Record supported finding of consent. District Court did suppress one handgun, but it did not come into evidence at trial. United States v. Hawkins, 182 Fed. Appx. 243 (4th Cir. May 25, 2006)* (unpublished).

Trip wire was placed in CI’s car for controlled delivery. The activication of the trip wire was exigent circumstances. United States v. Mondragon, 181 Fed. Appx. 904 (11th Cir. May 24, 2006)* (unpublished).

Record supported district court’s conclusion that the defendant consented to further questioning. While she had some difficult communicating in English, she understood enough to consent to the search. United States v. Rodriguez, 186 Fed. Appx. 812 (10th Cir. May 23, 2006)* (unpublished).

Defendant lacked a reasonable expectation of privacy in the contents of his computer when he took it in for repair and child porn was found. The computer tech’s observations alone are PC for a computer search. The Magistrate Judge’s reliance on the First Circuit’s decision in United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001), apparently requiring lurid detail of the child porn in the affidavit, is rejected, because that is not Eighth Circuit law. United States v. Grant, 434 F. Supp. 2d 735 (D. Neb. May 24, 2006)* (the Magistrate Judge twice recommended suppression).

Civil investigation into alleged health care fraud did not lapse when it changed into a criminal investigation, too. Three times the government sought under 42 C.F.R. § 2.62 to use the material gathered civilly in the criminal investigation without notice to the target (§ 2.66(b)), and the Magistrate granted it. Suppression is not the remedy. Defendant’s analogy to tax cases is rejected because the law in that area is different. United States v. Shinderman, 432 F. Supp. 2d 149 (D. Maine May 24, 2006).

Police went to defendant’s house believing she had been injured in an accident, and that justified the entry. State v. Rinard, 2006 Ohio 5633, 2006 Ohio App. LEXIS 5654 (9th Dist. October 30, 2006):

[*P12] We agree with the trial court’s assessment that the above facts are more indicative of someone having just been in a head on collision, rushing into her house for assistance, possibly to call 911, and potentially falling unconscious, than are indicative of someone who was uninjured. This Court is mindful of the oddity of a person leaving the door to their residence wide open, at night, and failing to respond to a peace officer’s inquiries as to their safety. Coupled with the knowledge that the resident had just been involved in a head on collision, this Court cannot find that Patrolman Hall acted unreasonably.

[*P13] Appellant has argued that while the open door to her home may have appeared strange, it was not an invitation to Officer Hall to enter her residence. However, Officer Hall did not need an invitation, he needed an exigent circumstance or emergency situation, which we believe the circumstances suggested. Appellant has also argued that the fact that no one answered the door or responded to Officer Hall’s persistent announcements did not indicate that somebody was injured inside. Appellant may be correct in this assertion, however, as a reviewing court we look at the entirety of the circumstances surrounding Officer Hall’s decision to enter the home, not just snapshots of the situation. It is clear to this Court that the totality of the circumstances reasonably indicated that Appellant may be injured or in peril.

Comment: The court’s rationale is less than convincing.

911 call of overdose at plaintiff’s house justified entry when the officers arrived and nobody answered the door. Snowden v. Peacock, 2006 U.S. Dist. LEXIS 78394 (N.D. Fla. October 27, 2006).*

Requirement for a warrant for a surreptitiously recorded conversation under Art. 14 of the Massachusetts Constitution was waived by not being specifically raised below. Commonwealth v. Rodriguez, 67 Mass. App. Ct. 636, 855 N.E.2d 1113 (October 30, 2006).*

CA refuses to bite on the state’s argument that Hudson v. Michigan should water down the exclusionary rule in a case where the court believed that there was strong indication that the officers invented grounds for the stop in the first place. People v. Rodriguez, 143 Cal. App. 4th 1137, 49 Cal. Rptr. 3d 811 (2d Dist. October 10, 2006):

The issue in this case is whether evidence seized in a lawful search incident to a lawful arrest based upon an outstanding warrant should be suppressed if the police invented the ground for the traffic stop which led to the discovery of the warrant. The trial court ruled it did not need to decide whether the police made up their claim the defendant’s car had a “burnt out” right brake light because any taint arising from the alleged unlawful stop was dissipated by the discovery of the arrest warrant prior to the search.

