A student was ordered back to school after an unlawful suspension was set aside by the court. When the student came back to school, the principal directed an illegal search of his backpack, and that put the principal in contempt. In re K.O., 47 V.I. 93, 2004 V.I. LEXIS 23 (Family Div. December 14, 2004) (just submitted to Lexis).

Misstatement in affidavit that defendant had been previously arrested for drugs, a statement made by another officer to the affiant officer, was not material to the finding of PC. United States v. Montgomery, 2006 U.S. Dist. LEXIS 73697 (W.D. Mo. August 11, 2006).

Probable cause existed for plaintiff’s arrest on firearms charges based on an informant’s tip that was corroborated by the car lookng weighed down in an area where weapons sales had been occurring. When it was determined that all the firearms were legally possessed, the charges were dropped, but that did not mean no probable cause at the time of the seizure. Meland v. City of Chicago, 2006 U.S. Dist. LEXIS 73773 (N.D. Ill. September 25, 2006).*

A casual conversation at a convenience store turned into an investigative detention which led to a valid consent. Payne v. State, 854 N.E.2d 1199 (October 11, 2006).*

The Ninth Circuit held yesterday that welfare home visits are reasonable, and the MSJ for the county was affirmed. Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. September 19, 2006). From the Lexis overview:

Plaintiff county welfare recipients sued defendant county and various county officials alleging that the county’s welfare eligibility program requiring all welfare applicants to consent to a warrantless home visit as a condition of eligibility, violated their rights under the U.S. and California Constitutions. The U.S. District Court for the Southern District of California granted summary judgment to defendants; the welfare recipients appealed.

OVERVIEW: The court noted that the U.S. Supreme Court had held that home visits for welfare verification purposes were not searches under the Fourth Amendment. All prospective welfare beneficiaries were subject to mandatory home visits for the purpose of verifying eligibility, and not as part of a criminal investigation. Therefore, the court concluded that the home visits did not qualify as searches under the Fourth Amendment. The court noted that even if the home visits were searches, they were reasonable. The home visits served the important governmental interests of verifying an applicant’s eligibility for welfare benefits and preventing fraud. Since the investigators had legitimate verification-related reasons for viewing items not in plain view such as clothing and the contents of medicine cabinets, and only did so with the homeowner’s explicit consent, their activity could not fairly be characterized as snooping. A warrant requirement would pose serious administrative difficulties in the welfare context including subjecting welfare applicants’ rights and privacy to greater infringement. The court concluded that the home visits were reasonable under Cal. Const. art. I, § 13.

Government contended that defendant was not arrested. “Assessing the evidence in a manner most favorable to Burrell, see Behrens v. Pelletier, 516 U.S. 299, 309 (1996), this encounter was an arrest. Burrell was removed from his car at gunpoint, handcuffed, Mirandized, and told that he was under arrest. Under our case law, this confluence of circumstances leads us to conclude that he in fact was under arrest.” Also, there was PC for the arrest. Burrell v. McIlroy, 464 F.3d 853 (9th Cir. September 20, 2006)* (Not an arrest? You’re kidding, right? This case was under submission two years.).

No expectation of privacy in a code enforcement officer walking around the plaintiff’s yard perimeter and looking in. Beganskas v. Town of Babylon, 2006 U.S. Dist. LEXIS 66938 (E.D. N.Y. September 19, 2006). Comment: The only remarkable thing about this decision is that the argument was made at all.

Defendant stopped in a go-fast boat without nationality had no Fourth Amendment claim so counsel’s failure to file a motion to suppress that was futile cannot be IAC. Grinard-Henry v. United States, 2006 U.S. Dist. LEXIS 54898 (M.D. Fla. August 8, 2006).*

The government failed in its burden of showing consent when the officers said that they wanted to look for identification papers when they were in fact looking for meth. United States v. Lopez-Lopez, 2006 U.S. Dist. LEXIS 54645 (W.D. Mo. August 7, 2006).

11 year old stepson could did not give implied consent to enter, even if he could. Isbell v. Hughes, 2006 U.S. Dist. LEXIS 54870 (D. Ariz. August 3, 2006).

