Consent to look in a car in New York is not consent to search it. Suppression order affirmed. People v Hall, 2006 NY Slip Op 9751, 2006 N.Y. App. Div. LEXIS 15595 (4th Dept. December 22, 2006):

The People failed to prove the substance of the conversation between defendant and the police officers, and the court was therefore unable to determine what a reasonable person would have understood from the exchange. In addition, even if we accept either version of the conversation presented at the hearing as the operative one, the People established only that the officers asked defendant if they could check the vehicle or look in the vehicle. Consent to check or look in a vehicle is not consent to search it (see People v Love, 273 A.D.2d 842; People v Saunders, 161 A.D.2d 1202; People v Lazarus, 159 A.D.2d 1027, lv denied 76 N.Y.2d 738).

Police responded to a 911 call of a car alarm going off. They arrived in one minute and heard no car alarm. They saw a pickup truck with a laptop computer in the back, and the indicator light was on and they seized it and a notebook and took them to the police station. When they opened it, they found forged documents. The seizure and search could not be justified under the emergency exception because there was no threat to life and limb of the police. Suppression order affirmed. People v Fravel, 2006 NY Slip Op 9725, 2006 N.Y. App. Div. LEXIS 15618 (4th Dept. December 22, 2006).

After a controlled buy, police got a search warrant for the premises. Due to surveillance, they knew there was a gray car parked outside with a man with a walkie talkie in it. On execution of the warrant, officers were justified in approaching him and ordering him out of the car as a suspected lookout. They smelled burnt marijuana, and that justified a further search. State v. Grant, 2006 Ohio 6821, 2006 Ohio App. LEXIS 6749 (2d Dist. December 22, 2006).*

Police responded to an anonymous child abuse call that also involved drug usage by the defendant. They did a knock and talk, and the defendant refused entry. The court discussed the specificity of the information and added that the police could have also concluded that the defendant’s refusal to consent added to their suspicion. After defendant was arrested, the officers could conclude his statement to them supported a second entry to look for drugs. State v. Lane, 2006 Ohio 6830, 2006 Ohio App. LEXIS 6752 (2d Dist. December 22, 2006):

[*P35] The Supreme Court of Wisconsin addressed similar facts in State v. Boggess (1983), 115 Wis.2d 443, 340 N.W.2d 516. In Boggess, an anonymous caller indicated that two children at defendant’s home may have been battered and needed medical attention, and also indicated that one of the children was limping, and the defendant had a bad temper. The Court upheld the warrantless entry of the defendant’s home and noted the objective test of the emergency rule exception is satisfied when, under the totality of the circumstances, a reasonable person would have believed that there was an immediate need to provide aid or assistance. Like the anonymous call in Boggess, the call in this case contained some specificity. It specifically indicated George Lane at the Dennison address was selling drugs around two children and abusing them causing one to suffer a busted lip. It is also relevant that Lane denied there were any children in his home before one child suddenly appeared. Also, the police could have become even more suspicious of Lane’s conduct when he withdrew his permission to permit the officers to look for the other child. Although it is close, we believe the police could have reasonably believed that the other child mentioned in the call was in need of immediate aid at the time they entered Lane’s home. The drugs discovered in the living room were discovered in plain view after the lawful entry. The first assignment of error is overruled.

. . .

[*P44] We believe that it was objectively reasonable for Officer Adams to believe that Lane’s statement in the cruiser to him that there were other drugs in his bedroom was an invitation by Lane to him to enter his house and retrieve them. This is so particularly since Lane had seen the police enter his home just minutes earlier and find drugs in his living room. The second assignment is overruled.

Comment: So much for the exercise of a constitutional right not being used against you.

Vehicle remained sufficiently mobile under the automobile exception after defendant’s arrest for DUI drugs that it could be searched. The trial court erred in suppressing. State v. Meharry, 342 Ore. 173, 149 P.3d 1155 (December 21, 2006), rev’g 201 Ore. App. 609, 120 P.3d 520 (2005).

Potentially altered copy of search warrant where original was lost (maybe left at the scene) was an insufficient ground to suppress, despite the appearance of a possible alteration. State v. Shumaker, 945 So. 2d 277 (La. App. 2d Cir. December 13, 2006):

Deputy Langley testified that when he prepared the search warrant, he printed two copies, placed a piece of carbon paper between the copies, and had the judge sign the top copy in blue ink-the bottom copy had a carbon-copy of the judge’s signature. At the hearing on the motion to suppress, the state presented the original affidavit, signed in blue ink, and a duplicate original of the search warrant with the carbon-copy signature. Deputy Langley testified that he normally left the duplicate original of the search warrant with the carbon-copy signature at the residence and that the back side of that document contained a carbon-copy of the return from the search warrant, showing what was seized from the residence. This duplicate original of the search warrant with the carbon-copy signature contained the original return on the search warrant, showing what was seized from the residence. Deputy Langley testified that he believed the original warrant signed in blue ink was left at the residence instead of the duplicate original with the carbon-copy signature.