If it indeed happened, fabricating the grounds for a traffic stop and repeating this fabrication under oath at a suppression hearing “strikes at the very core of our system of law.” The subsequent discovery of lawful grounds to arrest and search the defendant does not dissipate the taint of such a flagrant violation of the defendant’s constitutional rights and society’s necessary trust in its law enforcement officials. Nor is this violation, if it occurred, one for which the suppression of evidence is too drastic a remedy. Quite the opposite is true. Failing to invoke the most drastic remedy available to a court would have the effect of legitimizing deceitful conduct on the part of the police and permitting them to conduct a traffic stop for any reason or no reason at all in contravention of leading United States and California Supreme Court opinions. Accordingly, we will reverse the judgment and remand the cause to the trial court to rehear defendant’s suppression motion and make a factual determination as to whether at the time of the traffic stop defendant’s car had a burnt out brake light as the officers claim, or if they could reasonably believe it was burnt out.

. . .

In discussing the three factors relevant to an inquiry under Wong Sun the United States Supreme Court singled out as “particularly” important “the purpose and flagrancy of the official misconduct[.]” It is difficult to imagine a more flagrant example of official misconduct than perjury by a police officer. As our Supreme Court has stated: “Perjury is qualitatively different from ordinary search and seizure or Miranda violations. It ‘involve[s] a corruption of the truth-seeking function of the trial process.'” The court spelled out its reasons for holding “[p]erjury by law enforcement officials is particularly pernicious.” “Our entire criminal justice system,” the court stated, “is built around the belief, and necessity, that law enforcement officers will testify truthfully. Courts generally believe the testimony of such persons rather than that of the accused[.] Deliberate, cynical perjury by law enforcement officials strikes at the very core of our system of law. It manipulates and thereby perverts the entire judicial process.”

. . .

For the reasons discussed above, we conclude the evidence seized in the case before us is subject to exclusion under the test set out in Wong Sun.

Nevertheless, even if the officers had no lawful reason to stop defendant, the People maintain we should follow the United States Supreme Court’s lead in Hudson v. Michigan and not apply the exclusionary rule in this case. As we shall explain, Hudson is distinguishable from the present case for several reasons.

In Hudson the court stated: “Attenuation also occurs when, even given a direct causal connection, the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.” In the case of the knock-and-announce rule, the court held, the interest in protection against “unreasonable searches and seizures,” which is the basis for the rule, would not be served by suppressing evidence obtained under a valid search warrant. The rule is too uncertain to provide the police clear advance notice of what is required of them in a given situation; the police have no incentive to violate the rule; and there are other ways of preventing violations of the rule which do not involve the substantial social costs of suppression of relevant and validly obtained evidence.

The prime purpose of the exclusionary rule is not to punish the officers who violated the defendant’s Fourth Amendment rights but to provide a means of deterring police misconduct in the future. But deterrence of future violations of the knock-and-announce rule presupposes police officers can learn something from past challenges–successful and unsuccessful–to their observance of the rule. The Hudson court concluded the educational value of trial and appellate courts’ ex post evaluations of knock-and-announce compliance is of little value in instructing future police conduct because the court’s “‘reasonable wait time’ standard” is “not easily applied,” and “necessarily uncertain.” “How many seconds’ wait are too few?” the court asked rhetorically. Came the response, the answer “is necessarily vague.” In other words, officers wanting to know how long they need to wait before forcing entry can as well consult The Eight Ball as past court decisions.

. . .

We view Hudson‘s discussion of alternatives to the exclusionary rule as dictum. It is by no means the first time the court has pondered the continuing value of suppressing evidence as a deterrent to police misconduct. In any event, Hudson does not signal a majority of the court is ready to scrap the exclusionary rule. As Justice Kennedy states in his concurring opinion, which provided the fifth vote to affirm Hudson’s conviction: “[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today’s decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression.” (footnotes omitted)

The defendant’s college dorm room was entered by a university security officer without a warrant for an inspection. Despite the housing contract that the student signed that permitted the university to enter and make reasonable inspection, it did not permit the security officer to consent to a police entry because he lacked apparent authority to consent. People v. Superior Court (Walker), 143 Cal. App. 4th 1183, 49 Cal. Rptr. 3d 831 (6th Dist. October 11, 2006) (excellent discussion of all the law to date on this issue):

