An appellate prosecutor in the Arkansas Attorney General’s Office who is also a part-time magistrate 45 miles from Little Rock is still a “neutral and detached magistrate” for issuing a search warrant, although the practice is disapproved. Davis v. State, 2006 Ark. LEXIS 671 (September 28, 2006), pet. for cert. pending 06-8552. [Ok, you got me: this is our cert petition referred to in the January 1st post. Question presented: “Whether a part-time Arkansas District Judge who issued a search warrant who was also a full time career Assistant Attorney General in the Criminal Division in the Executive Branch is a ‘neutral and detached magistrate.'” My research revealed that there are two lines of authority: Fourth Amendment and due process. Here they meet.] Update: Cert. denied March 26, 2007.

Defendant allowed officers in while she retrieved her identification for them. While they were there they decided to get a consent to search. This was a nighttime entry, and the Arkansas Supreme Court had previously held that a nighttime knock and talk requires a warning of a right to refuse, and this case fit within that rule. Motion to suppress should have been granted. Burroughs v. State, 2006 Ark. App. LEXIS 880 (October 11, 2006).

A claim against a New York state wiretap not following state law is not cognizable in habeas because it is not a constitutional claim. Alternatively, the petitioner had a full and fair opportunity to litigate the claim in state court on the constitutional question, and the holding below is not an unreasonable application of federal law. Hickey v. Conway, 2005 U.S. Dist. LEXIS 44249 (N.D. N.Y. July 6, 2005).*

Defendant was stopped for DUI and requested a blood test. The officer attempted to get one, but, because of the weather and a high number of calls for the paramedics, time was running out. He then told the defendant that he would have to submit to a breath test or lose his license. “[T]he Supreme Court orders the suppression of the breath test results because they resulted from an invalid consent to search, due to the arresting officer’s erroneous and coercive advice to Turbyne that he could lose his license by not submitting to a chemical test he had not selected.” Turbyne v. People, 151 P.3d 563 (Colo. January 16, 2007).

Having stipulated to having moved out of an apartment where a murder occurred, the defendant abandoned it, and he had no expectation of privacy in it. State v. Russell, 2007 Ohio 137, 2007 Ohio App. LEXIS 129 (2d Dist. January 12, 2007).*

Defendant could be handcuffed during a reasonable suspicion stop without violating the Fourth Amendment. State v. Porche, 943 So. 2d 335 (La. November 29, 2006, released for Publication December 13, 2006).*

Defendant was questioned in Trinidad by the FBI for the hostage taking of a U.S. citizen there. He was not in custody for Miranda purposes. He came in as a witness and was getting money from the Trinidad Witness Protection Programme when the investigation turned to him. United States v. Suchit, 2007 U.S. Dist. LEXIS 18148 (D. D.C. March 15, 2007).

Applying these standards, the Court finds that the evidence readily establishes that defendant was not “in custody” at the time of either interview with Special Agent Clauss. The day before the October 4, 2005 interview, Suchit indicated to Neermal that he was eager to meet with the FBI–conduct that was consistent with his decision to meet twice with Constable Forbes only days earlier. Suchit was clearly aware of and interested in the Trinidad and U.S. reward money, and offered his knowledge of the Maharaj abduction based on that financial interest. He expressed strong interest in the reward money in his talks with Neermal and on multiple occasions with Special Agent Clauss. During the interview, Suchit was not restrained in any manner, and appeared calm, relaxed, and eager to provide information. After the interview was done, the Trinidad police drove him to his home. All of these circumstances indicate a consensual meeting, rather than the functional equivalent of an arrest.

Defendant contends that custody should nonetheless be found, based on the actions of the Trinidad police–that is, the use of handcuffs when the police arrived at Suchit’s house the day before the interview and the length of time defendant spent at the Trinidad police station–roughly, 30 to 36 hours. Assuming arguendo that the FBI can be held accountable for the actions of the Trinidad police, n22 the Court finds that these circumstances do not establish that Suchit was in custody. As to the cuffing, defendant clearly feared that public disclosure of his cooperation could result in harm to his family, and would take efforts to hide his cooperation. Thus, when Forbes arrived at Suchit’s home the morning of October 3, it is more likely than not that he placed Suchit in handcuffs to create the appearance that Suchit was under arrest, much like the January 2006 fake arrest at the Arouca police station in front of Doreen Alexander.

A false arrest claim is not cognizable as Fourth Amendment claim. Venable v. Hulse, 2007 U.S. Dist. LEXIS 18138 (C.D. Ill. March 15, 2007):

The defendants also maintain that the plaintiff has failed to state a violation of his Fourth Amendment rights based on false arrest. The defendants argue the plaintiff cannot demonstrate any injury because if his Fourth Amendment rights were violated, the injury would occur at the time of the plaintiff’s arrest. “[A]n individual is entitled to recover only for injuries suffered from the time of arrest until his arraignment.” Wallace v City of Chicago, 440 F.3d 421 (7th Cir. 2006). “[T]he interest in not being prosecuted groundlessly is not an interest that the Fourth Amendment protects.” Gauger v Hendle, 349 F.3d 354, 363 (7th Cir. 2003).

Plaintiffs failed to overcome officers’ qualified immunity defense where the officers noticed the address on the warrant was wrong and called for guidance from the prosecutor who told them they could execute it because the property was otherwise properly “described as a white single dwelling with a grey shingled roof and red brick base with a partial screened in porch facing north on the south east corner of the intersection of Fifth and South Street.” Holloway v. City of Hot Springs, Arkansas, 2007 U.S. Dist. LEXIS 18071 (W.D. Ark. March 14, 2007).

Notice pleading is not sufficient when the defendant believes he would have an apparent qualified immunity defense. Therefore, a motion for a more definite statement of an alleged unlawful search claim was required to enable the defendant to plead intelligently. Mann v. Brenner, 2007 U.S. Dist. LEXIS 18178 (M.D. Pa. March 13, 2007):

However, while Plaintiff’s complaint may afford Defendant Wentz the notice required under Rule 8 of the Federal Rules of Civil Procedure, it does not contain the factual allegations necessary for him to assert a qualified immunity defense by, for example, demonstrating that his actions were reasonable under the circumstances. “[T]o provide government officials the protections afforded by qualified immunity,” the Third Circuit has directed that a “district court must avail itself of the procedures available under the Federal Rules to facilitate an early resolution of the qualified immunity issue.” Thomas v. Independence Twp., 463 F.3d 285, 289, 300 (3d Cir. 2006). Where a complaint does not lend itself to a meaningful qualified immunity analysis, it is within a district court’s authority to order the plaintiff produce a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Id. at 289, 301; Fed. R. Civ. P. 12(e) (a more definite statement is appropriate where “a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading”). Because Plaintiff’s complaint fails to provide sufficient factual information about the search and seizure allegedly committed by Defendant Wentz, Plaintiff will be instructed to file an amended complaint containing a more definite statement. In crafting his more definite statement, Plaintiff should address–in specific, non-conclusory factual allegations–the circumstances known to him surrounding the allegedly unlawful search and seizure.

Inevitable discovery supported seizure of guns hidden in defendant’s unfinished basement despite defendant’s statements allegedly in violation of Miranda. United States v. Domenico, 2007 U.S. Dist. LEXIS 17938 (D. Mont. March 6, 2007):

Officer Juhnke had already made the decision to search Domenico’s residence for the firearms when he visited with Domenico at the Gallatin County Detention Center. He and Officer Evans were in fact on their way to conduct the search, stopping on the way to advise Domenico of their plan and to ask him how best to gain entry to the residence. The officers found the firearms precisely where Davis said they would be–behind insulation and between the studs in an unfinished room in the basement. Based on the foregoing credible testimony, this Court concludes the Government has met its burden of establishing by a preponderance of the evidence that the officers inevitably would have found the firearms, regardless of Domenico’s illegally obtained statements. Evidence of the firearms is thus admissible under the inevitable discovery doctrine, and Domenico’s motion to suppress should be denied.

In so concluding, this Court has accepted the credible testimony of Officers Juhnke and Evans over Davis’s contradictory testimony. Even if this Court were to accept Davis’s testimony in its entirety, however, Domenico’s motion to suppress would nevertheless fail. Davis agreed that she spoke with Officer Juhnke about the location of Domenico’s firearms, but denied telling him they were located behind insulation and between the studs in an unfinished room in the basement. She instead testified somewhat confusingly that she told him they were “under the stairs” in the “mechanical room,” which she conceded is in the basement. Although the officers found the firearms in this so-called “mechanical room,” it is Domenico’s position that the officers would not have found the weapons without the information he provided at the jail. Domenico argues the weapons were not found “under the stairs,” and claims the officers would not have known to look, or even been entitled to look, behind the insulation when conducting their search.

After considering all the evidence at the suppression hearing, the court sides with the defense on the consent issue. United States v. Burr, 2007 U.S. Dist. LEXIS 18322 (D. Utah March 13, 2007)*:

Evaluating the voluntariness of Defendant’s consent in this case presents a close question and hinges primarily on the credibility of the witnesses. At the evidentiary hearing, there was a significant amount of contradictory testimony between the agents on one hand and the Defendant and his parents on the other hand. According to the testimony of the arresting agents, this was a routine, casual and consensual encounter–similar to many of the visits that they perform on an almost daily basis. According to the agents, Defendant readily agreed to allow the search. In contrast, Defendant and his parents testified that this was a much more confrontational and coercive encounter, and that Defendant was left with no choice but to acquiesce to the agents’ demands to search the bedroom.