The duplicate original presented by the state at the hearing on the motion to suppress contains language authorizing a nighttime search of the described premises to be searched. Shumaker presented a copy of the search warrant left at his residence, not the original document left at his house, but that document does not contain language authorizing a nighttime search. Both La. C. Cr. P. art. 163(B) and La. R.S. 40:985 state a search or seizure shall not be made during nighttime unless the warrant expressly permits it. When comparing the two documents, it is obvious that one of the documents was altered. The signatures and handwritten date on both copies appear to be identical, but the signature line and date line are much higher on the page of Shumaker’s copy than it is on the page of the state’s copy. The state’s copy clearly contains a carbon-copy of the signature and the date. If Shumaker’s copy was truly representative of the original search warrant signed in blue ink, the date and signature line would be placed lower on the page. Accordingly, the trial court did not err in finding that the state’s duplicate original was representative of the original search warrant. The trial court also was reasonable in dismissing Shumaker’s claim that the original search warrant did not contain language authorizing a nighttime search.

Ultimately, a practical, common-sense evaluation of the circumstances set forth in the affidavit established a fair probability that evidence of methamphetamine use and production would be found at Shumaker’s residence, and the issuing magistrate had a substantial basis for concluding that probable cause existed to search Shumaker’s mobile home. The trial court’s decision to deny his motion to suppress is due great weight, and the preponderance of the evidence does not favor suppression. Therefore, Shumaker’s claim that the search warrant was not supported by probable cause is without merit.

Frisk of passenger’s coat for weapons was justified under the “circumstances of this case.” The officer had reasonable suspicion of drugs, and where drugs are is where guns might be. Drugs were found in her coat. State v. Banda, 2006 S.C. LEXIS 394 (December 11, 2006):

We hold that under the circumstances of this case, 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. at 417. 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.

Consent had been obtained to search a boat on a trailer on the roadside, as a Coast Guard inspection. Officers in the meantime got a search warrant for the boat. The fingerprints and palmprints were in plain view for seizure under the search warrant. United States v. Zaldivar, 2006 U.S. Dist. LEXIS 83460 (M.D. Fla. November 16, 2006).

Factors in reasonable suspicion were (1) furtive movement, (2) “nervous demeanor,” and (3) stop was in “reasonably high-crime area.” United States v. Meredith, 2005 U.S. Dist. LEXIS 43940 (E.D. La. July 6, 2005).*

Defendant’s guilty plea waived his right to appeal search claim. Johnson v. State, 282 Ga. App. 464, 638 S.E.2d 873 (November 17, 2006).*

Even if defendant revoked his consent, it occurred after admissions were made, which remained admissible. State v. Beckwith, 725 N.W.2d 659 (Iowa App. November 16, 2006).

Officers got word from a farm supply store that a woman in a particular vehicle bought two bottles of iodine. Officers cruised by the house until the vehicle arrived, waited a while, and then did a knock and talk. The woman came to the door with iodine stains on her hands and wafting from the house was the unmistakable smell of an operating meth lab. Entry was justified. Bottom v. Commonwealth, 2006 Ky. App. LEXIS 340 (November 17, 2006).*

Officers doing a knock-and-talk came to defendant’s house and knocked, but did not state their purpose. When defendant opened the door and saw the police, he exclaimed “Oh, shit!” and tried to shut the door, but an officer blocked shutting the door with his foot. They then forced their way in. The defendant’s conduct was a denial of 149 P.3d 961 (November 9, 2006, released for publication January 16, 2007), cert. granted (No. 30,131) December 14, 2006.

During a suppression hearing, a Franks issue arose, and the court invited the parties to brief it. The state did not. The court purged the false information and concluded the remainder did not show probable cause and suppressed. The judgment was affirmed on appeal. The state was invited to brief the Franks issue and failed to do so. State v. Ralston, 2007 Ohio 177, 2007 Ohio App. LEXIS 175 (4th Dist. January 11, 2007).

In a criminal copyright infringement action, a search warrant for counterfeit goods was being executed when a truck with additional allegedly counterfeit goods arrived at the scene of the search. The truck was searched, too, and more was found. The defendants’ challenge of the search warrant as to the premises failed. As to the truck, the government obtained a superseding indictment alleging attempted possession after the defendants denied ownership or control of what arrived in the truck. The question now was relevance at trial under F.R.E. 401 on the attempt question. United States v. Ohri, 2007 U.S. Dist. LEXIS 3381 (E.D. Va. January 16, 2007).