California parole search was not arbitrary or capricious under Samson. United States v. Albert, 2006 U.S. Dist. LEXIS 54746 (N.D. Cal. July 24, 2006).*

Challenge to forfeiture for lack of PC remanded because trial court found PC but did not permit claimant to contest. In re Forfeiture of 1999 Dodge Intrepid, 934 So. 2d 669 (Fla. App. 2d Dist. August 9, 2006).*

CI’s tip was insufficient. The fact the defendants were standing in a car wash coupled with the officer’s hunch was not enough to detain them. Beckham v. State, 934 So. 2d 681 (Fla. App. 2d Dist. August 9, 2006).*

In Texas, defendant could not be convicted of escaping from an arrest where the officer never actually had his hands on him. “Thus, under the court of criminal appeals’ construction of the statute, no person may be prosecuted for escape where he succeeds in prying himself loose from the officer’s grasp.” A mere Fourth Amendment seizure is not enough. Warner v. State, 201 S.W.3d 197 (Tex. App. – Houston (14th Dist.) August 8, 2006).

Defendant was on state probation and the local power company observed a marijuana patch near his house. The PO then validly authorized the search. The “stalking horse” rationale prior to Knights is no longer valid. United States v. Butler, 2006 U.S. Dist. LEXIS 53675 (W.D. Ark. July 6, 2006).

Defendant consented to search of motel room and then denied that his pants were his. They were searched. Johnson v. State, 281 Ga. App. 7, 635 S.E.2d 278 (August 4, 2006).*

Officer had RS for stop based on volunteer fireman’s call that a person in a particular car might have been stealing gas from the fire truck. Combs v. State, 851 N.E.2d 1053 (Ind. App. 5th Dist. August 4, 2006).*

Nighttime search was authorized because of ongoing meth lab operation was alleged in the affidavit for the SW. State v. Bourke, 718 N.W.2d 922 (Minn. August 3, 2006).

When the government objects to a Magistrate Judge’s R&R, it cannot raise new issues; here, standing. United States v. Turvin, 2006 U.S. Dist. LEXIS 75579 (D. Alaska July 18, 2006):

The government argues in its objections for the first time that Cunningham lacks standing to object to the suppression of evidence. It is undisputed that the truck was being driven by Turvin, and Cunningham was a passenger. The government argues that Cunningham lacked a reasonable expectation of privacy in the vehicle to make a Fourth Amendment challenge to the search of the truck. The government offers no authority permitting it to raise a legal argument for the first time in objections to the Recommendation. The government filed a written opposition to the motion to suppress and did not oppose the joinder by defendant Cunningham. The government did not raise standing before or during the presentation of evidence at the suppression hearing. Nor did the government argue standing in its summation after the evidence was closed. Legal arguments not made when the issue is presented are waived in the absence of extraordinary circumstances which are not here alleged. An argument based on standing is not jurisdictional and may be waived. United States v. Deluca, 269 F.3d 1128, 1135 (10th Cir. 2001).

Defendant failed to show he had standing in a vehicle search just because he had the keys to another’s car, but he still had standing to challenge the stop and subsequent detention. Here, the stop was valid for an obscured temporary tag, and defendant was extremely nervous and the odor of fabric softener was strong. The videotape showed that the conversation was normal, but it did not show defendant nodding his head in agreement. Since defendant did not testify, the court credits the officer’s testimony that consent was valid. A defendant’s affidavit alone is not enough because it avoids cross-examination. United States v. Nazario-Rivera, 2006 U.S. Dist. LEXIS 75578 (D. Kan. October 17, 2006).

A new rationale for a pretextual roadblock in Clinch County, Georgia: seatbelts. The court found that the plaintiff did not satisfy her burden under Edmond, never citing Heck even though the plaintiff was convicted in state court. Scruggs v. Lee, 2006 U.S. Dist. LEXIS 75821 (M.D. Ga. September 30, 2006):

The roadblock was being operated in conjunction with a “Click-It-or Ticket” Campaign conducted by the Clinch County Sheriff’s Office. In addition to the Clinch County Sheriff’s Department deputies who were present, law enforcement officials from the Georgia Department of Corrections and the Georgia Department of Natural Resources were assisting with the roadblock. There were also canine units at the scene which were being used to detect for illegal drugs.

