No cases of any consequence today: there were a few updated cites of cases being reported, and the Washington Court of Appeals held that DNA testing of convicts was valid, State v. Nguyen, 134 Wn. App. 863 (September 11, 2006), an issue that I no longer even include since no case has rejected it.

Border Patrol officer parked near intersection of I-25 and a side road at Las Cruces that often had vehicles carrying illegal aliens from Texas. Furtive movements and Texas paper plates on van led officer to pull it over, and there were indications that it was carrying drugs instead. Continued detention of the vehicle was reasonable. United States v. Cheromiah, 455 F.3d 1216 (10th Cir. August 2, 2006).*

Three search warrants were issued against defendant’s property, and first case was dismissed. Omission of that fact did not make a Franks violation because abundant PC existed otherwise. United States v. Patterson, 173 Fed. Appx. 283 (4th Cir. March 31, 2006).*

Classic furtive movements and hiding in dark justified stop. “Here, possibly armed, defendant posed a threat to officer safety while in the bushes. Thus, it was reasonable for the police officers to point guns at the defendant as they asked defendant to get out of the bushes. Given that defendant had already run and appeared to have a weapon, it was reasonable for the police to handcuff defendant. The detention, which was also of relatively short duration, did not rise to the level of an arrest.” United States v. Hoskins, 2006 U.S. Dist. LEXIS 52573 (N.D. Cal. July 31, 2006).*

911 call of erratic driving gave vehicle make and license number. Officers went to the address listed and found the defendant sitting in the car in the driveway. The officer could ask to talk to the defendant when he smell alcohol on his breath. State v. Augustine, 851 N.E.2d 1022 (Ind. App. 3d Dist. August 1, 2006).

Defendant’s wife who did not live with him but came by to take care of his animals conducted a private search when she took videotapes of defendant engaged in child porn from the premises. Bessey v. State, 199 S.W.3d 546 (Tex. App. – Texarkana August 2, 2006).*

District Judge rejects R&R that officers lacked RS. On de novo review, the court finds that the police had independent information from the CI, and that made RS. United States v. Woods, 443 F. Supp. 2d 1374 (M.D. Ala. August 10, 2006).*

Anonymous 911 call of an argument in apparently a neighboring house between a man and his 15 year old daughter resulted in a police entry. At the door, the father was profane and argumentative, and that justified the entry. MSJ granted. Schreiber v. Moe, 445 F. Supp. 2d 799 (W.D. Mich. August 10, 2006).*

Without conceding that defendant’s arrest was illegal (something state trial courts had held, but the state supreme court had not), defendant was Mirandized and the totality showed that any taint was purged. United States v. Johnson, 445 F. Supp. 2d 1181 (D. Nev. August 9, 2006)* (internet traveler case).

Court says that it is applying GFE first as suggested by Leon, but it actually analyzes PC to determine whether the affidavit is “bare bones” and concludes there is PC. United States v. Santos, 2006 U.S. Dist. LEXIS 55943 (N.D. Ga. June 21, 2006)* (remember, it is my sugesting in the treatise that the Supreme Court actually requires PC first, GFE next, notwithstanding dicta and confusing language in Leon).

Defense counsel was not ineffective for not moving to suppress because, analyzing the merits of the search claim, he would have lost anyway. State v. Nitcher, 720 N.W.2d 547 (Iowa August 11, 2006).*

Knock-and-talk at apartment door was unreasonable because the officer did not knock at the outside door first. He found the door unlocked, and he just came in. On prior trips to the apartment building to investigate various things the outside door was often unlocked. Here, he knocked on the apartment door, and the occupant thought he was somebody expected, and the officer saw cocaine on the table. State v. Douglas, 2006 Iowa App. LEXIS 996 (August 9, 2006).

