In the Washington Time today is this article: Gonzales to give Congress secret surveillance papers:

Attorney General Alberto R. Gonzales yesterday agreed to hand over to some members of Congress previously secret documents on the government’s domestic terrorist-surveillance program.

Mr. Gonzales, who acknowledged last month that the Foreign Intelligence Surveillance Court had issued orders bringing the program under its jurisdiction, said the documents would be shared with members of the House and Senate intelligence committees and the Senate Judiciary Committee’s chairman and ranking Republican.

The documents, which contain classified information, will not be made public.

The oral argument in American Civil Liberties Union v. National Security Agency is being argued at 3 p.m. Eastern before the Sixth Circuit in Cincinnati.

The oral argument is here.

A California appellate court held yesterday that a patdown solely for identification violates Terry and is unconstitutional. People v. Garcia, 145 Cal. App. 4th 782, 52 Cal. Rptr. 3d 70 (2d Dist. December 14, 2006):

The Attorney General candidly acknowledges “[i]t does not appear that either the California or the United States Supreme Court has specifically decided the issue of whether a limited search of a person for identification following a detention is constitutional.” The Attorney General cites two cases sanctioning such a patdown, State v. Flynn (1979) 92 Wis. 2d 427 and State v. Wilcox (1981) 180 N.J.Super. 452, 435 A.2d 569 and two cases which disallow such a patdown, State v. Biegel (1990) 57 Wn. App. 192 and State v Webber (1997) 141 N.H. 817, 694 A.2d 970.

We need not look to other jurisidictions to decide this case. We would have to indulge in legal legerdemain to justify a patdown search for identification. In fact, it would require a rewriting of Terry v. Ohio, supra, which we could not and would not undertake even if we were so inclined. Here, the record is devoid of any concern that appellant was armed and dangerous. The sole reason for the patdown was to gather evidence of identification.

A fair reading of Terry v. Ohio, and its reference to the lower court opinion in State v. Terry show that the “frisk” allowable upon a proper showing was ” ‘ . . . only a “frisk” for a dangerous weapon. It by no means authorizes a search for contraband, evidentiary material, or anything else in the absence of reasonable grounds to arrest. Such a search is controlled by requirements of the Fourth Amendment, and probable cause is essential.’ ” (Terry v. Ohio, supra, 392 U.S. at p. 16, fn. 12 [20 L. Ed. 2d at p. 903, fn. 12.) Our own Supreme Court has unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156, 161, 107 Cal. Rptr. 13 [pat-down search “only” for weapons].) If stare decisis means anything (and it does) and if the word only means only (and it does), the trial court was required to grant this suppression motion as a matter of law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal. Rptr. 321.)

Defendant’s telephone calls from jail were recorded and admissible at trial, and he knew it because of the warning signs. Therefore, no privacy rights were violated, either under federal or state law, including the California Privacy Act. People v. Windham, 145 Cal. App. 4th 881, 51 Cal. Rptr. 3d 884 (1st Dist. December 14, 2006).

Alleged overseizure of material in a child porn investigation failed as a matter of law. Therefore, defense counsel could not have been ineffective for not having challenged it. Also, the claim that the informant who e-mailed child porn received from the defendant to his local police from Turkey was a government agent was rejected. [Besides, there was no “search” or expectation of privacy in what that actor did.] United States v. Steiger, 2006 U.S. Dist. LEXIS 89832 (M.D. Ala. September 7, 2006).*

Stop based on suspicious presence and with reasonable suspicion in a known drug area for likely dealing drugs carries with it the ability to pat down the suspects because drugs equates with likely presence of firearms. United States v. Gavin, 2006 U.S. Dist. LEXIS 88145 (E.D. Mich. December 6, 2006).

Search warrant was overbroad for various failures to specify the items to be seized and should have been suppressed under Groh. “Neither the officer’s personal knowledge of the crime nor a proper execution of the search may cure an overbroad warrant.” “That the affidavit was attached to the warrant is irrelevant because the warrant did not incorporate the affidavit by reference.” “Moreover, the general reference to evidence of domestic violence second degree assault under RCW 9A.36.021 authorized seizure of items for which there was no probable cause.” “Finally, the warrant failed to differentiate between items subject to seizure and those that were not.” State v. Higgins, 136 Wn. App. 87, 147 P.3d 649 (December 5, 2006):

Here, the warrant in no way limited the search to illicit items. Indeed, the broad reference to RCW 9A.36.021 allowed seizure of such innocuous items as household cleaners, home pregnancy tests, literature with sexual content, and fireplace pokers. And the warrant contained no list of examples to guide the search. Accordingly, the search was executed pursuant to an overbroad warrant and all items seized should have been suppressed.

