidavits on the back of each search warrant. Because there is no reference incorporating the affidavits in either of the search warrants, the affidavits may not be construed to bolster deficiencies in the warrant. Accordingly, we will determine the sufficiency of the description of the property to be seized based on the quoted language contained in the body of the warrant alone.

The defendant’s merely having property in a motel room not occupied by him did not give him standing. State v. Crosby, 2007 Tenn. Crim. App. LEXIS 61 (January 26, 2007):

Despite Defendant’s contentions to the contrary, there was no evidence that Defendant had a possessory interest in the rooms. No one saw Defendant pay the motel clerk to rent the motel room. He never transferred the motel room into his name. There was no evidence to indicate how long Defendant had actually been staying in the motel room, nor any witnesses who testified that they had seen Defendant occupying the room for a period of consecutive days. Nor was there any testimony that Defendant had acted to prevent anyone from entering the motel room. In fact, when the officer inquired as to Defendant’s address, he gave the officer a home address of 4593 Xavier Drive, Antioch, Tennessee. Although Defendant had property in the room, a Play Station Two, some mail, and various items of clothing, the trial court did not find this sufficient to indicate Defendant had an expectation of privacy in the room. We agree with the trial court.

The postings will be late again because of my case. I’ve been working on a motion to be filed by early afternoon today for a hearing Monday morning.

Remember my trial that started February 26th? It’s still going on, and my client’s name was mentioned for the first time Thursday. On Friday, Elvis’s body snatcher, whose identity was disclosed minutes earlier, even though he’d allegedly been known about for six weeks, testified in an offer of proof for the prosecution that my client ordered a hit on the meth head lab operator who was testifying in exchange for dismissal of a pre-existing meth lab case, and the prosecutor, and a co-defendant he had never met until being booked in on this case who has absolutely nothing to do with his case. Elvis’s body snatcher took the Fifth on the number of people he’s killed in his life. His answer to one question was “You have a right to kiss my ass.” They intend to call him in my case, which, if they do, will cause a severance of the other two defendants, within days of their closing after five weeks of testimony from 110 witnesses, 104 of which have no relation to my client. It will also cause an eight week midtrial continuance to investigate this witness.

On Saturday, in the words of Warren Zevon, “Send lawyers, guns and money; The shit has hit the fan.” There was yet a new development, which I’m not going to disclose until the press does. But, it has required that I work on a pleading to disqualify the prosecutor and her office for her conflict of interest. I know she doesn’t read this website, because she has no intellectual curiosity about the law, so I can say what I want here.

The state objected to my question about him being convicted of stealing Elvis’s body, which he brags to everybody about, and he did eight months in the Tennessee DOC for it back in the 70’s. He admits to having been in prison seven times, the last a federal prison in Minnesota. Actual news about the Elvis testimony is almost nonexistent, but you can catch it on one TV station. The Leader is a semi-weekly paper, which had this headline yesterday: “Witness is either a hitman or a liar.” It was not posted on their website as of the time of this posting. It may not be until tomorrow because their website is not a big part of their operation.

I know that today is April Fools Day. But this is true. I feel like I’ve stepped through the looking glass.

A search of a defendant’s internet browser history and e-mails are evidence in a murder trial in New Jersey, as shown on Court TV‘s website, On nurse’s computer, an Internet how-to for murder:

Jurors in the trial of a fertility nurse accused of killing her husband heard Tuesday about suspicious Internet research performed on the couple’s home computer before the slaying, including one Google query for “how to commit murder.”

The approximately 40 searches detailed by a forensic computer examiner called by the prosecution occurred on three occasions in the weeks leading up to William McGuire’s disappearance. The topics searched related to poisons, guns and death. Among them were “instant undetectable poison,” “toxic insulin levels,” “how to commit suicide tips” and “how to purchase guns illegally,” the expert said.

Prosecutors maintain Melanie McGuire, 34, used the Internet to plot her husband’s 2004 slaying. A defense attorney told jurors in his opening statement last week that the 39-year-old victim, a computer analyst, was the primary user of the Hewlett-Packard and had conducted the searches in question.

Jennifer Seymour, a former analyst for the state police’s digital technology unit, told jurors there was no way technologically to tell whether the defendant, the victim or someone else in their home had performed the searches.

But under questioning by a prosecutor, she noted that her examination of the same computer uncovered romantic e-mails between Melanie McGuire and her boss, a married physician.

Defendant was parking his car, and he saw a police car, so he drove away, and the police car followed. He tried to get away and drove at high speed through a residential neighborhood and abandoned the car. His actions were hardly precipitated by unlawful police conduct, and his fleeing the car was an abandonment of the contents. United States v. Lawrence, 2007 U.S. Dist. LEXIS 21669 (E.D. Pa. March 16, 2007).*

Pro se complaint alleging that plaintiff was subjected to a false citizen’s arrest did not state a claim under § 1983. Plaintiff goaded the defendant into calling the police by making himself a trespasser in plaintiff’s store. Evans v. Valero Energy Corp., 2007 U.S. Dist. LEXIS 21402 (E.D. Cal. March 5, 2007).*

Ineffective assistance for pleading guilty without pursuing a motion to suppress was waived by his guilty plea because the petitioner failed to identify what witness would help him prove what. United States v. Rieland, 2007 U.S. Dist. LEXIS 21506 (D. Minn. March 23, 2007)*:

Petitioner first claims his attorney should have done more pretrial investigation and located a witness crucial to his defense who would refute the allegations made against him. A § 2255 petitioner is required to identify the witness who should have been called, what he or she would have testified to, and why that testimony likely would have affected the outcome of the case. Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998). Petitioner gives none of these specifics.