After listening to the testimony, the court finds that the Defendant’s testimony, along with the testimony of his parents, is more credible than that of the agents. The agents’ admission that they believed they were entitled–in fact obliged–to search the room during their visit, along with Mrs. Burr’s and Defendant’s testimony that the agents did not politely request to see the room, but rather “demanded” several times to see the room, leads this court to conclude that the consent was not knowing, intelligent, and voluntary. This conclusion is also supported–but not dependent upon–Wayne Burr’s testimony that, after the search, the agents told him that they did not need a search warrant.

It is undisputed that Defendant was not advised of his right to refuse consent. Indeed, the agents believed that they did not need his consent. In addition, considering the way in which the agents were dressed, the fact that there were two of them present, and the repeated “demands” to see Defendant’s bedroom, the court finds that Defendant did not voluntarily consent to allow them to search his bedroom. Rather, he believed he did not have a choice.

The government has not met its burden in presenting “clear and positive testimony that consent was unequivocal and specific and freely and intelligently given” and that “consent was given without duress or coercion.” United States v. Pena, 143 F.3d 1363, 1366 (10 Cir. 1998)(citations omitted). In evaluating the totality of the circumstances, the court finds that the consent to search the bedroom was not given voluntarily but that it was granted only in submission to coercion and a claim of lawful authority. Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). Thus, based upon the totality of the circumstances, the court finds that the Defendant did not knowingly, intelligently, and voluntarily give consent to search. Therefore, the court finds that the search of Defendant’s bedroom was unlawful, and the fruits of that search must be suppressed.

Defendant’s warrantless arrest based on his picking up mail with drugs in it was justified. United States v. Muse, 2007 U.S. Dist. LEXIS 18326 (S.D. N.Y. March 16, 2007)*:

In this case, the arresting officer was aware that the two packages had been addressed to different names but the same mailbox number. He observed Jama go into the mail facility and sign for and pick up both packages. These facts, when combined with probable cause to believe that at least one of the packages contained cathinone, were sufficient to establish probable cause for Jama’s arrest.

Generalized motion to suppress failed. United States v. Cruz, 2007 U.S. Dist. LEXIS 18312 (M.D. Ga. March 13, 2007)*:

Although Defendant recited some of the Fourth Amendment standards for determining whether a search and seizure are reasonable, Defendant failed to present any evidence or argument regarding why the evidence in this case should be suppressed. Nevertheless, the Court notes two important factors involved in this case that establish the motion to suppress has no merit: standing and abandonment of the drugs.

Even liberally construing a pro se 2255 petition, it still cannot allege vaguely and conclusorily ineffective assistance on a search issue. Law v. United States, 2007 U.S. Dist. LEXIS 18460 (D. Idaho March 13, 2007).*

The warrant was not a nighttime warrant, but the officers executed it at night. Three people were at home, however, but not the defendant. The violation was technical at best because, while the other people were awakened by the police arriving too early in the morning, the defendant was not one of them, and his interests were not involved or protected by the nighttime search rule. This is the majority rule. State v. Jordan, 726 N.W.2d 534 (Minn. App. January 30, 2007):

“Underlying the Minnesota statutory rule … is the belief that a nighttime search of a home involves a much greater intrusion upon privacy and is presumably more alarming than an ordinary daytime search of a home.” State v. Lien, 265 N.W.2d 833, 839-40 (Minn. 1978); see also State v. Winchell, 363 N.W.2d 747, 750 (Minn. 1985) (stating that in adopting section 626.14 “[t]he legislature recognized that entry into a residence in the middle of the night is a greater invasion of residential privacy than entry during the daytime”).

Here, the state does not argue that the district court erred in determining that the warrant application did not contain sufficient facts to support a nighttime search. Instead, the state contends that the district court should not have suppressed the evidence obtained during the search pursuant to the invalid nighttime search warrant when respondent was not home when the search warrant was executed. Specifically, the state argues that the violation was statutory rather than constitutional in nature and, therefore, does not justify suppression of the evidence.

The distinction between a statutory and a constitutional violation was articulated by the Minnesota Supreme Court in Lien. In that case, an officer applied to the district court for a warrant to search the defendant and his residence for controlled substances and paraphernalia. 265 N.W.2d at 835-36. The application requested a nighttime search “to prevent the loss, destruction or removal of the objects of the search because … it is unknown when the person described herein will be at the premises described herein.” Id. at 836 (quotation marks omitted). The district court issued a search warrant authorizing a nighttime search. Id.

The district court noted that (1) the search warrant was executed between 5:27 a.m. and 6:00 a.m., roughly one hour to one and one-half hours before “daytime”; (2) all three people in the residence at the time the warrant was executed were asleep; and (3) there was no evidence to suggest that people were coming and going from the residence at the time of or just prior to the search, that there was activity in the residence, or that the door was open. Based on these facts, the district court concluded that the circumstances of the search amounted to a constitutional violation and, therefore, the evidence seized during the search should be suppressed.

We agree that the three individuals who were roused from their sleep in the early morning hours and forced to stand by idly as law-enforcement authorities searched the home have a legitimate argument that a violation of their constitutional rights occurred, and, consequently, that the evidence against them should be suppressed. But we draw a distinction between those individuals and respondent, who was absent when the warrant was executed. Because respondent was not present when the search took place, the Lien court’s policy concern with individuals “being roused out of bed and forced to stand by in their night clothes while the police conduct [a] search” is not triggered.

…

A few courts have addressed the issue of whether one has a reasonable expectation of privacy in his home when that individual is not present so that the execution of an invalid nighttime search warrant amounts to a constitutional violation requiring suppression of any evidence seized. n1

n1 See United States v. Searp, 586 F.2d 1117, 1122, 1125 (6th Cir. 1978) (holding evidence seized during execution of nighttime search warrant that violated Fed. R. Crim. P. 41(c)(1) should not be excluded where defendant was not present when the search of home took place because “there was neither a possibility of bad faith conduct on the part of the police, nor prejudice to the defendant,” and “no substantial right of the defendant ha[d] been infringed”; therefore, the search was “reasonable” under the Fourth Amendment); Gamble v. State, 473 So. 2d 1188, 1195-96 (Ala. Crim. App. 1985) (holding that while “[a]n error . . . may have been committed with respect to the issuance” of a search warrant for defendant’s car that was executed at night, suppression of the evidence seized was unnecessary because defendant “was not subjected to an abusive, arbitrary intrusion into his home in the middle of the night, but was already in custody and his vehicle under surveillance”) (alteration in original) (quotation omitted); Commonwealth v. Camperson, 437 Pa. Super. 355, 650 A.2d 65, 67, 70-71 (Pa. Super. Ct. 1994) (holding suppression of evidence was not required for seizure of drugs conducted pursuant to potentially invalid nighttime search warrant, when defendant was in custody both when police obtained search warrant and when search of home was conducted at 10:30 p.m., because violation of the state’s nighttime search rule, if any, was technical in nature and appellant was not disadvantaged thereby); State v. Chandler, 267 S.C. 138, 226 S.E.2d 553 (S.C. 1976) (holding evidence should not be suppressed when police searched defendant’s home at nighttime while defendant was in jail, despite the fact that the search warrant authorized a search in the daytime only, because violation was statutory in nature). But see Henry v. State, 373 A.2d 575, 578 (Del. 1977) (holding that evidence seized during search of defendant’s home while defendant was in custody of the police should be suppressed because search warrant was issued in violation of state nighttime search statute).

A doctor who prescribed medical marijuana whose patient records were searched under a search warrant sought by the DEA and IRS had no standing in those records as to himself, but he did have standing to assert patient privacy because nobody else could. Sterner v. United States Drug Enforcement Agency, 467 F. Supp. 2d 1017 (S.D. Cal. October 11, 2006):

A federal court’s judicial power is limited to “cases” or “controversies.” U.S. Const., Art. III § 2. A necessary element of Article III’s “case” or “controversy” requirement is that a litigant must have “‘standing’ to challenge the action sought to be adjudicated in the lawsuit.” Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). The “irreducible constitutional minimum” of Article III standing has three elements. LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered “an injury in fact–an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). Second, plaintiff must show a causal connection between the injury and the conduct complained of; i.e., “the injury has to be fairly … trace[able] to the challenged action of the defendant, and not … th[e] result [of] the independent action of some third party not before the court.” Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)) (alterations in original). Third, it must be “likely,” and not merely “speculative,” that the plaintiff’s injury will be redressed by a favorable decision. Id. at 561.

The court’s standing analysis, however, does not end here. The court can also impose “prudential limitations” on the class of persons seeking federal jurisdiction, including requiring that a litigant can only assert his own legal rights, and not the rights of a third party. See, e.g., United States v. Raines, 362 U.S. 17, 22-23 (1960); Retired Chicago Police Ass’n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). “This rule flows from a concern that third parties will not adequately represent the individuals whose rights they seek to vindicate.” Retired Chicago Police Ass’n, 76 F.3d at 862. Thus, in determining whether a party can assert a cause of action on behalf of others, a reviewing court must ask two questions: 1) whether the litigants have suffered an injury in fact sufficient to rise to an Article III controversy; and 2) whether, as a prudential matter, the plaintiff properly represents the interest of any other individual in the complaint. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989); Singleton v. Wulff, 428 U.S. 106, 112 (1976).