In a civil case against 14 defendants, the defendants’ motion to enlarge the deposition to 16 hours over two days under F.R.C.P. 30(d)(2) was granted where plaintiff would not stipulate, and the number of defendants required that much time to determine their potential liability. Saunders v. Knight, 2007 U.S. Dist. LEXIS 3387 (E.D. Cal. January 4, 2007).*

Habeas claim that state court applied wrong standard of review in state PCR proceeding was not cognizable on habeas. Peek v. Hooks, 2006 U.S. Dist. LEXIS 94793 (M.D. Ala. December 5, 2006).*

Trial court’s assessment of credibility on question of consent required denial of motion to suppress be denied. State v. Purser, 2007 Ohio 192, 2007 Ohio App. LEXIS 166 (2d Dist. January 19, 2007).*

The affidavit did not have to demonstrate that the officer independently attempted to corroborate the informant. It is sufficient that the affidavit as a whole shows that the informant was reliable. Here, the informant knew that a false statement would have repercussions with the police, and he saw a drug deal go down with the defendant [which is substantial basis of knowledge in every other case I’ve read]. United States v. Bronson, 2007 U.S. Dist. LEXIS 1867 (D. Kan. January 8, 2007).*

Officers had reasonable suspicion for a stop based on what was an apparent drug deal. “The definition of an investigatory stop utilized in these cases, a brief detention which gives officers a chance to verify (or dispel) well-founded suspicions that a person has been, is, or is about to be engaged in criminal activity, fits the facts of the case before us. The officers, as pointed out above, had well-founded suspicions that when the defendant met with Rocco for no more than a minute in Rocco’s car, he received a quantity of heroin from him. [In what almost sounds like classic bootstrapping:] Their stop of the defendant’s car was for the very purpose of attempting to verify those suspicions.” [brackets mine] United States v. Murray, 2007 U.S. Dist. LEXIS 1705 (N.D. Ill. January 5, 2007):

Furthermore, the scope of the January 26, 2005 stop was reasonable given the circumstances. The police had a well-founded suspicion that they were stopping a narcotics dealer and they had observed him making movements with his hands around his waist and at the center console of the car as they approached and after they had instructed him to show his hands. This is more than enough justification to take the reasonable steps for their own protection that the officers took. In the course of protecting themselves, they observed the plastic bag which the defendant admitted contained heroin. At that point, there was probable cause to arrest and to seize the plastic bag containing the contraband. The officers’ actions subsequent to stopping the defendant’s automobile where reasonable and consistent with the limited objective of an investigatory stop. See United States v. Askew, 403 F.3d 496 (7th Cir. 2005) (holding that stop of defendant’s car while he was driving through a parking lot on reasonable suspicion of engaging in a drug transaction was a permissible Terry stop); United States v. Fiasche, No. 05 CR 765, 2006 WL 695395, at *5-6 (N.D. Ill. Mar. 10, 2006) (holding that stop of defendant’s automobile on reasonable suspicion of transporting drug proceeds based upon corroborated information from an informant was permissible under Terry). Because the stop of the defendant’s car was a proper Terry stop based upon a well-founded suspicion that the defendant was engaged in criminal activity, the Daniels’ motion to suppress his statements and the heroin recovered from his person is denied.

Officer’s knowledge that “very often” temporary tags on vehicles were forged could not be a basis for a stop without any information pointing to whether the one at issue was forged. People v. Hernandez, 146 Cal. App. 4th 773, 53 Cal. Rptr. 3d 66 (3d Dist. December 18, 2006, ordered published January 11, 2007):

Here, the question is whether Deputy Paonessa’s experience should lead to a different result. Deputy Paonessa testified that in his experience temporary operating permits are “very often” forged. We have no way of discerning the meaning of the statement, “very often,” because Deputy Paonessa did not say how many times he had stopped a car with a temporary operating permit or how many times the permit was valid or invalid. Absent either additional facts justifying a reasonable suspicion of criminal activity, or specific experience Deputy Paonessa had to justify a suspicion that the particular operating permit displayed on defendant’s truck was invalid, we cannot say the stop was reasonable. We are unwilling to conclude it is always reasonable to stop a car that does not have any license plates but has a temporary operating permit, because that would effectively mean it is always reasonable to suspect that a temporary operating permit is invalid. Accordingly, we conclude the traffic stop was invalid and thus the trial court erred in denying the motion to suppress.

Defendant next contends his convictions for resisting arrest must be reversed because Deputy Paonessa was not acting lawfully in the initial stop. Both parties agree that under California law a defendant cannot be convicted of resisting arrest if the officer was not acting lawfully at the time of the arrest. (People v. Simons (1996) 42 Cal.App.4th 1100, 1109 [50 Cal. Rptr. 2d 351].) Since we have already concluded the traffic stop was not justified and therefore unlawful, we agree the convictions for resisting arrest cannot stand.

Defendant signed a general consent to search his house, and, during the course of the search, officers picked up a pager and looked through the numbers. The pager was included within the search, and the defendant never voiced objection. Guy v. State, 913 A.2d 558 (Del. November 16, 2006).

Police were not required to contact the owner of a car before inventorying it after arrest of the driver. The car might be left on the parking lot indefinitely. State v. Kerr, 2006 Ohio 6058, 2006 Ohio App. LEXIS 6007 (6th Dist. November 17, 2006):

When considered together, these sections of the Northwood policy provide an established procedure which permitted the officers to tow the vehicle appellant was driving. Appellant was not the owner of the vehicle and was being taken into custody. Although the owner was known, the police were not required to try to locate that owner prior to the decision to tow. The vehicle was parked in a gas station and, under the circumstances of appellant’s arrest, the police had no way of knowing how long it would remain there before the owner might retrieve it.

Search of student’s car in school parking lot had to be based on reasonable suspicion, and here it was. State v. R.D.S., 2006 Tenn. App. LEXIS 733 (November 17, 2006).