Officer in plainclothes and off-duty assisting a crime victim who was subjected to police brutality by another officer before plaintiff’s identity was known was governed by the D.C. Police worker’s comp law as an exclusive remedy, and he could not sue the officer for police brutality. Johnson v. District of Columbia, 445 F. Supp. 2d 1 (D. D.C. August 10, 2006).*

Neighbor’s report to police of burglary in progress where officers found back door kicked in could enter under the community caretaking function. United States v. Sanger, 2006 U.S. Dist. LEXIS 55479 (N.D. Iowa August 9, 2006).

Staleness argument in records search failed because of the ongoing nature of the conspiracy and crime. United States v. Sechler, 2006 U.S. Dist. LEXIS 55269 (M.D. Pa. August 9, 2006).*

The CI’s information, viewed under Gates, was sufficient to show PC for the warrant. United States v. Grazioso, 2006 U.S. Dist. LEXIS 55384 (N.D. Tex. August 9, 2006).*

Patdown led to plain feel of crack cocaine. United States v. Woody, 2006 U.S. Dist. LEXIS 55274 (W.D. Va. August 9, 2006).*

The officers’ experience in dealing with drug traffickers could be credited toward whether the conduct of the defendant was RS for a stop. United States v. Nguyen, 2006 U.S. Dist. LEXIS 55315 (D. Vt. August 7, 2006).

RS to detain the driver of a car necessarily includes the power to detain the passengers as a part of the stop of the driver. United States v. Sanders, 2006 U.S. Dist. LEXIS 55328 (W.D. Mo. July 12, 2006).

Nebraska “familiar” ruse checkpoint produced stop sign violation at bottom of off ramp, and that was cause of stop. United States v. Loya, 2006 U.S. Dist. LEXIS 55391 (D. Neb. June 16, 2006).*

Complaint against a judge founded on the Michigan Constitution could not be removed to federal court. Plaintiff’s motion to remand granted. The claims could have been brought under the federal constitution but were not. Howard v. Borman, 2006 U.S. Dist. LEXIS 57239 (E.D. Mich. August 16, 2006).*

Vague and conclusory allegations in support of a motion to suppress are not enough under Rule 41(e). The defendant, however, is given a chance to supplement the motion to cure the deficiencies. United States v. Parfait, 2006 U.S. Dist. LEXIS 57168 (W.D. La. August 15, 2006).*

Viewing the videotape of the stop, the court concludes that the continuation of the stop was with RS. United States v. Woods, 445 F. Supp. 2d 1328 (M.D. Ala. August 14, 2006).*

PC was based on corroborated information and long surveillance of the defendant’s activities which were obviously related to what would appear to be drug dealing. United States v. Morales, 2006 U.S. Dist. LEXIS 57391 (S.D. N.Y. August 11, 2006).*

In a long opinion, the Central District of California held that public employees had a reasonable expectation of privacy in their city issued pagers because they were told that they could be used for personal messages. In a sting, a dispatcher paged and text messaged her boyfriend who was a member of the Hell’s Angels that he was being followed by police. After that, the city collected the pagers to audit their contents. (The court also discussed at length application of the Stored Communications Act.) Quon v. Arch Wireless Operating Co., 445 F. Supp. 2d 1116 (C.D. Cal. August 15, 2006):

Even if a public employee has a reasonable expectation of privacy in the area or item searched by his or her governmental employer, the inquiry does not end there. The Court must still assess the reasonableness of the search conducted by the governmental employer “[P]ublic employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id. at 725-26. Evaluation of the reasonableness of such an intrusion is gauged by looking to “the inception and the scope of the intrusion.” Id. at 726. “A search of an employee’s office by a supervisor will be justified at its inception when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose such as to retrieve a needed file.” Id. A search is considered reasonable in its scope when “the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the nature of the misconduct.” Id.

. . .

