Defendant’s personal computer was connected in his dorm room to the Air Force computer network at the Prince Sultan Air Base in Saudi Arabia. The defendant failed to set up sufficient security measures to block access to the computer by others through the system. When officers searched his room for the computer, it was treated as a workplace search under O’Connor v. Ortega. United States v. King, 2006 U.S. Dist. LEXIS 86370 (M.D. Ala. November 28, 2006). As to standing:

The Defendant objects to the finding that the Defendant did not have a reasonable expectation of privacy in the computer files located on his personal computer in his private dorm room on the Prince Sultan Air Base. Normally, courts likely would afford a reasonable expectation of privacy to computer files located on a personal computer in a private dorm room. In this particular situation, however, the Defendant connected the computer to the Air Base’s network. Through this connection to the network, others could view the Defendant’s computer files because of network policies and implemented procedures. Defendant admittedly was aware of such policies and procedures. Defendant attempted to install security settings on his personal computer that would override the network policies, but this attempt ultimately was unsuccessful. Furthermore, the Defendant never took any measures to assure that his security settings were functioning appropriately.

. . .

Most important, the defendant in Katz had no reason to believe that the privacy of his conversation was at risk. He stepped into a public phone booth, closed the door behind him and placed a call with no knowledge of any potential surveillance. In contrast, the Defendant in the present situation connected his computer to the Air Base’s network, knowing that the users of that particular network were subject to monitoring of their traffic and activities. By connecting to the network and exposing his computer to the network’s “share,” the Defendant placed his computer files in plain view for other users of the network. His local settings attempted to limit that access, but were unsuccessful. He would have known that if he had attempted to access his personal computer from an outside computer, but he did not.

As opposed to merely seeking to preserve privacy like the defendant in Katz, the Defendant in this case consciously exposed his computer files to anyone using the network and subsequently attempted to thwart the others’ access to these files. In order to have a reasonable expectation of privacy for those files, however, the Defendant would have to assure that the measures taken were successful. He did not. Therefore, he had no reasonable expectation of privacy.

As to the workplace search:

If the Defendant had no reasonable expectation of privacy, then he has no standing to object to the search. The Magistrate Judge’s Recommendation notes this, but then further analyzes whether the warrantless search conducted by Sgt. Lamar, the Base’s information protection officer, was nonetheless appropriate because of its nature as a workplace search. The Magistrate Judge ultimately found, as her Recommendation reflects, that the search was appropriate as a workplace search. The Defendant contends that the court’s finding that the government conducted a proper workplace search is erroneous.

The objection contends that this search by Sgt. Lamar was part of a criminal investigation authorized by Sgt. O’Brien, and, as such, it could not be a workplace search. This characterization of workplace search law, however, is inaccurate. As the evidence indicates, Sgt. Lopez initially found pornographic files violating General Order-1A (an order preventing the possession of any pictures depicting the female body between the neck and the knees, which was offensive to the Saudis). Lopez reported this finding to Sgt. O’Brien, who asked Sgt. Lamar to investigate. The testimony is not entirely clear whether a criminal investigation had begun at this point in time or not. Regardless, even assuming that Sgt. Lamar’s search was part of a criminal investigation, this search also was based on work-related misconduct, the violation of General Order-1A. As the Supreme Court noted in O’Connor v. Ortega, 480 U.S. 709, 711 (1987), the probable cause requirement is sometimes impracticable “for legitimate work-related, non-investigatory intrusions as well as investigations of work-related misconduct…. [P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes as well as investigations of work-related misconduct should be judged by the standard of reasonableness under all circumstances.” The highlighted language above indicates that, even though Sgt. Lamar’s search of the Defendant’s files was arguably part of a criminal investigation, that investigation was also an investigation of work-related misconduct. Essentially, they were one in the same. Therefore, merely arguing that the search was part of a criminal investigation does not automatically defeat the search’s contemporaneous status as a workplace search.

Comment: Other courts are contra. This court grants more deference to the government than some other cases.

Officers responding to a disturbance with gunshot found the complainant who was complaining about her live-in boyfriend firing a sawed off shotgun in the house. She validly consented to a search. United States v. Parker, 469 F.3d 1074 (7th Cir. December 1, 2006).*

A malicious prosecution claim cannot be brought under § 1983. Albright v. Oliver, 510 U.S. 266, 268, 271, 274-75 (1994). Whitesides v. Rye, 2006 U.S. Dist. LEXIS 86314 (D. Neb. November 27, 2006).

This came to me by local e-mail last night, so I assume that it is floating around the internet and some of you may already have seen it: A classic piece from the Andy Griffith show entitled on YouTube as Andy Griffith vs. Patriot Act. (If you’ve never been to YouTube, you will have to register, but it is quick and painless and YouTube does not spam you.)

The Wisconsin gaming authorities had the power under state law to unrestricted access to kennel areas at a racing dog track. The plaintiff leased her kennel, had the ability to exclude others and could have a locked file cabinet in the area. Covert video survellance was set up to see if plaintiff was doping the dogs, and she was. The surveillance exceeded the state’s regulatory power. However, the court granted summary judgment for the defendants because their conduct, while unlawful, was objectively reasonable at the time. Diercks v. Wisconsin Dep’t of Admin., 2006 U.S. Dist. LEXIS 92196 (E.D. Wis. December 20, 2006). As to the merits of the surveillance:

2. Necessity of Warrantless Video Surveillance

A warrantless inspection in a pervasively regulated industry must also be necessary to further the regulatory scheme. See Lesser, 34 F.3d at 1306 (citing Burger, 482 U.S. at 702). A random, unannounced inspection like those in Dewey and Burger would likely pass constitutional muster. However, this case is unique because the warrantless search continued uninterrupted for two months via video surveillance. Covert video surveillance, while not a Fourth Amendment violation per se, is subject to strict constitutional requirements. A warrant for video surveillance satisfies the Fourth Amendment only if normal investigative techniques were tried and either failed, appeared unlikely to succeed, or appeared to be too dangerous. See Torres, 751 F.2d at 883-84; see also United States v. Falls, 34 F.3d 674, 680, 682 (8th Cir. 1994); United States v. Koyomejian, 970 F.2d 536, 542 (9th Cir. 1992); United States v. Mesa-Rincon, 911 F.2d 1433, 1438 n.5 (10th Cir. 1990).