Our conclusion is not altered by the fact that defendant signed a Housing Contract that authorized the University (1) to conduct routine room inspections on reasonable notice to the resident student, and (2) to enter rooms without notice “where there is a reasonable suspicion that a violation of the law or University policies is occurring or has occurred inside a particular room.” These terms of occupancy, while constituting consent to the University’s entry into defendant’s dorm room under certain circumstances, cannot be reasonably construed as defendant having given such consent to others. (See Piazzola v. Watkins, supra, 442 F.2d at pp. 289-290; Com. v. Neilson, supra, 666 N.E.2d at p. 987.) In particular, these contract terms do not constitute defendant’s agreement to nonconsensual warrantless searches and seizures of his private residence by the police. (Contra, Moore, supra, 284 F. Supp. at pp. 730-731.) Nor could the Housing Contract be so construed, since such purported advance consent to warrantless police searches would be an illegal waiver of defendant’s constitutional rights under the Fourth Amendment. (See Piazzola v. Watkins, supra, at p. 289 [regulation authorizing college to inspect dorm rooms could not be interpreted as student’s “consent to a search for evidence for the primary purpose of a criminal prosecution” (fn. omitted)]; Devers v. Southern University, supra, 712 So. 2d at pp. 204-207 [lease provision reserving college’s right to inspect dorm room with police unconstitutionally abridged student’s Fourth Amendment rights]; cf. § 626.11, subd. (b) [purported waiver of student-occupant’s protection from unreasonable search and seizure in college housing agreement void].)

October 2: I’m in the Edomonton Airport, surprised that my Sprint card works here, even though tenuously. Been on the road doing a CLE. I won’t have enough time at the connection to sign on again. When I get home, I’ll be a grandfather again, so postings today will be sporadic as I get caught up.

Treatment claim of 600 class members of sexually violent predators in California institution stated a claim for relief under § 1983 under the Fourth Amendment (many other issues addressed, too). Hydrick v. Hunter, 466 F.3d 676 (9th Cir. September 28, 2006):

Plaintiffs allege that Defendants’ policies and practices subject Plaintiffs to unreasonable searches, seizures, and unnecessary use of force. According to Plaintiffs, they are subjected to public strip searches; to retaliatory searches of their possessions; and to arbitrary seizure of their personal belongings upon arrival at Atascadero. SVPs are also placed in shackles during transport to Atascadero and during visits from family and friends. When they refuse to participate in treatment, they are subjected to “red light alarms” even if they do not post any physical risk. Moreover, they are force-medicated as a means of intimidation and punishment, and for the convenience of staff.

Accepting these allegations as true, we believe Plaintiffs may be able to state a “clearly established” violation of their Fourth Amendment rights, and thus, the claims are not appropriate for dismissal at the Rule 12(b)(6) stage. The watchword of the Fourth Amendment in every context is reasonableness. As this court held in Thompson v. Souza, 111 F.3d 694 (9th Cir. 1997), “the Fourth Amendment right to be secure against unreasonable searches and seizures ‘extends to incarcerated prisoners.'” Id. at 699. Thus, this protection certainly extends to SVPs.

Of course, “the reasonableness of a particular search [or seizure] is determined by reference to the [detention] context.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988). As with any detained person, there are concerns that mirror those that arise in the prison context: i.e., “the safety and security of guards and others in the facility, order within the facility and the efficiency of the facility’s operations.” Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). But even so, qualified immunity does not protect a search or seizure that is arbitrary, retaliatory, or clearly exceeds the legitimate purpose of detention.

Under this framework, we cannot dismiss Plaintiffs’ claim at this stage. The “reasonableness” of a search or seizure is a fact-intensive inquiry that cannot be determined at this stage. See, e.g., Thompson, 111 F.3d 694 (9th Cir. 1997) (evaluating the reasonableness of a strip search based on the manner and scope of the search, the place, and the justification). It is impossible to make such a fact-specific determination when the precise circumstances of the searches or seizures are not before the court and when the Defendants have not yet had a chance to explain their justification for the alleged searches or seizures. We cannot say, then, that Plaintiffs cannot possibly state a “clearly established violation” based on any facts consistent with their pleadings. n12 Therefore, Defendants do not have a right to qualified immunity under Federal Rule of Civil Procedure 12(b)(6).