Evaluating the stop under City of Indianapolis v. Edmond:

Scruggs relies on the number of canine units present as well as his claim that a drug dog was presented at his car before he even had a chance to provide his driver’s license to support his claim that the primary purpose of the roadblock was to detect evidence of criminal wrongdoing. However, even accepting these allegations as true, the Court finds that they are insufficient to create a jury issue on the question of whether the primary purpose of the roadblock was legitimate, i.e., for the purpose of promoting safety on the highways, or not legitimate, i.e, for the purpose of detecting evidence of criminal wrongdoing. Each of the officers deposed stated that the primary purpose of the roadblock was to check for seat belt violations. Although each also added that he was also checking for other evidence of illegal activity, this adds nothing to the equation–an on-duty police officer is always checking for evidence of illegal activity. Moreover the presence of three police dogs, one of which may have been brought to the car before Scruggs produced his license is insufficient to show that the primary purpose was to obtain evidence of general criminal wrongdoing. Therefore, the Court finds that the stop of Scruggs’ vehicle was not unlawful but was made pursuant to a valid highway roadblock.

Comment: This case needs to be appealed. The fact a dog was on the car before the driver’s license was out was sufficient to me to state a claim for relief and was a sufficient ground to have appealed in the state court system. Because of Heck limitations, however, being in federal court is a poor forum.

Strip search for possession of marijuana charge was factually justified on the totality because the small quantity in the vehicle could have led to a small quantity on the person, so MSJ granted. Hartline v. Gallo, 2006 U.S. Dist. LEXIS 75849 (E.D. N.Y. September 30, 2006).

PC was found from defendant meeting a truck that was caught coming through Customs with drugs. The truck was allowed to go on to its meeting place, and surveillance was set up. Meeting the truck after driving so long was PC. United States v. Lam, 2006 U.S. Dist. LEXIS 75869 (W.D. N.Y. May 23, 2006):

The commonsense adage “birds of [a] feather flock together,” applies to the instant facts. At the point Tran was arrested, the agents knew the SUV had been driven a long distance for the purpose of taking delivery, as a prearranged place and time, of a large amount of smuggled marijuana. Whether Tran was, in fact, an active and knowing coconspirator is not the issue on the instant motion; rather, the question is whether the agents had probable cause to believe Tran was involved in the underlying criminality. Based on the totality of the undisputed facts leading to her arrest, there was nothing to suggest that Tran was merely an innocent visitor to the area who had made a bad choice of traveling companions. Accordingly, the Government has fully satisfied its burden to establish that Tran’s warrantless arrest was based upon probable cause. United States v. Pena, 961 F.2d 333, 338 (2d Cir. 1992).

For entry of a third party’s residence for a person named in an arrest warrant under Steagald, the police are required to exercise due diligence and have a “reasonable belief.” United States v. Barrera, 464 F.3d 496 (5th Cir. September 5, 2006):

The Supreme Court has “consistently held that the entry into a home to conduct a search or make an arrest is unreasonable . . . unless done pursuant to a warrant” except when exigent circumstances are present. Steagald v. United States, 451 U.S. 204, 211-12 (1981). Furthermore, the Court has stated that “for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603 (1980). Payton, however, did not define the “reason to believe” standard it discussed; this court in Route, 104 F.3d at 62, nonetheless, distinguished n5 it from the standard for probable cause and adhered to the articulation of the test for “reasonable belief” set forth in United States v. Woods, 560 F.2d 660 (5th Cir. 1977). In Woods, this court determined that “[r]easonable belief embodies the same standards of reasonableness [as probable cause] but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate and without exigent circumstances.” Woods, 560 F.2d at 665 (quotation and citation omitted). Furthermore, we held that courts should review the reasonableness of an officer’s judgment. Id.

n5 Federal and state appellate courts that have addressed the reason to believe standard set forth in Payton have disagreed as to whether that standard should be explicitly characterized as equivalent to the probable cause standard. United States v. Gorman, 314 F.3d 1105, 1111-15 (9th Cir. 2002) (concluding reasonable belief standard in Payton embodies the same standard of reasonableness inherent in probable cause); Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999) (criticizing Ninth Circuit authority that had required showing of probable cause to believe defendant resided at location where arrest warrant executed); Green v. State, 78 S.W.3d 604, 612 (Tex. Ct. App. 2002) (distinguishing reasonable belief and probable cause). The disagreement among the circuits has been more about semantics than substance; the courts that distinguish the terms have done so because “probable cause” is a term of art. Route, 104 F.3d at 62. Even though they may distinguish the reasonable belief standard from probable cause, they also define the “reason to believe standard” as requiring that the officers reasonably believe that “the suspect is probably within” the premises. Id. (emphasis added).[end fn]