Defendants argue that covert video surveillance was necessary because of the difficulty of detecting Boldenone in a greyhound’s system. That at least arguably rules out urine testing as a means to detect the suspected illegal behavior, but it is unclear why a random, unannounced physical search would have been presumptively ineffective. Defendants did not attempt to obtain a warrant for their video surveillance, and they did not even attempt a random, unannounced in-person search of Diercks’ kennel. Defendants have not argued, much less established, that a random, unannounced in-person search of Diercks’ kennel would have been unlikely to succeed if tried. Defendants make a vague reference to the element of surprise, but random and unannounced physical inspections are routine and expressly authorized by the statutory and regulatory scheme. The element of surprise could have been effectively maintained using less invasive procedures. Therefore, Defendants have failed to establish the necessity of covert video surveillance.

3. Adequate Substitute for a Warrant

Finally, a warrantless search of a pervasively regulated industry must provide an adequate substitute for a warrant. This is accomplished, in part, by limiting the discretion of the inspecting officers. See Lesser, 34 F.3d at 1306 (citing Burger, 482 U.S. at 702). In the context of covert video surveillance, the discretion of the officers must be limited to the type of communication sought to be intercepted and the particular offense to which it relates. See Torres, 751 F.2d at 883; Falls, 34 F.3d at 680; Koyomejiam, 970 F.2d at 542; Mesa-Rincon, 911 F.2d at 1438 n.5.

Defendants have provided no indication that the scope of the surveillance was limited in any manner. It is “unarguable that television surveillance is exceedingly intrusive . . . and inherently indiscriminate, and that it could be grossly abused to eliminate personal privacy as understood in modern Western nations.” Torres, 751 F.2d at 882; United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987) (“This type of surveillance provokes an immediate negative visceral reaction; indiscriminate video surveillance raises the spectre of the Orwellian state”). Hidden video surveillance “may be considered far more invasive than conventional investigative techniques — for the camera sees all, and forgets nothing.” Constitutionality of Secret Video Surveillance, 91 A.L.R. 5th 585, § 2 (2001). By all accounts, Defendants’ uninterrupted video surveillance was unlimited in scope and afforded the inspecting officers nearly unbridled discretion. Therefore, the manner of the Defendants’ surveillance failed to provide an adequate substitute for a warrant.

As to qualified immunity:

The Court’s concern, with respect to the constitutionality of the searches, is with the necessity and scope of the video surveillance. However, the “unrestricted access” “at all times” language in the lease agreement, mandated by Wisconsin statute and administrative code, supports the conclusion that Diercks waived any expectation of privacy in her kennel. While the Court finds, as a matter of law, that this language does not constitute a waiver of Diercks’ right to be free from covert video surveillance in her kennel unit, it was objectively reasonable for the Defendants to conclude that Diercks’ rights were waived based on the broad language in the lease agreement.

Bankrupt doctor had a reduced expectation of privacy in his records in a storage building. They were the property of the bankruptcy trustee. The FBI had served a subpoena duces tecum on the doctor, but he explained that the records were under the control of the trustee. A truck that had been used to transport the documents was padlocked by the FBI and seized later. United States v. Andujar, 2006 U.S. App. LEXIS 31427 (3d Cir. December 20, 2006) (unpublished):

Andujar did not carry his burden to show a reasonable expectation of privacy in the storage unit the government entered to seize documents related to Medi-One Stop. Andujar informed the FBI that the storage unit contained documents that were the subject of a lawful subpoena related to the investigation into his bankrupt medical practices. As a bankruptcy debtor, he had a reduced expectation of privacy in such documents. See In re Barman, 252 B.R. 403, 414 (E.D. Mich. 2000) (noting “debtors who have filed for bankruptcy relief must have a significantly reduced expectation of privacy in their ‘houses, papers, and effects’ that society is prepared to recognize as reasonable”).

Vehicle search incident for reckless driving and operating on a suspended license was valid. Officer did not need independent justification to believe the passenger was involved to order him out of the vehicle. Thornton was intended to create a bright line rule that was easy to follow. United States v. Tillman, 2006 U.S. Dist. LEXIS 92056 (E.D. Ky. December 20, 2006).*

An officer who made three attempts to determine the validity of a felony arrest warrant and was never told that the plaintiff had already surrendered on the charge and was instead told that the warrant remained valid had qualified immunity from suit. Also, when informed that the plaintiff had already posted bond, the officer quit looking for him. [Plaintiff also sued over the fact that she had entered various places, with consent, to look for him, to which he had no expectation of privacy, and he was never actually “seized.”] Daniel v. Wilson, 2006 U.S. Dist. LEXIS 92134 (W.D. Ky. December 19, 2006).

Officers obtained a search warrant for defendant’s motel room, and the SWAT team was assembled and briefed. They knew that defendant was a convicted felon and was likely armed. When they arrived at the motel, defendant’s vehicle was not there, but it was found nearby with two men in it. Officers approached the vehicle and saw furtive movements of the occupants stuffing things around the seats. There was sufficient cause for a Terry stop. United States v. Perry, 2006 U.S. Dist. LEXIS 92762 (W.D. Va. December 22, 2006):

At the time the defendant was seized, officers knew of several factors which combined to create reasonable suspicion. First, the officers knew that the defendant was a convicted felon, who was reported to carry a firearm. Second, the officers were aware that a search warrant had been issued as to the defendant and the defendant’s motel room. Third, the officers observed the men in the car appear to stuff something between the driver’s seat and center console of the vehicle. Based on the above factors, the court concludes that the stop and search of the defendant was justified by reasonable suspicion when examined under the totality of the circumstances.

Defendant’s encounter with the ATF investigating a burglary that netted at leat 20 firearms was deliberately extended and played by him to try to find out what the police knew. [The facts are convoluted and interesting, but the victim got a telephone number of calls to his house when he was gone that the police were able to get the subscriber information and go talk to the caller, and that led to discovery of a vehicle seen near the victim’s house.] United States v. Dimott, 2006 U.S. Dist. LEXIS 92735 (D. Me. December 21, 2006).*

Officers had probable cause to arrest the defendant at the address specified in the search warrant because of the fact he was observed there selling drugs. When he was stopped during the search and his actual address was determined to be elsewhere, the probable cause did not dissipate. United States v. Davenport, 2006 U.S. Dist. LEXIS 92685 (E.D. Mich. December 22, 2006).*

On CNN.com this evening is this story: Police want bullet in teen’s forehead:

In the middle of Joshua Bush’s forehead, two inches above his eyes, lies the evidence that prosecutors say could send the teenager to prison for attempted murder: a 9 mm bullet, lodged just under the skin.