Probable cause was a close question, but it existed, for photographs which would show a computer in defendant’s possession for evidentiary use only. Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. November 20, 2006).

Defendant’s discovery motion sought to invoke the “silver platter” doctrine of Elkins, but that applies to suppression motions, not discovery. United States v. Hunter, 2006 U.S. Dist. LEXIS 83836 (D. Conn. November 16, 2006).

Officer saw defendant walking down the street, and defendant walked faster after seeing the officer. The officer pulled up to him, without lights, and said: “Excuse me.” Defendant came over to the patrol car and talked to the officer, and the officer could smell alcohol. Defendant was a minor. The stop was valid and consensual. State v. Ruehl, 2006 Ohio 6054, 2006 Ohio App. LEXIS 6010 (6th Dist. November 17, 2006).

The plaintiff erected a large cedar fence around his property, including a boathouse. Health inspectors received complaints about his septic tank and entered to check on it. The area qualified as “open fields” under Dunn. Bonneville v. Kitsap County, 2007 U.S. Dist. LEXIS 9429 (W.D. Wash. February 8, 2007):

The January 30, 2004, and December 15, 2005, Health District inspections of Plaintiff’s Illahee property did not constitute Fourth Amendment searches because they occurred in “open fields.” See United States v. Dunn, 480 U.S. 294, 304 (1987). The term “open field” is a legal term of art and is somewhat of a misnomer in that an “open field need be neither ‘open’ nor a ‘field'” and may include “any unoccupied or undeveloped area outside of the curtilage.” Oliver v. United States, 466 U.S. 170, 180 n.11 (1984). “Curtilage” is defined as the area immediately surrounding a home “that harbors the ‘intimate’ activity associated with the ‘sanctity of a man’s home and the privacies of life.'” Dunn, 480 U. S. at 300 (quoting Oliver, 466 U.S. at 180). Thus, any search which occurs outside of the home and curtilage in an unoccupied or undeveloped area is considered an “open field” search. See id.

Curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. Id. at 301. The factors should be used as “analytical tools only” to the degree that, “in any given case, they bear upon the centrally relevant consideration whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id.

. . .

Here, the Health District’s actions on January 30, 2004, and December 15, 2005, did not pass beyond the level of observation the Court found acceptable in Dunn. Although Plaintiff has taken steps to hide his property from the view of passers-by on the street by erecting a tall cedar fence enclosing the house, boathouse, yard and cabana, the boathouse and yard are still not within protected “curtilage.” Anyone wishing to speak with the Plaintiff or ask for permission to conduct an inspection must pass through the gate. And “[a]bsent express orders from the person in possession [of the property] . . . there is no rule of private or public conduct which makes it illegal per se . . . for anyone openly or peaceably, at high noon, to walk up the steps and knock on the front door of any man’s ‘castle.'” Davis v. United States, 327 F.2d 301, 303 (9th Cir. 1964). Once through the gate, the entire parcel is open to viewing. Further, the boathouse and yard are easily seen from the water. “It is well established that it is not a search to observe what is open and patent.” Id. at 305. In such a situation, the boathouse and yard are not a part of the curtilage because they are not “intimately tied” to the home itself.

Detention for dog sniff exceeded the time reasonably necessary to complete the stop, so the sniff was invalid. United States v. Davis, 2007 U.S. Dist. LEXIS 9578 (N.D. Ohio February 8, 2007):

The government, in the alternative, argues that the canine sniff was legal based on the Supreme Court’s holding in Illinois v. Caballes, 543 U.S. 405 (2005). The government argues that Caballes stands for the proposition that, because a canine sniff is “sui generis” and “generally does not implicate legitimate privacy interests” the canine sniff at issue did not violate the Defendant’s Fourth Amendment rights. Caballes, 543 U.S. at 409. Caballes, however, is readily distinguishable. The precise holding in Caballes is that: “the use of a well-trained narcotics-detection dog — one that does not expose noncontraband items that otherwise would remain hidden from public view — during a lawful traffic stop, generally does not implicate legitimate privacy interests. Id. (emphasis added) (noting: “[i]n this case, the dog sniff was performed on the exterior of respondent’s car while he was lawfully seized [*17] for a traffic violation.”); see also United States v. Burris, 78 Fed. Appx. 525 (6th Cir. 2003) (affirming undersigned’s prior decision holding that a canine sniff without reasonable suspicion, prior to the conclusion of a traffic stop, did not violate a defendant’s rights).

The Supreme Court, however, specifically distinguished the fact pattern here from that at issue in Caballes, stating:

“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. We may assume a similar result would be warranted in this case if the dog sniff had been conducted while respondent was being unlawfully detained.”