The complaint lists several allegations resulting from the seizure of Plaintiff Sterner’s patient treatment history records. Cplt. at 16. Plaintiff Sterner alleges that, in violation of the search warrant, Defendant Toussaint seized entire patient files even when the medical files could be easily separated from payment records. Id. The complaint seeks injunctive relief barring Defendants from use or dissemination of “any patient information and/or patient identities” for violating Plaintiffs’ first amendment rights (see Cplt. at 15), as well as “Plaintiff Sterner’s patients clearly established right to privacy.” See Cplt. at 21.

Plaintiff argues that the physician-patient privilege endows him with standing to pursue this action on behalf of his patients. Doc. No. 33 at 3. Although federal law does not recognize a physician-patient privilege, see Hutton v. Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003), courts have consistently acknowledged the right of a physician, as a custodian of records, to assert the privacy rights of his patients. In In re Search Warrant, 810 F.2d 67 (3d Cir. 1987), physician plaintiff sought to assert his patient’s rights to privacy when medical records were seized from his office pursuant to a search warrant issued as part of an insurance fraud investigation. Id. at 70. In finding a physician has standing to assert the privacy rights of his patients; the court first recognized that “‘[a]s a practical matter, the absence of notice … of the subpoena means that no other person other than [the movant] would be likely to raise the privacy claim,'” and therefore the physician would be the “proper proponent to assert this claim on behalf of his patients.” Id. at 71, quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 574 (3d Cir. 1980). The court also found, due to a substantial stake a physician has in the outcome, the level of adverseness high enough to overcome any prudential concerns. Id. at 71 n.3. In Pagano v. Oroville Hospital, 145 F.R.D. 683 (E.D. Cal. 1993) (overturned on other grounds), the court also recognized a physician’s duty, as custodians of their patients’ medical records, to assert the privacy rights of their patients. Id. at 696. Citing several California state cases, the court found that physicians “must be permitted to speak” for their absent patients where a physician’s rights are coincident with their patients. Id., citing Wood v. Superior Court (Bd. of Medical Qual.), 166 Cal.App.3d 1138, 1145 (1985). This Court finds these cases persuasive, and therefore finds that a physician, as a custodian of his patient’s records, has standing to assert privacy rights on behalf of his patients. Taking the facts asserted here as true, the information Plaintiffs seek to protect is highly personal and, in light of the Government’s primary interest in financial matters and accounting, should outweigh any interest that the Government may have. Accordingly, this Court DENIES Defendant Toussaint’s motion to dismiss based on the alleged lack of standing of Plaintiff to assert claims on behalf of his patients.

Officer lacked reasonable suspicion to detain the defendant based on a review of the videotape when he cited the defendant for driving on a suspended license for an unknown reason. The defendant was driving a rental car with an expired rental agreement but which defendant said had been extended which he had already noted on the rental agreement with the name of the person he talked to and the date. The officer asked for consent and defendant refused. The officer then brought the dog out, but the continuation of the detention was without reasonable suspicion. Enriquez v. State, 2006 Ark. App. LEXIS 864 (December 6, 2006).

Officers responded to an emergency call that there was a man slumped over the wheel of a car in a convenience store parking lot with the engine running. They opened the door, and defendant was not responsive. When they pulled him upright, in plain view was cocaine, which was validly seized. Vitale v. State, 946 So. 2d 1220 (Fla. App. 4th Dist. January 3, 2007, released for publication January 19, 2007).

Defendant did not preserve search issue for appeal with conditional plea, so the appellate court lacked jurisdiction on that issue. State v. McDougald, 638 S.E.2d 546 (N.C. App. 2007).*

Consent during a knock and talk, where defendant first refused consent but relented after being told that the officers would get a search warrant and he would be excluded from the apartment until the search was completed, was still voluntary. Durlock v. State, 2007 Tex. App. LEXIS 11 (Tex. App. — Dallas January 3, 2007) (there was no mention of whether the search warrant would actually issue, which should be fatal, but the defendant’s “experience” with the criminal justice system seemed determinative):

The evidence shows appellant is an adult who has experienced previous encounters with law enforcement officials. He acknowledged that he agreed to allow the officers to search his apartment rather than wait for a search warrant. He was not in custody and there is no evidence of physical punishment. The trial court could have determined any initial misgivings appellant might have had about consenting to a search of his apartment were insufficient to vitiate his subsequent decision to consent to the search. “[M]ost confrontations with the police are uncomfortable–given the implicit difficulty in refusing any request from a peace officer who stands cloaked in the authority of law enforcement. …” Carmouche, 10 S.W.3d at 333. “But the Constitution does not guarantee freedom from discomfort.” State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999). The Constitution “presumes that an actor is invested with a vibrant sense of his own constitutional rights and will assert those rights when they are implicated.” Carmouche, 10 S.W.3d at 333. Looking at the totality of the circumstances, we conclude the record supports a finding by clear and convincing evidence that appellant’s consent to search was free and voluntary. The trial court did not abuse its discretion when it denied appellant’s motion to suppress. Appellant’s first and second issues are overruled.

Not a search case, but interesting for prosecutors and defense lawyers alike is Valle v. State, 2006 Tex. App. LEXIS 11129 (Tex. App. — Amarillo December 29, 2006), holding that insufficient evidence of possession was shown as to the driver of a tractor trailer who consented to a search of the contents of the truck where drugs were found. This was distinguished from a drug courier in a smaller vehicle because of the way the contraband was packaged and hidden in the truck, and long haul truck drivers carry for third persons and seldom know exactly what they are hauling.

Again, appellant questioned the factual sufficiency of the evidence. And, as previously mentioned, addressing that issue obligates us to consider the entirety of the evidence in a neutral light. Thus, we need not ignore the fact that the officers were not qualified by the State as or otherwise shown to be experts on the matter of commercial trucking procedures or the conduct of commercial truckers. Nor must we ignore the fact that in commenting about the ability of charcoal and flour to absorb odors, the officers were again not shown to have any specialized training in the matter. Nor can it be forgotten that neither they nor the State explained what effect plastic wrapping had on the ability of charcoal and flour to absorb smells. Moreover, in reading the testimony of the officers, one is left with the unmistakable impression that whatever conduct a suspect engages in, they can interpret it as indicative of criminality. To that we add 1) the numerous links (discussed above) that weigh against there being a nexus between appellant and the contraband, 2) one officer’s own testimony that he has seen reefers being used to haul cars, 3) another’s testimony that a trucker may simply drive up to a loading dock, remain in the truck, have others load the goods, obtain whatever receipt is given him, and then drive off, 4) the inability of the officers to confirm whether or not the contact person named on the bill of lading and receipt worked for the companies at which the goods were received, 5) the lack of evidence suggesting that appellant had any experience in or history with the drug trade, 6) the absence of evidence contradicting appellant’s version of how he came to acquire the limited cargo he had, and 7) the inability of one officer to place appellant inside the trailer and of the other to inform the jury of any indicia he thought was enough to show appellant knew of the drugs.

Into the mix we throw in another observation. The circumstances before us are unlike those involved in the usual drug stop. We do not have an individual simply operating a vehicle on a public roadway. We have a person whose job it is to transport, over long distances, property belonging to third parties. Moreover, if the officers at bar are to be believed, the property is most likely packaged by third parties, as opposed to the driver. This is a setting ripe for the unwitting carriage of illegal goods. Consequently, both jurors and the judiciary must tread cautiously to avoid convicting the unwitting.

In sum, while an abundance of information floats around in the record it means little when placed in context. It may be (as the officers suggested) the responsibility of a long-haul driver to exercise care over his cargo but not even the law of bailments equates the duty of care with a knowledge of content. To say otherwise would be to divine apples from oranges. And, that appears to be a general flaw running throughout the case. Tidbits of information were tossed before the jury but there lacked a cohesive thread tying them together. This is not to say that the State’s effort was less than noteworthy. Rather, it connotes the difficulty in proving guilt in cases such as this.

So, from the totality of the evidence when considered in a neutral light, we can say that objective basis exists of record upon which to find “the evidence supporting conviction [to be] so weak that the verdict “seems ‘clearly wrong and manifestly unjust[.]'” Evans v. State, supra. To the extent that the dissent disagrees, we note that the two cases it relies on, Menchaca v. State, 901 S.W.2d 640 (Tex. App.-El Paso 1995, pet. ref’d) and United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993), are inapposite. For instance, Menchaca involved drugs being transported within a car as opposed to being hidden within the cargo of a trailer hauled by a common carrier. Nor do we have here evidence of nervousness on the part of the driver or a document indicating how and where the drug deal would be completed, unlike the situation in Menchaca. As for Garza, the court also had before it indicia absent here. They included 1) nervousness and trembling on the part of the courier, 2) a false bill of lading hidden in the truck, 3) admission by the courier of falsification of his log book along with an implausible explanation, 4) suspicious circumstances involving Garza’s delayed departure and 5) abandonment of his unlocked truck for a time. But, most importantly, neither opinion dealt with the factual, as opposed to legal, sufficiency of the evidence. This is of import because evidence that is legally sufficient to support a verdict does not ipso facto mean it is factually sufficient.