Prosecutors say it will prove that Bush, 17, tried to kill the owner of a used-car lot after a robbery in July. And they have obtained a search warrant to extract the slug.

But Bush and his lawyer are fighting the removal, in a legal and medical oddity that raises questions about patient privacy and how far the government can go to solve crimes without running afoul of the constitutional protection against unreasonable searches and seizures.

“It’s unfortunate this arguably important piece of evidence is in a place where it can’t be easily retrieved,” said Seth Chandler, a professor at the University of Houston Law Center. “You have to balance our desire to convict the guilty against the government not poking around our bodies on a supposition.”

The relevant case is Winston v. Lee, 470 U.S. 753, 760 (1983):

The reasonableness of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure. In a given case, the question whether the community’s need for evidence outweighs the substantial privacy interests at stake is a delicate one admitting of few categorical answers. We believe that Schmerber, however, provides the appropriate framework of analysis for such cases.

Winston involved a search by surgery, but the search in that case was more intrusive than this one appears, and the Supreme Court held that the search was unreasonable because of the risks to the patient. The truth seeking function of the criminal justice system had to take a back seat to the rights of the individual in Winston’s case.

Will Mr. Bush get the same ruling? From what I’ve read, likely not.

As an aside, and a matter of history, when I was in the Prosecuting Attorney’s Office in Little Rock in the 1970’s, we sought removal of a bullet from the body of a police officer accused of a sexual assault. The eyewitness testimony was shaky, because it was night and involved a home intrusion. The assault victim’s father heard the attack and shot the assailant with a .22, and the bullet in this person was under the skin on the opposite side from the entry wound, apparently having travelled around the ribcage to the other side of the body. After I researched the issue, the search warrant was pursued in an adversary proceeding naming the person to be searched as a respondent. Ultimately, the warrant was upheld, and he was ordered in for the surgery which would be under a local anesthetic. By then, there was a scar where the bullet was, and no bullet. We believed he just cut it out himself since a doctor would have to report the gunshot wound.

As a baby lawyer, that was how I learned about intrusive searches of the body for physical evidence in a significant crime.

The First Circuit held yesterday that Hudson v. Michigan has to apply to arrest warrants. United States v. Pelletier, 469 F.3d 194 (1st Cir. November 28, 2006):

During its last term, the Supreme Court held that a violation of the “knock and announce” rule in the course of executing a search warrant did not justify the suppression of evidence subsequently discovered. See Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). This appeal requires us to determine whether Hudson should be extended to a knock and announce violation committed in the course of executing an arrest warrant. We conclude that the Hudson Court’s reasoning mandates such an extension.

. . .

It is black-letter law that an arrest warrant carries with it, by implication, a limited grant of authority to enter the target’s residence so long as there is reason to believe that the target is inside. See Payton v. New York, 445 U.S. 573, 603 (1980). Generally speaking, this principle extends to the target’s hotel or motel room, since such an accommodation is akin to a temporary residence. See Stoner v. California, 376 U.S. 483, 490 (1964); United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004); see also United States v. Weems, 322 F.3d 18, 22 (1st Cir. 2003) (noting in dictum that if the defendant “effectively lived” where he was found, “the arrest warrant itself would be enough to authorize entry . . . to effectuate his arrest”).

Accidental finding of child porn in a box in a university storage room that could be linked to plaintiff led to a seizure of the hard drive from plaintiff’s university office computer to determine whether the university’s computer policy had been violated. The campus police made the seizure and search, and it was with reasonable suspicion. The defendants have qualified immunity. Soderstrand v. Oklahoma ex rel. Board of Regents of Oklahoma Agric. & Mech. Colleges, 2006 U.S. Dist. LEXIS 85402 (W.D. Okla. November 22, 2006).

Defendant providing officer a counterfeit green card was reasonable suspicion. United States v. Quintanilla, 2006 U.S. Dist. LEXIS 85314 (W.D. Pa. November 22, 2006).*

Call about a drug dealer did not constitute reasonable suspicion for a stop when it did not describe a person or a particular place. United States v. Martin, 2006 U.S. Dist. LEXIS 85436 (M.D. Tenn. November 22, 2006):

The deputies had received a dispatch from someone who identified herself as Christina Beasley. There is no suggestion that this individual was known by these officers, let alone that she was a credible individual. Even assuming Beasley was credible, all she reported was that “he” was using or selling drugs in the house. The officers had absolutely no description of the purported drug user or seller. Even the location of the house was not established by the call and the trace only narrowed the location to two different houses.

W.D. Tenn., with prior encouragement from the Sixth Circuit, conflates probable cause determination into the good faith exception and essentially decides them as one question, of course finding that the GFE applies. United States v. Keller, 2006 U.S. Dist. LEXIS 85438 (W.D. Tenn. November 22, 2006):

In this case, the affiant averred before the issuing judge that the alleged victim told him her father had sexual intercourse and viewed pornographic movies, books and pictures with her. Therefore, he sought a warrant to search Keller’s residence for “pornographic movies, magazines and electronic photographs stored on a computer.” (Trans., Ex. 1) While there is some factual basis for a probable cause finding as to the computer, it is a close question. Nonetheless, pornographic movies and pictures could be found or stored on a computer which was located inside the Defendant’s house. See Davis, 111 F.3d at 1478-79 (search warrant directing officers to search for items pertaining to the display of pornographic material in violation of state obscenity law encompassed computer equipment falling into that category, as the item was one that might be evidence of such activity). The issue need not be resolved, however, as the evidence of pornography contained on the computer escapes exclusion by virtue of the good faith exception to the warrant requirement articulated by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), even if the nexus between the computer and the pornographic images alleged were too tenuous to establish probable cause. See United States v. McCraven, 401 F.3d 693, 698 (6th Cir.), cert. denied, 126 S.Ct. 639, 163 L.Ed.2d 517 (2005) (close question of whether warrant supported by probable cause need not be resolved because denial of motion to suppress proper under Leon); see also Irving, 452 F.3d at 125 (“in a doubtful case, we accord preference to the warrant”). The Leon exception “allows for the inclusion of evidence obtained by an invalid warrant if the officers reasonably and in good faith relied on the warrant at the time the search was conducted.” United States v. Pruitt, 458 F.3d 477, 480 (6th Cir. 2006) (citing Leon, 468 U.S. at 922, 104 S.Ct. 3405). “The relevant question is ‘whether a reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.” McCraven, 401 F.3d at 698 (quoting Leon, 468 U.S. at 922 n.23, 104 S.Ct. 3405). “The rationale behind the exception is that the exclusionary rule is meant to deter unlawful police conduct.” United States v. Abboud, 438 F.3d 554, 578 (6th Cir. 2006), cert. denied, 127 S.Ct. 446, 75 U.S.L.W. 3106, 75 U.S.L.W. 3204, 75 U.S.L.W. 3205 (U.S. Oct. 16, 2006) (No. 06-348).