In Route, police officers executed a valid arrest warrant for the defendant, Route, outside of his residence. 104 F.3d at 61. During the arrest of a co-defendant, for whom officers also had a valid arrest warrant, officers found evidence incriminating Route inside the residence. Id. at 61-62. Route challenged the district court’s denial of his motion to suppress evidence seized from the residence. Id. This court held that the search of Route’s residence was supported by a valid arrest warrant for the co-defendant and by the officer’s reasonable belief that the co-defendant lived at the residence and was within the residence at the time of entry. Id. at 62-63. This court concluded that the arresting officer had performed sufficient due diligence in concluding that the co-defendant lived at the residence because the co-defendant’s credit card applications, water and electricity bills, vehicle registration, and mailing address confirmed that he lived at the residence. Id. This court further concluded that the officer’s reasonable belief that the co-defendant was within the residence at the time of entry was confirmed by the presence of a vehicle in the driveway and noise from a television inside the residence. Id. at 63.

Route offers a standard for determining the amount of due diligence required to support a reasonable belief that a defendant lives at and is present within a residence. It is the sole published Fifth Circuit precedent addressing the issue; the courts in United States v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000), and United States v. Lovelock, 170 F.3d 339 (2d Cir. 1999), however, have dealt with such issues in the same manner.

Wiretap information of defendant being involved in drug deals and surveillance that defendant had entered a stash house and come out with a bag which he put in his car was reasonable suspicion. Therefore, the court does not have to determine whether the traffic stop was valid (which the court noted was dubious in the first place). Dog sniff was valid. United States v. Brito-Melo, 2006 U.S. Dist. LEXIS 62972 (D. Mass. September 5, 2006)*:

Altogether, the defendants were detained forty-five minutes to an hour until the dog did his butt-wiggle-rearward-moon-walk to signal drugs were in the Saab. At that point, reasonable suspicion escalated again, perhaps morphing into probable cause, and a continued detention to conduct the search of the Saab was reasonable.

911 caller who did not identify herself, but operator had address from 911 system, who described burglary in progress and who stayed on the telephone with 911 until the police arrived could be considered reliable. United States v. Long, 464 F.3d 569 (6th Cir. October 2, 2006):

We agree with the magistrate’s determination that the call was relatively reliable and relevant to the existence of reasonable suspicion to support the stop here. Although in some cases, police knowledge of an address from where an otherwise anonymous call is made might not be enough to render the call reliable, the reliability of this call is strongly supported by the fact that in addition to the dispatcher knowing the caller’s address, the police pulled up in front of the caller’s house while the 911 call was still ongoing. If the caller turned out to have been lying, the police could have confronted him immediately. Whether or not the authorities were aware of the caller’s name in this situation added little to the reliability determination under Gates.

Officer who came to house to talk to one individual there encountered the defendant and decided to patdown the defendant for weapons for safety reasons. Defendant said “no” and headed for the door, and he was stopped. The patdown was unlawful because the defendant was removing the alleged threat by attempting to leave. United States v. Ellis, 2006 U.S. Dist. LEXIS 70769 (D. Neb. September 26, 2006):

It is uncontroverted that Officer Watson did not ask Ellis to consent to a patdown search. Instead, Officer Watson simply announced his intention that he was going to search Ellis. Rather than acquiescing to Officer Watson’s demand, Ellis instead effectively just said “no,” stood up, and began to walk to the door to leave, an action which, if allowed to occur, would have removed any threat to the officers’ safety that a reasonable person would have felt Ellis represented.

Under the totality of the circumstances, the patdown search was not justified by any threats to the safety of the officers or of others nearby. Miller, not Ellis, was the only target of the officers’ investigation. Ellis was under no compulsion to answer the questions of the officers and was fully within his rights to go on his way. See Royer, 460 U.S. at 498. Therefore, the contraband that was discovered and the admission that was obtained from Ellis at the scene must be suppressed.

Having suppressed the contraband and the on-site admission, any further admissions at the police station are also suppressed as fruits of the Fourth Amendment violation. See United States v. Wong Sun, 371 U.S. 471, 487 (1963).

Identified citizen informant was entitled to more credit in PC determination in support of a search warrant. PC was shown on the totality of circumstances. United States v. Olivent, 2006 U.S. Dist. LEXIS 70689 (E.D. Tenn. July 7, 2006).*

Controlled buys corroborated informants. State v. Metzger, 2006 Ohio 5161, 2006 Ohio App. LEXIS 5100 (3d Dist. October 2, 2006).*

A state drug task force officer who was deputized as a federal officer as well was not governed by Rule 41 when he was seeking a state search warrant from a state judge, even though the case ended up going federal. United States v. Cope, 2006 U.S. App. LEXIS 21618 (6th Cir. August 22, 2006)* (unpublished).