(a) Reasonable Expectation of Privacy

A public employee’s expectation of privacy is judged against the “operational realities of the workplace” in which the employee works. Ortega, 480 U.S. at 715. The Court would agree with defendants’ position that Quon would have no such reasonable expectation of privacy if all that was before it was the fact that Quon had been informed in writing and in person that the City considered the use of the pagers to fall within its e-mail policy, and that the City would monitor the use of its pagers, including auditing what messages were sent and received by them at any time. All of this would have put any employee on fair notice that the communications that were transmitted over the pager were, in essence, open to the public for view. See Ortega, 480 U.S. at 719 (noting that expectation of privacy not reasonable where employer has a “regulation or policy discouraging employees . . . from storing personal papers and effects in their desk or file cabinets”); Schowengerdt v. General Dynamics Corp., 823 F.2d 1328, 1334, 1335 (9th Cir. 1987)(agreeing that “public employees’ expectations of privacy may be reduced by virtue of actual office practices and procedures” such as “notice from his employer that searches of the type to which he was subjected might occur from time to time for work-related purposes”).

Thus, for instance, in Bohach v. City of Reno, 982 F. Supp. 1232, 1234-35 (D. Nev. 1996), the district court held that a department memorandum informing employees that messages sent on city-issued pagers would be logged on the department’s network and that certain types of messages were banned in conjunction with the fact that such recording of messages is “part of the ‘ordinary course of business’ for police departments” diminished any expectation of privacy the employee had in what he sent or received on his pager. Similarly, in United States v. Ziegler, — F.3d –, 2006 WL 2255688 (9th Cir. Aug. 8, 2006), the Ninth Circuit held that a company’s ownership of the employee’s workplace computer, the regular monitoring of the use of the employees’ workplace computers, the issuance of a company policy announcing that such monitoring would take place, and the dissemination to its employees of a prohibition from using the computer for private use defeated any objective expectation of privacy those employees may have had in their workplace computers. Id. at *6.

This “operational reality,” however, was fundamentally transformed by Lieutenant Duke’s conscious decision not to enforce this policy. Apparently not wanting to devote resources to reviewing the contents of text messages sent or received from pagers that exceeded the monthly character limit, Lieutenant Duke made it clear to the staff, and to Quon in particular, that he would not audit their pagers so long as they agreed to pay for any overages. Given that Lieutenant Duke was the one in charge of administering the use of the city-owned pagers, his statements carry a great deal of weight. Indeed, before the events that transpired in this case the department did not audit any employee’s use of the pager for the eight months the pagers had been in use. This was true even when overages were involved. Lieutenant Duke in effect turned a blind eye to whatever purpose an employee used the pager, thereby vitiating the department’s policy of any force or substance. By doing so, Lieutenant Duke effectively provided employees a reasonable basis to expect privacy in the contents of the text messages they received or sent over their pagers; the only qualifier to guaranteeing that the messages remain private was that they pay for any overages. See United States v. Slanina, 283 F.3d 670, 677 (5th Cir. 2002)(“given the absence of a city policy placing Slanina on notice that his computer usage would be monitored and the lack of any indication that other employees had routine access to his computer, we hold that Slanina’s expectation of privacy was reasonable”); Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir. 2001)(holding employee had reasonable expectation of privacy in “storing personal items in his office computer” where, despite employer’s policy prohibiting use of state equipment “for personal business,” employer acknowledged that “employee would not violate state policies by keeping a personal checkbook in an office drawer, even though it would take up space there”); Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001)(noting no diminished expectation of privacy where “defendants . . . did not routinely monitor officer’s pagers or give notice to officers that random monitoring of their department-issued pagers was possible” and “where the policy” against “personal use” of such pagers “had not been enforced”); Cf. Ziegler, 2006 WL 2255688, at *4 n.10 (recognizing that situation would be fundamentally different where “employer failed to implement a policy limiting personal use of or the scope of privacy in the computers, or had no general practice of routinely conducting searches of the computers”).