The defendant having a choice between blood test or urine test did not make consent involuntary. Harrison v. State, 205 S.W.3d 549 (Tex. Crim. App. November 1, 2006), rev’g Harrison v. State, 144 S.W.3d 82 (Tex. App. – Fort Worth 2004):

The Court of Appeals found that “[t]he fact that Harrison’s consent was given to avoid painful physical pressures–more needle sticks, probably in her feet–weighs against voluntariness.” But the court failed to take into account the fact that Harrison did not withdraw her consent to provide a blood specimen before she consented to provide a urine specimen, a less-invasive alternative. So unlike cases where the person’s consent is the result of physical or psychological pressure from law enforcement officials, Harrison willingly chose to give her consent to a painless alternative.

Furtive movements of a traffic detainee who had a prior record for pointing guns gave the officer reason for a vehicle frisk under Long. United States v. Bynum, 2006 U.S. Dist. LEXIS 79289 (D. Minn. August 16, 2006):

This behavior, coupled with Officer Burns’s knowledge that Bynum was driving with a suspended license and had been a suspect in at least two gun pointing incidents, gave Officer Burns sufficient reason to return to the Bronco to perform an inventory search in the event he was going to impound the vehicle and to perform a protective sweep of the Bronco for officer safety.

Comment: The court reached the right result, but phrased everything wrong.

Stop was based on first time confidential informant’s accurate predictive information. The officer walked up to the car and saw meth in plain view on the passenger seat. Cole v. State, 282 Ga. App. 211, 638 S.E.2d 363 (November 1, 2006).*

In another case yesterday, the same court held that a stop based on an informant’s information was valid. The defendant was asked about consent, but he neither agreed nor objected. Another officer asked if he was on parole, and he admitted that he was. His PO was called, and the car was searched on his parole condition and the search was valid. Police were not “stalking horses” for PO, and Knights’ rejection of that rationale is recognized. State v. Cauley, 282 Ga. App. 191, 638 S.E.2d 351 (November 1, 2006).*

911 call that child had OD’ed on methadone justified warrantless entry. Plain view and search warrant followed. State v. Chatterson, 942 So. 2d 646 (La. App. 2d Cir. November 1, 2006).*

Robbery victims’ detailed description of car gave PC to stop it and conduct a search incident when it drove by a police car in the place it was expected to be found. State v. Talley, 2006 Tenn. Crim. App. LEXIS 802 (October 16, 2006).*

A home visit of a probationer is not a search, and a search cannot occur without cause. State v. Moody, 2006 MT 305, 334 Mont. 517, 148 P.3d 662 (November 28, 2006):

Since a home visit is not a search, a probation officer may not open drawers, cabinets, closets or the like; nor may the officer rummage through the probationer’s belongings. While a home visit has the potential to turn into a search pursuant to an officer’s plain view observations, it must remain within the parameters of a home visit unless or until there is reasonable cause to engage in a search.

Everybody fleeing from a Cadillac Escalade on the street amounted to an abandonment. During towing, the towing operator conducted an inventory and found contraband. State v. Branam, 2006 MT 300, 334 Mont. 457, 148 P.3d 635 (November 22, 2006).*

A temporary license tag is not cause for a stop, and that led to a drug dog coming and a search. State v. Johnson, 2006 ND 248, 724 N.W.2d 129 (November 28, 2006):

[*P10] There was no evidence here of erratic driving or speeding, nor did the temporary registration sticker stick out as unusual. Wolf stopped the vehicle because, in his experience, “many people drive on the sticker beyond the thirty days that’s allotted.” However, an officer’s belief “many people” violate the thirty-day temporary registration law is an over-generalization that does not give rise to reasonable suspicion that Johnson’s automobile was not lawfully registered. See United States v. Yousif, 308 F.3d 820, 828 (8th Cir. 2002) (“General profiles that fit large numbers of innocent people do not establish reasonable suspicion.”).

A faded and unreadable temporary tag can, however, justify a stop. State v. Oliver, 2006 ND 241, 724 N.W.2d 114 (November 28, 2006).

On NYTimes.com today, a story that almost sounds like it came from a third-world country: Police Kill Man After a Queens Bachelor Party.

