Arrest after response to a tip and questioning outside a motel room led police to arrest the defendant for manufacturing meth inside. Although the arrest was 20′ away from the motel room, and a search incident of the motel room was not possible, officers could legally conduct a protective sweep of the motel room to look for unknown confederates, and the resulting plain view was valid. United States v. Atchley, 474 F.3d 840 (6th Cir. January 23, 2007):

Although Atchley and the police were approximately 20-30 feet outside the room, we hold that the protective sweep was warranted. The facts in this case are somewhat similar to those in United States v. Biggs, 70 F.3d 913 (1995), where we held that a protective sweep of a motel room 20-75 feet from the arrest site was constitutional. We found that there were several articulable facts which would lead a reasonable officer to believe that another person was hiding inside the motel room. Id. at 916. For example, the officers had information that another person would be meeting the defendant at the motel room, but had not observed anyone enter and therefore did not know if that person was already inside the room. Further, the room’s door was open so if anyone was inside, he would have a clear view of the arrest site. Finally, the officers knew that the defendant had been arrested twice before for possession of a firearm, which justified them accompanying him back into the room so he could retrieve clothing and shoes. Id. at 916. In this case, the arrest site was a similar distance from the hotel room. Two of Atchley’s companions escaped (one was later apprehended), and because officers were distracted during the scuffle, they could not be sure whether anyone had reentered the room. Also similarly, the door of the room was open. And in fact, while still outside, officers were able to observe a handgun (later determined to be loaded) lying on the bed in plain view. These factors, combined with the suspects’ conduct, reasonably led officers to believe that they might be in danger, and thus the protective sweep was justified.

Pro se complaint from inmate in a mental health institution alleged that forced blood draws were a violation of his Fourth Amendment rights. The court found the blood draws consistent with the special needs exception based on plaintiff’s own allegations. Makas v. Miraglia, 2007 U.S. Dist. LEXIS 4400 (S.D. N.Y. January 23, 2007):

By comparison, courts have found the special needs exception applicable in a hospital setting when there is no evidence that the medical tests are intended to serve a law enforcement purpose. For example, in Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003), the Second Circuit found that mandatory blood and urine tests undertaken by a state hospital to facilitate diagnosis, treatment, and patient health were constitutionally permissible. In that case, the police detained Anthony and transported her to a state psychiatric hospital. Id. at 133-34. After a psychiatric examination at the hospital, which resulted in a finding that Anthony was “fearful, anxious, delusional, and paranoid,” hospital staff drew blood and collected a urine sample from her before providing her with anti-psychotic medication. Id. at 134. Rejecting Anthony’s Section 1983 claim, Judge Sotomayor observed that, even though the hospital examined Anthony’s blood and urine in order to determine whether she was using drugs or had a physiological imbalance, there was no law enforcement purpose behind the tests. Id. at 142. The tests in Anthony thus fell within the “special needs” exception to the Fourth Amendment’s warrant requirement because they were undertaken to help the hospital treat Anthony, rather than to incriminate or otherwise harm her. Id. at 142; see also Roe v. Marcotte, 193 F.3d 72, 78 (2d Cir. 1999) (warrantless collection of blood samples from convicted sex offenders in prisons approved under the “special needs” exception because significant governmental interest in maintaining institutional security, public safety, and order outweighed minimal intrusions on individual privacy).

The applicability of the special needs exception therefore turns on the principal use for which the blood tests in this case were intended. If the purpose was to foster institutional or inmate health or safety, the tests pass constitutional muster. On the other hand, if the purpose was to bolster a criminal prosecution, a warrant would be required before obtaining a sample.

In his papers, Makas concedes that the purpose of many of his blood tests was to detect syphilis and hepatitis, to monitor his cholesterol and thyroid levels, and to check his liver function. (See Compl. 23-24, Ex. A). Such testing plainly was undertaken to ensure that Makas remained healthy while at Mid-Hudson and did not infect others, rather than to further a law enforcement purpose. There consequently was no need for the Defendants to secure a warrant or court order before drawing Makas’ blood.

Officers were executing an arrest warrant and they did an intensive protective sweep that even went into the crawl space of the building and evidence was found. This was not an unreasonable protective sweep. United States v. Stover, 474 F.3d 904 (6th Cir. January 30, 2007):

The inquiry therefore becomes whether the officers had “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” Buie, 494 U.S. at 334. We answer this question in the affirmative. The fact that police identified a car registered to a local criminal who did not live at Defendant Hinton’s address is sufficient to justify a quick and limited protective sweep. That Defendant Hinton lived in a duplex is of no moment. The local criminal who owned the car in Defendant Hinton’s driveway was as likely to be visiting Defendant Hinton as he was to be visiting Defendant Hinton’s neighbor. This probability is sufficient to justify a protective sweep. See United States v. Biggs, 70 F.3d 913, 916 (6th Cir. 1995) (upholding a sweep of defendant Biggs’ motel room where police had received information that Biggs was meeting someone at the motel, Biggs had left the motel door open so that anyone inside could see out, and, on two previous occasions, Biggs had been arrested in the presence of persons armed with firearms).

Defendant Hinton argues, however, that because of the remoteness of the crawl space and the size of the door, the officers nevertheless exceeded their authority to conduct a protective sweep. These arguments are without merit. Under the second prong of Buie, there is no requirement that the area searched be immediately adjacent to the area where the defendant was arrested. See Buie, 494 U.S. at 334. Although discovering the crawl space where the marijuana was found required officers to go through the kitchen, an attached garage, and the laundry room, it was nevertheless a part of the premises in which a potentially dangerous individual could be found. See id. at 335. Nor is the size of the opening of the door important. It is undisputed that the crawl space could hold a person. A small, out-of-the-way space makes a good hiding place for a dangerous individual; it is implausible to think that the persons who are the object of the protective sweep would limit themselves to large, open areas where they could be easily spotted. We therefore conclude that the district court properly denied Defendant Hinton’s motion to suppress.

The officer applied no physical power of arrest over the defendant by approaching him. Defendant’s flight under Wardlaw only added to the reasonable suspicion that the officer already had when he approached him. United States v. Moore, 2007 U.S. Dist. LEXIS 5892 (E.D. Wis. January 26, 2007).*

Telling a traffic detainee that he was “good to go,” but “can I ask a few questions” did not unreasonably prolong the stop. United States v. Meraz, 2007 U.S. Dist. LEXIS 5973 (E.D. Wis. January 26, 2007).*

School strip search that was obviously invasive but based on near probable cause was still insufficient to state a claim in the face of a qualified immunity defense and lack of development of the law. Phaneuf v. Cipriano, 2007 U.S. Dist. LEXIS 5963 (D. Conn. January 25, 2007).*

This blog is four years old today.

Lexis seeks out every U.S. District Court case, and the number of cases received has easily doubled in the last 18 months. This has changed my personal and professional life because I sometimes have to do the posts once, twice, or even three times a day. I still try to get it done in the morning.

Because this site is now searchable, the number of visitors has tripled in the last five months. Despite the time involved, I expect to continue with this as long as I can; and not delegate this to anyone else.

Monday, I start a six week trial, so there is no way of knowing when posts will be made.

During a protective sweep, officers saw the barrel of a shotgun sticking out from under a futon. While the officer did not see the entire gun, it was apparent there was a shotgun. When fully revealed, it was sawed off. United States v. Weymouth, 2006 U.S. Dist. LEXIS 81282 (D. Me. November 6, 2006).

9/11 related investigation led to defendant being handcuffed. He was able to consent to a search because the situation was not otherwise coercive. United States v. Awan, 2006 U.S. Dist. LEXIS 81289 (E.D. N.Y. November 6, 2006).*

Basis of knowledge of informant was shown by his first hand knowledge. United States v. Williams, 2006 U.S. Dist. LEXIS 81010 (W.D. Pa. October 23, 2006).*

Smashed computer equipment left in a state park was abandoned. United States v. Kiderlen, 2006 U.S. Dist. LEXIS 81405 (E.D. Mo. August 1, 2006) (also, PC was shown for search warrant for computers in home).*

Finding a small quantity of marijuana in the passenger compartment permits the officer to search the trunk for more. State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. November 7, 2006).