That the pager in question was owned by the City adds nothing by itself to the analysis. A per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer would be at odds with the Supreme Court’s holding in Ortega. There the Supreme Court held unanimously that the employee could have a reasonable expectation of privacy in the personal items he stored in a desk that was presumably owned by his employer. Id. at 719. Expectations of privacy are not tied up by reference to property law. See Katz v. United States, 389 U.S. 347, 352 (1967); Schowengerdt, 823 F.2d at 1333 (“Fourth Amendment privacy interests do not, however, turn on property interests. . . . the [United States Supreme] Court rejected the contention that those who seek to invoke Fourth Amendment protections must have a property right in the area searched”). As the Ninth Circuit recently explained in Ziegler: “We do not hold that company ownership of the computer is alone sufficient to defeat an expectation of privacy. . . . As always, the issue depends on what expectations may reasonably coexist with that ownership.” 2006 WL 2255688, at *6 n.11. Here, any lessened expectation of privacy in one’s pager messages due to it belonging to the City was canceled out by what the City, through Lieutenant Duke, communicated to its officers on how they could use that equipment.

Similarly, defendants’ plea that the use of such equipment in the workplace is entitled to a lesser expectation of privacy given “community” or “social norms” — specifically, that “with the proliferation of various electronic communication systems “in the work place, it is extremely common for employers to monitor employee usage of these devices and systems” — loses its salience in light of the particular circumstances of this case. (Gov’t Defs’ Mot. Summ. J. at 36). Appeals to broad societal norms quickly give way once an employer, like the defendants in this case, promulgates and announces a policy to its employees detailing how much privacy to expect in using specified equipment. At that point such general norms are trumped by the particular norm that was implemented in the work place in question. See Ziegler, 2006 WL 2255688, at *5 (“we take societal expectations as they are, not as they could or (some think) should be” (citing United States v. Silva, 247 F.3d 1051, 1055 (9th Cir. 2001)). The Court finds that it is unreasonable to expect that an employee would assume that some other unstated norm should inform their opinion on how much privacy to expect in using an employer’s equipment once that employer expressly informs his or her employees of an actual policy regarding the use of that very equipment. Here, Lieutenant Duke’s actions eroded any attempt on defendants’ part to lessen the expectation of privacy its employees had in the use of the pagers issued to them; indeed, his actions could be said to have encouraged employees to use the pagers for personal matters. See Ortega, 480 U.S. at 719 (holding employee had a reasonable expectation of privacy where there was “no evidence that the Hospital had established any reasonable regulation or policy discouraging employees . . . from storing personal papers and effects in their desks or file cabinets”).

The Seventh Circuit held that it follows the First Circuit and adopts the “clearly erroneous” standard of review for alleged Franks violations and not de novo review under Ornelas. Because search warrants are entitled to deference, deferential review under Gates requires this standard of review. United States v. Mancari, 463 F.3d 590 (7th Cir. September 1, 2006), following United States v. Owens, 167 F.3d 739, 747 n.4 (1st Cir. 1999).

Note: Rule of thumb: No warrant, de novo (Ornelas); warrant, clear error (Gates and Ventresca).

Franks violation failed because the court cannot find that the officer knowingly or recklessly misrepresented any fact in presenting the informant’s story and what he was told by other officers. United States v. Neal, 2006 U.S. Dist. LEXIS 61939 (W.D. Ark. August 30, 2006).*

In a suit by an internet service provider against a Pennsylvania state’s attorney for violation of various statutory and constitutional rights in executing a search warrant for its records, the court dismisses some of the statutory claims finding § 1983 preempted by the Communications Decency Act and the Electronic Communications Privacy Act because of their comprehensive schemes. The Fourth Amendment claim has to be viewed in terms of the First Amendment claim, and that claim survives for the time being because the court lacks sufficient information to grant summary judgment for the defendants on that claim. Voicenet Communs., Inc. v. Corbett, 2006 U.S. Dist. LEXIS 61916 (E.D. Pa. August 30, 2006).