Officers came to plaintiffs’ house on a 911 call and became concerned that one plaintiff was mentally unbalanced, and they requested access to all guns in the house. The plaintiff wife acceded to that. She did not state a Fourth Amendment claim that she was seized although she was taking the police to where the guns were in the house at their request. Snider v. Lincoln County Bd. Of County Comm’rs, 2006 U.S. Dist. LEXIS 70057 (W.D. Okla. September 27, 2006).*

Consent to a patdown during a traffic stop was voluntary. When officer reached pocket with marijuana in it, defendant reached in and pulled it out. The search was reasonable. State v. Buck, 2006 Ohio 4394, 2006 Ohio App. LEXIS 4331 (2d Dist. August 25, 2006):

Officer Combs testified that after he removed Buck from the vehicle, “I requested a pat down on him. He said that was fine, (and I) went ahead and conducted the pat down.” (T. 8). There is no suggestion of coercion. Buck was then detained, but because his detention was lawful his voluntary consent waives any claim of illegality in the pat-down search.

Comment: Once a traffic stop has begun and an officer asks for consent to do a patdown, without reasonable suspicion, the stop has been extended by that patdown. Was the defendant told he was free to go when this happened? This is not shown by the opinion. The opinion talks about nervousness, but it is clear that nervousness alone is not enough. So, the question boils down to this: Would a reasonable person who is outside of his car during a traffic stop, who is asked for consent to a patdown, believe that he was free to go when he consented? Not hardly. Therefore, the Ohio court is wrong.

Defendant, a personal injury lawyer, charged with defrauding insurance companies, had no standing to challenge the search of computers in the law office in which he worked where he claimed he was acting at the direction of others. Commonwealth v. Bryant, 2006 Mass. LEXIS 542 (August 25, 2006):

However, the record does contain evidence that the defendant did not own the premises from which the computer files were seized. Indeed, part of the defense was that the defendant had no authority at the law firm and was just doing what he was told by the firm’s owners. Moreover, the files were freely accessible to others in the law firm, including the owners and secretaries.

PC shown from information from a “concerned citizen” that appeared to be no more than a snitch because it was from first-hand observations [this is really thin]. State v. Barnaby, 2006 MT 203, 333 Mont. 220, 142 P.3d 809 (August 23, 2006):

The application for a search warrant begins with credible information of Sheridan’s involvement in the production of methamphetamines. A concerned citizen reported from first-hand knowledge and personal observations that Galpin, a well-known methamphetamine manufacturer, taught Sheridan how to produce methamphetamines. The first-hand report of a concerned citizen generally represents reliable information.

While officers were outside their jurisdiction and a violation of state statute occurred, the stop was based on probable cause and exigent circumstances and was valid under the Fourth Amendment and state constitution. State v. Smith, 908 A.2d 786 (N.H. August 23, 2006).*

An officer responding to a shots fired call at a house found windows shot out in the house and a car and shell casings in the street. That gave him cause to enter the house under exigent circumstances. United States v. Maytubby, 2006 U.S. Dist. LEXIS 69383 (W.D. Okla. September 25, 2006):

Having carefully reviewed the parties’ submissions, and having heard the evidence presented at the hearing, the Court finds that the government has met its burden of establishing the exigent circumstance of risk of personal danger. Officer McCaleb was responding to a shootout in and around the Residence, and within minutes of hearing gunshots, he observed spent shell casings in the street in front of the Residence, a car with its windows shot out in the driveway of the Residence, and the Residence’s front storm door shot out. Additionally, after Maytubby opened the front door, Officer McCaleb saw a spent shell casing in plain view just inside the front door. Based upon these observations, the Court finds that Officer McCaleb had an objectively reasonable basis to believe that there was an immediate need to protect the lives and safety of himself, the occupants of the Residence, and the occupants of the neighboring houses. The Court further finds that it would be unreasonable to expect a prudent, cautious, and trained officer to walk away under the circumstances. Finally, the Court finds that the manner and scope of the protective sweep conducted by the officers was reasonable.

Somewhat similar is State v. Pseudae, 908 A.2d 809 (N.H. September 27, 2006), involving a man alleged to have threatened to kill himself. He came out of the house and advanced on the officers with his hands in his pockets, and he refused to remove his hands. He walked up to the officer’s gun where the barrel was in his chest, so the officers wrestled him to the ground. After his arrest, officers could enter the house to look for the gun.