Criminal defendant who succeeded on Fourth Amendment claim in state court could not invoke collateral estoppel against officer as plaintiff in a civil case. Schumacher v. Halverson, 467 F. Supp. 2d 939 (D. Minn. December 15, 2006):

The Eighth Circuit Court of Appeals considered the question of privity in the context of a § 1983 action between a police officer and a state in Duncan v. Clements, 744 F.2d 48 (8th Cir. 1984). There, the plaintiff initially prevailed in a criminal proceeding on his motion to suppress evidence based on illegal search and seizure. Id. at 51. Later, in a civil suit against the police officer, the plaintiff sought to bar the officer from relitigating his previously-successful Fourth Amendment claim. Id. The Eighth Circuit interpreted Missouri’s law of collateral estoppel, a body of law substantially similar to Minnesota’s, and declined to estop the officer for want of privity. Id. at 52; see Willems, 333 N.W.2d at 621.

The Duncan court reasoned that the police officer’s interests in a criminal proceeding are not identical to the state’s. Criminal proceedings are designed to vindicate the public interest, and an individual police officer has no personal interest in the outcome. Duncan, 744 F.2d at 52. The Eighth Circuit found a mere interest in the facts is insufficient to establish privity; privity must exist “in relation to an identity of interests in the subject matter of the litigation.” Id. (quotations omitted).

Similarly, this Court finds Officer Halverson was not in privity with the Commissioner of Public Safety in the implied-consent hearing. The Commissioner represented the State of Minnesota and its interest in revoking plaintiff’s driver’s license. The Commissioner had no interest in representing the individual police officer involved in the arrest. The implied consent hearing dealt with plaintiff’s driver’s license; this case concerns the personal and official liability of Officer Halverson and the Lino Lakes Police Department. See State v. Wagner, 637 N.W.2d 330, 337 (Minn. App. 2001)(holding party to implied consent hearing not precluded from challenging validity of traffic stop in later criminal proceeding). Unlike the present defendants, during the implied consent hearing there was never a question of the Commissioner’s having deprived anyone of constitutional rights or the Commissioner’s right to official immunity. There is no privity when such disparate interests are at stake. See id.; Duncan, 744 F.2d at 52.

Excessive force claim allowed to proceed, but without the officers uninvolved in the shooting of plaintiff’s decedent during a drug raid that produced no drugs. Decedent was shot and killed during the raid when he became “combative.” Estate of Brutsche v. City of Federal Way, 2006 U.S. Dist. LEXIS 90883 (W.D. Wash. December 14, 2006).*

Ybarra did not prevent defendant’s search during execution of a search warrant on business premises because officers had good reason to believe that defendant was involved in drug trafficking. United States v. Lopera, 2006 U.S. Dist. LEXIS 90929 (S.D. N.Y. October 13, 2006).*

Officers observed a hand to hand transaction and corroborated the informant. The fact that the arrest did not immediately occur did not nullify the probable cause. State v. Sulewski, 98 Conn. App. 762 (December 19, 2006).*

Another case holds that possession of drugs in a car justifies a patdown of a passenger because possession of drugs means guns are likely around. State v. Banda, 639 S.E.2d 36 (S.C. December 11, 2006):

We hold that under the circumstances of this case, [Officer] Lawson had reasonable suspicion to frisk Banda for weapons pursuant to a valid automobile stop. This Court has recognized that because of the “indisputable nexus between drugs and guns,” where an officer has reasonable suspicion that drugs are present in a vehicle lawfully stopped, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger in the absence of other factors alleviating the officer’s safety concerns. Butler, 353 S.C. at 391 (quoting U.S. v. Sakyi, 160 F.3d 164, 169-170 (4th Cir. 1998)). In this situation, the police clearly had reasonable suspicion to suspect that drugs were present in the vehicle. The police had observed the car leave the residence of a known drug dealer. Furthermore, the car displayed stolen Georgia license tags and the police knew from their confidential informant that the target’s drug shipments came from Georgia. Even though the police shortly realized that Banda was not their target, the fact that the activity observed at the target’s house corroborated the informant’s statements was enough to give the officers a reasonable suspicion that Banda was in some way involved with the target’s drug activity and that drugs might therefore be in the vehicle. See Cortez, 449 U.S. 411, at 417, 101 S. Ct. 690, 66 L. Ed. 2d 621. Given the frequent association between drugs and guns, Lawson’s safety concerns were justified based on the vehicle’s apparent connection to a known drug dealer.

A prior drug arrest is not sufficient reason to patdown a motorist ordered from his vehicle during a traffic stop. The patdown revealed a rock of crack. State v. Stewart, 2006 Ohio 5934, 2006 Ohio App. LEXIS 5897 (8th Dist. November 9, 2006):

[*P13] The issue in this case is not whether the officer could order Stewart out of the car, but whether he could search Stewart upon his exit from the vehicle. When the suspect exits the vehicle, the officer must have an articulable particularized suspicion that the suspect is dangerous or concealing contraband in order to conduct a pat-down search. The officer is not allowed to search for evidence merely because the person has a prior arrest record.

Generalized consent to search a car in Texas apparently includes having to endure the officer chosing to move it to a different location to remove the gas tank. Montanez v. State, 211 S.W.3d 412 (Tex. App.–Waco November 8, 2006), on remand from Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (decision on other grounds: standard of review). Comment: If the vehicle had to be moved, the driver could object and limit the search. The problem with that is, however, if the officer develops a real reason to check the gas tank (by tapping on it or scoping it), the officer has greater cause to remove the gas tank.

In a bizarre case out of the Ninth Circuit, a panel holds 2-1 in a § 1983 case that a 12 hour police standoff with a potentially drunk and armed suspect at some point required a warrant, something that I would not have expected. The exigency was not continuing. “On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events.” Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. January 16, 2007) (case name is free link). This case is just too complicated to explain, but the gist is that Fisher was never quite seized because he would not come out of his house, despite the use of a throw telephone to communicate with him and lobbing in tear gas cannisters. At some point, it became necessary to get a warrant to enter because, after 12 hours, there was no longer any exigency. Fisher was charged with a felony for pointing a gun at police, but the jury deadlocked, and he pled to a misdemeanor and filed the § 1983 case. That jury found for the defendants, but the district court on a judgment NOV awarded nominal damages, which were sustained.

A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City alone, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court’s ruling on appeal, as we agree that the failure to obtain a warrant under the unusual circumstances of this case constituted a constitutional violation as a matter of law.

The conclusion:

Standoffs with barricaded suspects present hard decision-making problems for police, often requiring split-second tactical determinations. The results can be tragic even when the police behavior is for the most part quite reasonable. See, e.g., Ewolski, 287 F.3d at 499 (involving the object of a standoff who shot himself and his son during the standoff). A warrant may not prevent such tragic occurrences. But interposing a neutral and detached magistrate between the police, who are “acting under the excitement that attends the capture of persons accused of crime,” United States v. Lefkowitz, 285 U.S. 452, 464 (1932), and the citizen, who may or may not have committed a wrong, may, on occasion, bring a useful perspective to the situation. Id. (“[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests.”); see also Johnson v. United States, 333 U.S. 10, 14 (1948) (noting that the Fourth Amendment’s “protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime”). The warrant requirement’s goal is to permit a third party to evaluate whether the police should be intervening into a situation at all. If not, police retreat can prevent an awkward situation from escalating into a dangerous one.

Here, it may well be that a timely application to a magistrate would have resulted in issuance of a warrant for Fisher’s arrest and events would then have proceeded pretty much as they did. But that is not certain, and is in any event beside the point. The criminal jury hung on the felony count presented to it, so it is at least possible that a magistrate would have thought the police lacked probable cause on the charge for which he was arrested. More importantly, it is precisely to require the officers involved to articulate the grounds for arrest and to obtain the views of a dispassionate magistrate on the adequacy of those grounds that a warrant is required.

Here, there were plenty of police officers involved and there was plenty of time — at least several hours — to obtain such a warrant [even a telephonic warrant]. It was unconstitutional to fail to do so.

The collective knowledge doctrine does not require that the officers making the stop know why. Defendants’ arguments that all officers must be part of a “coordinated criminal investigation” is rejected as unworkable and contrary to Supreme Court authority. United States v. Ramirez, 473 F.3d 1026 (9th Cir. January 16, 2007):

Moreover, there is good reason to reject such a proposed limitation:

“The accepted practice of modern law enforcement is that an officer often makes arrests at the direction of another law enforcement officer even though the arresting officer himself lacks actual, personal knowledge of the facts supporting probable cause. … [¶] … The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superior or associates.”

Jensen, 425 F.3d at 704-05 (citations and internal quotation marks omitted). The Supreme Court has shared these concerns, specifically endorsing our view “‘that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'” Hensley, 469 U.S. at 231 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)).

The Quarles public safety exception permitted officers to question a suspect about having a gun after an exigent circumstances entry into his motel room and then look for it after he admitted he had one. United States v. Newsome, 475 F.3d 1221 (11th Cir. January 16, 2007).

Consent to search signed while in custody but not yet Mirandized was voluntary according to the evidence. The totality standard always applies, and here it favors the findings of fact. United States v. Renken, 474 F.3d 984 (7th Cir. January 31, 2007).