Where there was probable cause to get a search warrant to look for and seize a boat, the officers were entitled to qualified immunity from suit. “The Court finds that, viewing the evidence in the light most favorable to plaintiff, and affording him all reasonable inferences to be drawn from that evidence, no genuine issue of material fact exists regarding whether Scott’s actions were unlawful, and even if unlawful, were objectively unreasonable.” Brockinton v. City of Sherwood, 2006 U.S. Dist. LEXIS 62060 (E.D. Ark. August 17, 2006).*

911 call at 1 a.m. from driver who was following an alleged drunk driver lasted eleven minutes and described defendant’s actions in detail, gave license number and description of vehicle and the caller was identified. When an officer could finally get there, he followed the defendant for five minutes and observed no traffic violations. The officer pulled the defendant over and found him DUI. The stop was lawful based on the detailed 911 call from an identified citizen informant, despite the lack of any erratic driving observed by the officer. Hertenstein v. State, 2006 Tex. App. LEXIS 7860 (Tex. App. – Dallas September 1, 2006).*

While reasonable suspicion on an anonymous tip that could not be fully corroborated (black man on bicycle with gun in hand; on seeing him, no gun) may have been lacking, the events after the activation of a police car’s lights may add to the reasonable suspicion. United States v. Muhammad, 463 F.3d 115 (2d Cir. September 7, 2006):

Muhammad’s detention was initiated when Officer Cruz activated the patrol vehicle’s spotlight and overhead lights. While Cruz’s conduct may be considered an unreasonable order to stop since reasonable suspicion was lacking at that point, it is the rule “that an unreasonable order to stop does not violate the Fourth Amendment and that the grounds for a stop may thus be based on events that occur after the order to stop is given.” United States v. Swindle, 407 F.3d 562, 568 (2d Cir. 2005) (citing California v. Hodari D., 499 U.S. 621, 629 (1991), as providing “strong impli[cation]” for this rule). In Swindle, the defendant was driving an automobile when he was ordered to stop by the activation of patrol car lights. He thereafter crossed a double yellow line, drove the wrong way on a one-way street, threw a bag of cocaine from the car, and was seized as he fled on foot. Id. at 564. We concluded that “Swindle was seized only when the police physically apprehended him” and that the discarded drugs, which he was charged with having possessed with intent to distribute, were “not the fruit of a Fourth Amendment seizure.” Id. at 573.

Similarly, Muhammad was not seized until he was physically restrained when the patrol cars came together and the officers were able to take him by the arm as he straddled his bicycle. Cf. United States v. Brown, 448 F.3d 239, 252 (3d Cir. 2006) (finding that a seizure occurred when the suspect was told that a robbery victim was arriving to identify him as a suspect). The Magistrate Judge found that Muhammad had increased the speed of his bicycle in an effort to pass between the patrol car and the curb and thereby evade apprehension. It was only when he was “boxed in” by the second patrol car that his attempt to flee was foiled. The officers’ personal observation of Muhammad’s evasive conduct was the additional factor, missing in J.L., that corroborated the anonymous tip and provided the objective manifestation that criminal activity was afoot. The totality of the circumstances, which included the detailed description by the anonymous tipster, the rapid identification of the bicyclist as described in the tip, and the location of Muhammad in a high crime area, when combined with the officers’ personal observations and their own experience and specialized training, provided a sufficient basis for the conclusion that the officers who stopped Muhammad did so on the basis of a reasonable suspicion that he was engaged in criminal activity.