Driver unauthorized by the car rental company but authorized by the renter had sufficient standing to challenge a search of the car. Stop was objectively reasonable by defendants not contesting that the car was speeding. The police had been investigating them for a long time and checking into numerous rentals where they went to NYC to obtain heroin and bring it back to Detroit. A GPS was lawful placed on the rental car before the rental, and that indicated that the car had been to NYC which did not match the story given at the time of the stop. Finally, sound recording by the patrol cars video camera while the defendants were in back of the police car were not unconstitutional. United States v. Holloway, 2006 U.S. Dist. LEXIS 74790 (E.D. Mich. October 16, 2006).

Dispatcher’s broadcast the plaintiff was “wanted” in connection with a crime was justification for arrest, even when it turned out there was no warrant and the plaintiff was released within 30 minutes. Cook v. Ottawa County Bd. Of County Comm’rs, 2006 U.S. Dist. LEXIS 74812 (N.D. Okla. October 13, 2006).

McDonald’s manager who gave specific information about an apparent crime on the premises (drug sale in the bathroom) which he saw part of gave police justification to stop the defendant. That, coupled with defendant’s completely uncooperative attitude and far fetched story about what he was doing in the bathroom besides the usual was PC for arrest. United States v. Brame, 2006 U.S. Dist. LEXIS 74779 (D. Me. October 12, 2006).

No suppression motion was filed and no findings made, and court declines to decide search issue based on the trial record. It was waived. State v. Farr, 98 Conn. App. 93, 908 A.2d 556 (October 17, 2006).

State’s assertion that the defendant was free to go was belied by the fact he was handcuffed at the time consent was obtained. State v. Mackey, 2006 Ohio 5407, 2006 Ohio App. LEXIS 5400 (5th Dist. October 16, 2006).

MT makes it clear that PC is not required for a request for consent search of an automobile. “A knowing and voluntary consent, in and of itself, is sufficient to justify a warrantless search of an automobile. Therefore, we reverse that portion of Shaw which requires a finding of probable cause in conjunction with the consent exception to the search warrant requirement.” State v. Copelton, 2006 MT 182, 140 P.3d 1074 (August 8, 2006).

911 call brought officer to house, and he knocked on the door and a woman answered in her underwear with a welt under her eye, and she said she was scared. He came in without asking based on an apparent assault that just occurred. “We need not address whether Donna consented to Officer Harmuth’s entry into the house because the entry was justified under the emergency doctrine.” White v. State, 201 S.W.3d 233 (Tex. App. – Ft. Worth August 10, 2006).

It is settled in Texas that even passengers have standing to challenge a stop of the vehicle they were in, even if they lack standing to challenge its search. Castro v. State, 202 S.W.3d 348 (Tex. App. – Ft. Worth August 10, 2006).

Utah reaches potentially waived search issue to avoid unnecessary post-conviction claim. State v. Dunkel, 2006 UT App 339, 143 P.3d 290 (August 10, 2006).*

“Key to the case before us is the proposition that follows from the one just discussed: Ambiguous actions or statements do not operate to effectively withdraw an individual’s prior valid consent to a search or act to place limits on the scope of an ongoing consensual search.” Id. (distinguishing cases with explicit withdrawal).

Defendant was stopped for not signaling a turn, and the officer found she was driving on a suspended license. The car was being impounded, and defendant was permitted to remove her stuff from the car first. In the inventory, a zippered pouch was found in the door, and the officer opened it and found paraphernalia. The appellate court said that it was not subject to inventory. State v. Nordloh, 208 Ore. App. 309, 144 P.3d 1013 (September 27, 2006):

The power to inventory a vehicle’s contents exists only pursuant to a properly authorized policy. Whether the policy itself is properly authorized does not depend on the circumstances of the application of the policy to a particular defendant. It instead depends on the reasonable relationship between the conduct permitted under the policy and the government’s interests in protecting property, eliminating false claims, and preventing injury. See State v. Willhite, 110 Ore. App. 567, 572, 824 P.2d 419 (1992). No such reasonable relationship exists in this case.