Knock and talk of non-English speaking defendant’s home was valid. Officer just took a Spanish course and read the request to the defendant who said “si” and backed away from the door. That was consent. State v. Penalosa, 2006 N.C. App. LEXIS 2223 (November 7, 2006).

The failure to sign an affidavit for a search warrant is not fatal to a search warrant if the prosecution can still prove that the affiant was actually sworn. The oath is what is important, not so much the signature. Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. November 22, 2006):

. . . We agree with Vance [v. State, 759 S.W.2d 498 (Tex. App.-San Antonio 1998, pet. ref’d)] and the majority of the out-of-state courts and hold that the failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.

The present situation might usefully be compared to that of self-proved wills. A will may be made self-proved by the affidavits of the testator and his attesting witnesses, as long as the affidavits are signed and certified in accordance with the specific statutory requirements. A self-proved will may be admitted to probate court without the need for testimony of a subscribing witness, but a will is not invalid simply because it does not contain the statutory affidavits. It merely does not qualify as a self-proved will, and the proponent of the will must call one or more of the attesting witnesses to testify.

Although the affiant’s signature on an affidavit serves as an important memorialization of the officer’s act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer’s oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid. That is not to condone carelessness or sloppiness in either police procedure or judicial oversight. Forgetfulness or carelessness in the formalities of an affidavit may well indicate to either the issuing magistrate or the reviewing court that the officer is forgetful or careless in his factual statements as well. Such forgetfulness may affect the credibility of the officer, but that is a matter for magistrates and trial courts. It is sufficient for today to simply conclude that an affiant’s failure to sign his affidavit is not necessarily fatal if it can be proved by other means that he did swear to the facts contained within that affidavit before the magistrate.

The Sixth Circuit held yesterday, on a government appeal from a suppression order by the W.D. Tenn., that the affidavit for the search warrant in this case was truly bare bones, showing no nexus between the drug seizure off of defendant and his house. Even under the deferential standard of review for the good faith exception, the affidavit fails. United States v. McPhearson, 469 F.3d 518 (6th Cir. November 27, 2006):

The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a “bare bones” affidavit. Id. at 748. A bare bones affidavit is one that merely “states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.” Weaver, 99 F.3d at 1378.

Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a “substantial basis” for the magistrate’s conclusion of probable cause. Laughton, 409 F.3d at 748-49 (quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49.

The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson’s residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. “We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer’s good faith belief in the warrant’s validity, even if the information provided was not enough to establish probable cause.” Carpenter, 360 F.3d at 596. The minimal nexus required to support an officer’s good faith belief was not present in this case.

The only connection in the affidavit between 228 Shelby Street and drug trafficking was that Jackson police arrested McPhearson at his residence and found crack cocaine in his pocket in a search incident to the arrest. This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause. See Frazier, 423 F.3d at 536-37; Carpenter, 360 F.3d at 595-96; United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994); Savoca, 761 F.2d at 298-99. The application of the good-faith exception in Frazier, Savoca, and Van Shutters depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity that the police were investigating. In Frazier, the defendant was a known drug dealer and drugs had been found at his prior residence. 423 F.3d at 537. In Savoca, the defendants had been identified as the perpetrators of a string of bank robberies in two states. 761 F.2d at 295-98. Similarly, in Van Shutters, the defendant had confessed to perpetrating an auto-theft scheme. 163 F.3d at 336-37. Finally, in Shultz, the court found that the minimal nexus was satisfied by the officer’s reliance on his years of experience as a narcotics investigator and the knowledge he had acquired of drug dealers’ business practices. 14 F.3d at 1098. Each of these additional facts, although not sufficient to establish probable cause, created the minimal nexus between the place to be searched and the evidence sought that would permit application of the good-faith exception. In this case, there are no analogous facts that establish the minimal nexus. The affidavit merely stated that: (1) “Inv. Mathis and Wiser went to 228 Shelby Street and knocked on the door. A black male answered the door and identified himself to be Martedis McPhearson”; (2) “McPhearson was searched prior to being placed in the police car for transport to booking. Investigator Wiser discovered in McPhearson’s right front pocket a clear plastic bag containing . . . [crack cocaine]”; and (3) “E-911 records revealed that 228 Shelby is the residence of Martedis McPhearson.” The affidavit did not allege that McPhearson was involved in drug dealing, that hallmarks of drug dealing had been witnessed at his home, such as heavy traffic to and from the residence, or that the investigating officers’ experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested). Instead, the “evidence in the affidavit connecting the crime to the residence [wa]s ‘so vague as to be conclusory or meaningless.'” Frazier, 423 F.3d at 537 (quoting Carpenter, 360 F.3d at 596). Therefore, we conclude that the district court properly refused to apply the good-faith exception to validate the search because the affidavit was “so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable.” Laughton, 409 F.3d at 748.

Community caretaking function justified officer entering car to check on unconscious driver. Officer could immediately tell that the driver was likely drunk, and he got him out of the car and he could not stand. DUI affirmed. People v. Robinson, 368 Ill. App. 3d 963, 307 Ill.Dec. 232, 859 N.E.2d 232 (5th Dist. November 22, 2006) (released for publication January 5, 2007).*

An officer encountered several men in a high crime area, and she engaged them in conversation. Some of them left, but defendant chose to stick around and talk. The officer asked for his identification, and she ran wants and warrants while engaging him in an apparently friendly conversation. A warrant came up, and a search incident was conducted. The whole scenario was consensual, and the court distinguishes the airport stop cases and police possession of plane tickets (e.g., Mendenhall) because, since the defendant was not driving, he could have walked off and left his driver’s license behind. Golphin v. State, 945 So. 2d 1174 (Fla. December 14, 2006).

(Comment: In light of the fact that one’s driver’s license is now a virtually required document that one has to carry around at all times to get into courthouses, engage in many financial transactions, use a credit card for proof that it is yours, etc., like the papers that the Nazis required everybody else to carry (I’ve used the pictures from the Holocaust Museum before, so I’ll spare you), this opinion is just completely wrong. One cannot walk off and leave a driver’s license (the federal government has seen to it), and this opinion is disingenuous at best, manipulative at worst. This opinion defies commonsense and logic.)

(I have court 150 miles away and have to leave. More later.)

When officers came to defendant’s house, he said “Get the fuck out of my house.” The police removed him from the premises and then sought consent from his wife, and this violated Randolph–the police cannot simply remove the objecting party and then seek consent from the co-tenant in his absence. “His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence.” United States v. Henderson, 2005 U.S. Dist. LEXIS 44038 (N.D. Ill. November 29, 2006) [Lexis shows this as a 2005 case, but it is obviously a 2006 case because it cites several 2006 authorities, one as late as August 2006]:

While the motion to suppress was being briefed, the United States Court of Appeals for the Sixth Circuit issued its opinion in United States v. Hudspeth, 459 F.3d 922 (August 25, 2006), in which the defendant, who was not present at his residence, refused consent to search the residence. The police went to the home and obtained a voluntary consent to search by the defendant’s spouse, and proceeded to discover incriminating evidence of child pornography on the defendant’s home computer. The Eighth Circuit held that, although Randolph does not directly address the situation in which a co-tenant who refuses consent is not physically present at the search, “the same constitutional principles underlying the Supreme Court’s concerns in Randolph apply regardless of whether the non-consenting co-tenant is physically present at the residence, outside the residence in a car, or, as in our case, off-site at his place of employment. We believe that the Supreme Court has made it clear that the police must get a warrant when one co-occupant denies consent to search.” Id. at 922. The court also noted in passing that “to some degree, the case for respecting the denial of consent by a non-present occupant is stronger than the refusal of the physically-present occupant,” because a physical presence might require the police to enter a dwelling to protect a non-consenting spouse. Id.