Caballes, 543 U.S. at 407-08 (citing People v. Cox, 782 N.E.2d 275 (Ill. 2002)). In Cox, the Illinois Supreme Court found that a fifteen minute delay prior to conducting a canine sniff constituted an unlawful extension of a “routine” traffic stop. Cox, 782 N.E.2d at 277; see also United States v. Garrett, 139 Fed. Appx. 720, 723 (7th Cir. 2005) (stating: “it does not matter how quickly a dog arrives after being called because a suspect might already be illegally detained by the time of the call.”). This Court, after considering the sequence of events, the candid testimony of Officer Martin, and the uncontradicted testimony of the Defendant and Cain, finds that the duration of the detention exceeded the time necessary to complete the purpose of the initial traffic stop. Thus, like Cox, unless the vehicle’s occupants felt free to leave, or there was a basis for a reasonable suspicion that Cain and Davis were involved in criminal activity, an unconstitutional seizure occurred.

Officer lacked reasonable suspicion for the stop, but the court finds the stop understandable and does not discourage the officer’s actions in this situation. United States v. Melvin, 2007 U.S. Dist. LEXIS 9621 (M.D. Ala. February 6, 2007):

While this Court finds that there was no reasonable suspicion for the Terry stop, this is not to say that the police acted in a wholly inappropriate manner. The stop of the car and the temporary detention of the passengers did not pass constitutional scrutiny, but [Officer] Crooks does not necessarily deserve rebuke. There are certain realities that police officers face in smaller communities that law enforcement in larger communities do not. As noted by the government in its objection to the Recommendation, “Grimes is a small community and a stranger is noticed.” Doc. 32 at 4. While the Fourth Amendment is applicable to a temporary stop of an individual or vehicle no matter the size of the community in which the stop occurs, it is nonetheless understandable why Crooks responded in the way he did to Herring’s tip, even in spite of the fact that the tip lacked any indicia of reliability. Given that Crooks was responding to a suspicious persons call in a small and inclusive community, it is not inconceivable to think that Herring, a member of that community, was pointing out the subject of that call. As peculiar as this may be to people in Atlanta, Miami, or even Montgomery, a community like Grimes is one where everyone knows everyone else. This may not comport with the Fourth Amendment, but it does explain the context in which the stop occurred, and, for these reasons, this Court hopes that the citizens of Grimes continue to enjoy the protection of a police force which apparently takes its responsibility very seriously.

The fact that the consent form was handwritten rather than printed, as a means to challenging consent, was a “nonstarter.” United States v. Dausey, 2007 U.S. Dist. LEXIS 9671 (W.D. Wis. February 9, 2007).*

Government failed in its burden of showing consent. The proffered reasons on review by the District Judge of the R&R were not provided to the Magistrate Judge. United States v. Baird, 2007 U.S. Dist. LEXIS 9622 (D. Neb. February 8, 2007).*

City’s order that the plaintiff not be permitted into the municipal building without being accompanied by a police officer was not a “seizure.” Deninno v. Municipality of Penn Hills, 2007 U.S. Dist. LEXIS 6995 (W.D. Pa. January 31, 2007):

Plaintiff cannot be said to have been “seized” by defendant Costa’s directive, nor was his freedom to move about the municipal building restricted in any significant way; any harm caused by plaintiff’s brief wait for an available police officer to accompany him is de minimis and does not amount to a constitutional deprivation. Plaintiff also attempts to massage the Fourth Amendment claim into an equal protection claim, but he points to no evidence to show that other similarly situated residents of Penn Hills behaved in like manner and were not subject to a directive that he or she be accompanied by a police officer while in the building, nor does he offer any evidence that his speech or any other First Amendment activities were curtailed in any way by the directive. These claims must be resolved, therefore, in favor of defendants.

Court credits officer’s testimony over defendant’s that defendant consented to a search of his car. They first talked in English, and, when asked for consent, the defendant stared blankly, so the officer continued in Spanish. The videotape supported the government’s claim of consent. United States v. Sanz, 2007 U.S. Dist. LEXIS 7105 (N.D. Ind. January 30, 2007).*

“Hash values” on a computer file in a probable cause showing for a computer search are sufficiently different to establish probable cause. United States v. Cartier, 2007 U.S. Dist. LEXIS 7119 (D. N.D. January 30, 2007).*

Stop was validly based on traffic offense of loud muffler and the officer saw a ball of meth in plain view. [The stop was essentially pretextual but with a valid factual basis.] United States v. Cousins, 2007 U.S. Dist. LEXIS 7293 (W.D. Va. February 1, 2007).*

Transferring funds about to be seized by the feds stated facts upon which defendant could be convicted of obstruction of justice and interfering with a seizure. 18 U.S.C. §§ 1512(c)(2) & 2232(a). United States v. Sutley, 2007 U.S. Dist. LEXIS 8257 (S.D. Ala. February 2, 2007).

Asking for a passenger’s green card during a valid traffic stop is not unreasonable. United States v. Pasillas-Castanon, 2007 U.S. Dist. LEXIS 8268 (N.D. Okla. February 5, 2007):

Further, the Court finds that Officer Hickey’s requesting and obtaining Fabian Pasillas-Castanon green card did not constitute an unreasonable search and seizure. The officers properly sought and obtained identification documents from the occupants. In United States v. Esparsa-Mendoza, 386 F.3d 953, 958 (10th Cir. 2004), the Tenth Circuit states, “police officers may approach citizens, ask them questions and ask to see identification without implicating the Fourth Amendment’s prohibition against unreasonable searches and seizures.” Further, the Court finds that defendant Fabian voluntarily produced his green card and gave it to Officer Hickey as his identification.