Witnesses told of chaos, screams and a barrage of gunfire near Club Kalua at 143-08 94th Avenue in Jamaica about 4:15 a.m. after Mr. Bell and his friends walked out and got into their car. Mr. Bell drove the car half a block, turned a corner and struck a black unmarked police minivan bearing several plainclothes officers.

Mr. Bell’s car then backed up onto a sidewalk, hit a storefront’s rolled-down protective gate and nearly struck an undercover officer before shooting forward and slamming into the police van again, the police said.

In response, five police officers fired at least 50 rounds at the men’s car, a silver Nissan Altima; the bullets ripped into other cars and slammed through an apartment window near the shooting scene on Liverpool Street near 94th Avenue.

Mr. Bell — who was to have been wed at 5 p.m. yesterday to Nicole Paultre, 22, the mother of his two small daughters — was shot in the neck, shoulder and right arm and was taken to Jamaica Hospital Medical Center, where he was pronounced dead.

The two wounded men, Joseph Guzman, 21, and Trent Benefield, 23, were taken to Mary Immaculate Hospital, where Mr. Guzman was listed in critical condition and Mr. Benefield in stable condition.

Police Commissioner Raymond W. Kelly said at a news conference last night that the men’s car had been hit at least 21 times. He said he did not know what triggered the shooting and that it was too early to tell if it was justified. No guns were found at the scene, and no charges have been filed against the men, the police said.

. . .

The shootings reverberated with echoes of the 1999 police shooting of Amadou Diallo, an unarmed street vendor and Guinean immigrant who was killed in the vestibule of his Bronx apartment by four police officers who were later acquitted of criminal charges in his death. That killing raised questions of racial profiling and excessive force by the police.

In deadly force cases, as a practical matter, the police always get the benefit of the doubt. I’ve tried a few, and they are tough. In Diallo, they at least had his cellphone as a scapegoat for shooting in the dark. Here, what will be the asserted justification for 50 shots?

Defendant’s mere possession of a vehicle did not give him standing because he could show no legitimate connection to the car. United States v. Lopez-Gutierrez, 2006 U.S. Dist. LEXIS 86319 (D. Utah November 21, 2006):

Moreover, Defendant has failed to produce evidence to counter the Government’s evidence that Defendant did not, in fact, know the owner of the vehicle, and therefore, could not legitimately be in possession of it. Although the Court believes that the difference in locations of the purported cousin and the state of registration is insignificant, that Defendant had to look at the registration to ascertain the name of the owner, and did not know the last name of his purported cousin, are significant. Such facts indicate that Defendant did not know the owner of the vehicle, and was not lawfully in possession of the vehicle.

Officers had probable cause to detain defendant based on a video that showed a hand-to-hand sale. United States v. Davis, 2006 U.S. Dist. LEXIS 86397 (N.D. Ind. November 20, 2006).*

Traffic stop was valid, and license produced was suspended. Officer noticed baggie of marijuana while defendant was looking for papers for car. Search incident or automobile exception supported the search. United States v. Hill, 2006 U.S. Dist. LEXIS 86320 (W.D. Ky. October 6, 2006).*

IAC claim fails because petitioner failed to show that any search claim would win. Talley v. United States, 2006 U.S. Dist. LEXIS 86401 (E.D. Tenn. November 27, 2006).*

2000 blood draw in a rape case was valid and it mooted defendant’s argument that the 1998 blood draw was invalid because of inevitable discovery. State v. Gregory, 2006 Wash. LEXIS 890 (November 30, 2006).

Particularity was lacking for part of a warrant as to the items to be seized by the state’s use of a cross reference to a statutory definition of “documentary evidence” which was really overbroad as applied here. United States v. Joe, 2007 U.S. Dist. LEXIS 5282 (N.D. Cal. January 10, 2007):

The third sentence and fourth sentences of the warrant are problematic, however. The third sentence authorized the seizure of “all documentary evidence defined in California Penal Code 1524(f) including, all U.S. currency, buyer/seller lists, records of marijuana cultivation, trafficking, and money laundering.” California Penal Code Section 1524(f) states, “documentary evidence” includes, but is not limited to, “writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description.” Cal. Penal Code § 1524(0. Although there was probable cause to search for U.S. currency, buyer/seller lists, and records of marijuana cultivation and trafficking, there was not probable cause to seize evidence of money laundering (as the government concedes), nor was there probable cause to search for all of the “documentary evidence” listed in Section 1524(f). Section 1524(f) is written extremely broadly to include, inter alia, “papers of any type or description.” The warrant could easily have been written to limit the “documentary evidence” to be seized to material with a connection to marijuana cultivation or distribution. Instead, the warrant authorized the seizure of any writings, documents, papers, etc., whether or not they were connected to marijuana cultivation. This language was overbroad, see United States v. Kow, 58 F.3d 423, 426-27 (9th Cir. 1995), and the Court severs the language “all documentary evidence defined in California Penal Code 1524(f)” and “money laundering” from the warrant. See Fulbright, 105 F.3d at 453. Any evidence obtained pursuant to this portion of the warrant is suppressed. See United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994).