Nexus to defendant’s premises for search warrant was based on defendant leaving his house to go to scene of drug deal. United States v. Spaulding, 446 F. Supp. 2d 789 (N.D. Ohio August 23, 2006).*

The mere fact a motorist is in a police car is not proof that he was seized or not about to be released after the traffic stop is resolved. Reasonable suspicion was developed here, and it was then reasonable to bring in the drug dog. United States v. Maldonado-Gutierrez, 2006 U.S. Dist. LEXIS 59613 (N.D. Iowa August 22, 2006).*

Ten month old information was not too stale for a child porn on a computer case. While the court will not conclude that it is kept indefinitely, child porn is usually kept a long time. United States v. Chase, 2006 U.S. Dist. LEXIS 59725 (D. Nev. July 19, 2006).*

Trial court erred in granting motion to suppress. The defendant consented to the officer opening the door, and the officer could smell marijuana, and that created PC to search for the source. State v. Black, 2006 Ala. Crim. App. LEXIS 171 (August 25, 2006).*

No IAC for not challenging search warrant for alleged Franks violation because it would fail. People v. Oliver, 39 Cal. 4th 970 (August 24, 2006).*

The Supreme Court granted cert. October 27th from Scott v. Harris, 433 F.3d 807 (11th Cir. 2005), a Fourth Amendment qualified immunity case. The question presented is not yet available online. The docket is here. The summary from Willemette School of Law:

The United States Court of Appeals for the Eleventh Circuit held that a police officer who uses deadly force against a fleeing offender who does not pose an immediate threat to human life is not allowed to claim qualified immunity from the offender’s Fourth Amendment right from excessive force during a seizure.

A deputy police officer clocked Victor Harris at 73 miles per hour in a 55 mile per hour zone. Harris was not wanted for any other offense, but he attempted to flee. Without knowing details of the event, Sergeant Fenninger gave Deputy Scott permission to use “precision intervention technique” (PIT) to stop Harris’ car. The PIT is not classified as deadly force. However, because of the high speeds involved, Scott could not perform the technique and instead rammed Harris’ vehicle, which caused an accident that left Harris a quadriplegic. Harris brought suit against Fenninger and Scott. The United States District Court for the Northern District of Georgia denied both Defendants’ motion for summary judgment, which was founded on a qualified immunity defense. The United States Court of Appeals for the Eleventh Circuit reversed in part, and affirmed in part, holding that Scott used deadly force against a fleeing offender who did not pose an immediate threat to human life and was therefore not allowed to claim qualified immunity. The Court of Appeals noted that a reasonable officer would have notice under established law about what conditions were sufficient to use deadly force to stop a fleeing motorist. In this case, the chase only concerned a traffic violation; therefore Scott’s deadly force was excessive, especially given Sergeant Fenninger’s authorization for the safe PIT maneuver. The Court of Appeals ruled that because Fenninger authorized a safe maneuver, he was entitled to use the qualified immunity defense. However, because Scott used unreasonable force in intercepting Harris, the Court of Appeals held Scott was not entitled to the immunity defense. Scott appealed, and The United States Supreme Court granted Certiorari.
[Summarized by Kerensa Pearce.]

(At NACDL meeting in Boston. Been busy. Also, Wednesday passed the 1,000 daily visits mark for the first time. We reached 887 in one day earlier in October. Thank you for your support.)

The Southern District of New York dealt with a civil case by a pawnshop that lost a $500 gold bracelet when the police came, inspected the records, and took the bracelet as potentially stolen property. It was clear that the police had an investigative motive. While the amount in controversy was not much, the court finds the issue significant, and it holds that the motive is irrelevant in a closely regulated industry. We Buy, Inc. v. Town of Clarkstown, New York, 2006 U.S. Dist. LEXIS 76792 (S.D. N.Y. October 20, 2006):