Were we to accept the state’s argument in the context of inventories of impounded vehicles, Atkinson ‘s requirement that inventories be conducted pursuant to a properly authorized policy would be rendered meaningless. Policymakers could simply eliminate officer discretion by requiring plainly unconstitutional searches of every nook and cranny of a vehicle. See Eldridge, 207 Ore. App. at 342-43 (holding invalid an inventory policy that required vehicles to be “completely [*8] searched and inventoried” because it “lack[ed] standardized criteria or procedures that properly prevent officer discretion and limit each inventory to a scope that is a constitutionally administrative action rather than a warrantless search”); Willhite, 110 Ore. App. at 574 (“To approve a policy because it is so general that an officer must look everywhere he can think of flies in the face of the requirement that the inventory be conducted according to standardized criteria or established routine.” (Internal quotation marks and citations omitted; emphasis in original)). That would violate Article I, section 9, of the Oregon Constitution because the constitutional right to be protected from unreasonable search and seizure does not arise on the courthouse steps only after an illegal search has been conducted–the right exists to ensure that persons are secure in their property at all times. While “[i]t is not our function to decide as a matter of policy how, and for what purpose, automobiles or other private property that come into official custody should be examined,” we are charged with assuring that the policies and procedures adopted to inventory vehicles do not violate constitutional guarantees. Atkinson, 298 Ore. at 6. Because the Grants Pass DPS inventory policy requires an officer to open all closed containers in an impounded vehicle, it is not reasonably related to protecting property or eliminating false claims, and thus the purported inventory in this case pursuant to the policy was in fact a warrantless and nonconsensual search that required suppression of the evidence.

Comment: The Oregon rule is more protective of individual privacy that the majority rule.

Police responding to a domestic battery call were not justified in entering defendant’s premises because, when they arrived, there was no reason to believe any of the participants were in the house. People v. Ormonde, 143 Cal. App. 4th 282 (6th Dist. August 25, 2006, published September 25, 2006) (officers were told that defendant was a drug dealer by defendant’s wife, and that is why they went in).

Officer had reasonable suspicion for stopping defendant’s vehicle because of radio report of description of vehicle involved in sniper shootings that defendant’s vehicle happened to match. State v. LeClair, 2006 Ohio 4958, 2006 Ohio App. LEXIS 4900 (12th Dist. September 25, 2006).

The Minnesota Court of Appeals held that compulsory DNA testing required by Minnesota law on persons charged with a felony. Court distinguishes all the cases involving those convicted of a felony. In re C.T.L., 2006 Minn. App. LEXIS 149 (October 10, 2006):

Minn. Stat. § 299C.105, subd. 1(a)(1) and (3), use a judicial determination of probable cause to support a criminal charge as a substitute for a judicial determination of probable cause to issue a search warrant. But, just as in Schmerber, where the existence of probable cause to arrest the defendant was not sufficient to permit an intrusion into his body without a warrant, a determination of probable cause to support a criminal charge, even if it is made by a judge, is not sufficient to permit a biological specimen to be taken from the person charged without a warrant. The fact that a judge has determined that the evidence in a case brings a charge against the defendant within reasonable probability does not mean that the judge has also determined that there is a fair probability that contraband or evidence of a crime will be found in a biological specimen taken from the defendant.

By directing that biological specimens be taken from individuals who have been charged with certain offenses solely because there has been a judicial determination of probable cause to support a criminal charge, Minn. Stat. § 299C.105, subd. 1(a)(1) and (3), dispense with the requirement under the Fourth Amendment that before conducting a search, law-enforcement personnel must obtain a warrant based on a neutral and detached magistrate’s determination that there is a fair probability that the search will produce contraband or evidence of a crime. Under the statute, it is not necessary for anyone to even consider whether the biological specimen to be taken is related in any way to the charged crime or to any other criminal activity.

. . .

Because Minn. Stat. § 299C.105, subd. 1(a)(1) and (3) (Supp. 2005), direct law-enforcement personnel to conduct searches without first obtaining a search warrant based on a neutral and detached magistrate’s determination that there is a fair probability that the search will produce contraband or evidence of a crime, and because the privacy interest of a person who has been charged with a criminal offense, but who has not been convicted, is not outweighed by the state’s interest in taking a biological specimen from the person for the purpose of DNA analysis, the portions of Minn. Stat. § 299C.105, subd. 1(a)(1) and (3), that direct law-enforcement personnel to take a biological specimen from a person who has been charged but not convicted violate the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution.