In the instant case, this court finds the reasoning of the Eighth Circuit in Hudspeth to be persuasive. Indeed, the facts are even stronger for defendant than for Mr. Hudspeth. Defendant was physically present in his own home when he refused consent to the police. His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence. Having been denied permission to search defendant’s home, under the teaching of Randolph and Hudspeth the police acted unreasonably by conducting a search based upon the later consent of the co-tenant, Patricia, after defendant had been removed from the premises.

In its final brief, the government attempts to distinguish Hudspeth, but in doing so merely reenforces the conclusion that the search of defendant’s home was unreasonable. First, the government argues that unlike Hudspeth, in which the police failed to advise the defendant’s wife of his refusal to consent to search, “that is not the case here ….” But there is no indication in the instant record that Patricia was informed of defendant’s statement, and the Hudspeth court did not base its rationale on any deception by the officers.

District Court affirms Magistrate Judge’s finding of lack of consent because the little bit of audible tape that was available supported the Magistrate Judge’s conclusion that the defendant did not knowingly consent because he did not speak English well enough to know what was going on. Government’s objections to the R&R are overruled, and the motion to suppress is granted. United States v. Trinidad, 2006 U.S. Dist. LEXIS 86971 (D. Mont. November 29, 2006).*

Consent was granted early into a traffic stop before the computer check even came back. The officer looked under the hood and found non-factory screws, and concluded there was a hidden compartment there. Consent was valid. United States v. Palomino, 2006 U.S. Dist. LEXIS 87067 (S.D. Tex. November 29, 2006).*

Pepper spraying a plaintiff who was walking away from officers precluded summary judgment for the officers. There was no showing that plaintiff was armed or posed a danger. Frederick v. Hanna, 2006 U.S. Dist. LEXIS 87037 (W.D. Pa. December 1, 2006).*

Officers arrested defendant at a motel room after she admitted possession of an allegedly stolen truck, claiming that she had permission to drive it. She did not have the keys on her, and the officers asked her boyfriend to look in the room for the keys. He could not find them, and consented to an officer looking, and the officer found drug paraphernalia. The consent was valid. Shuler v. State, 282 Ga. App. 706, 639 S.E.2d 623 (December 4, 2006).*

Officers were called for a “civil standby” to aid plaintiff’s wife in removing her belongings from the home. Plaintiff showed up and he was cornered and effectively restrained in his own home while his wife allegedly made off with some of his property. Summary judgment for the officers was reversed because the officers’ actions constituted a search and seizure. Poteet v. Sullivan, 2006 Tex. App. LEXIS 10240 (Tex. App. — Ft. Worth November 30, 2006).

Georgia holds that a civil order to pick up a person for civil commitment of some sort does not permit a Terry frisk. Alternative justification of inventory also fails. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (November 30, 2006).

Defendant’s hestitation and shocked demeanor when asked about where he was was sufficient for reasonable suspicion. State v. Porche, 2006 La. LEXIS 3303 (November 29, 2006).*

Defendant’s argument that he would not have consented to a search of the car because there was such a large quantity of drugs in the car was resolved against him by the trial court which believed the officers that he consented. State v. Gomez, 2006 La. App. LEXIS 2703 (5th Cir. November 28, 2006).*

Stop was based on reasonable suspicion and so was frisk. It was supported by defendant’s probation search condition. State v. Hammonds, 2006 Tenn. Crim. App. LEXIS 919 (November 29, 2006).

A citizen informant identified a white Grand Prix as having an occupant with a gun. Officers stopped the car and found the gun, but the search should have been suppressed because possession of a gun in a car in Minnesota is not necessarily a crime because he could have had a carry permit. State v. Timberlake, 726 N.W.2d 509 (Minn. App. January 16, 2007):

At the inception of the stop, all that the officers knew was that an informant had witnessed a black male in possible possession of a handgun near a convenience store, and that the black male had left the convenience store heading east on Maryland in a white Pontiac Grand Prix driven by a black female. The officers were able to verify that a white Pontiac Grand Prix, being driven by a black female with a black male passenger, was heading east on Maryland approaching Arkwright.

Because the informant was an identifiable private citizen, and the officers were able to verify details of the informant’s report before initiating the stop, it was reasonable for the officers to suspect that someone in the white Pontiac Grand Prix was in possession of a gun. But in Minnesota, possession of a firearm in a motor vehicle is lawful if the possessor has a permit. Minn. Stat. § 624.714, subd. 1a (Supp. 2003). Nevertheless, respondent contends that because possession of a gun in a public place is unlawful without a permit, the officers had reasonable suspicion to believe that appellant was committing a crime–i.e., that he did not have a permit. But it is equally plausible that appellant did have a permit. Accordingly, we conclude that mere suspicion that a person possesses a gun is insufficient to warrant a Terry stop, absent additional particular and objective facts which create a reasonable suspicion that the possessor does not have a permit or is otherwise about to commit a crime.

A search incident to an arrest includes the vehicle defendant was in, including containers found in the passenger compartment. Suppression order reversed. Commonwealth v. Rose, 2007 Ky. App. LEXIS 6 (January 12, 2007):

In this case, Rose was arrested prior to the search of the vehicle in which she had been an occupant. It is of no consequence that Danny gave permission to search the vehicle. If an officer has made a lawful arrest of an occupant of a vehicle, the officer can conduct a search of the passenger compartment of that vehicle and any containers therein, even if the suspect is detained in a police cruiser away from the vehicle.

Inmate survived the PLRA cut and defendants are required to answer his complaint that he was strip searched and forced to stand naked outside his cell in view of jailers of the opposite sex, citing Lee v. Downs, 641 F2d 1117 (4th Cir. 1982), where “[t]he Court stated that ‘[p]ersons in prison must surrender many rights of privacy which most people may claim in their private homes. Much of the life in prison is communal, and many prisoners must be housed in cells with openings through which they may be seen by guards. Most people, however, have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons.’ Id. at 1119. The cases analyzed after the Lee opinion suggest that reasonable necessity is intertwined with penalogical interest. In other words, if an inmate’s privacy can be maintained without compromising prison operations, then that privacy should be respected. Hickman v. Jackson, 2005 WL 186245 (E.D.Va.).” Azariah v. McCurry, 2007 U.S. Dist. LEXIS 2802 (W.D. N.C. January 12, 2007).

In the ongoing Major League Baseball steriod use investigation, the government served subpoenas for drug testing records. When it became obvious that the subpoenas would be challenged for overbreadth, it issued a narrower subpoena. Just as the production date arrived, the government sought search warrants from USMJs in California and Nevada for the same records. The MLB Player’s Association sought return of the records. Calling the challenge to the search warrant a “farrago of arguments,” the court held that the search warrants were valid. This is a wide ranging opinion that will have an affect on computer searches in general applying the overbroad records search case of United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), to computer searches. United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915 (9th Cir. December 27, 2006) (2-1 decision; free link at case name, in two volumes on court’s website). There are a substantial number of arguments, but this is the gist, starting with the conclusion:

The summary:

VII

We now summarize the resolution of these consolidated appeals. We conclude that the government’s seizures were reasonable under the Fourth Amendment, and that the district courts erred in ruling that Fed. R. Crim. P. 41(g) required return of all property and agent review notes unrelated to the ten expressly named Balco players.

At the same time, we recognize limits to the government’s right to retain evidence seized, even where a broad seizure is reasonable in order to avoid lengthy and intrusive on-site inspection. Our Fourth Amendment precedents explain that the government may retain single “ledgers” of intermingled evidence, but may not keep separate, unrelated evidence. A magistrate is in the best position to sort through the actual evidence and to determine those files that may be kept when aggrieved parties seek relief. Readily separable evidence unrelated to persons named in the search warrants must be returned. The Fed. R. Crim. P. 41(g) cases must be remanded to the District of Nevada and Central District of California to permit such review of the sealed documents by magistrates.