CNETnews.com has this article by Declan McCullagh and Anne Broache: FBI taps cell phone mic as eavesdropping tool.

The FBI appears to have begun using a novel form of electronic surveillance in criminal investigations: remotely activating a mobile phone’s microphone and using it to eavesdrop on nearby conversations.

The technique is called a “roving bug,” and was approved by top U.S. Department of Justice officials for use against members of a New York organized crime family who were wary of conventional surveillance techniques such as tailing a suspect or wiretapping him.

Nextel cell phones owned by two alleged mobsters, John Ardito and his attorney Peter Peluso, were used by the FBI to listen in on nearby conversations. The FBI views Ardito as one of the most powerful men in the Genovese family, a major part of the national Mafia.

The surveillance technique came to light in an opinion published this week by U.S. District Judge Lewis Kaplan. He ruled that the “roving bug” was legal because federal wiretapping law is broad enough to permit eavesdropping even of conversations that take place near a suspect’s cell phone.

Kaplan’s opinion said that the eavesdropping technique “functioned whether the phone was powered on or off.” Some handsets can’t be fully powered down without removing the battery; for instance, some Nokia models will wake up when turned off if an alarm is set.

The case is United States v. Tomero, 2006 U.S. Dist. LEXIS 85560 (S.D. N.Y. November 27, 2006).

Continuing from the CNET article with the links intact (I encourage readers to check the links):

The U.S. Commerce Department’s security office warns that “a cellular telephone can be turned into a microphone and transmitter for the purpose of listening to conversations in the vicinity of the phone.” An article in the Financial Times last year said mobile providers can “remotely install a piece of software on to any handset, without the owner’s knowledge, which will activate the microphone even when its owner is not making a call.”

Nextel and Samsung handsets and the Motorola Razr are especially vulnerable to software downloads that activate their microphones, said James Atkinson, a counter-surveillance consultant who has worked closely with government agencies. “They can be remotely accessed and made to transmit room audio all the time,” he said. “You can do that without having physical access to the phone.”

So far, this phenomenon is limited by the wiretap law, but where will it end? Where else will the government seek to use a dormant cellphone as an eavesdropping device?

The Atlanta Journal-Constitutional reported Sunday in the SWAT shooting case Police recording reveals urgency after shooting. The press finally got the tapes after an open records request. The officers appear concerned for themselves and not for the elderly person they shot during the drug raid.

There is a clear sense of urgency in their voices on the recorded conversations, and moments of brief shouting can be heard as officers work to coordinate their efforts.

About eight minutes after the initial call for help, a dispatcher repeatedly asks about the condition of the wounded officers. In response, another officer lists their injuries, saying, “We’ve got one in the arm, one in the leg, one in the shoulder.”

There are many references to the wounded officers, but little talk of Johnston. Officers refer to her as a “perp,” or perpetrator. There were no calls for medical assistance for Johnston, who was pronounced dead at the scene.

Maybe they already knew she was dead, but the article mentions nothing about her condition.

At any rate, the police fraternity would be more concerned for the fellow officers that were shot than the person they shot. The fact she fired a gun at them was reason enough to ignore her bullet wounds?

A Texas court holds that an unMirandized question to a detainee who fled a stabbing “Where’s the knife?” was valid under the public safety exception. The officer saw defendant’s vehicle flee from a crowd where a man who had been stabbed was lying on the ground. When he caught the defendant, as he was handcuffing him, he asked “Where’s the knife?” and the defendant told him he dropped it in the crowd. Russell v. State, 2006 Tex. App. LEXIS 9997 (Tex. App. — Waco November 15, 2006):

From these cases, it is clear that the public safety exception is merely an exception to the prophylactic requirements that Miranda warnings be given but not an exception to the substantive rights found in the Fifth Amendment. The privilege against self-incrimination in the Fifth Amendment and the constitutionally mandated Miranda rights are implicated by a custodial interrogation, regardless of whether the accused has been made aware of them. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378 (1981). Thus, we conclude that the public safety exception simply allows police to forego the reading of Miranda warnings, but the situation, nonetheless, is a custodial interrogation implicating one’s constitutional rights.

Less intrusive measures for inventory not required where the defendant was arrested from driving without a license and the vehicle would be left on the side of the road until the defendant could get out and reclaim it. Jones v. State, 856 N.E.2d 758 (Ind. App. November 15, 2006)*:

Regarding the first part of the community caretaking function test, the belief that the vehicle posed a threat or harm to the community, Jones argues that, as in Taylor, his car was not in an illegal location and did not pose a hazard to other drivers. He asserts that this is evidenced by the fact that it is common to see vehicles parked on the side of the road and that he was detained on the side of the road for over an hour. He contends that pursuant to Taylor, the proper procedure was for a police officer to move his car or allow him to contact a friend or relative to move the car.

We cannot agree with Jones’s suggestion that Taylor requires police officers to move a dangerously parked car themselves or to allow the driver to contact a friend to move the car. Although our supreme court does reference these options, the context of these references involved cars safely parked in parking lots or on private property, not cars parked on the paved shoulder of a highway. See id. at 332, 333.

Backpack in the back of a small SUV was within immediate control for search incident purposes. It could not be compared to the truck because it was within reach within the vehicle. United States v. Allen, 469 F.3d 11 (1st Cir. November 17, 2006).