Ohio holds a defendant asked questions after he left his car after sitting in it a while in a restaurant parking lot was a consensual encounter. State v. Patterson, 2006 Ohio 5424, 2006 Ohio App. LEXIS 5419 (9th Dist. October 18, 2006).* Comment: Once again, a court ignores reality: when a cop says he wants to talk to you, you stop. It is not consensual by any stretch of the imagination, except for those courts who substitute fictions for commonsense. One could say that the appeals courts are encouraging people to ignore police in such situations because the “request” is not an “order,” except the citizen on the street does not read appellate decisions.

Lawful stop led to defendant lying about his identity, and that was cause itself for detention that led to discovery of a weapon. Madden v. State, 2006 Tex. App. LEXIS 8955 (Tex. App. – Dallas October 18, 2006).

911 call said that shots had been fired eight hours earlier, and someone was likely injured at a particular address. The dispatcher, however, neglected to tell the officers the timing of the shots fired. When they got to the scene, they found bullet holes in the outside walls and, looking through a window, bullet holes on inside walls, and no one answered the door, so they went in through a window. Inside, they found the defendant asleep with an automatic weapon. The entry was valid under the community caretaking function based on what they saw when they arrived that corroborated the dispatch, despite the mistake of fact which was reasonable. United States v. Huffman, 461 F.3d 777 (6th Cir. August 30, 2006).

While the IRS cannot conduct a civil investigation as a front for a criminal investigation, tax investigations evolve from civil to criminal, and that is not an abuse of the IRS’s power to investigate. United States v. Richardson, 2006 U.S. Dist. LEXIS 61193 (S.D. Ohio August 29, 2006):

There was no Fourth Amendment violation from use of the undercover agents because persons act at their own peril when they assume persons with whom they are dealing are not government agents. See United States v. White, 401 U.S. 745, 749 (1971); see also id. at 752 (“Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police.”); Lewis v. United States, 385 U.S. 206 (1966) (holding no Fourth Amendment violation where undercover federal narcotics agent entered defendant’s home to purchase marijuana). Therefore, the IRS’s use of undercover agents in this case does not require dismissal of the indictment or suppression of evidence.

An article on Law.com late this week, Emma Schwartz, D.C. Police Seize Electronics From Home Where Lawyer Was Killed, recently released search warrant records showed that D.C. Police became interested in e-mails at a Robert Wone’s house where he was murdered while he and two others were home.

After their initial search of the house, police asked the court for an additional search warrant for electronic equipment because Wone and “one of the occupants” had e-mailed before the visit and had made phone calls in the “recent time period before the decedent was killed,” according to the affidavit. In a separate search warrant for Price’s office computer, police say that Price had spoken with Wone before he was killed.

This is yet another example of the ubiquity of search warrants, even in murder cases. Here, the police were apparently running down all leads, had two people at home who heard nothing, and even felt the computers would have potential evidence. Remember, under Zurcher v. Stanford Daily, the standard is probable cause to believe that the computer holds evidence of a crime, not necessarily that the owner or possessor of the computer is even a suspect in the crime.

Allegation of an institutional strip search and use of a Rapidscan device that essentially produced a naked image of the plaintiff alleged an invasion of privacy and unreasonable search. Zboralski v. Monahan, 446 F. Supp. 2d 879 (N.D. Ill. August 14, 2006):

We take the following facts from plaintiff’s complaint. Since September 2000, plaintiff regularly visited a patient at the Illinois Department of Human Services Treatment and Detention Facility (“Facility”) in Jolict, Illinois. From May 4, 2005 to May 11, 2005, plaintiff was subjected to patdown searches by defendant Martin, a Security Therapist Aid II at the Facility, in which defendant Martin placed her fingers in plaintiff’s vaginal area and required plaintiff to remove her shoes prior to being allowed to visit the patient. Such searches occurred at least four times during the aforementioned time period.