Search under defendant’s pillow for a gun after he had locked himself in the bedroom and had threatened his girlfriend was with exigent circumstances. United States v. Uscanga-Ramirez, 475 F.3d 1024 (8th Cir. January 31, 2007):

Even if Lisa Olson had not consented to the officers’ warrantless entry into the home, exigent circumstances justified their warrantless entry into the home, entry into the bedroom and search under the pillow. Clearly, the officers were justified in entering the home and bedroom without a warrant. The officers had reliable information that Uscanga-Ramirez had locked himself in a bedroom with a gun and that he was very upset over the disintegration of his marriage. When the circumstances are viewed objectively, Brigham City, 126 S. Ct. at 1947, the officers were justified in entering the house and bedroom to make sure that Uscanga-Ramirez would not seriously injure or kill himself. See, e.g., id.; see also Janis, 387 F.3d at 687-88 (holding warrantless entry into home was justified, in part, because the officers needed “to secure [a] weapon so others would not be harmed”).

Opening a screen or storm door can be an entry, see here, but not when the inside door is closed and the officer opened it to knock after a knock on the storm door got no answer. United States v. Walker, 474 F.3d 1249 (10th Cir. January 31, 2007).*

Officer had a 911 report of a man with a gun and arrived at scene, and defendant raised his hands showing the silhouette of a gun, and that was corroboration. United States v. Lacy, 2007 U.S. Dist. LEXIS 6470 (C.D. Ill. January 30, 2007)*:

Lacy, however, raised his arms and revealed the silhouette of a revolver in his front jeans pocket before Oglesby said anything. At this point, Oglesby had a reasonable suspicion that criminal activity was afoot. Carrying a concealed weapon is a crime in Illinois.

Statute of limitations for Fourth Amendment § 1983 claims in Texas is two years, and adding a defendant after the two years expired was time barred. Kopecki v. City of Corpus Christi, 2007 U.S. Dist. LEXIS 6513 (S.D. Tex. January 30, 2007).*

Maryland, following other states, decides to follow Belton and Thornton and holds that search incident of a recent occupant of a car extends throughout the passenger compartment under Chimel. Purnell v. State, 171 Md. App. 582, 911 A.2d 867 (December 4, 2006):

Notwithstanding that Maryland has yet to extend the Belton/Thornton bright line test specifically to the search of items belonging to a passenger situated several feet from the vehicle arguably outside of the Chimel reach, who is neither under arrest or suspected of criminal activity at the time of the search and who neither poses a threat to the officer’s safety or is capable of destroying evidence, we believe that the reasoning of the Supreme Court of Nebraska has divined the clear direction of the Supreme Court in Belton and Thornton. It is the whole of the passenger compartment that is subject to search, including any items or containers and the content thereof, belonging to the driver or an occupant regardless of whether he or she has been placed under arrest or is within or has been ordered out of the vehicle.

The community caretaking function justified a stop of the defendant who had fallen out of a tree to see if he was injured, and, on closer examination, appeared to be intoxicated. People v. Queen, 369 Ill. App. 3d 211, 307 Ill. Dec. 400, 859 N.E.2d 1077 (1st Dist. November 28, 2006, released for publication January 19, 2007):

The principles annunciated in Cady, Ocon, and Smith apply in the present case. The parties agree that Fragale effected a stop when he “directed” defendant over to the squad car. The State, arguing for a community caretaking rationale in substance if not in name, asserts that defendant’s bizarre and potentially injurious entry onto the scene gave Fragale warrant to “stop and check on” him. Defendant, operating under the erroneous notion that all seizures must be justified by an objective suspicion of criminal activity, does not challenge the State’s position nor could he credibly do so. Defendant had just fallen out of a tree. Although Fragale quickly surmised that defendant was not injured by the fall, Fragale suspected that defendant was intoxicated, based on his unsteady movements. Fragale was justified in having defendant approach and identify himself. When defendant approached, his appearance and demeanor confirmed Fragale’s belief that he was intoxicated. Fragale believed that defendant was in need of a courtesy ride in the squad car because he could not proceed safely in his condition without assistance. Fragale’s concern was well-founded. Defendant’s unexplained bout of tree climbing suggested that he might be capable of further erratic behavior that could endanger himself or others. He was covered in mud that apparently came from some prior escapade.

Stop of vehicle based on an anonymous informant’s tip was justified because of location and the fact it appeared to be armored. Officer in plain view saw a banana clip, and that lawfully expanded the stop. Trial court’s suppression order reversed. State v. Carrocce, 2006 Ohio 6376, 2006 Ohio App. LEXIS 6331 (10th Dist. December 5, 2006).*

Stop for crossing white line was not justified on the record, so DWI suppressed. State v. Phillips, 2006 Ohio 6338, 2006 Ohio App. LEXIS 6321 (3d Dist. December 4, 2006)*; State v. Purtee, 2006 Ohio 6337, 2006 Ohio App. LEXIS 6323 (3d Dist. December 4, 2006).*

(Still in trial. Tomorrow’s posting at unknown time.)

The defendant was alleged to have stashed a bag of drugs between his screen door and the inside door. Because the door was unlocked, and it was not considered a perimeter door, he lacked an expectation of privacy there. Christian v. State, 172 Md. App. 212, 914 A.2d 151 (January 2, 2007):

The suppression court in this case recognized a difference in the way that the public uses the entry door that leads to the private quarters of the home and the screened door between such an entry door and the street. The suppression court found that the screen door in question was of the variety that would be accessible to strangers approaching the residence, stating:

“… I started thinking in terms of when deliveries are made to a home, when guests come into a house, what do they do[? T]hey open the [screen] door and knock. [¶] Oftentimes packages are placed within those two doors, and from a common sense perspective standpoint, that area between those doors does not or is not afforded that same level of protection as to the area beyond that wooden door where there is an expectation of privacy. [¶] * * * So I’m finding … there was no reasonable expectation of privacy within that area, that this is basically from a common sense perspective, it is not protected because too much open use is made of that area, and too much unauthorized use is expected in that area, between the storm door and that interior door for there to be an expectation of privacy….”

We agree. The suppression court’s factual findings about the nature of the subject screen door are not clearly erroneous. Both the custom of public use of such doors and the visual permeability of screen doors support the suppression court’s conclusions. A similar analysis was adopted by the court in United States v. Arellano-Ochoa, 461 F.3d 1142, 1145 (9th Cir. 2006), in a case in which the police officers were confronted with a screen door. The court stated:

“Whether opening a screen door breaches a reasonable expectation of privacy depends on the circumstances. During winter in a cold climate, people ordinarily keep the solid door shut. About the only way for mail and package delivery people, solicitors, missionaries, children funding school trips, and neighbors to knock on the door is to open the screen door and knock on the solid door. People understand that visitors will need to open the screen door, and have no expectation to the contrary. The reason why people do not feel that their privacy is breached by opening the screen door to knock is that it isn’t; the solid door protects their privacy.”

In the summer, when people leave their solid doors open for ventilation, the screen door is all that separates the inside from the outside. People can get a resident’s attention by knocking on the screen door without opening it. Where the solid door is wide open, the screen door is what protects the privacy of the people inside — not just their visual privacy, which it protects only partially, but also their privacy from undesired intrusion. Where the solid door is open so that the screen door is all that protects the privacy of the residents, opening the screen door infringes upon a reasonable and legitimate expectation of privacy.

The distinguishing factor is not whether the time of year is summer or winter, but whether the screen door is acting as the perimeter barrier to the residence. See State v. Kitchen, 1997 ND 241, 572 N.W.2d 106, 109 (N.D. 1997) (“When officers knock on a door where visitors logically would knock, while engaged in legitimate police activities, they have no less right to be there than any member of the public calling at that home.”). See also Fitzgerald v. State, 153 Md. App. 601, 666-67, 837 A.2d 989 (2003) (“[T]he vestibule of the apartment house was no different than a public street or an open field. The police needed no justification for being there.”), aff’d on other grounds, 384 Md. 484, 864 A.2d 1006 (2004).

In the present case, the suppression judge found that the solid door to the residence was closed, and that the screen door would have been opened by delivery men and others approaching the house. There was no evidence that the screen door was latched, or that a door knocker or door bell were located on the outside of the screen door. Under the circumstances, we agree with the suppression court’s conclusion that appellant had no reasonable expectation of privacy in the space between the screen door and the solid entry door of the rowhouse.

The plaintiff had her social security and other identifying information placed on a court’s website. The information was used in an identity theft. Posting the information was not an unconstitutional invasion of privacy. Lambert v. Hartmann, 2006 U.S. Dist. LEXIS 93926 (S.D. Ohio December 29, 2006):

In Kallstrom v. City of Columbus, the Sixth Circuit found that under the first step of the above analysis, the plaintiffs had a privacy interest in personal information of a constitutional dimension. 136 F.3d at 1062. The facts of Kallstrom are that the City of Columbus disclosed personal information contained in police officer personnel files to defense counsel during a criminal trial in which the officers testified against the defendants. Id. at 1058. The court noted that “[i]ndividuals have ‘a clearly established right under the substantive component of the Due Process Clause to personal security and to bodily integrity,’ and this right is fundamental where ‘the magnitude of the liberty deprivation that [the] abuse inflicts upon the victim . . . strips the very essence of personhood.'” 136 F.3d at 1062-63, quoting Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996). The Court explained that “it goes without saying that an individual’s ‘interest in preserving her life is one of constitutional dimension.'” Id., quoting Nishiyama v. Dickson County, 814 F.2d 277, 280 (6th Cir. 1987) (en banc). The court concluded that the disclosure of the officers’ addresses, phone numbers, and driver’s licenses, as well as the personal information of their family members rose to a constitutional dimension because of the threat to the personal security and bodily integrity of the officers and their family members. Id. at 1063. The court therefore proceeded to the second step, and balanced the officers’ interests against those of the city. Id. The court noted that Ohio’s Public Records Act required the state to make available all public records to any person, and for purposes of the case before it, assumed that the interest in public access to these records rose to a compelling state interest. Id. at 1064-65. Nevertheless, the court found that the release of the officers’ information was not narrowly tailored to serve these interests. Id. at 1065. The court explained: “[w]hile there may be situations in which the release of the this type of personal information might further the public’s understanding of the workings of its law enforcement agencies, the facts as presented here do not support such a conclusion.” Id.