An Ohio court of appeals held that defendant’s efforts to limit consent to keep police from the basement could be used against her to show knowledge of what was in the basement. State v. Kuhn, 2006 Ohio 5059, 2006 Ohio App. LEXIS 4981 (9th Dist. September 29, 2006) (Lexis overview):

Officers responded to a call to check the welfare of a child at defendant’s residence. An officer told defendant that he heard of possible drug use in the house, and he received permission to search the house. When defendant’s daughter brought out a crack pipe and a spoon, which tested positive for cocaine, defendant and her husband both tried to prevent the officer from searching the basement. A search of the basement revealed a box with an open lid with several used needles in it, a metal pipe, a chore boy, tubes, and clear baggies containing cocaine. The court held that the evidence was sufficient to support defendant’s convictions. The items seized were illegal drugs and drug paraphernalia, as prohibited by [Ohio law]. The evidence was also sufficient to show that defendant “possessed” the drugs and the paraphernalia …. Defendant’s attempt to limit her consent to the officer’s search of the house so as to exclude the basement from the search led the officers to conclude that defendant knew what was in the basement. Moreover, defendant’s husband stated that the crack pipes and tubes belonged to defendant.

Comment: So, assertion of a constitutional right is evidence of guilt? This case is obviously wrong.

Turning off plaintiff’s water service did not implicate, inter alia, any Fourth Amendment right. Gagliardi v. Clark, 2006 U.S. Dist. LEXIS 70509 (W.D. Pa. September 28, 2006):

The court finds that, based upon the facts plead, even drawing all inferences in plaintiffs favor, plaintiffs have not stated a claim that their persons were seized, nor have they stated a claim that their personal effects were seized. As the Supreme Court made clear in Soldal: The Fourth Amendment “does not protect possessory interests in all kinds of property.” 506 U.S. at 63 n.7 (citing Oliver v. United States, 466 U.S. 170, 176-77 (1984)). Access to utility service cannot reasonably be construed as a “personal effect” which is protected by the Fourth Amendment. The court has located no federal case law supporting such a view, although there are decisions in which plaintiffs challenged the termination of utility service subject to the procedural due process protections of the Fourteenth Amendment. See, e.g., Ransom v. Marazzo, 848 F.2d 398, 412 (3d Cir. 1988); but see Gardner v. McGroarty, 68 Fed. Appx. 307, 311 (3d Cir. 2003) (unpublished) (holding that the search and seizure of an apartment building without a warrant, the posting of it as unfit for habitation, the evacuation of the tenants, and the discontinuation of utility services did not constitute an unlawful search and seizure under the Fourth Amendment).

The court, therefore, finds that based upon the facts plead by plaintiffs that plaintiffs cannot state a Fourth Amendment illegal seizure claim against any defendant. The court will dismiss this claim with prejudice.

Valid stop became unreasonable in length, and motion to suppress should have been granted. Clarke v. State, 854 N.E.2d 423 (Ind. App. September 29, 2006):

We agree with Clarke, however, that, under the facts of this case, the consensual encounter escalated into an investigatory stop, thereby invoking the protections of the Fourth Amendment. To be sure, after returning to Clarke his license and registration, Officer Eastwood did not inform Clarke that he was free to leave, nor did she cite him for an infraction or other violation of law. n3 Rather, Officer Eastwood informed Clarke that she was investigating a narcotics complaint. Officer Eastwood then asked Clarke an incriminating question–specifically, whether he had anything illegal in his vehicle. Clarke responded that he did not. Still, Officer Eastwood continued with her investigation, this time asking Clarke if she could search his car, to which Clarke repeated that he did not have anything illegal in the vehicle. Officer Eastwood again asked Clarke if he minded if she searched his car, and Clarke gave the ambiguous response of “no.”

Upon completion of traffic stop and return of papers to the driver, the officer reinitiated conversation with the driver and then the passenger, the owner of the vehicle, to question him about their travel plans. United States v. Guerrero-Espinoza, 462 F.3d 1302 (10th Cir. September 15, 2006) (2-1):