With regard to the May 6 subpoenas, which covered the same evidence as the contemporaneous search warrants, we conclude the order of the Northern District of California quashing the subpoenas was an abuse of discretion. The record, illuminated by caselaw, reveals that the subpoenas were not unreasonable and did not constitute harassment.

Therefore, the orders of the Central District of California, the District of Nevada, and the Northern District of California cannot stand. The three cases consolidated in this appeal are hereby

REVERSED in part and REMANDED in part.

The MLB Player’s Association had standing to challenge the search warrants on behalf of its members.

As to the use of a search warrant, there was no constitutional need to show that there would be a destruction of records before a search warrant could issue to a third party for evidence under Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). The government merely asserted that it was encountering a delay of the investigation. Also, the government did not misrepresent to the court below that a subpoena had been issued.

There was a seizure of intermingled records of some players who were outside the scope of the warrant, but this did not show bad faith. The government brought along a computer analyst to make sure at the scene that the seizure was as narrow as possible. Because another agent who was not a computer expert also viewed the records, this was not a constitutional violation.

The government also copied files on the drug testing company’s computer rather than continue to search it on site for the purpose of not disrupting the operations of or inconveniencing the company during the search. A key word search was not constitutionally required when the government searched the files.

In light of these considerations, we conclude that the government properly considered and respected the privacy interests, intrusiveness, and law enforcement needs posed by the searches in question by removing a copy of the Tracey [computer] directory (not the original) and taking only limited diskettes and documents containing relevant information. In seizing these files, the government did not show “callous disregard for the constitutional rights of the movant,” Ramsden, 2 F.3d at 325, but instead displayed attentiveness both to the warrant’s precautionary procedures and to the importance of avoiding unnecessary disruption of CDT’s business operations. For these reasons, we conclude that the first prong of the Ramsden analysis (the existence of “callous disregard”) weighs against invocation of the district court’s equitable jurisdiction over the Fed. R. Crim. P. 41(g) motions. The district courts’ conclusions to the contrary were based on faulty conclusions of law and unsupported assertions of fact. They cannot survive appellate review.

We turn now to the merits of the substantive rulings issued by Judge Cooper and Judge Mahan that ordered return of all property other than evidence directly related to the ten players named in the search warrants.

A

With respect to property taken during search warrants, Fed. R. Crim. P. 41(g) provides that a person who is deprived of property may move for its return. When such a motion is granted, the property in question must be returned to the moving party, but a court “may impose reasonable conditions to protect access to the property and its use in later proceedings.” Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee note explains that “reasonableness under all of the circumstances must be the test.” Fed. R. Crim. P. 41 advisory committee’s note.

We have repeatedly held that a Fed. R. Crim. P. 41(g) motion is properly denied if “the government’s need for the property as evidence continues.” United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (same). The advisory committee note explains: “If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable.” Fed. R. Crim. P. 41 advisory committee’s note.

It is when the government no longer needs the property as evidence that a presumption arises, giving the owner a right to have the property returned. Fitzen, 80 F.3d at 388. Here, the government already has provided copies of all documents seized, and it states that the remaining evidence is essential to its investigation and prosecution of the distribution of illegal steroids. This legitimate law enforcement purpose makes return of the intermingled evidence improper, as the files were seized legally under the search warrant and our precedent.

Moreover, even in cases where agents seized too much evidence, we have noted that return of property should follow only a particularly egregious violation: “The issue is whether the Government’s conduct was sufficiently reprehensible in this [*54] case to warrant this sanction.” Ramsden, 2 F.3d at 327. In Ramsden, we refused to impose this extreme sanction on police who had time to obtain a warrant but made no effort to do so and “simply chose not to comply with [their] obligations under the Fourth Amendment.” Id. at 325, 327.

Our governing precedent offers no support for a full return of the intermingled evidence. Indeed, both the Beusch and Tamura courts underscored the need for effective criminal law enforcement. Thus, the Beusch court resolved: “As long as an item appears, at the time of the search, to contain evidence reasonably related to the purposes of the search, there is no reason–absent some other Fourth Amendment violation–to suppress it.” 596 F.2d at 877. Even the Tamura court–which determined that the agents unambiguously flouted the limits of the search warrant–concluded: “[W]e cannot say, although we find it a close case, that the officers so abused the warrant’s authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed.” Tamura, 694 F.2d at 597.

In Tamura, the government did not seek to use evidence at trial that fell outside the scope of the warrant. Therefore, the court found return of the seized property inappropriate, even though some evidence had been unlawfully taken. In the cases before us today, the government has made clear that it desires to use only information related to the ten named Balco players and to other players who tested positive–and who therefore may have become targets of an expanded grand jury investigation–as a result of intermingled information we have determined was seized lawfully under the warrant. While we agree that some information still retained by the government, at least in duplicate, may fall outside the scope of the warrant, we do not believe a return of the lawfully seized intermingled evidence properly remedies that wrong.

Thus, the district courts erred in granting the Fed. R. Crim.P. 41(g) motions and ordering the government to return all evidence seized from CDT and Quest–and all related notes by agents who reviewed the evidence–that did not relate to the ten Balco players expressly named in the search warrants.

B

We are persuaded that the government’s seizure of intermingled evidence for off-site review was lawful and reasonable, and we view the two orders requiring return of all property related to players not specifically named as both unjustified and improper. However, the government has yet to comply with its duty of adequate off-site review. Tamura offered a suggested procedure for review by a neutral magistrate, and we conclude that such review is necessary to ensure that the seizure of intermingled computer records remains reasonable.

The Tamura court urged that off-site review be conducted by a magistrate, in order to avoid giving the task to a party with an interest in retaining too much. We cannot accept the government’s argument that it may retain all evidence simply because it assured the Players’ Association and CDT (without signs of bad faith) that it did not intend to use all the files. In the case of a lawful and reasonable seizure of intermingled computer records for off-site review, as at bar, our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof.

. . .

It is true that Tamura proposed a pragmatic approach, and not a constitutional rule. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court in Michigan explained: “The Court declines to follow Tamura, at least in this case, because Tamura did not involve computer files and therefore did not consider the specific problems associated with conducting a search for computerized records.” Scott-Emuakpor, 2000 WL 288443, at *8. Although declining to apply Tamura’s pragmatic approach to computer searches, Judge Quist stated: “This is not to suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records.” Id. Another court, also referencing Tamura, noted that in the modern computer context a “‘suggestion’ by a panel of the Ninth Circuit in a 20-plus year old case is not persuasive.” United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D. Kan).

Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Precisely for this reason, we view Tamura as especially important in the computer context. Although indeed writing over two decades ago, the Tamura court appreciated the same dual–and sometimes conflicting–interests of minimizing the intrusiveness of searches and containing the breadth of seizures. The Tamura court stated that “large-scale removal of material” can be justified “where on-site sorting is infeasible and no other practical alternative exists,” Tamura, 694 F.2d at 596, but also advised that a magistrate should oversee the off-site review of documents. We conclude that upon a proper post-seizure motion by the aggrieved parties, the record should be sealed and reviewed by a magistrate–such as the one who originally issued the warrant. This procedure affords the necessary protection against unreasonable retention of property after a seizure of intermingled computer data.

. . .

We conclude that, while the government may seize intermingled data for off-site review to minimize intrusiveness of a computer search, it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site. The magistrate must adhere to our precedent in a balanced manner. In her review, the magistrate should apply our precedent, including Beusch, which permits the seizure of single ledgers or files with intermingled data. In the context of computer files, we believe that most seized material scan be pared down considerably, but that certain files–spreadsheets of only a few pages, for example–may be retained in whole.