In Bloch v. Ribar, the Sixth Circuit again found that the plaintiffs had an interest at stake which implicated either a fundamental right or one implicit in the concept of ordered liberty. 156 F.3d at 685. In Bloch, a rape victim and her husband claimed that the sheriff violated their constitutional rights by holding a press conference to release the confidential and highly personal details of the rape by an unknown assailant. Id. at 676. The court noted that “[t]he fact that the crime of rape occurred in this case implicates both a private and a public interest, but the details of the rape primarily implicate a private interest until such time as the public interest in prosecution predominates.” Id. at 685-86. Therefore, the court concluded that “a rape victim has a fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details of the rape where no penalogical purpose is being served.” Id. at 686. Moving to the second step of the analysis, the court explained that it appeared that there was no justification for disseminating the details of the rape at the time of the press conference. Id. Therefore, the court found that the plaintiffs had raised a cognizable privacy claim under section 1983. Id.

Unlike Kallstrom and Bloch, the Court determines that Plaintiff’s alleged privacy interest in her name, signature, home address, birth date, driver’s license number, and social security number do not implicate either a fundamental right or one implicit in the concept of ordered liberty. Plaintiff has only identified a risk of financial harm. While the Court is not unmindful of the problems which may result from the release of personal information, it nonetheless is beyond dispute that plaintiff’s injury from the release of information in this case bears no equivalence to the potential and actual harm suffered by the Kallstrom and Bloch plaintiffs, respectively, which harm the Sixth Circuit has found to be protected by the Fourteenth Amendment. Therefore, the Court concludes that based upon the allegations in the Complaint, Plaintiff is not entitled to relief under section 1983. The Court finds that nothing within Plaintiff’s proposed amendments to the Complaint would alter this conclusion.

Summary judgment was granted officers on alleged unreasonable detention during the execution of a search warrant. The officers said the detention was handcuffing for two hours while the search was completed. The plaintiffs said five hours. Under Summers, the detention was not unreasonable, even if it were five hours. Diaz v. City of New York, 2006 U.S. Dist. LEXIS 93923 (E.D. N.Y. December 29, 2006).*

NYPD Housing unit had reasonable suspicion to detain defendant for not belonging to the building he was hanging out in when he gave two versions of why he was there, and he claimed a friend in 7B, but nobody in 7B had that name or knew him. People v. Wigfall, 2005 N.Y. Misc. LEXIS 3493, 234 N.Y.L.J. 74 (Bronx Co. October 17, 2005).*

Fire investigators were on the scene as a fire was just being put out, and they were looking for the source of the fire when they found two bodies. The bodies were legitimately found during a fire scene search, and the investigators were not required to get a search warrant and come back. State v. Amodio, 390 N.J. Super. 313, 915 A.2d 569 (February 5, 2007):

In our view, the trial judge correctly applied these principles when he denied defendant’s motion to suppress the evidence found during the investigation of the fire. The evidence presented at the suppression hearing revealed that Dannenfelser arrived at the scene at around 2:00 a.m. when the fire was under control. Dannenfelser and West conducted their investigation of the fire by systematically going through every room in the house. They checked for all possible ignition sources, including electrical devices, appliances, evidence of smoking materials, chemicals, and ignitable liquids.

The second floor of the house had partially collapsed. After West had gone through the rooms which remained on that floor, Dannenfelser and West continued their investigation in the rear bedrooms on the first floor. The smoke stains and fire patterns indicated that the fire had originated in the front section of the house. Dannenfelser and West moved to the living room area, and checked the circuitry and electrical appliances. They observed no abnormal electrical activity. Dannenfelser and West then proceeded into the kitchen and sifted through the debris. There they found pieces of the roof rafters and shingles. Near the refrigerator, they found the bodies of Lisa and Kollin.

Dannenfelser and West hand-sifted the materials around the victims. Dannenfelser explained that they did so to see if there was evidence of any materials that might have caused the fire and to determine where the victims were prior to the fire. Around Lisa’s body, they found the fiberglass handle of a hammer. They also found the metal part of the hammer. Dannenfelser concluded that the victims had been on the first floor at the time of the fire.

The investigators looked at the appliances in the kitchen to determine whether they were a source of ignition. They observed that the most damaged area of the home was the front hallway. Dannenfelser stated that they found a metal-clad door lying in the center of the hallway. When West lifted the door, Dannenfelser smelled an odor characteristic of gasoline.

. . .

[and the court further described the investigative efforts for accelerants.]

District court sensitively balances all the factors for and against consent, and it finds consent valid on the totality but finds that the defendant consented spontaneously although just arrested and not Mirandized. United States v. Reyes, 2007 U.S. Dist. LEXIS 7639 (D. Conn. January 30, 2007).*

Officer lacked all reasonable suspicion for a patdown of the defendant because he had no specific information nor did he see a bulge. United States v. Pinckney, 2007 U.S. Dist. LEXIS 7774 (D. D.C. January 21, 2007).*

Officers had no information that defendant was doing anything wrong when they approached him sitting in his car and asked for his driver’s license. Nothing was awry. Other officers suspected defendant of dealing drugs. The officer twice asked for consent to search the car and was denied. He then shined his flashlight into the car and saw a soda can designed for smoking marijuana and asked for it. The continued detention was unlawful. State v. Brown, 209 Ore. App. 699, 149 P.3d 294 (December 13, 2006).*

Officers did not violate Randolph by waiting until the defendant went out of town to ask his wife for consent to search, which they obtained. Commonwealth v. Yancoskie, 2006 PA Super 367, 915 A.2d 111 (December 14, 2006).*

Defendant who had one of two motel rooms rented by the co-defendant so defendant could stay with his wife had standing to complain of a search of the motel room. Defendant’s wife consented to a search of the room when he was absent. Brown v. State, 212 S.W.3d 851 (Tex. App. — Houston (1st Dist.) December 14, 2006).

Comment: The two cases immediately above erroneously invoked Randolph for the apparent proposition that the police cannot seek consent to search against an absent target of the search. Randolph says nothing of the sort. I can see arguing what one has to, but this argument is a sure loser in any jurisdiction, even under a state constitutional provision that grants more rights. Why the police should have to wait for the absent target to show up serves no legitimate purpose, and it would lead to destruction of evidence. This was the law and practice before Randolph anyway. Of course the police would rather ask an unsuspecting spouse for consent. (In Brown, however, she was not unsuspecting: there was drug paraphernalia in plain view.)

The District of Massachusetts, per Judge Young, yesterday held the Federal DNA collection act unconstitutional as applied to a mere probationer where a DNA sample can be taken by force if need be. United States v. Stewart, 468 F. Supp. 2d 261 (D. Mass. January 8, 2007) (case name is free link). This is a lengthy and important opinion, and still subject to review by the First Circuit, so I only quote from the introduction and the conclusion:

On a historical island between the looming skyscrapers and glass office buildings of the Boston financial district sits the Old State House — a small but ornate brick building that was once the seat of the royal government in colonial Massachusetts. This building is perhaps best remembered for the white, second floor balcony where, on July 18, 1776, Colonel Thomas Crafts read to the people of Boston a copy of the newly signed Declaration of Independence. Yet, fifteen years earlier an event occurred in that building that a young John Adams witnessed and would describe as “the first scene of the first act of opposition to the arbitrary claims of Great Britain …. Then and there the child independence was born.” David McCullough, John Adams 62 (Simon & Schuster 2001).

John Adams was referring to the eloquent five-hour speech James Otis gave against the Writs of Assistance — the general warrants authorized by the British Crown to customs officials allowing them to conduct arbitrary searches for untaxed imported goods. Otis had argued that any statutory authority that purported to grant such a general writ violated common-law principles and was, as a result, null and void. The arguments made by Otis highlighted the colonists’ aversion to arbitrary governmental action and were instrumental in the enactment of the Fourth Amendment to the United States Constitution.

Today, this Court is called upon to apply the principles that once resonated in the halls of the Old State House and in the minds of the Framers of our Constitution to a situation framed by technology, penological interests, and suspect statutory authority. James Stewart (“Stewart”) brings this Motion to Modify Conditions of Probation [Doc. No. 16] seeking to preclude the United States Probation Department from obtaining a DNA n1 sample pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), codified at 42 U.S.C. §§ 14135-14135e and 10 U.S.C. § 1565, and in accordance with the special conditions of his probation. Stewart argues that the DNA Act, by compelling a collection of his DNA while on probation, violates his constitutional rights under the Fourth Amendment to the United States Constitution. This Court agrees and holds the DNA Act unconstitutional as applied to Stewart.