We Buy does not quarrel with the constitutionality of the administrative scheme, nor does plaintiff claim that pawnshops are not a “closely regulated industry.” Plaintiff merely claims that its constitutional rights were violated when the police performed what would constitute a valid administrative inspection, with the true motive of investigating a crime, not simply ensuring compliance with the administrative scheme. Relying on Supreme Court cases like Horton v. California, 496 U.S. 128 (1990) (“plain view” seizures need not be inadvertent; officer’s subjective hope to find evidence is irrelevant) and Whren v. United States, 517 U.S. 806, 813 (1996) (constitutional reasonableness of traffic stop does not depend on subjective motivations of individual officer), the Ninth Circuit has noted that “if the scheme under which the administrative search is conducted is constitutional, the subjective motivation of the individual conducting the search will not invalidate the search.” United States v. Bulacan, 156 F.3d 963, 976 (9th Cir. 1998) (reaching question of constitutionality of scheme even though officer admitted having criminal investigatory purpose); see also United States v. Bowhay, 992 F.2d 229, 231 (9th Cir. 1993) (“When the police conduct [of an inventory search] would have been the same regardless of officer’s subjective state of mind, no purpose is served by attempting to tease out the officer’s ‘true’ motivation.”). In Burger, the Court relied on the substantial overlap between the purposes of the administrative scheme and the penal law to validate the administrative search. Just as regulation of the business of automobile junkyards was intended to prevent traffic in stolen cars, regulation of the second-hand industry is intended to prevent traffic in stolen property. See Burger, 482 U.S. at 706-07 & nn. 17-18 (noting similarities between regulation of automobile junkyards and second-hand dealers).

This Court is of the opinion that We Buy’s case is more closely analogous to the situation in Burger than in Johnson. The actions of the police on Friday were even more restrained than the police in Burger. They obtained consent (even if, as we assume, it was merely acquiescence to a claim of lawful authority) to review We Buy’s records. Unlike the federal agent in Johnson, they were entitled to access to the records under the administrative scheme regulating the second hand dealer industry. When they discovered evidence of criminality, they obtained consent to investigate further under no claim of administrative authority. As in Burger the investigation they were pursuing was directly related to the goals of the administrative scheme. See 482 U.S. at 713-14. The only Fourth Amendment violation that We Buy alleges is that the police examined its records. It is, however, difficult to see how We Buy could have a reasonable expectation of privacy in those records protected by the Fourth Amendment when they were subject to inspection by the police at any time under the administrative scheme. Cf. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (Fourth Amendment applies when an individual has an actual expectation of privacy “that society is prepared to recognize as ‘reasonable'”). Therefore, even if Santiago’s consent was not valid, We Buy’s federally protected rights were not violated when the police reviewed the records.

Plaintiff also relies on People v. Keta, 79 N.Y.2d 474, 491 (1992), in which the New York Court of Appeals revisited the statute upheld in Burger as a matter of state constitutional law. The court in Keta struck down the statute holding that, under article I, § 12 of the New York State Constitution, there is no exception to the warrant and probable cause requirements where an administrative search is “undertaken solely to uncover evidence of criminality and the underlying regulatory scheme is in reality, designed simply to give the police an expedient means of enforcing penal sanctions.” Id. at 498 (internal quotation marks omitted). We Buy does not raise any claims under state law in the complaint, but instead appears to argue that because New York state law precludes pretextual use of administrative searches, plaintiff’s Fourth Amendment rights were violated when the police examined the records.

This argument presents an interesting question of whether state law that is more protective of privacy rights than federal law creates a reasonable expectation of privacy under the Fourth Amendment that is expanded to match the state standard. In other words, can a citizen of New York reasonably rely on law enforcement officers following the more protective New York law, and thus reasonably expect a higher level of privacy under the conception of the Fourth Amendment that the Supreme Court set forth in Katz? Though the question was not presented in these exact terms, it appears that the Second Circuit has answered in the negative.

In a line of cases starting with United States v. Pforzheimer, 826 F.2d 200 (2d Cir. 1987), the Second Circuit has consistently held that federal courts must apply the exclusionary rule under federal law in federal prosecutions, even if evidence was gathered by state officials in violation of state constitutional law and would be excluded in a state prosecution. Id. at 203-04; accord, e.g., United States v. Workman, 80 F.3d 688, 694-95 (2d Cir. 1996); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995), cert. denied, 516 U.S. 1068 (1996); United States v. Smith, 9 F.3d 1007, 1014 (2d Cir. 1993); see also United States v. Hogan, 122 F.Supp.2d 358 (E.D.N.Y. 2000). n5 The court in Pforzheimer decided that federal law applied in a federal prosecution, rejecting arguments, based on principles of comity and a desire to avoid forum shopping, that evidence obtained solely by state agents in violation of state law should be excluded. 826 F.2d at 203-04. The court did not address the argument that the substantive protections of the Fourth Amendment are expanded because more protective state law creates a reasonable expectation of greater privacy, however the consistent holdings of the Second Circuit since that case seem to undermine plaintiff’s line of reasoning. Because evidence obtained in searches that violate state constitutional law has been regularly admitted in federal prosecutions, We Buy cannot reasonably claim an expanded expectation of privacy based on state law. Even if We Buy could show that the Pforzheimer line of cases were wrongly decided, their consistent application precludes this Court from recognizing an expanded expectation of privacy under the Fourth Amendment based on more protective state law. This Court, therefore, need not decide whether the inspection of We Buy’s records was a violation of New York state constitutional law under Keta.