Finally, the court considered the simultaneous issuance of subpoenas and search warrants and did not find it unreasonable.

V.

Finally, we consider the government’s appeal of Judge Illston’s order quashing the May 6 subpoenas, which sought drug testing records and specimens for all MLB players who tested positive for steroids.

Under Fed. R. Crim. P. 17(c)(2), a “court may quash . . . [a] subpoena if compliance would be unreasonable or oppressive.” The district court found that the May 2004 subpoenas constituted harassment and were unreasonable.

To support its finding, the district court pointed to United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). In American Honda, the government issued subpoenas that were “substantially identical” to one another but in different locations. Id. at 819. As a result, Honda was faced with producing the same documents repeatedly, and the court found this to be harassment. Id. at 819-20. American Honda, however, does not preclude the government from pursuing the same information through the contemporaneous issuance of subpoenas and applications for search warrants.

We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. There we upheld the validity of the subpoenas against the challenge that “the subpoenas were served at the same time as the search warrants and the federal agents attempted to ‘enforce’ the subpoenas through immediate seizure of the documents.” Id. at 854. Noting that the challenge to the subpoenas received no support in precedent, we clarified the differences between subpoenas and search warrants:

“Subpoenas are not search warrants. They involve different levels of intrusion on a person’s privacy. A search warrant allows the officer to enter the person’s premises, and to examine for himself the person’s belongings. The officer, pursuant to the warrant, determines what is seized.”

Id. By comparison:

“Service of a forthwith subpoena does not authorize an entry into a private residence. Furthermore, the person served determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance.”

Id. We concluded that “[t]hese differences are not eliminated by the fact that the search warrants and subpoenas were delivered at the same time” and observed that the complaining party had “failed to show that the papers that are described in the subpoenas are outside the scope of a legitimate investigation by the grand jury.” Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost a month to comply with the subpoenas. Id. at 854.

Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of search warrants to be unreasonable. The Players’ Association has not argued that the evidence sought by the subpoenas is “outside the scope of a legitimate investigation by the grand jury.” Id. at 855. The subpoenas were not returnable on the same day that the search warrants were executed. As in In re Grand Jury Subpoenas, the return dates on the subpoenas were over a month from the date on which the warrants were executed. The district court declared the May 6 subpoenas an “unreasonable insurance” policy, but it failed to recognize the different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth Amendment, unreasonable it was not.

Suppression motion litigated and not appealed in first trial in 1988 involving a search in Montana and used in court in Illinois was collateral estoppel or res judicata after the defendant won a new trial. His allegation of “new evidence” to get around the rule was, inter alia, “Montana law,” but all the allegedly “new evidence” was available at the time of the first trial. People v. Sutherland, 223 Ill. 2d 187, 860 N.E.2d 178 (September 21, 2006).

Defendant, who was allegedly shot during a home invasion robbery and the police came to the hospital, did not have standing to challenge the seizure of a hospital glove from the floor of the ER. If the police did not take it, it would just be thrown away. United States v. Nanos, 2006 U.S. Dist. LEXIS 87434 (D. Me. November 30, 2006).

Consent was shown to be voluntary despite the defendant not having been advised of his right to refuse. He was middle-aged, and his interaction showed that he knew his rights. “In this case there is no evidence Defendant was unaware of his rights. To the contrary, Defendant had some knowledge of his rights to refuse to consent as evidenced by his asking permission to speak with Leonard about whether he should voluntarily open the shed and later at the jail when he wrote he ‘was not waivering [sic] his rights’ beside his signature on the Waiver of Rights form.” United States v. Stringer, 2006 U.S. Dist. LEXIS 87302 (M.D. Tenn. November 29, 2006).*

(Trial today. More later.)

In Wallace v. Kato, No. 05-1240, 2007 U.S. LEXIS 2650, the Supreme Court today held 7-2 (Stevens and Souter concurring in the judgment; Breyer and Ginsburg, dissenting) that the statute of limitations for filing a civil rights action under 42 U.S.C. § 1983 seeking damages for a false arrest that led to criminal proceedings begins to run once the plaintiff becomes detained pursuant to legal process. Accordingly, it rejected a plaintiff’s assertion that the limitations period in his false arrest case commenced when charges against him were dropped and he was released from custody, holding instead that the clock began to run when he appeared before a magistrate and was bound over for trial. The Syllabus follows:

In January 1994, Chicago police arrested petitioner, a minor, for murder. He was tried and convicted, but the charges were ultimately dropped in April 2002. In April 2003, he filed this suit under 42 U.S.C. § 1983 against the city and several of its officers, seeking damages for, inter alia, his unlawful arrest in violation of the Fourth Amendment. The District Court granted respondents summary judgment, and the Seventh Circuit affirmed, ruling that the § 1983 suit was time barred because petitioner’s cause of action accrued at the time of his arrest, not when his conviction was later set aside.

Held: The statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process. Pp. 2-12.

(a) The statute of limitations in a § 1983 suit is that provided by the State for personal-injury torts, e.g., Owens v. Okure, 488 U.S. 235, 249-250; here, two years under Illinois law. For false imprisonment and its subspecies false arrest, “the . . . causes of action providing the closest analogy to claims of the type considered here,” Heck v. Humphrey, 512 U.S. 477, 484, the statute of limitations begins to run when the alleged false imprisonment ends, see, e.g., 4 Restatement (Second) of Torts § 899, Comment c, that is, in the present context, when the victim becomes held pursuant to legal process, see, e.g., Heck, supra, at 484. Thus, petitioner’s false imprisonment did not end, as he contends, when he was released from custody after the State dropped the charges against him, but rather when he appeared before the examining magistrate and was bound over for trial. Since more than two years elapsed between that date and the filing of this suit — even leaving out of the count the period before he reached his majority — the action was time barred. Pp. 2-7.

(b) Petitioner’s contention that Heck compels the conclusion that his suit could not accrue until the State dropped its charges against him is rejected. The Heck Court held that “in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been [set aside]. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” 512 U.S., at 486-487. Even assuming that the Heck deferred-accrual rule would be applied to the date petitioner was first held pursuant to legal process, there was in existence at that time no criminal conviction that the cause of action would impugn. What petitioner seeks is the adoption of a principle going well beyond Heck: that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside. The impracticality of such a speculative rule is obvious.

The fact that § 1983 actions sometimes accrue before the setting aside of — indeed, even before the existence of — the related criminal conviction raises the question whether, assuming the Heck bar takes effect when the later conviction is obtained, the statute of limitations on the once valid cause of action is tolled as long as the Heck bar subsists. However, this Court generally refers to state-law tolling rules, e.g., Hardin v. Straub, 490 U.S. 536, 538-539, and is unaware of Illinois cases providing tolling in even remotely comparable circumstances. Moreover, a federal tolling rule to this effect would create a jurisprudential limbo in which it would not be known whether tolling is appropriate by reason of the Heck bar until it is established that the newly entered conviction would be impugned by the not-yet-filed, and thus utterly indeterminate, § 1983 claim. Pp. 7-12.

440 F.3d 421, affirmed.

Arrest for disorderly conduct was unjustified, and the defendant consented to a frisk for weapons. In the watch pocket of his jeans, the officer felt what he thought was a joint, but it turned out to be a dollar bill. Opening the dollar bill exceeded the consent, even though the officer had reason to believe that the dollar bill contained crack, which it did. State v. Chauvin, 945 So. 2d 752 (La. App. 5th Cir. October 31, 2006).

Defendant had no standing to contest the search of a garbage bag of marijuana that he placed in the trunk of a friend’s car before he got in it. He had standing to challenge the stop but not the search of the bag. Valle v. State, 2006 Ga. App. LEXIS 1361 (November 2, 2006).