Similarly, ICE officers could conduct a knock and talk for information about green card status under 8 U.S.C. § 1357(a)(1). United States v. Casteneda-Arrellano, 2007 U.S. Dist. LEXIS 8199 (W.D. N.C. February 1, 2007).

§ 2255 habeas petitioner could not raise Fourth Amendment claim in a successor petition that had already been denied just by arguing it differently. Miramontes v. United States, 2007 U.S. Dist. LEXIS 8127 (E.D. Cal. January 25, 2007).*

Habeas claim of ineffective assistance for failure to pursue a search claim was not reached where the petitioner failed to provide a factual basis for the claim. Haygood v. United States, 2007 U.S. Dist. LEXIS 8166 (D. Conn. January 23, 2007).*

Defendant was formally evicted by notice from his grandmother’s house, and this led to an officer coming to aid in removing him. The finding of a crack pipe in plain view was reasonable. State v. Hertzel, 2006 Ohio 6770, 2006 Ohio App. LEXIS 6676 (8th Dist. December 21, 2006):

[*P11] Although appellant occupied a room on and off over several years in the home of Hartman, who is his elderly grandmother, he rarely paid rent, frequently drove her car without permission, and caused her various problems. As a result of his behavior, Hartman had served him with an eviction notice demanding that he immediately vacate the premises. On the evening of appellant’s arrest, Hartman specifically asked Officer Greenway to aid her in removing appellant from her home. Greenway did not enter appellant’s room with the intent to conduct a search — his only purpose was to enable appellant to pack his belongings and then safely escort him out of Hartman’s home.

Officer had reasonable suspicion for stop of a new car with a drive out tag that was not easily visible, although it was determined that the vehicle was in compliance. The question is not whether the vehicle was in compliance; it was whether there was reasonable suspicion to believe it was not at the time of the stop, and there was. The minor was found to be under the influence at the time of the stop. In re Raymond C., 145 Cal. App. 4th 1320, 52 Cal. Rptr. 3d 330 (4th Dist. November 20, 2006, published December 20, 2006).*

Inventory was valid after stop of juveniles for a curfew violation with belief that the car was possibly stolen. The latter also led the officer to believe that the VIN plate was switched, and the vehicle would be towed. A gun and clip were found, but the fact they were not in the inventory was explained by their being booked as evidence. State v. Tisdel, 2006 Ohio 6763, 2006 Ohio App. LEXIS 6682 (8th Dist. December 21, 2006).*

“[E]ven if we assume that the officers violated the rights of Child and his family under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution by entering their apartment without a warrant, the district court properly denied Child’s motion to suppress evidence of Child’s actions attacking the officers within the apartment.” State v. Travison B., 2006 NMCA 146, 149 P.3d 99 (October 16, 2006).

The plaintiffs were a family of four stopped in a remote spot on a Florida highway. The father was a suspect in a drug deal that occurred hours earlier, and that was the justification for the stop. When stopped, he readily consented to a search, and nothing was turned up. The officers kept conferring and finding other ways to search. Nothing was found, and they were ultimately released after four hours on the side of the road. In a § 1983 case tried to a jury for six days in what the judge found was an unusually “clean” trial virtually without error, the plaintiffs recovered a total of $300,000 [before attorneys fees]. McCloud v. Fortune, 2007 U.S. Dist. LEXIS 5292 (N.D. Fla. January 25, 2007). This is an interesting opinion, but just the opening summary is provided here:

ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR

This § 1983 action arises from the prolonged detention of a family of four following a traffic stop on a remote highway after midnight by law enforcement officers who had evidence that the father made a drug sale earlier in the evening. The father (who was driving) readily consented to a search of the car, and officers conducted a thorough search (including with a dog). They found nothing. Officers held the father and the other family members for nearly three hours after the conclusion of the search of the car, releasing them shortly after 4:00 a.m. Holding the family members (other than the father) after completion of the search of the car was lawful if and only if they consented. After a full and fair trial, the properly instructed jury found that they did not consent and awarded both compensatory and punitive damages. Defendants have moved for a new trial or alternatively for remittitur of the punitive damages awards. Because the verdict was fully consistent with the weight of the evidence and the jury’s assessment of damages was reasonable, I deny the motion.

The Eastern District of Arkansas, after a two day court trial, entered an order in an excessive force case awarding the plaintiff $558,000. The officer testified that he was arresting a misdemeanant prone to flee, and a struggle ensued where the officer had to use his baton against the plaintiff, but the plaintiff got the baton away from him and advanced on him so he fired his .357 from 3-4′ away. The court credited the testimony of the plaintiff, corroborated by the medical testimony that plaintiff was shot in the back near the spine and the exit wound was in his stomach. This use of force was objectively unreasonable under the Fourth Amendment. Medicals were $186,000, and pain and suffering was calculated at twice that, $372,000. Cooperwood v. Wages, No. 4:05CV00902 JLH (E.D. Ark. January 25, 2007).* (Update and Comment: Since this was first posted, I have talked to defense counsel (because we have a case together, too), and he said that the defense evidence that supported the plaintiff coming at the officer with the baton which appears in admissions in the medical reports and elsewhere were not even mentioned in the opinion, so the findings will get less deference on appeal, which there definitely will be.)