After a traffic stop, defendant was arrested on warrants, and the search of the car was valid either by consent or search incident. United States v. Nguyen, 2007 U.S. Dist. LEXIS 21529 (D. Utah March 23, 2007).*

Eleventh Circuit essentially holds that the fact a person is driving a vehicle not registered to him is reason enough to stop him, particularly when the vehicle is a Bentley and the defendant is a suspected drug dealer and money launderer. He admitted he had a gun in the car, and the officers knew he was a felon. United States v. Bivens, 204 Fed. Appx. 835 (11th Cir. November 6, 2006) (unpublished).

When beeper in package went off inside a building, officers had probable cause and exigent circumstances. United States v. Chiem Euy Saechao, 204 Fed. Appx. 612 (9th Cir. November 6, 2006) (unpublished):

The officers had probable cause to search the trailer as soon as Saechao brought the package of drugs inside. Furthermore, once the alarm went off, indicating that the package had been opened, the agents were confronted with exigent circumstances. Saechao hurried his girlfriend and children away from the trailer immediately after opening the package, and then peered suspiciously through the window. And when the agents stopped his girlfriend, she indicated that there was something wrong with the package. Even though the agents were able to detain Saechao in the front yard, the agents could not rule out the possibility that someone else was in the trailer who could destroy the package and its contents. Indeed, Saechao’s mother was found during the subsequent search. Thus, a reasonable person would believe it necessary to enter the trailer in order to prevent destruction of relevant evidence. See United States v. Hackett, 638 F.2d 1179, 1182 (9th Cir. 1980).

Consent after a knock and talk was voluntary. United States v. Childs, 2006 U.S. Dist. LEXIS 80824 (E.D. Mich. October 25, 2006):

Although Defendant could have refused by “simply standing pat, saying ‘no’, or closing the door,” Carter, 378 F.3d at 588, the Court finds that during this brief conversation, Defendant freely and voluntarily, without coercion or a threat of force, gave police permission to come inside and search the residence. See Rodriguez, 497 U.S. at 181; Schneckloth, 412 U.S. 218. After Defendant told the officers that drugs and a gun were present, he instructed the officers where those items could be found. Consequently, Sergeant Sorensen found, and legally seized, a loaded handgun and eighteen baggies of marijuana.

A large number of officers showed up at defendant’s house for a knock and talk without a search warrant, and drugs were tossed out a window when they showed up. Too many officers were present for a mere knock and talk, and this was a submission to a claim of authority. The officers’ testimony was just not credible. United States v. Berry, 468 F. Supp. 2d 870 (N.D. Tex. December 21, 2006):

The court does not find credible the testimony that the entry onto Berry’s property was merely for the purpose of a permissible “knock and talk.” The court determines that the conduct of the officers, who knew they lacked probable cause, reflects a plan or effort to arrest Berry without getting a warrant. The totality of the circumstances suggest a major operation. There were at least eight officers present. The officers carefully planned the operation, staked out their positions surrounding Berry’s house, and took cover positions. Four officers entered Berry’s patio and approached the front door. This is overkill for the stated purpose of a “knock and talk.” See United States v. Jones, 239 F.3d at 720 (reasonable suspicion of criminal activity cannot justify the warrantless search of a house). Moreover, the inconsistency in the testimony of several of the officers casts much doubt as to the stated purpose of a “knock and talk.”

Pro se § 2255 denied because of defendant’s waiver of relief at guilty plea could not be shown to be based on ineffective assistance of counsel. Also, the guilty plea waived any search claim now asserted. COA denied, too. United States v. Contorelli, 2006 U.S. Dist. LEXIS 92688 (S.D. Tex. December 22, 2006).*

During traffic stop, driver of vehicle was at first thought to be under the influence, but officers determined that she was not. During the questioning she was sked if there was any contraband in the car, and she said “possibly,” and that was reasonable suspicion for detaining a few more minutes for a drug dog sniff. United States v. Harris, 2006 U.S. Dist. LEXIS 92717 (W.D. Pa. December 21, 2006).*

A defendant who was not the registered owner of the vehicle searched by the police had standing to challenge its search where he had his own keys, helped pay for it, and could drive it anytime he wanted. He showed a subjective expectation of privacy that society would recognize as reasonable. United States v. Cannon, 2006 U.S. Dist. LEXIS 84403 (S.D. Ind. April 5, 2006).

A defendant who lived in the same house with the owner of a vehicle who did repair work on it and could drive it at will had standing. United States v. Harms, 2006 U.S. Dist. LEXIS 84673 (D. Neb. May 2, 2006).

Smell of anhydrous ammonia coming from bed of pickup truck gave officer probable cause to believe that it contained a meth lab. Id.

Flight alone is an insufficient basis for a stop. Flight + hunch ≠ reasonable suspicion. State v. Raphael, 2006 Ohio 6163, 2006 Ohio App. LEXIS 6130 (8th Dist. November 22, 2006).

No law here, but this is typical of meth heads: Defendant and his wife argued over the defendant’s meth lab, which she told him to get out of the house, and the defendant became irate and assaulted her which led to a 911 call and her consent to search for the meth. The search was not even an issue on appeal. Defendant was sentenced to 25 years without parole. State v. Riley, 213 S.W.3d 80 (Mo. App. W.D. November 21, 2006).*