…

III. CONCLUSION

Today this Court faces the latest iteration in the growing tension between technology’s ability to advance governmental purposes and the Fourth Amendment’s protection of individual privacy. This tension is faced and resolved by balancing the government’s purpose against the resulting intrusion on the individual. When conducting such a balancing test, the immediate and tangible imperatives of the governmental purpose often outshine and eclipse the more telescopic and inchoate value of personal privacy. The willingness to watch the erosion of such rights silently is most likely where the vanishing liberties are perceived as not our own. It is even more acute where the subjects are those who have derided and evaded, through criminal misconduct, the order and legal structure on which they now rely.

But the tapestry of constitutional protections that cover all Americans is woven with long threads, each section and each pattern revealing of the integrity of the whole. This holding seeks not to mend this fabric, but to preserve it. To preserve it, most directly, for the unsympathetic probationer who, despite a transgression against the law and against society, is now released to and embraced by that same law and that same society to the full extent reasonably possible. It is also preserved indirectly and with greater resonance for those who remain untouched by this individual invasion, but who suffer the collective erosion of their protection against arbitrary state action.

For this purpose, the Fourth Amendment must not be applied with myopic deference to an immediate governmental imperative. Instead, it must be applied cautiously and with broad vision both as to its historical purpose and to its future viability. As Justice Jackson said after his return from the Nuremberg trials, “one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.” Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). To this end, “it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments.” Byars v. United States, 273 U.S. 28, 32 (1927). These rights are not absolute, and the government, at times, may present public purposes significant enough to overcome such constitutional protections.

The government did not do so in this case.

Accordingly, Stewart’s Motion to Modify Conditions of Probation [Docket No. 16] is ALLOWED, and the DNA Analysis Backlog Elimination Act of 2000 is held unconstitutional as applied to James Stewart.

Comment: I made this same argument and lost 2-1/2 years ago in Arkansas.

Copy of a search warrant for informant’s premises was found in defendant’s truck, and it was admissible as having been found in a search incident. Its relevance was to show that defendant had knowledge of the informant. United States v. Mooneyham, 473 F.3d 280 (6th Cir. January 9, 2007).*

Officers were on notice of Schmerber‘s requirement of exigent circumstances for a forced blood draw in a DUI case. Marshall v. Columbia Lea Regional Hosp., 2007 U.S. App. LEXIS 389 (10th Cir. January 9, 2007):

No one disputes that Mr. Marshall’s refusal to submit to a blood test put him in violation of New Mexico’s implied consent law and that his driver’s license could be suspended as a result. As we discussed with regard to Schmerber, where, as here, police could and did use an alternative, less intrusive, means of testing blood-alcohol content, a blood test is not necessary and cannot be justified by exigent circumstances. The officers needed something more to justify a blood test after Mr. Marshall’s voluntary submission to two breathalyzer tests. See Richerson, 535 P.2d at 648 (requiring that the officer be “confronted with an emergency”); Hammer v. Gross, 932 F.2d 842, 854 (9th Cir. 1991) (“If the government is going to use force to pin someone to a chair, stick a needle in his arm and drain blood from his vein, against his will and despite his acquiescence in an effective alternative [here, a breathalyzer test] it had better have a reason.”) (Kozinski, J., concurring in part and dissenting in part).

. . .

Accordingly, we reject the officers’ contention that they did not have “fair warning” that, at the time of the events in question, New Mexico’s classification of a DUI offense as a misdemeanor would preclude the finding of exigent circumstances under Schmerber. Hope, 536 U.S. at 740.

The jury found that Mr. Marshall’s actions in no way amounted to consent. As the district court concluded, it is difficult to imagine how a competent officer could think it could make sense or be reasonable to violate state law. Aplts’ App. vol. I, at 167 (“I conclude that even if these officers mistakenly thought what they did was proper, it was objectively unreasonable for them to think they could lawfully give this blood test in the absence of Mr. Marshall’s consent….”); Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396 (1982) (stating that “a reasonably competent public official should know the law governing his conduct”). Viewing the facts in the light most favorable to the jury’s verdict, the district court correctly concluded that a reasonable officer, similarly situated, would understand that his or her conduct violated the rights clearly established in Schmerber.

A counterfeiter’s supervised release condition, where he was convicted of using a computer to scan and print counterfeit bills, that he not have access to the internet without court or PTO’s approval and be subjected to random searches of his computers was overbroad and set aside. United States v. Sales, 476 F.3d 732 (9th Cir. February 9, 2007):

The government’s brief asserts that condition # 6 is reasonably related to Sales’s offense “in that it permits the Probation Officer to determine whether [he] is continuing to misuse his computer and peripheral equipment to create, store, and/or print counterfeit currency.” Sales acknowledges that the probation office “must be able to take measures to ensure that he does not use his scanner to make counterfeit currency” but argues that condition # 6 “goes far beyond what is necessary to achieve that goal.” We agree. Condition # 6 cannot stand as presently articulated; further tailoring and clarification are required.

To begin, as currently written the search and seizure provision purports to extend to “[a]ll computers, computer-related devices, and their peripheral equipment, used by the defendant.” Ostensibly, this includes machines used for work or personal purposes, whether owned by Sales or by others. The government’s remarks at oral argument suggested that the provision’s coverage was not intended to be so broad. (The government indicated, for example, that it was not expected to extend to equipment used only for work purposes.) Because Sales cannot be left to guess about the intended meaning of the terms of his supervised release, clarification is required.

We also find that condition # 6 is overbroad in other respects. A computer monitoring condition in some form may be reasonable. However, to comply with the Fourth Amendment, it must be narrowly tailored — producing no greater deprivation of liberty than is reasonably necessary. At present, the text gives no indication as to what kinds or degrees of monitoring are authorized — and, as courts have noted, monitoring software and/or hardware takes many forms, with greatly varying degrees of intrusiveness. See, e.g., United States v. Lifshitz, 369 F.3d 173, 175, 190-92 (2d Cir. 2004); see also United States v. Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005) (discussing the “division of labor,” in terms of decision-making, between the district court and probation officer).

We note that the government requires Sales to submit “all billing records, including telephone, cable, internet, satellite, and the like, as requested by the Probation Officer.” At no time has the probation office or government articulated any justification for this requirement, and none is apparent.

Condition # 6 is vacated and remanded to the district court for the imposition of a condition consistent with this disposition.

While officers had reasonable suspicion to make a stop of the defendant, that did not automatically justify a frisk. Defendant’s actions in quickly putting his hands in his pocket when he saw the police did, however. United States v. Am, 2007 U.S. Dist. LEXIS 8984 (D. Mass. February 8, 2007).*

Fingerprinting and palmprinting a police officer on administrative leave when he was brought in with his attorney was not a seizure under the Fourth Amendment. Rhodes v. Prince, 2007 U.S. Dist. LEXIS 9028 (N.D. Tex. February 8, 2007):

The Supreme Court has addressed the question of seizures in the workplace generally, stating that “when people are at work their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers’ voluntary obligations to their employers.” INS v. Delgado, 466 U.S. 210, 218 (1984). “This principle is no less applicable in the public employment context.” Aguilera v. Baca, 394 F. Supp. 2d 1203, 1214 (C.D. Cal. 2005). Thus “in cases involving the constitutional rights of police officers, courts must distinguish between a police department’s actions in its capacity as an employer and its actions as the law enforcement arm of the state.” Driebel, 298 F.3d at 637. Based on this rule, the Sixth Circuit recently concluded that “a claim that a government supervisor has seized a public employee in violation of the Fourth Amendment must allege circumstances that implicate more than the obligations that arise from the employment relationship.” Reyes, 446 F.3d at 1204.

In this case, Rhodes does not allege that he was physically restrained or threatened. He does not assert that his interviewers made any show of authority. Although Rhodes maintains that Roach advised him that “he was conducting a criminal investigation of the burglary,” Rhodes does not contend that in being interviewed he was being questioned as a possible criminal suspect. Rhodes asserts that he was the subject of an “internal affairs investigation on his alleged criminal activity.” P. Rule 7(a) Reply 8. The Rule 7(a) reply does not support the conclusion that when Rhodes was called to the police station, he was being investigated pursuant to criminal charges rather than as an employee on administrative leave, undergoing an internal investigation of possible misbehavior for purposes of his continued employment.

Rhodes maintains that “before a criminal interrogation at Eastside Police Station, [he] was finger printed and palm printed.” Id. He further alleges that he “never consented to any body search, nor to any fingerprinting on [the date of his interrogation].” Id. at 9. But even drawing all inferences in favor of Rhodes, the court cannot conclude that the fact that he was fingerprinted without giving consent would permit the finding that Rhodes was subjected to a seizure as that term is understood in the context of the Fourth Amendment. Although Rhodes alleges that he did not consent to the fingerprinting, he does not assert that he did not feel free to leave or to refuse to submit to fingerprinting. While he may have risked losing his job by not complying with the requests of the officer conducting the internal affairs investigation, Rhodes does not allege that he feared a possible criminal arrest or detention for failing to comply. He has therefore failed to plead facts that support the conclusion that a reasonable person in Rhodes’s position would not have felt free to refuse to come to the police station in the first place or to leave the police station once questioning began. He has also failed to plead facts that permit the conclusion that a reasonable person in Rhodes’s position would not have felt free to refuse to submit to fingerprinting. Rhodes has not pleaded facts that permit the conclusion that he was subjected to a seizure. Consequently, his Fourth Amendment-based § 1983 claim against the individual defendants must be dismissed.