Customs officers had reasonable suspicion for search of a laptop computer for child porn at the border, distinguishing United States v. Arnold, posted Oct. 11, where there was no reasonable suspicion. United States v. Furukawa, 2006 U.S. Dist. LEXIS 83767 (D. Minn. November 16, 2006):

Defendant argues that a border search of the files on a personal computer, laptop, computer disk or other electronic storage device is a not a routine search and therefore requires a reasonable suspicion. See United States v. Arnold, — F. Supp. 2d –, 2006 WL 2861592, at *4 (C.D. Cal. Oct. 2, 2006) (search of computer hard drive nonroutine and requires reasonable suspicion because electronic storage devices implicate substantial privacy and dignity interests based on the amount of information they are capable of containing). However, the court need not determine whether a border search of a laptop is “routine” for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case. Cf. United States v. Irving, 452 F.3d 110, 124 (2d Cir. 2006) (declining to decide whether search of computer disks and film is routine because reasonable suspicion existed); United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001) (assuming search to be nonroutine but affirming district court’s holding on reasonable suspicion).

Telling a suspect that they would get a search warrant was not proof of involuntariness. United States v. Baker, 2006 U.S. App. LEXIS 28591 (11th Cir. November 17, 2006)* (unpublished).

Lack of supporting affidavit for search warrant permitted District Court in the 2d Cir. to deny motion without a hearing. United States v. Thornton, 2006 U.S. Dist. LEXIS 83435 (D. Conn. November 16, 2006):

The unsupported factual assertions of his counsel are insufficient to warrant an evidentiary hearing or justify the relief requested by the defendant. Moreover, these unsworn assertions are disputed by statements in the Hartford Police Department incident report and in the sworn affidavit submitted in support of the Criminal Complaint. See Government’s Resp. to Def.’s Mot. To Suppress and Objection to Def.’s Req. for a Hr’g (Doc. No. 18) (“Government’s [*8] Resp.”), Ex. A; Compl., Borysevicz Aff. (Doc. No. 1). By way of contrast, in the absence of a sworn statement by an affiant with personal knowledge, the defendant has no accountability for the assertions that his counsel has made.

The defendant argues that he should not be required to substantiate his claims with a sworn statement because he is at risk for an enhancement for obstruction of justice should he be convicted and the court concludes he proffered a false sworn statement. The defendant provides no legal support for his request that the court convene an evidentiary hearing without him being required to show that there is a genuine dispute as to a material fact. However, a key reason for requiring a sworn affidavit is to make the defendant and any other witnesses accountable for their statements to the court. The investigating agents have asserted the relevant facts in a police incident report and in a sworn affidavit. The relevant case law requires the same of the defendant. There is no reasonable basis here to excuse the defendant from satisfying the requirements for being given an evidentiary hearing.

A package seemed suspicious from its handwritten label and its using only the recipient’s last name and its weight compared to its likely contents. Pulling the package off the mail line for a dog sniff was a de minimus delay of the package that implicated no constitutional rights. United States v. Alexander, 2006 U.S. Dist. LEXIS 84388 (N.D. Ohio November 20, 2006):

These characteristics combine to defeat Defendant Alexander’s overly-general argument that the package’s “size and appearance was identical to every other U.S. Postal Service Express mail shipping box that is shipped in U.S. mail.” Further, Alexander overlooks the fact that the Fourth Amendment protects legitimate privacy interests, which do not include items exposed to the public. See Katz, 389 U.S. at 351. Briefly detaining the package from the public mail flow, Detective Cook lawfully subjected it to a “sniff test” by his canine partner. See Place, 462 U.S. at 707. The detention of the package and the sniff test did not otherwise delay the delivery of the package. Thereafter, the postal inspectors employed established police procedure to apply for and obtain valid search warrants from Magistrate Judge Vecchiarelli and Cuyahoga County Judge Russo to examine the package’s contents and attempt a controlled-delivery to Alexander’s home. Taken together, these police procedures do not violate Alexander’s constitutional rights against unreasonable search and seizure.

Police officers showed that the protective sweep of plaintiff’s home was justified by a legitimate fear of officer safety, so summary judgment should have been granted to the officers. Fishbein v. City of Glenwood Springs, 469 F.3d 957 (10th Cir. November 22, 2006):

In our case, the second of these factors is more easily addressed and we dispose of it first. While the Fishbeins maintain that there is “considerable doubt” as to whether the sweep of their home was narrowly tailored to the preservation of officer safety, there is in fact little evidence to suggest the officers’ sweep was meant for anything other than police protection. Neither Officer Keiter nor Officer Hagberry removed any items from the house. No person within the house was arrested. The Fishbeins’ argument is based entirely on Plaintiff Aaron Hughes’s estimate that it took the officers “a little less than five minutes maybe” to complete their sweep. Appellants’ App. at 205. The Fishbeins urge this Court to surmise that the officers were gathering evidence during this time, behavior outside the bounds of a protective search. Buie, 494 U.S. at 326. Such a conclusion, however, would be unsupported speculation. We do not think five minutes is a self-evidently excessive time for police to conduct a limited protective sweep to ensure that there are no armed and dangerous persons lurking on the premises. Buie counsels that the sweep should be “no longer than is necessary to dispel the reasonable suspicion of danger.” 494 U.S. at 335-36. But given the cluttered interior of the Fishbein home, the time spent removing the two teenagers, the officers’ concerns regarding the cache of weapons, and the fact that Officers Keiter and Hagberry neither removed evidence from the house nor made arrests while inside, we have little trouble in concluding that their sweep was legitimately aimed at securing officers’ safety.

Officers had cause for stop based on traffic offenses, and there was reasonable suspicion from other information the officers had gathered before. Ultimately, the police obtained probable cause. “[T]he police are not required to rule out all innocent explanations to establish probable cause, and in any event, the facts here did not suggest innocent activity.” United States v. Meeks, 2006 U.S. Dist. LEXIS 84586 (E.D. Mo. November 21, 2006).