When a CI was arrested, she named defendant as her source. The police did nothing to corroborate her. The statement of one just arrested naming a source is not a “statement against penal interest” merely because somebody else is named. Rather, it is an effort to curry favor with the police. In addition, the GFE would not be applied because it violated the fourth Leon exception: the affidavit or sworn testimony upon which probable cause rests is so lacking in indicia of probable cause as to render an official belief in the existence of the warrant unreasonable. Leon, 468 U.S. at 923. Hirshey v. State, 852 N.E.2d 1008 (Ind. App. August 23, 2006).

On execution of a search warrant for a second floor apartment, the police discovered that the attic was connected to the apartment, and they did not need another warrant to go into the attic. Commonwealth v. Wallace, 2006 Mass. App. LEXIS 907 (August 24, 2006).

Defendant drove up into the driveway of a place being searched under a warrant. [Why do they do that? Are they completely unobservant of the police cars in the neighborhood.] His ID was checked, and it was determined he was on probation. The person whose place was being searched told the police that he had a mobile meth lab in the truck. It was not necessary to have the probation officer present when the search was conducted. State v. Fritz, 2006 MT 202, 333 Mont. 215, 142 P.3d 806 (August 23, 2006).

Tossing drugs out of the house as a search was occurring was an abandonment of those drugs. It also created PC for defendant’s arrest and search incident. State v. Owings, 2006 Ohio 4281, 2006 Ohio App. LEXIS 4278 (2d Dist. August 18, 2006).*

During traffic stop, defendant fled, running a roadblock, abandoning his truck, and was found hiding in a friend’s deer camp. He lacked standing to contest the entry. Whitmire v. State, 2006 Tex. App. LEXIS 7494 (Tex. App. – Beaumont August 23, 2006).

Consent procured by police lies was invalid. United States v. Lopez-Lopez, 443 F. Supp. 2d 1130 (W.D. Mo. August 7, 2006):

From the outset of the interrogation, the police intended to deceive Defendant and impermissibly exceed the scope of Defendant’s consent. The whole of the interrogation was premised on a series of lies. The detective who obtained consent to search lied to the defendant regarding: (1) the intended purpose of the search; (2) the detectives’ knowledge of drugs being in the residence; and (3) the fact whether the detective shuffled through the documents he told Defendant he was going back to get, implying that he would be searching only that portion of the residence where the documents had initially been found. Such affirmative misrepresentations are nothing more than consent through deception, and accordingly constitute implied coercion.

Similarly, see Czerniak v. Owens, 2006 Ohio 4436, 2006 Ohio App. LEXIS 4360 (6th Dist. August 25, 2006), where an Ohio worker’s comp recipient alleged that a ruse entry into her house where she was running a foster cat operation by Ohio worker’s comp investigators violated her Fourth Amendment and privacy rights under Ohio law. The Lexis summary:

The investigators said they wanted to adopt a cat from the recipient, who ran a foster home for cats. They secretly videotaped the interior of her home. The appellate court held they were not entitled to summary judgment as they did not show (1) a search warrant was not required, or (2) that the recipient consented to their search, or (3) qualified immunity protected them. A warrant was required as they gained entry by fabricating identities and stating false pretenses. The Ohio Bureau of Workers’ Compensation’s policy required a warrant. They did not obtain valid consent to enter the home. Fostering cats was a legal activity, so they could not enter the home without her knowing consent, nor was the home a commercial center of any kind. Potential adopters did not normally view cats in the home. The investigators knew or should have known their acts violated the recipient’s Fourth Amendment rights, as their manual required a warrant. Since the search violated the recipient’s rights, any evidence from it was inadmissible, and qualified immunity did not insulate them.