Officers had PC for defendant’s arrest when he called informant back and arranged a meet for a drug sale and then showed up. State v. Guillory, 945 So. 2d 798 (La. App. 3d Cir. November 2, 2006).*

Traffic stop at night led officer to window of car, and he shined his flashlight in and saw drugs in plain view. State v. Gray, 2006 La. App. LEXIS 2388 (5th Cir. October 31, 2006, released for publication January 19, 2007).*

Stop for riding bicycle at night without a headlight was justified, and defendant abandoned drugs when he was stopped. Because there was a factual basis for the stop, pretext could not be shown[, no matter how much it looked like it]. State v. Leonard, 945 So. 2d 764 (La. App. 5th Cir. October 31, 2006, released for publication January 19, 2007).

The defendant consented to the taking of a DNA sample, but under the police pretext that it was needed for an assault case. They intended to use it in a murder investigation against the defendant, and they had already questioned him about the homicide. State v. Wilcox, 2006 Ohio 6777, 2006 Ohio App. LEXIS 6693 (10th Dist. December 21, 2006):

[*P49] Defendant concedes that he voluntarily gave the police the requested saliva sample; however, he argues that his consent should be considered involuntary considering the police improperly deceived him. Defendant seems to argue that the police deceived him as to how his DNA would be used. Defendant argues that consent was given as to an unrelated assault case, but not for use in this aggravated murder case. In essence, defendant argues that he was deceived because he was not informed that the police wanted a saliva sample in order to investigate the deaths of Mr. Westbrook and Alamar. Defendant’s deception argument is unpersuasive, as Detective Dorn’s testimony at the suppression hearing indicated that he interviewed defendant regarding the homicides before he asked for the saliva sample. Thus, defendant reasonably understood that the police were investigating the homicides at the time he voluntarily gave the police the saliva sample.

Search warrant in drug case was specific and not overbroad. It was much more specific than the warrants in the cases relied on by the defendant. United States v. Shine, 2006 U.S. Dist. LEXIS 92238 (D. Vt. December 15, 2006).*

When a defendant flees the police, he is not seized. State v. Lott, 2006 Ohio 6796, 2006 Ohio App. LEXIS 6718 (5th Dist. December 19, 2006).*

Consent was given to look in a suitcase, but that did not implicitly constitute consent to the officer to open folded tin foil found inside. The court also disagreed that the folded tin foil “announced its contents.” State v. Fugate, 210 Ore. App. 8, 150 P.3d 409 (December 20, 2006):

In that casual, conversational context, [Officer] Huber himself did not appear to believe that defendant had consented to the opening of the tin foil merely by handing it to him. Instead, after defendant did so, Huber asked him what was inside the foil. If Huber had believed that he had permission to open the fold, he would have had no reason to ask defendant what was inside. Although asking the question most prominently suggested that Huber did not subjectively believe that defendant had consented to the search of the tin foil’s contents–which is not relevant here–it also is some evidence that a reasonable person would not have understood that handing over the tin foil in response to the officer’s request to “see” it included consent to opening it to examine its contents.

Here, each verbal exchange between defendant and Huber was discrete. Significantly, in none of those exchanges did Huber ask defendant if he could look inside anything. Nor did defendant’s nonverbal conduct, just seconds earlier, in opening and closing the black carrying case to show Huber the stereo, indicate anything but a very limited desire to cooperate on the part of defendant. By contrast, in Allen, the search of a metal container within a purse was preceded by a request to look inside the purse; the defendant agreed. As a consequence, it was logical to infer that her consent encompassed the opening of other closed containers found within the purse. The same was true in Charlesworth/Parks (search of closed container in car preceded by unrestricted consent to request to search car) and Harvey (same). We find no similar implicit manifestation of consent to open anything in this case. It is true that, as in Allen, defendant here did not object when Huber opened the tin foil. However, there is no evidence that he had a meaningful opportunity to object or, for that matter, that it would have availed him to do so. In the totality of circumstances, we conclude that a reasonable person would have understood that, by handing the folded tin foil to the officer in response to a request to “see” it, defendant was consenting to an examination of the tin foil itself, not to its opening and the examination of its contents. It follows that the trial court erred in denying defendant’s motion to suppress.

Plaintiff was stopped, allegedly after being profiled, in the Minneapolis-St. Paul airport, after getting her bags and being cornered alone in an elevator. She sued, and the government moved for summary judgment which was denied. The District Court found questions for trial on consent and justification for the stop. Berg v. United States, 2007 U.S. Dist. LEXIS 7837 (D. Minn. February 2, 2007):

Fact questions remain as to whether Berg voluntarily consented to the search. Key and Toyen stopped Berg in an area that was secluded due to the time of day. Key’s attention was first drawn to Berg while she deplaned. However, Key then followed Berg through the airport to baggage claim. Key could have stopped Berg before she was in a secluded location where Berg would be outnumbered two to one. This fact, when coupled with the fact that Key and Toyen ran to get into the elevator with Berg, may be enough for a reasonable juror to doubt that Berg voluntary consented to be searched, and was instead coerced into submitting to a search because she felt she was not free to leave.

Moreover, Toyen demanded that Berg not become “indignant.” The manner in which Toyen spoke to Berg, when viewed in a light most favorable to Berg, does not support Defendants’ argument that Berg voluntarily consented to be searched. A reasonable juror could find that Toyen’s statement created an environment wherein a reasonable person would not feel free to leave and wherein she must submit to the authority of the officer or suffer the consequences, especially in light of the fact that neither Key nor Toyen told Berg that she was free to leave. See Escobar, 389 F.3d at 786 (finding that under a totality analysis, failure to inform citizens that they were free to refuse consent was one factor supporting a finding that the search was not voluntary). A reasonable juror could find that Berg’s invitation to “go for it” was not a clear declaration of consent under these circumstances, but rather submission in the face of no other alternative.

In addition, when Berg asked why she was being stopped, she was told that Key’s and Toyen’s job was to stop people who brought in drugs and laundered money. Although this statement, standing alone, did not create a seizure situation, when considered along with all the other evidence, including the fact that Key wrote down Berg’s personal information, a reasonable juror could find that Berg was not free to refuse consent to Key’s requests.

A fact question remains as to whether Berg voluntarily consented to Key’s search of her luggage, and therefore summary judgment is denied on this basis.

. . .

Fact questions remain as to whether Key’s actions were supported by reasonable suspicion.

Key testified that she stopped Berg because Berg’s bag looked too heavy. (Def. Ex. 3.) The DEA manual does not list having a heavy bag as a characteristic of a drug courier. A fact question remains as to whether Berg’s behavior and demeanor gave Key and Toyen reasonable suspicion that Berg was engaged in criminal activity. If Key’s criterion was whether an individual arrived from a source city carrying heavy luggage, many individuals would have been stopped on February 26, 2001.

Key further asserts that Berg’s behavior was similar to that of a drug currier she had observed “walking stiffed legged.” Key argues that this similarity gave her reasonable suspicion to stop Berg. However, there is nothing in the facts indicating that Key’s attention was drawn to Berg because she was walking with stiff legs. Key did not even search Berg’s person. Key is unable to point to any reasonable articulable rationale that amounts to more than a hunch for initiating contact with Berg and searching Berg’s carry-on bag.

Moreover, Toyen admitted that when Berg was looking out the windows, she was not doing anything unusual. Thus, this behavior did not provide reasonable articulable suspicion to search Berg’s bag.

Accordingly, fact questions remain as to whether Key had reasonable articulable suspicion to stop and search Berg. Thus, summary judgment is also denied on this basis.

Comment: The worm turns. (“To revolt is a natural tendency of life. Even a worm turns against the foot that crushes it.” Mikhail Bakunin in Bakunin on Anarchism (1980 ed. Sam Dolgoff).) Airport stop cases seemed to have disappeared from the reported cases. Here, a woman was targeted for a stop and search in the MSP airport, potentially racially profiled, nothing was found, and she sued the DEA.