After plaintiff’s complaints to Bernard Akpan, an Exec. 11 at the Facility, and defendant Strock, the Assistant Security Director of the Facility, and facility patient Brad Lieberman’s complaints to defendant Budz, Director of the Facility, defendant Sanders, Security Director of the Facility, and defendant Strock, plaintiff was no longer required to submit to patdown searches by defendant Martin. Rather, plaintiff’s visits were preceded by a Rapiscan scan of her person. According to plaintiff’s complaint, a Rapiscan machine is an electronic screening device used to scan a person’s entire body. “These machines produce a naked image of the person and can also produce evidence of highly sensitive details such as the following: mastectomies, colostomy appliances, penile implants, catheter tubes, and the size of a person’s breasts and genitals” (cplt., P 2). From May 17, 2005 to June 19, 2005, plaintiff was subjected to 20 to 25 Rapiscan scans. Plaintiff’s complaint further alleges that other Facility staff members were allowed to view her scanned image, her scanned image was not erased from the machine, and staff members viewed her image hours after she was scanned, all without her consent (cplt, PP 24-26, 29). Additionally, while later told that she should have had the choice between the Rapiscan scan or a physical patdown prior to visiting a patient, plaintiff was never informed of such a choice during the two months she underwent the Rapiscan scans. Based on these factual allegations, plaintiff alleges that defendants violated her Fourth and Fourteenth Amendment rights to be free of unreasonable searches and committed the torts of invasion of privacy based on intrusion upon seclusion and assault and battery.

Analyzing the facts of a search and seizure claim in a federal habeas, the court finds the search valid and the state appellate court correct [thereby avoiding having to get into a Williams v. Taylor reasonableness inquiry]. Koetje v. Stovall, 2006 U.S. Dist. LEXIS 60567 (E.D. Mich. August 15, 2006).*

Failing to disclose that informant had been arrested on federal firearms charges did not make out a Franks violation where there was otherwise an abundance of probable cause. United States v. McCoy, 2006 U.S. Dist. LEXIS 60445 (D. Conn. August 2, 2006).*

White collar “chain scheme” search warrant execution permitted seizure of cash found in plain view. People v. Frederick, 142 Cal. App. 4th 400 (2d Dist. August 29, 2006).

The District of Massachusetts holds that the police authority to detain persons during execution of a search warrant does not create a Miranda exception. Being held at gunpoint, defendant was in custody for Miranda purposes. United States v. Mittel-Carey, 2006 U.S. Dist. LEXIS 76431 (D. Mass. October 20, 2006):

Since the justification for the detention in Summers is to (1) prevent the suspect from fleeing the scene; (2) ensure the safety of the officers and the integrity of potential evidence; and (3) help facilitate an efficient and orderly search, the detention of occupants of a search ought be limited to effectuating these objectives. As the Ganwich court so pellucidly explained, the interrogation in issue “did not deter the plaintiff’s flight, did not reduce the risk of harm to officers, and did not assist the officers in the orderly completion of the search.” Id. Therefore, an interrogation in this situation would not be “carefully tailored to the detention’s underlying justification” and must be considered “more intrusive than necessary.” Id.

The argument could be made that Lawson’s inquiry as to where additional items of child pornography might be found was in furtherance of the search, consistent with the stated rationales in Summers. Lawson’s inquiry elicited Mittel-Carey’s response, “[I]t’s all on the computer.” This interaction concerned the details of the search and potentially narrowed its scope, better preserving the privacy of the occupants of the house, and generally facilitating the search for all concerned. Summers, however, indicated only that detained occupants might help the police “open locked doors or locked containers to avoid the use of force that is not only damaging to property but may also delay the completion of the task at hand.” Summers, 452 U.S. at 703. Lawson’s inquiry did not seek Mittel-Carey’s assistance in opening locked compartments. Rather, Lawson asked Mittel-Carey to inculpate himself. In this light, to authorize Lawson’s inquiry would be to read Summers as carving out, sub silentio, a significant exception to Miranda. Such an argument must be rejected in light of the observation in Summers that such detentions are “not likely to be exploited by the officer or unduly prolonged in order to gain more information, because the information the officers seek normally will be obtained through the search and not through the detention.” Id. at 701. See also, e.g., Ganwich, 319 F.3d at 1122 (applying Miranda analysis in context of Summers detention); United States v. Ritchie, 35 F.3d 1477, 1481 (10th Cir. 1994) (same); Freeman, 325 F. Supp. 2d at 469 (same); United States v. Burns, 811 F. Supp. 408, 412-13 (E.D. Wis. 1993) (same).

Use of drug dog on a correctional officer’s car in the prison parking lot as a generalized shakedown of employees was not unreasonable. Kitchens v. King, 2006 U.S. Dist. LEXIS 76434 (M.D. Ga. October 17, 2006).