Plaintiff was a certified boiler maintenance worker for the Cuyahoga Metropolitan Housing Authority (CMHA), and he came to work one day and went to an empty building to use the bathroom. Inside the building, he was confronted by CMHA police who ignored he was working where he belonged, pushed him up against a wall, searched him, peppersprayed him, and left him laying face down in the snow for 45 minutes with pepperspray in his eyes. Their motion to dismiss was denied in part. His excessive force claim was not contested in a F.R.C.P. 12(b)(6) motion. Fuller v. Cuyahoga Metro. Hous. Auth., 2007 U.S. Dist. LEXIS 5387 (N.D. Ohio January 25, 2007).

Officers had defendants under surveillance for marijuana distribution for a long time and had conducted a “sneak and peak” search [which itself necessarily had to be based on probable cause] that did not reveal marijuana but did reveal some incriminating evidence that added to their investigation. The officers saw bags being transferred to cars from a truck and warehouse. They had sufficient suspicion for a stop. United States v. Prentice, 2007 U.S. Dist. LEXIS 5211 (W.D. Wash. January 24, 2007).

No reasonable expectation in a drain spout where a street corner dealer doing hand to hand sales kept his stash. United States v. Lewis, 2007 U.S. Dist. LEXIS 5192 (N.D. Va. January 24, 2007).

(Many cases today; more later.)

An anonymous 911 call said that a meth lab was in a farm building. The caller hung up, and the police could not get the caller to answer the call back, and that was enough to justify the entry. United States v. Elder, 466 F.3d 1090 (7th Cir. November 1, 2006):

A 911 call led to the dispatch of two officers to a farm in Humbolt, Illinois. A caller had told the dispatcher “I think we got meth out here” and added that “suspicious” people were “flying like quails.” The caller hung up, and when the dispatcher called the originating number no one answered. One obvious possibility was that the caller had been injured. Officers saw lights and heard a TV within the farm house, but no one answered knocks on the front or rear doors. The door of a nearby outbuilding was open. (Whether it was open was disputed in the district court; the judge found that it was open and did not commit clear error in doing so.)

Looking through the doorway, the officers saw what appeared to be a laboratory. They entered in search of the caller and did not find him. But what they saw from outside (and both saw and smelled from inside) provided evidence against Elder, the property’s owner. The caller turned out to have been Elder’s father, who had not been abducted or injured — though the officers could not have known that without checking, because even if (as Elder maintains) they knew or should have known that the proprietors of the meth lab were fleeing during the 911 call, the officers could not have known whether they took a hostage (or a life) in the process, or whether some third party was refusing to acknowledge his or her presence, and what danger that person posed (or was in).

The entry into the outbuilding was reasonable, and a warrant was not essential to make it so. The officers acted sensibly in attempting to assure the caller’s safety. The fact that drug dealers often use guns and knives to protect their operations created a possibility that violence had been done, or that someone was still there and lying in wait. So considerations of safety — the caller’s and the officers’ — made a look-see prudent. See Brigham City v. Stuart, 126 S. Ct. 1943 (2006); Maryland v. Buie, 494 U.S. 325 (1990). Everything else followed from there, and the evidence was admissible against Elder. His argument that police cannot take steps to protect a caller’s safety unless they know the caller’s identity and “reliability” would require them to act unreasonably. Many 911 calls are brief, and anonymous, precisely because the speaker is at risk and must conceal the call. These persons are more rather than less in need of assistance.

Comment: My problem with this case is how it works so diabolically: An anonymous 911 caller cannot be reached, so, in a drug case, the police are justified in entering without a warrant because of the mere possibility that the caller was injured by the person he or she was calling about. So, can the police just not call the caller back but say they did and then use that as an excuse to enter? The point really is: if they did not call back but say they did, can the defense ever prove it? Unlikely.

Defendant was stopped for suspicion of transporting illegal aliens, and ICE officer got him out of the car and had him put his hands over his head. To the extent this was a Terry stop, the ICE officer had authority to do so under 8 C.F.R. § 287.8(b). The defendant failed to prove that his Fourth Amendment rights were violated, so he loses. United States v. Ambris-Sebastian, 2006 U.S. Dist. LEXIS 79343 (N.D. Fla. October 31, 2006). Comment: This is incredible: A warrantless arrest and the court holds that the defendant has the burden of proof? Wrong!