The defendant police officer did not show in his motion for summary judgment that deadly force was justified. A fact question remained for trial on whether shooting was necessary. Hayes v. Wickert, 2006 U.S. Dist. LEXIS 84316 (W.D. Wash. November 20, 2006):

Officer Wickert also argues that his use of force was reasonable because he feared for the safety of others based on Plaintiff’s speeding, driving without lights at night, and his driving into oncoming lanes of traffic (reckless driving). Considering all the facts and circumstances, Officer Wickert is unable, for the purposes of this motion, to establish that his use of force was reasonable because he feared an “immediate threat” to the safety of others. Graham at 396. The record is silent on whether there were any people nearby. The record does indicate that these events took place at night. Officer Wickert points to Brosseau v. Haugen, 543 U.S. 194 (2004) in support of his position that his use of force was reasonable because he was concerned about the safety of others. Dkt. 17-1, at 9. In Brosseau, the Supreme Court affirmed this Court’s judgment, and found that a police officer was entitled to qualified immunity because prior case law did not “clearly establish” that the police officer’s conduct violated the Fourth Amendment. Id. at 201. However, at this stage in the inquiry the Court is examining whether a constitutional violation occurred, not whether the violated right was clearly established. The Supreme Court did not address the first factor under Saucier, whether Haugen’s constitutional rights had been violated, in that case. In any event, the factual setting in Brosseau was different then in the instant case. There, police were called to neighborhood during day to respond to a fight between Haugen and two other men at Haugen’s mother’s house. Id. at 196. When the police arrived Haugen fled. Id. After a search, Haugen ran back to his mother’s front yard and jumped into a Jeep, parked in the driveway, which was facing an occupied car, also parked in the driveway. Id., at 196. There was another occupied vehicle parked behind the car. Id. An officer ran up to the Jeep, pulled her gun and ordered Haugen out of the vehicle. Id. The police officer broke the driver’s side window and tried, but failed, to get the keys. Id. As the Jeep started, or shortly after it began to move, the officer jumped back and to the left and fired on shot at Haugen. Id. at 196-197. The officer there explained that she shot Haugen because she was “fearful for the other officers on foot who she believed were in the immediate area, for the occupied vehicles in Haugen’s path, and for any other citizens who might be in the area.” Id. at 197. Here, unlike in Brosseau, there is no evidence that there were other people in the area, much less that there was an “immediate” threat to their safety. Accordingly, this factor, at this stage in the case, weighs against a finding that Officer Wickert’s use of force was reasonable here. At least, there are material issues of fact.

Tasering a suspect three times who refused to remove his hand from his pocket when officers feared a weapon was justified, and officers lawfully recovered a gun and drugs from his pocket in a search incident. United States v. Hoffman, 2006 U.S. Dist. LEXIS 84299 (N.D. Iowa November 17, 2006).*

Firefighters responding to a call extinguished the fire and cleared smoke from the building finding a marijuana grow operation. One defendant’s motion to suppress was denied for his lack of standing to challenge the search, which, by all accounts would be a valid plain view during the extinguishing of the fire. United States v. Lee, 2006 U.S. Dist. LEXIS 84512 (N.D. Cal. November 8, 2006).*

The Atlanta Journal-Constitution has an article today entitled Probe sought in police shooting of woman, by Bill Montgomery. (The previous post with an update is here.) The AJC article mentions that it was a no-knock warrant, but the AJC has been unable to find out why the police claimed the need for such a warrant because the courts will not release the affidavit, despite its status as a public record. By hiding it, the Atlanta court system is only making things worse for the police department. They need to let it all out now, and help clear the air.

Police contend they obtained a so-called no-knock search warrant for the Neal Street house after buying drugs Tuesday afternoon from a man inside the home.

The no-knock warrant is frequently used in suspected drug cases because police believe their surprise entry into a home prevents drug dealers from flushing away or destroying the evidence. In this case, the warrant did not name a person, referring only to a “John Doe, aka Sam,” the standard reference when a person’s name is not known, police said.

The Atlanta Journal-Constitution has been unable to independently confirm the police account about the need for the no-knock warrant because it has not been able to read the sworn statement police provided to a judge to obtain the warrant.

State Court Administrator Stefani Searcy has refused to release the information, although state law considers all such documents public record. Searcy has cited “office policy” as her reason for withholding the information.

A cynic might say that the courts are covering their own behinds for granting a no-knock warrant without a proper showing of justification. In my experience, the police are rarely turned down for a no-knock warrant because judges seldom subject the affidavit to critical analysis, if they even read it at all. Why are state court judges seemingly so willing to robotically and unthinkingly grant no-knock warrants on any police assertion that they need one? Judges are supposed to be “neutral and detached” and that includes the request for a no-knock warrant.

The only two justifications for a no-knock warrant are danger to the officers and risk of destruction of the thing sought in the warrant. So, what did the officers show to the issuing judge about their need as facts, under oath? What was the true factual basis for their purported need for a no-knock, or was it just their assumption because they’ve been getting away with them?

Apparently they did not know whether the drug dealer they wanted lived in Mrs. Johnston’s house or simply was not going to be there. There has been nothing in the paper yet that shows me that the guy they wanted even lived there. All they know is “John Doe aka Sam.” Sounds to me like the pre-search briefing was non-existent or just pro forma. In police reality shows they show the briefings, but I have often wondered whether what we see on TV is just for show, and the real thing is lacking. Here, it obviously was because the Atlanta Police apparently had no clue they would encounter an elderly woman inside but no drug dealer.

In my oral argument in Wilson v. Arkansas in 1995, I suggested (maybe even stated) that a small quantity of drugs would not support dispensing with announcement because of the gravity of the crime weighed against the interest of the individual. Justice Scalia did not think much of that argument, and he shot it down as soon as I said it.

With the June 2006 demise of the federal exclusionary rule in knock-and-announce cases, this case, no matter how it turns out in the civil case that will inevitably follow, is the prototypical example of why the knock-and-announce rule is so constitutionally important that the exclusionary rule cannot be cast off as an impediment to effective law enforcement. “Effective law enforcement” is not an excuse to shoot first and ask questions later.

If Hudson v. Michigan cannot be overruled federally, it can certainly be rejected in state courts under state law. The day after Hudson was decided, I amended a state motion to suppress a no-knock warrant on the ground that Hudson would likely not be followed in my state.