Defendant was a passenger in a vehicle and he disclaimed ownership in the contents. Therefore, as a mere passenger, under Rakas he could not challenge the search of the vehicle. He was only charged with possession of a gun found in a common area and not any of the marijuana found in the vehicle. United States v. Samuels, 2007 U.S. Dist. LEXIS 8012 (S.D. Ga. February 5, 2007).*

In another case dealing with a police raid on the wrong house (compare Closure v. Onondaga County, 2007 U.S. Dist. LEXIS 8947 (N.D. N.Y. February 7, 2007) in 2/11 post (no claim)), the Middle District of Tennessee holds that officers were liable and had no qualified immunity. Guiler v. City of Clarksville, 2007 U.S. Dist. LEXIS 9616 (M.D. Tenn. February 9, 2007):

Based on his own assumptions and those of Norfleet, Wiroll and McClintock, Robbins drafted a search warrant and affidavit that incorrectly described the premises intended to be searched and failed to inform the judge that there were white buildings in close proximity, one of which Robbins knew was marked 343-A, and one of which might match the informant’s information. The state judge was unaware of the informant’s description, and he was further unaware that a reasonable officer investigating the scene would have known that a white residence behind 343-A, marked as 343-B, was visible from Old Trenton Road. Viewing Robbins’ affidavit in support of the search warrant in light of the misinformation given to the judge, and the failure to give the judge other relevant information that was material to the issue of probable cause, the Court must conclude that the judge likely would not have issued the warrant for the residence described in the application for lack of probable cause. See Hale v. Kart, 396 F.3d 721, 726 (6th Cir. 2005); Vakilian, 335 F.3d at 517; Neudigate, 101 Fed. Appx. at 53. Thus, a reasonable jury could find on this record that Robbins acted at least with reckless disregard of the truth when he presented his search warrant application to the judge.

Officers Wiroll and McClintock participated in gathering information on which Robbins relied in obtaining the search warrant. They failed to present to Robbins other relevant information about neighboring structures which they observed and which also should have been presented to the judge. As such, reasonable jurors could find that they also acted in reckless disregard of the truth. Each of these officers had a duty, under the facts presented, to discover the existence of 343-B and disclose it to the judge. See Garrison, 480 U.S. at 85.

Sgt. Clinard was Robbins’ direct supervisor. See Estate of Carter v. City of Detroit, 408 F.3d 305, 314 (6th Cir. 2005); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)(noting supervisory liability attaches when supervisor encourages, condones or participates in constitutional violation). Although there is some dispute as to when Sgt. Clinard reviewed the search warrant application and what the application said at the time he reviewed it, there is no dispute that Clinard knew the substance of the informant’s information; therefore, he knew that Taylor lived in a white house. Yet Clinard approved the search warrant application describing a tan residence with maroon shutters and a maroon-shingled roof. He did so even though he knew of concern that the house marked “B” might not be the correct house and even after he directed Robbins to send other officers, Wiroll and McClintock, to the location to double-check. He did so knowing that Robbins had done the bare minimum to corroborate the informant’s allegations about drug possession. Plaintiffs present evidence to support their contention that Clinard allowed Robbins to violate Police Department General Order E-5 XIV(3) by not requiring file documentation and corroboration of the informant and by not asking the District Attorney’s Office to review the search warrant application. In light of these facts, taken most favorably to Plaintiffs, Clinard violated his duty to supervise Robbins to be sure that Robbins discovered and disclosed accurate facts to the judge. See id.

. . .

Thus, Officers Robbins, Clinard, Wiroll, and McClintock violated Plaintiffs’ clearly established Fourth Amendment rights to be free from an unreasonable search and seizure. See Knott, 418 F.3d at 571 (holding defendants not entitled to qualified immunity because “the constitutional infirmity of the search warrant executed by the Defendants was clearly established at the time they searched”; “The Fourth Amendment obviously forbids relying on a warrant to search one [residence] when all of the [residence]-specific descriptors refer to another [residence][.]”) Viewing this case from Plaintiffs’ perspective, these officers were “plainly incompetent,” see Hunter v. Bryant, 502 U.S. 224, 229 (1991), and they are not entitled to qualified immunity for their conduct in obtaining information in support of the search warrant application.

Plaintiff was seized by being told to get in the police car and being driven to the stationhouse, although she was later released. Finigan v. Marshall, 2007 U.S. Dist. LEXIS 9507 (N.D. N.Y. February 9, 2007).* Comment: This was hardly a debatable question, but the defendants raised it.

Officers had a reasonable belief that the defendant was staying where they entered with an arrest warrant. United States v. Perez-Jacome, 2007 U.S. Dist. LEXIS 9697 (D. Kan. February 9, 2007):

Officers need only an objectively reasonable belief that an arrestee lived at the residence. See Gay, 240 F.3d at 1226; Valdez, 172 F.3d at 1225. In addition, the arrestee need not live at the residence, so long as he “possesses common authority over, or some other significant relationship to, the residence entered by police.” Gay, 240 F.3d at 1226 (quoting Valdez, 172 F.3d at 1225). Officers are well aware that people do not live in “individual, separate, hermetically sealed residences,” but live with other people and often move from one residence to another. Id. (quoting Valdez, 172 F.3d at 1225).

Here, officers had a reasonable belief that Moreira lived in the residence at 1814 Bunker: (1) a confidential informant told officers that he had seen Moreira at the residence on three occasions including the previous day, April 28, 2006 and (2) shortly after officers received the tip, they saw defendant and Moreira pull up to the residence in a maroon van and go inside the residence. Officers reasonably relied on the confidential source’s tip because (1) some 11 days earlier, the same informant participated in a controlled purchase arranged by Moreira at a nearby auto parts store; (2) Moreira’s cousin delivered the narcotics for the controlled purchase and returned to 1814 Bunker Avenue where he entered the residence; (3) officers observed defendant and Moreira pull up in a maroon van at the residence and go inside the residence at 5:00 p.m. on April 29, 2006; (4) the telephone call on April 29, 2006 between the informant and Moreira suggested that Moreira had sold narcotics to the informant on prior occasions; and (5) the meeting between the informant and Moreira on April 29, 2006 confirmed that Moreira was at the residence.

Exigent circumstances did not justify entry 30 minutes after a shooting incident. The plaintiff had already prevailed in suppression of the entry in a criminal case where the only evidence produced was an illegal weapon. Ratliff v. City of Three Rivers, 2007 U.S. Dist. LEXIS 9415 (W.D. Mich. February 9, 2007):

Here, however, the Defendants have not demonstrated that the combination of all of the factors was sufficient to justify a warrantless search based on a danger to the police or others. There had not been any indication that exigent circumstances existed in the Plaintiff’s residence, as no shots were fired from within, no 911 calls were made from within, and there was no report by neighbors or witnesses of suspicious or illegal activity within the house or on the premises. In the instant case, the Plaintiff’s right to be free from illegal seizures was not outweighed by the government’s interest in searching the house for armed robbery suspects where the only evidence of the crime located at the residence was a car identified as that used in the robbery and there was no evidence that there was a risk of danger at the residence. Therefore, the Court concludes that the Defendants violated the Plaintiff’s Fourth Amendment right against unlawful searches.