Two inventory policies lead to different results in Indiana and Ohio:

Putting defendant into handcuffs but advising him that he was not under arrest 40 minutes into a stop made the consent invalid. A reasonable person in his position would not feel free to leave. State’s alternative theory that inventory justified the search failed because the defendant was permitted to remove college books from the car before the inventory and state policy permitted owners to remove valuables from the car before the inventory, and here he was not permitted to do so. Friend v. State, 2006 Ind. App. LEXIS 2573 (December 18, 2006).

Where the policy, however, required the officer to actually itemize what the defendant removed from his vehicle that he was taking with him, that policy was not unconstitutional. [Policy here could not be recited exactly by the officer because the handbooks were collected and put online, but that did not trouble the court.] State v. Flynn, 2006 Ohio 6683, 2006 Ohio App. LEXIS 6591 (3d Dist. December 18, 2006).

Dropping a backpack and walking toward officer to talk about a burglary was an abandonment of the backpack. People v. Novakowski, 368 Ill. App. 3d 637, 306 Ill. Dec. 417, 857 N.E.2d 816 (1st Dist. December 8, 2006).

Informant’s information was corroborated when he was riding with officers to meet somebody for a drug deal and the defendant showed up as predicted. State v. Guillory, 942 So. 2d 73 (La. App. 3d Cir. November 2, 2006, released for publication December 12, 2006).

Stop was justified based on defendant’s vehicle matching description of vehicle involved in multiple burglaries in area. State v. Phillips, 2006 Ohio 6710, 2006 Ohio App. LEXIS 6600 (4th Dist. December 11, 2006).*

Officer’s prolonging stop for 25 minutes to get drug dog to scene for a sniff was unreasonable. There was no objective basis for concluding that the defendant was involved in any drug activity, just because he had been seen near a house where there was drug activity as much as two months earlier. The court declined to adopt a bright line rule on length of a stop but had no difficulty concluding that a 25 minute detention to give a warning ticket and stall for a drug dog was unreasonable. Seabolt v. State, 2006 OK CR 50, 152 P.3d 235 (December 15, 2006).

Defendant’s admitting an informant into his house was not a violation of the Fourth Amendment, even if the informant was acting as an agent of the police. State v. Smith, 2006 UT App 485, 2006 Utah App. LEXIS 538 (December 7, 2006).

In Ohio, the state lost an appeal of whether an illegal search occurred that led to a forfeiture. In the trial court, the state sought relief from the judgment under Rule 60, essentially rearguing the case, because the property sought return of (a vehicle and cash) was not contraband per se. State v. Loza-Gonzalez, 2007 Ohio 1044, 2007 Ohio App. LEXIS 970 (6th Dist. March 9, 2007):

[*P12] In the state’s second assignment of error, it argues that the trial court exceeded its authority in ordering contraband returned to appellee. Contraband is any property, in and of itself illegal to possess, or property determined to be contraband based on its connection to a criminal offense. See R.C. 2901.01(A)(13)(a)-(k), 2933.43(C). There is nothing inherently illegal in possessing a vehicle or cash. See One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U.S. 693, 699 (“There is nothing even remotely criminal in possessing an automobile.”); State v. Roberts (1995), 102 Ohio App.3d 514, 518 (“Mere possession of cash is not unlawful.”). Thus, the property is not contraband per se.

[*P13] The property is also not derivative contraband because the state failed to demonstrate that the property had any connection to a criminal offense. See e.g. State v. Ali (1997), 119 Ohio App.3d 766, 770 (“Because the $ 15,000 was never linked to an underlying criminal offense, we cannot agree that the state proved by a preponderance of the evidence that the money was contraband.”). Furthermore, the Fourth Amendment protections against illegal search and seizure extend to a forfeiture proceeding. See One 1958 Plymouth Sedan, 380 U.S. at 696.

[*P14] The state cannot circuitously use the illegally seized property to establish the underlying criminal act, in order to support forfeiture of the illegally seized property. In this case, the state offered no other evidence (independent of the illegal search) to link the property to a criminal act and support forfeiture. See contra United States v. Eighty-Eight Thousand, Five Hundred Dollars (C.A.8, 1982), 671 F.2d 293, 296-297 (upheld forfeiture of cash arising from an illegal search since the state established, through independent evidence, that the cash was used to commit a crime).

[*P15] Without independent evidence, the state alternatively argues that a vehicle, modified with a hidden storage compartment, is inherently criminal based on the prevalence of such modifications for use in the drug trade. However, the presence of a secret compartment, without more, does not make possession of the vehicle criminal. See e.g. United States v. Maltais (C.A.8, 2005), 403 F.3d 550, 554-555 (the secret compartment was just one fact among a “constellation of facts” providing the officer with reasonable, articulable suspicion to detain the driver); People v. Conception (1997), 655 N.Y.S.2d 921, 925-926 (the compartment, a recognized car trap which could only be opened by the performance of a complex protocol, could enhance the arresting officer’s “predicate for arrest” where it was “supported by something more than mere guesswork”).

Officer taking possession of a child from his parent under a guardianship order was entitled to qualified immunity because it was not clearly established that this action violated the constitution. Burch v. Moore, 2007 U.S. Dist. LEXIS 16832 (S.D. W.Va. March 8, 2007).*

Search warrant authorizing search of “any person present” was overbroad as to anybody but the known resident because there was no probable cause as to anybody else. Commonwealth v. Brown, 68 Mass. App. Ct. 261, 861 N.E.2d 504 (February 20, 2007):

As a person identified in the Diliddo affidavit as an occupant of the targeted premises, the defendant would seem to be an “identifiable person[] known to be on the premises to be searched,” and the particularity requirement as to him is not to be relaxed by encompassing him within the anonymity and generality of the “any person present” designation. Otherwise put, the defendant is not just “any person present” when the premises are searched; he lives there, and the police know this. See, e.g., Commonwealth v. Charros, 443 Mass. 752, 760 n.5, cert. denied, 126 S. Ct. 374, 163 L. Ed. 2d 162 (2005). But even if we were to assume for the sake of argument that the defendant could be so characterized, the Diliddo affidavit did not in any event provide adequate basis to establish probable cause to search any person that might have been present at the targeted premises when the warrant was executed.

Accord: Commonwealth v. Perez, 68 Mass. App. Ct. 282, 861 N.E.2d 500 (February 20, 2007).

The officer here observed an apparent hand-to-hand drug transaction in a high crime area, and he came up behind the defendant and ordered him to the ground at gunpoint. An investigatory stop was justified, but the officer’s actions were an arrest that required probable cause which was furnished by observing the hand-to-hand drug transaction. State v. Smith, 947 So. 2d 95 (La. App. 5th Cir. November 28, 2006, released for publication February 12, 2007).

Officer had justification for initiating an encounter with the defendant who was a convicted child molester when it was reported that he was hanging around children in a park as reported by a citizen informant that the whole situation seemed unusual and strained. His digital camera was seized. United States v. Paton, 2007 U.S. Dist. LEXIS 12457 (D. Minn. January 4, 2007):

The Court finds that Officer Lesedi’s initial conversation with Defendant in the woods was a consensual encounter. Officer Lesedi approached Defendant from behind, asked questions in a friendly, conversational tone and did not take any action which would signal to Defendant that he was not free to continue on his way. Defendant freely interacted with Officer Lesedi.

The parties do not contest that the SPPD subjected Defendant to an investigative stop after he emerged from the woods and the only issue facing the court is whether the investigative stop was supported by reasonable suspicion that criminal activity may have been afoot. The Court finds that the totality of the circumstances supported the formation of a reasonable suspicion that a crime, namely the production of child pornography or another crime involving the sexual exploitation of children, may have been afoot. As Defendant recognizes, by the time he emerged from the woods, Officer Lesedi had already identified him as a registered sex offender who had prior convictions involving child pornography and criminal sexual conduct in the third degree with a non-familial black juvenile. He was in a secluded park with a camera and therefore had the opportunity and means to create child pornography. Moreover, he was in the company of juveniles who shared similar characteristics with the juvenile whom he had previously molested.

In addition, Officer Lesedi could point to several facts gleaned that day that would support the conclusion that the reasons stated by the juveniles for being in the park, namely the collection of fossils, was pretextual. Officer Lesedi noticed that Defendant was not dressed appropriately to walk along the unpaved paths in Lilydale Park, as he was wearing clothes that were ill suited for the hot weather and old dress shoes, rather than tennis shoes or hiking boots. The concerned citizen who had initially called the SPPD described the children’s body language as sober, and Officer Lesedi characterized the juveniles as evasive when questioned. Defendant himself did not provide verbal answers to Defendant’s questions, but merely moved his head in response to a few questions.

Officer followed defendant for a mile and decided to stop him for a seat belt violation. The record supporting the finding defendant consented to a search of his car. State v. Gomez, 947 So. 2d 81 (La. App. 5th Cir. November 28, 2006, released for publication February 12, 2007).*