Regretfully, it takes tragedies like this to point out that the Supreme Court, pretending not to be an activist court but taking an activist stance in giving carte blanche to the police, should stick with precedent instead of encouraging official lawlessness. As Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

From all appearances and my experience as a criminal litigator, on both sides of the courtroom, the Atlanta Police Department’s SWAT team and narcs were woefully incapable of or unprepared for handling this no-knock entry. They treated it as an everyday occurrence instead of inviting gunfire from the occupants inside. The year I was born, Justice Jackson, concurring in McDonald v. United States, 335 U.S. 451, 460-61 (1948), foresaw this:

I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight. Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.

If they were right, prove me wrong, and I will stand corrected. At the minimum, the Atlanta court system should not act like a party to this by sitting on the affidavit for the search warrant.

In Pennsylvania, once a motorist is told that he is free to leave, despite the fact the officer has grounds for further inquiry, the motorist must be allowed to go unless something else justifies the continued detention. That is, there must be a break in the causal connection. Commonwealth v. Moyer, 2006 PA Super 379, 2006 Pa. Super. LEXIS 4648 (December 29, 2006):

[¶ 17] Finding that the second encounter constituted an investigatory detention, we must next evaluate its legality, as that inquiry directly impacts the voluntariness of Moyer’s consent to search.

“To conduct an investigative detention, a law enforcement officer must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate.”

See Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa. Super. 2003) (citations omitted). The second police/citizen interaction must be evaluated independently to determine if reasonable suspicion existed based on factors arising after the end of the initial stop. Id. at 763; Ortiz, 786 A.2d at 266 (“Without existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful.”). Thus, “even where a defendant’s conduct during the initial stop ‘may have merited further inquiry,’ the ··· officer’s instruction to the defendant that he was free to leave vitiated any grounds he had to hold the defendant further.” Johnson, 833 A.2d at 763 (quoting Ortiz, 786 A.2d at 266). Under such circumstances, “[a]bsent some new observation of suspicious circumstances, the defendant’s continued detention [would be] illegal.” Id.

[¶ 18] The second detention in the instant case lacks the indicia of reasonable suspicion independent from observations made prior to the endpoint of the initial traffic stop, e.g., that Moyer had bloodshot eyes, was nervous and swaying, was making furtive movements. Accordingly, we conclude that the second investigatory detention was illegal, thereby tainting the voluntariness of Moyer’s consent.

[¶ 19] Thus, in a final effort to establish that Moyer’s consent was voluntary, the Commonwealth would have to demonstrate that there exists both a “sufficient break in the causal chain between the illegality and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and … voluntariness.” Strickler, 757 A.2d at 889. The Commonwealth has failed to do so.

[¶ 20] Although we could end our analysis here, it is worth noting that the trial court examined other factors that support its finding that Moyer’s consent was not voluntary. In addition to the taint upon the consent stemming from the illegal second detention, these other factors include:

• the person’s knowledge of the right to refuse to consent to the search;

• the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will); and

• the presence or absence of physical contact or police direction of the subject’s movements, the demeanor of the police officer, the manner of expression used by the officer in addressing the subject, the location of the encounter, and the content of the interrogatories or statements.

Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa. Super. 2005) (citing Strickler, 757 A.2d 884, 897-898, 901 (Pa. 2000)). The trial court’s findings, which are supported by the record, include the fact that Moyer was unaware of his right to refuse consent, that Moyer had an eighth grade education, and that Moyer “appeared to the court to be somewhat ‘slow’ in terms of his intellectual capacity.” T.C.O. at 2. Additionally, as noted above, the location of the encounter (i.e., a dark rural road) and the content of Corporal Moyer’s interrogatories (i.e., with regard to the prior marijuana violation), also favor the trial court’s conclusion that Moyer’s consent was not voluntary.

This is a personal reflection, something that this blog does not see much of. I am a reporter of what the courts do on search and seizure cases, and I’ve even criticized decisions that held, what I thought wrongly, that a search was bad. I try to be an objective observer, but, as this blog approaches its fourth birthday, anybody who has been here more than a few times has to know that I favor protecting civil liberties, except where the government’s interest is objectively real and not merely hypothetical.

New Year’s Day is just turning a page in a calendar to some of us. As a criminal defense lawyer, I have always found myself always looking ahead on the calendar, and New Year’s Day becomes just another work day. Being an emptynester, I worked all day Christmas Eve and Christmas Day on a cert petition that was shipped December 27th. My associate and I have a four to six week trial starting February 19th. I had a four and a three day trial in December. After we agree to take a case, our lives are scheduled for us. I confess that I’m a workaholic, but I take my vacations when others do not. [As a friend, a retired public defender, once said: “All work and no play makes John a dead lawyer,” which my late mother made into a needlepoint hanging in my home office. Thank you, Alison, for trying to keep me grounded and sane.]

What was 2006? It was the year of Hudson v. Michigan, 126 S.Ct. 2159 (June 15, 2006), the case that emasculated a case I argued and won as a sole practitioner, Wilson v. Arkansas, 514 U.S. 927 (1995), holding that the knock-and-announce rule was constitutionally mandated, by now holding that the exclusionary does not apply to violations of the rule. When I briefed Wilson, I had this fear in the back of my mind, and I was ready for it at oral argument. I imagined Justice Scalia asking during oral argument about whether inevitable discovery would apply. I even anticipated that questions would arise as to whether the exclusionary rule should apply. Thankfully, it never came up. But, I had the confidence during oral argument that they could not ask a question that I was not ready for. After all, I had spent twenty years getting ready for that oral argument.

Last Term, the Supreme Court decided four Fourth Amendment cases. Government 3, citizens 1. When a cert grant occurs in a Fourth Amendment case, I reflexibly cringe. Odds are that this is not going to be good. I used to write amicus briefs for NACDL on Fourth Amendment issues, and the citizens lost every one of them. Am I bad luck? Term before last, there was one Fourth Amendment case. I sat that one out.

I’ve gotten cert granted in two Fourth Amendment cases. The first was Arkansas v. Sanders, 442 U.S. 753 (1979), when I was a state prosecutor. The case came from our office. The Arkansas AG did not think it was cert worthy, but I did. I had to have them sign the brief. Once cert was granted, that was the last I saw of that case. I’m not even going to tell you about the one pending there now because talking about it would insure cert would be denied. No matter that it is a good issue–one never knows what the Supreme Court will take.