The fourth sentence of the warrant authorized the seizure of “computers and related or similar devices, and information on hard or floppy drives, which may contain any documents or records as described above.” This sentence does not contain any specific limitation to criminal conduct, and instead simply references “documents or records as described above.” However, as discussed supra, a portion of the preceding sentence authorized the seizure of, inter alia, “papers of any type or description.” Because this language is overbroad, the fourth sentence’s incorporation of that language similarly renders the fourth sentence defective. Accordingly, the Court severs this sentence and suppresses any evidence seized pursuant to this portion of the warrant. See id.

A veteran detective testified at a Franks hearing that he has never put named informants’ criminal histories into an affidavit and he never will. Luckily for the government, it did not change the outcome because probable cause was otherwise shown, but the district judge did not like it. United States v. Heer, 2007 U.S. Dist. LEXIS 5151 (D. Ore. January 19, 2007):

“There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine ‘(t)he criminal is to go free because the constable has blundered.'” Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). This case represents a classic example of sloppy police activity in what should have been a simple warranted search and seizure, now made into a difficult legal issue not because of ignorance, but because of the stubbornness of the veteran officer-in-charge to change his ways and comply with current protocols. Law enforcement officers have ready access to the Oregon State Police Law Enforcement Data System (“LEDS”), a computerized database that is the primary source of criminal history information in Oregon, either through a radio dispatch center or a dedicated computer terminal at their agency’s office. (Decl. of Investigator James Strupp in Support of Mot. to Suppress (# 18) hereafter “Strupp Decl.”) at 3, PP8-9.)

Detective Davis testified during the Franks hearing that he did not learn how to perform LEDS checks, and did not run one on Sadie Lamberson because it was his standard practice not to perform criminal history and background checks when statements from a named (as opposed to a confidential) informant were used in a supporting affidavit. The simple act of disclosing to the magistrate who issued the warrant the history of drug use and accompanying criminal background of Ms. Lamberson would have provided a constitutionally solid foundation for the search warrant executed at 1245 Tutuilla Road, because there would then be no question that the magistrate had all of the information needed to assess Ms. Lamberson’s credibility and reliability as an informant.

. . .

I am satisfied that Detective Davis did not omit the details of Ms. Lamberson’s criminal background with the intent to deceive the magistrate who was reviewing the warrant application. However, Detective Davis admitted that he did not include the above information because he never had before and did not want to change his ways to conform to current practices. Such disregard of protocol is, at the very least, reckless; the good faith exception to the Fourth Amendment provided in United States v. Leon, 468 U.S. 897 (1984), does not salvage what otherwise could have been an oversight or inadvertent mistake. Therefore, the issue remains: “Would the omitted information about the informant’s background have affected the decision of the magistrate who issued the warrant on August 4, 2005?” I conclude that the answer is, “No.”

47 minute delay in arrival of the drug dog was permissible because there was reasonable suspicion. If this were just a traffic stop and they waited that long for a drug dog, it would have been unreasonable. United States v. Kelley, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006, filed January 18, 2007).

NYC Sanitation officers entered plaintiff’s paper and cardboard recycling business property following a private hauler’s truck to inspect it. He sued over the entry, and they moved to dismiss on the ground that the recycling business held a permit and that made it closely regulated. The district court disagreed and denied the motion to dismiss without developing the record much more. Based on what was presented thus far, the court cannot conclude that the recycling business fits the Burger test for a closely regulated industry. Meserole St. Recycling, Inc. v. City of New York, 2007 U.S. Dist. LEXIS 4580 (S.D. N.Y. January 23, 2007).

Execution of a nighttime search warrant was permissible under 21 U.S.C. § 879 even though F. R. Crim. P. 41 limited nighttime searches. The Sixth Circuit has not held that special rules govern execution of nighttime searches. Plaintiff’s handcuffing in her bed with flashlights shining in her face at night was not unreasonable. (The probable cause for obtaining the warrant not being at issue.) All of plaintiff’s claims fall within the realm of a reasonable exercise of police authority in controlling the situation during the execution of a search warrant, even at night. Taylor v. City of Detroit, 2007 U.S. Dist. LEXIS 4587 (E.D. Mich. January 23, 2007).