Administrative inspection for sump pumps connected to the city sewer system that had to be conducted by the city implicated the Fourth Amendment. Plisner v. Sweeney, 2007 U.S. Dist. LEXIS 9646 (D. Minn. February 9, 2007) (distinguishing Yanke v. City of Delano, 171 Fed. Appx. 532 (8th Cir. 2006) (per curiam) (unpublished) where inspections could be done by licensed plumbers as an alternative).*

In Louisiana, officers received a report from an informant that the defendant was operating a meth lab in a shed behind his house and cooks started at midnight. Officers staked out the area and attempted to approach from open fields. They turned on lights of their cars and yelled to the defendant to try to flush him out, and he was arrested and they searched. The trial court suppressed and the appellate court affirmed, finding that the area was within curtilage (although the record was deficient, so the trial court’s findings got deference) and not open fields. The officers’ two day wait belied exigency. State v. Hemphill, 942 So. 2d 1263 (La. App. 2d Cir. November 17, 2006):

The Tip and Entry on Curtilage:

In this case, the anonymous tip provided some information that predicted criminal activity as well as merely descriptive information. The caller stated that Mr. Hemphill ran a meth lab in a shed south of his mobile home and that the methamphetime “cooks” generally started after midnight. Det. Pittman was able to confirm activity after midnight in the shed and associated that activity with meth production by the smell of what he said was ether, but not before entering the defendant’s backyard and moving near the shed. The state attempted to establish that Det. Pittman corroborated the requisite predictive elements of the tip before entering defendant’s yard by establishing that Det. Pittman saw the mobile home and some kind of other structure “upon arrival of the officers.” However, the testimony of Det. Pittman indicates that he only identified a mobile home and some unidentified structure. These are merely general descriptive facts not predictive of any criminal activity. See Florida v. J.L., supra. The existence of a mobile home residence and a structure in the backyard is commonplace in Louisiana, particularly in outlying areas.

We also observe that a photograph in evidence shows that the property was partially enclosed with a privacy fence. The officers entered the defendant’s property from the unenclosed portion of the yard that appears to be the backyard of the defendant. Det. Pitman testified that the yard was clearly distinguishable from the field by the grass, so he clearly knew he was entering the yard of the defendant.

Although the district court found that the defendant was adversely affected by the agents’ entry into the neighboring property as well as the defendant’s property without a warrant, it did specifically state that it had determined that crossing into the defendant’s yard itself was a violation of the Fourth Amendment. There has been no argument on appeal that the backyard constituted “open fields,” that is, the land outside the curtilage of the home and was therefore excepted from the warrant requirement of the Fourth Amendment since it is entitled to no more protection than public land. Oliver v. U.S., 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984). Nor has it been argued that the backyard was within the curtilage and therefore protected.

. . .

Although the evidence in this record to make a determination on this issue is weak, applying an objective standard, we conclude that the defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation, according to Det. Pittman. It was after midnight when the agents were sneaking furtively around the defendant’s yard, thereby creating the possibility of a violent confrontation. We also note that the state prosecutor was clearly concerned by the entry into the yard because she tried to establish that the MNU agents confirmed predictive elements from the anonymous tip before entering the defendant’s property. This was clearly not established, however, and Det. Pittman testified that the yard was clearly distinguishable from the field and other testimony and evidence indicates that there were some steps taken by the defendant toward privacy. Accordingly, we must conclude that the trial court was not clearly wrong in its finding that the defendant was adversely affected by this entry. We further conclude that the state did not carry its burden in showing that the warrantless entry into the yard was justified by the agent’s corroboration of some of the descriptive information from the anonymous tip.

Probable Cause Based On the Smell of Ether:

Even if we were to assume that the warrantless entry into the defendant’s yard was justified, the next issue is whether the agents obtained probable cause to search or arrest the defendant without a warrant. As stated above, the anonymous tip provided some predictive information regarding the defendant’s criminal activities, namely, that the defendant was operating an active meth lab and the meth “cooks” generally began after midnight. The agents arrived at the scene about 12:30 AM. Once in the defendant’s yard, they observed, with night vision equipment, a male walking from the trailer to the shed. Det. Pittman testified that he saw the person make three trips back and forth, ending in the trailer, while the defendant testified he only made one trip from his trailer to the shed. At this point in the investigation, there was at least partial confirmation that there was some activity taking place after midnight, albeit nothing criminal at this point. Detectives positioned themselves to the west of the shed, and Det. [Pg 18] Pittman said that they smelled a strong odor of ether, but they could not pinpoint the source of the odor. It appeared to be coming from the general direction of the trailer and shed because the wind was from the east. Based upon his experience in drug enforcement, Det. Pittman knew that ether is used in the production of methamphetamine, and his past experience was that this confirmed the existence of an active meth lab. The agents then moved closer to the shed and Det. Pittman said that the smell of ether was stronger and he heard activity in the shed that sounded like what could have been someone sharpening mower blades and he did not associate it with meth lab activity. Nevertheless, he associated the activity in the shed with an operating meth lab because of the odor from the shed and the fact that there was some activity in the shed, although its exact nature was unknown.

Because this information tended to corroborate the predictive information from the anonymous tip, that is, activity after midnight and the odor associated with methamphetamine production, we conclude that the MNU agents had probable cause that would justify obtaining a search warrant to enter the shed. Det. Pittman, however, elected not to obtain a search warrant. Rather, he decided that he would flush out the defendant from the shed and shut down the meth lab. The state contends that his decision was justified based on exigent circumstances.

Exigency, Seizure of Defendant, and “Plain View” or “Plain Smell”:

A warrantless search is per se unreasonable unless the police are able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. United States v. Richardson, 208 F.3d 626 (7th Cir. 2000). A police officer’s subjective belief that exigent circumstances exist is insufficient to justify a warrantless search; instead, the test is an objective one. See U.S. v. Richardson, 208 F.3d at 629 (7th Cir. 4/3/00); U.S. v. Elder, 352 F. Supp. 2d 880 (C.D.Ill. 1/19/05). As previously stated, exigent circumstances may arise from the need to prevent the offender’s escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, supra; State v. Hathaway, 411 So. 2d 1074 (La. 1982).

The district court found that exigent circumstances did not exist to justify the actions of the police. The court believed that exigency based on the concern of police for safety was “watered down,” inasmuch as the agents waited two days before investigating the tip. The state argues that the deputies entered the defendant’s shed to look for the defendant for the purpose of ensuring the safety of Mr. Hemphill, the agents near the shed and the neighbors in the house next door.

According to Det. Pittman, he decided to shut the operation down after he smelled ether and the activity he heard in the shed. He first attempted to lure the defendant out of the shed by sending for the units that were held back, telling them to come down the driveway with all lights. After positioning himself and the other agents by the shed door, Det. Pittman either opened the door himself, or when defendant opened the door, he reached into the shed and pulled the defendant out. On the one hand, he testified that he did not really take time to look into the shed from the doorway because he was handling the arrest of the defendant. On the other hand, he testified later that he was able to see and smell ether emanating from the meth lab located in the unlighted shed 30 feet from the door in the back corner. Subsequently officers found two unopened containers of ether and a meth lab set up in the shed. Defendant contends that the officers were smelling anhydrous ammonia, which is used in the meth cooking process, and which the defendant admits he was mixing.

We agree with the district court that the agent’s actions were unjustified on any of the grounds constituting exigency. First, there was no likelihood of escape. Det. Pittman and four other agents were present at or near the shed. Additional officers were waiting “there for Mr. Hemphill,” presumably to take Mr. Hemphill into custody or to assist in case Mr. Hemphill attempted to escape. Second, once the agents smelled ether and heard activity going on inside, they could have obtained a search warrant provided their intrusion into the yard was justified. If the officers were concerned with safety, they could have moved to a safe distance from the shed and evacuated the neighbors, if they were indeed threatened. Third, the officer’s concern for Mr. Hemphill’s safety is indeed watered down by the two-day delay investigating the tip.

Hence, we conclude that the district court’s determination that exigent circumstances were not present to justify the warrantless arrest of Mr. Hemphill was not plainly wrong.

We also reject the search of the shed based on “plain view” or possibly “plain smell.”

Search of car by consent was not overly intrusive because the search did not materially alter the car as prohibited by NY law. People v Reed, 2006 NY Slip Op 8588, 34 A.D.3d 1364, 825 N.Y.S.2d 600 (4th Dept. 2006).*

A reasonable person would have felt free to leave, so the stop was not extended by the officer’s actions. Saldivar v. State, 209 S.W.3d 275 (Tex. App. — Ft. Worth November 16, 2006).*