About once a year I try to get to the Court to watch the oral arguments in Fourth Amendment cases. With the argument calendar online, one can try to plan a day. Of all the arguments I’ve seen, there have been good and bad. In one case, the attorney arguing for the state was a hired gun of the “Supreme Court Bar,” and it was obvious he knew the case, but he did not know the Fourth Amendment in the larger sense of how it fits into the fabric of criminal justice. Watching him fumble easy questions was painful, and I was rooting for the other side. That was before 1995, and I knew that I could have argued that case better than he did with about four hours notice.

Hey, I’m a hired gun too. Clients ask whether I will take their case, giving me flashbacks to Perry Mason where he had to be convinced the client was innocent to “accept the retainer” as lawyers used to say, and still say in the U.K. I’ll be blunt: If you can afford my fee, yes, I will represent you. (In that sense, “retainer” means “agreement to represent” and not the money to be paid.)

“Sir, what kind of a woman do you take me for?”
“We’ve already established what you are, ma’am. Now we’re just haggling over the price.”
–George Bernard Shaw

I can’t remake the facts, but I might be able to control the damage or even win. None of us has the luxury of representing only the innocent or prosecutors prosecuting only the guilty. We lose at trial. It is part of the job.

For nearly four years, I’ve gotten up before six and spent virtually every morning, except when in trial, summarizing the cases for posting on this website. Some days it takes over two hours. One case last week took an hour. According to the statistics of this website, the readership spikes between 8-9 am ET. So, work permitting, I try to get everything up before 8:30 am ET. The number of search and seizure cases is actually increasing (U.S. District Court cases are up 130% over last year), so it takes longer.

And what do I have to show for it? I already was a putative Fourth Amendment expert going in. Nevertheless, this daily exercise has enabled me to see patterns and depth that I had never appreciated before. But at what cost? It extends my work day up to two hours. On Thursday, I left work at 6 p.m., and I was tired.

“Of course you’re tired, you moron. You had an eleven hour work day. You’re not as young as you think you are.”
–Me to me, Thursday

I need to take § 34:7 of my ethics book on lawyer burnout to heart. I’m not suffering burnout, but there is wear and tear. I still feel like a kid when I get my brain working on an interesting legal issue. As stated in my ethics book, § 1:1 n. 34, under our common law system lawyers make law, not judges. Without a lawyer making an a well crafted argument to a trial court, an appeals court never gets to see the issue.

I am proud to be a criminal defense lawyer and First Vice-President of the National Association of Criminal Defense Lawyers. And, I don’t apologize for being a former prosecutor because that experience formed my view of the law. And I am even more proud to see myself as a “compleat lawyer” to always see the larger questions of criminal justice first and where the case at hand fits or doesn’t fit. None of this means a damn thing to my clients, and we cannot explain it to them without talking over their head, but it matters to me, and it does to other lawyers.

On a final note, ThatLawyerDude named this website one of his favorites, and he visits everyday. Several other websites link to it. Every prosecutor and defense lawyer should visit at least twice a week. Indeed, I can see by the source coding information from visitors [nothing on the Internets is all that private, folks] that a certain big city prosecutor’s office visits every day. I speculate that the content here becomes a part of an internal e-mail or newsletter on search and seizure law developments. If prosecutors are going there everyday, defense lawyers should, too. Telling the criminal bar here is like the tree falling in the woods. But, since this website changed to a blog format, the number of visitors tripled from August to December.

If I can get a few lawyers to better understand the fabric of search and seizure law and they become better lawyers and better serve justice, then this blog has been successful. Thank you for your readership.

Oh yeah, no cases today.

Department of Family Services did a “welfare check” of defendant’s home that did not involve a search. While talking to her kids, however, the kids all mentioned that defendant was doing meth with their stepfather and others, providing detailed information going back five years. This was probable cause for a search warrant, even in light of Wyoming’s standard of informant hearsay being greater than that of the Fourth Amendment. [The affidavit provided incredible detail.] Crackenberger v. State, 2006 WY 162, 2006 Wyo. LEXIS 178 (December 28, 2006):

[*P13] Under the “totality of the circumstances” approach, we find this information, when combined with the high degree of reliability of the informants and the experience and knowledge of the affiant, sufficient to establish probable cause that methamphetamine and methamphetamine paraphernalia would be found in the appellant’s home. The appellant’s arguments that the informants have no specialized knowledge of methamphetamine and that there are other explanations for the appellant’s change in behavior are also not well received. While the informants may not have specialized knowledge of controlled substances and drug-related behavior, the affiant in the instant case did have such knowledge and properly applied it to the first-hand observations from the informants. The affiant’s knowledge and training, combined with the informants’ first-hand knowledge, was sufficient to provide the judicial officer with a substantial basis for concluding that probable cause existed in the instant case to search the appellant’s home.

Heck bars a civil action against a Sheriff’s deputy alleging that the charges pending against the plaintiff are unfounded. McCuin v. Maricopa County, 2006 U.S. Dist. LEXIS 93826 (D. Ariz. December 27, 2006).*

A traffic stop occurred in a high crime area of Boston known for shootings. Furtive movements of the defendant where he would not keep his hands in sight made the officer “skittish” and justified getting the defendant out for a patdown. As the defendant got out of the car, the butt of a gun was visible from under his seat. The seizure was lawful. United States v. McConnico, 2006 U.S. Dist. LEXIS 93749 (D. Mass. December 21, 2006).*

Giving the complaint its broadest possible reading, even though plaintiff did not cite § 1983 until his response to the motion for judgment on the pleadings, the complaint fairly alleges a Fourth Amendment violation, so judgment on the pleadings is denied. Varela v. San Francisco City & County, 2006 U.S. Dist. LEXIS 93668 (N.D. Cal. December 14, 2006).*

In a habeas case alleging ineffective assistance of counsel for not challenging a blood draw of the defendant in state court that apparently led to his conviction, the habeas court set a hearing on the merits of the claim. [Apparently the court is seeking to resolve the prejudice prong of Strickland before determining whether it is necessary to decide a failure of performance.] Emerson v. Yates, 2006 U.S. Dist. LEXIS 93713 (E.D. Cal. December 14, 2006).*

Citizen informant witnessed theft of her mail and tailed the defendant’s car calling the police. That was justification for a stop. Kupper v. Commonwealth, 2006 Ky. App. LEXIS 388 (December 22, 2006).* (This was a simple issue, and the court seemed to spend a lot of time addressing it, likely explaining away the authorities cited by the defendant.)