Consent was voluntary where the defendant came to the police station saying that he wanted to cooperate and his “life was an open book.” There was no indication that anything was coercive about the situation. United States v. P.A. Landers, Inc., 2006 U.S. Dist. LEXIS 79256 (D. Mass. October 31, 2006).*

Officers walked from lunch to a convenience store to talk to the defendants waiting there whom they had observed from the restaurant as having come from California (a “source state”). A consensual encounter ensued with conversation about the car and travel plans. Officers were formulating reasonable suspicion. Some of the factors were innocuous, but some were not. On the totality, all the information supported the inference that this was a drug run. The defendants were detained while the officers held the paperwork to the car. The officers handed back the paperwork and said they were free to go. Then, one stopped and turned back and asked for consent to search the car which he got. The consent was valid. United States v. Guerrero, 472 F.3d 784(10th Cir. 2007). Comment: This case is interesting in how the court analyzed factors under Arvizu and concluded that individual, potentially innocuous, factors pointed toward reasonable suspicion on the totality for the brief detention. The court credits one officer’s testimony that the differing stories from the occupants were consistent with the likelihood that two people who previously did not know each other were put together to drive the car with the drugs, a common technique of drug trafficking on the highways.

(Court today; more later.)

Officers executing an arrest warrant at a house knocked and got no answer, but heard movement. Somebody also fled out the back door and over a 6′ high fence. One officer looked in a window and saw a closed circuit TV monitor showing the vehicles on the street in front of the house. They had information about drugs and weapons inside, and exigent circumstances thus presented themselves for a warrantless entry because of the apparent threat to the officers’ safety. It was not a manufactured exigency. United States v. Newman, 472 F.3d 233 (5th Cir. 2006):

This case involves officer safety. Exigent circumstances existed if the agents’ fear for their safety was reasonable. See United States v. Howard, 106 F.3d 70, 76 (5th Cir. 1997) (citing United States v. Rodea, 102 F.3d 1401 (5th Cir. 1996)) (“[W]e will not second-guess the judgement of law enforcement officers when reasonable minds may differ.”). The government insists, and the district court found, that at the moment the agents decided to enter the house there was reasonable danger to their safety. Here the agents were first confronted with a individual sprinting from the house and scaling a six-foot wrought-iron fence in an attempt to flee from police. Cf. Vega, 221 F.3d at 799 n.26 (suggesting that flight from police is probative). Then, when the agents, standing before the doorway, saw human movement from behind a curtain, they knew that people were in the house but were not responding to their verbal announcements. Upon seeing the closed circuit TV system and realizing there were people in the house, the present threat of danger was exacerbated when they realized that the dealer, as well as other residents, likely had been watching them through a TV surveillance system. Because the agents already suspected that a drug dealer was in the house, they were reasonable to correlate violence and weaponry with drug dealing. See United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1996) (noting that “firearms are ‘tools of the trade’ of those engaged in illegal drug activites.”) (quoting United States v. Ramos, 71 F.3d 1150, 1158 n. 26 (5th Cir. 1996), cert. denied, 517 U.S. 1227, 116 S. Ct. 1864, 134 L. Ed. 2d 962 (1996)). At that time, the agents were reasonable to believe that the residents were hiding, potentially with weapons, and watching the agents. Anticipation of a violent confrontation was reasonable.

These events alone would lead a reasonable police officer to anticipate danger, even though the agents did not see any weapons before they entered the house. See, e.g., Howard, 106 F.3d at 76 (finding exigent circumstances based on officer safety concerns when there were no visible weapons but the officers suspected there were drugs in a house and there was a crowd of people in front of the house); Rodea, 102 F.3d at 1408-10 (upholding exigent circumstances even though officers had no specific knowledge of any weapons being present but because weapons were common in drug deals). Given the highly deferential standard for reviewing the district court’s conclusion, we do not think that the district court erred in finding that exigent circumstances justified the agents’ entry into Newman’s home.

Next, we assess whether the government’s own action or inaction was the likely cause of the exigent circumstances. See Rico, 51 F.3d at 502 (holding that manufactured exigencies are “an exception to an [exigency] exception.”); Vega, 221 F.3d at 798-99. Officers may not impermissibly create exigent circumstances by revealing their presence in order to alert suspects who would, in response, destroy evidence or put the police in danger. See Vega, 221 F.3d at 800. Here, Newman argues that the exigent circumstances would not have arisen but for the officers’ approaching the house and revealing themselves to the occupants.

When determining whether the exigent circumstances are impermissibly manufactured, we consider “the reasonableness and propriety of the investigative tactics that generated the exigency.” Rico, 51 F.3d at 502 (quoting United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990)). In the instant case, the agents employed a “knock and talk” so they could ask the residents questions about a suspect for whom they had a warrant. This approach has been recognized as legitimate. Jones, 239 F.3d at 720; United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004) (en banc). Thus, the officers did not manufacture an exigency by employing a legitimate investigative tactic.

“Even in a case where there was an individual suffering from severe depression, such a mental disability did not by itself render the defendant’s consent to search and waiver of Miranda rights involuntary. There must be some coercion by an official actor to make the consent and/or waiver involuntary.” Defendant was advised of his right to refuse consent to a search of his computer for child porn, and he consented anyway. United States v. Wendehake, 2006 U.S. Dist. LEXIS 87649 (S.D. Fla. November 30, 2006).

On review by the District Court of an MJ’s R&R, the defendant cannot raise a new issue to suppress the search. United States v. Hunter, 2006 U.S. Dist. LEXIS 87831 (E.D. Tenn. November 30, 2006).