Defendant had been arrested, handcuffed, and placed in a police car by the DEA. After being advised of a right to refuse consent, he refused consent to search his house, and the officers then got on a cellphone to call to see about getting a search warrant. Then the defendant consented to the search. On the totality of the circumstances, his consent was valid. United States v. Woods, 2007 U.S. Dist. LEXIS 4529 (D. Idaho January 22, 2007). (Note: The officers also had an admission from a jail telephone call to a woman that he consented to the search that was used at the suppression hearing.)

Defendant was involved in a traffic stop just before 3 a.m. in an SUV. When the officer ran his name, the driver came back as being involved in thefts. On the video, the officer mentioned that he was not accusing the defendant of anything but that his name had come up as being involved in some thefts, and the officer asked for permission to get the serial numbers off some car parts in the back of the SUV. The defendant consented to this search, and a gun was found. The search was valid. United States v. Bauer, 2007 U.S. Dist. LEXIS 4517 (N.D. Iowa January 22, 2007).

Defendant who broke into his parent’s house because he had been kicked out and had no key had no standing to challenge the police search of the house on the parent’s call to the police about the break-in. United States v. Ochse, 2007 U.S. Dist. LEXIS 4515 (D. S.D. January 19, 2007):

Although defendant formerly lived in his parents’ home, it is of no consequence now. At the time of the search, defendant did not live in his parents’ residence. This fact was corroborated by defendant’s father during his contact with the sheriff’s department as he reported defendant’s break-in. Defendant was not in possession of a house key and had no other way to access the home when his parents were not present; rather, defendant used extreme force to enter the house.

Soon, the right margin will have links to slip opinions so those without Lexis or Westlaw will be able to get opinions as soon as possible.

It will look like this, and you can scroll down to this until it is on the right margin:

Latest Slip Opinions:
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First Circuit
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Third Circuit
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Eighth Circuit
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Some U.S. District Courts post major decisions publicly on their websites so one does not have to access them through PACER. Looking through all 93 federal district court websites would not be productive because so few cases end up publicly posted that it is not worthwhile.

Plaintiff was arrested by a casino security guard for playing with another person’s player’s card and then disorderly conduct when confronted. Nevada law, NRS § 465.101, gives casino security the authority to arrest, and the casino turned the plaintiff over to the police. The case stance was one of plaintiff’s motion for summary judgment, but the court denied it because plaintiff’s Fourth Amendment rights were not violated, and the court invited defendants to file their own. Miura v. Riverside Resort & Casino, Inc., 2006 U.S. Dist. LEXIS 76223 (D. Nev. October 13, 2006).

Stop on a bus was valid even though the officer was armed. The defendant should have felt free to ignore [the looming] officer’s questions [yeah, right]. United States v. Cuevas-Robledos, 2006 U.S. Dist. LEXIS 76300 (D. Ore. October 5, 2006):

In this case, Agent Velarde was wearing the uniform of a border patrol agent and was carrying a gun in a holster when he announced generally to those in the bus station that he was a border patrol agent and wanted to see immigration papers of those who were not United States citizens. The record does not contain any evidence that Agent Velarde removed his gun from its holster or obstructed the path to the exit of the bus station until, of course, he grabbed Defendant’s arm. Although Agent Velarde did not announce the right to refuse to show the documents, this factor is not dispositive. See id. at 201.

The Court notes Defendant’s focus on Agent Velarde’s restraint of Defendant is misplaced at this step in the analysis because the Court first must look to whether Agent Velarde’s contact with people in the bus station at large was consensual. After considering the Drayton factors and the totality of the circumstances, the Court concludes a reasonable person would have felt free to decline to speak to Agent Velarde at the moment he announced he wanted to see immigration documents.

Plaintiff adequately alleged, inter alia, a Fourth Amendment claim for the City’s taking of his property by demolishing a building, allegedly without cause. It was alleged as a due process claim, but the “textual source” of the claim is the Fourth Amendment under Soldal. Sula v. City of Watervliet, 2006 U.S. Dist. LEXIS 76133 (N.D. N.Y. October 19, 2006).

Probable cause existed from two informants. One correctly identified the suspects including their cars [which does not mean much in itself]. The other corroborated details of drug activity, and that gave PC. United States v. Sandoval-Espana, 459 F. Supp. 2d 121 (D. R.I. October 18, 2006).*