In this case, Trooper Peech testified, and the district court found, that the traffic stop ended after the trooper returned Cipres’s driver’s license, gave him the warning and opened the patrol car door so Cipres could get out of the patrol car and return to the minivan. Under these circumstances, arguably a reasonable person in Cipres’s position might have believed he was free to leave. See Bradford, 423 F.3d at 1159. But there is no evidence that a reasonable person in Guerrero’s position would have believed he was free to leave. While the trooper had already returned Cipres’s driver’s license and had completed writing Cipres a warning, there is no evidence that Guerrero knew that. Those events had all occurred in the patrol car, out of Guerrero’s presence; Guerrero had remained in the minivan throughout the traffic stop. Certainly Guerrero could see that Trooper Peech eventually allowed Cipres to get out of the patrol car, after the trooper had spoken with Guerrero about the van’s insurance. But Cipres did not return to the van; instead, it would have appeared to a reasonable person in Guerrero’s position that the trooper detained Cipres further, this time at the back of the van, asking him further questions. Although Cipres consented to this further questioning, there is no evidence that Guerrero was aware of that. And when Trooper Peech then approached Guerrero also to ask him further questions, Cipres remained standing at the back of the van. Although the trooper testified that he had not told Cipres to remain outside the minivan and, as far as the trooper was concerned, Cipres could have returned to the van at any time, there is again no evidence that Guerrero was aware of that, either.

What a reasonable person in Guerrero’s position would have known is that, as the minivan’s owner, he had been unable to provide Trooper Peech with any proof of insurance for the minivan and he had given the trooper only what can be described as a fairly lame story about why Guerrero could not produce any proof of insurance. Despite the fact that the trooper had previously returned the van’s registration to Guerrero, there is no evidence from which Guerrero could have believed that the trooper was satisfied with Guerrero’s insurance story. So, as far as Guerrero knew, the traffic stop had not yet ended. More to the point, a reasonable person in Guerrero’s position would not have felt free at that time to decline to answer the trooper’s questions and instead leave. Yet, because Trooper Peech had concluded the traffic stop, unbeknownst to Guerrero, the trooper could no longer lawfully detain Guerrero. Guerrero’s decision to answer Trooper Peech’s additional questions, therefore, cannot be considered consent to prolong the traffic stop; rather, it was the product of Guerrero’s unlawful detention. (footnote omitted)

Comment: This is a significant case–the court recognizes the reality of traffic stops and when a citizen should or could actually think he or she can leave without consequence. First, the officer says “you’re free to go; but wait, can you answer a few more questions?” That is not free to leave as far as the average person is free to leave. The dissent depends upon exploiting the average person’s never knowing when he or she is free to leave.

Finally, our cases should promote cooperation between police and citizens. Absent a show of force, there is no good reason to add another layer of complexity to our Fourth Amendment traffic stop jurisprudence, especially in cases like this one where the district court found consent to additional questioning and the search by both the driver and the passenger. In any event, I fail to see why the Fourth Amendment would compel a per se rule barring consent obtained during the course of a routine traffic encounter.

U.S. District Court for Oregon grants a motion to suppress that, in my view, should have been denied but the correct legal theory is never mentioned in the opinion. Either the government or the court missed the issue to deny suppression. United States v. Clark, 2006 U.S. Dist. LEXIS 68610 (D. Ore. September 22, 2006). The defendant was stopped for trespassing after he was seen coming from an area with a “no trespassing” sign. After walking away from the officer, apparently attempting to elude arrest, he was finally apprehended and handcuffed. The backpack was at his feet. He refused consent to search the backpack, but he said it was not his. Later, the backpack was searched at the police station after the defendant’s arrest, but it was held the search could not be justified by any exception the government argued. The court details the facts and the government argued that the defendant abandoned his backback by first denying that it was his, but he asserted control over the backpack by words and deed and refusing to consent to a search, and that this was a correct conclusion on this issue. Inventory was rejected, too. Where the issue was missed, however, was the defendant’s probation officer talked to the defendant, and the defendant told the PO that he would “get him.” Finding of fact 10:

10. After placing Defendant and the backpack in his patrol car, Officer Carrico was occupied outside of the car for a time. During that period, Defendant started to move out of the police car. PO Martin told Defendant to get back and physically moved Defendant toward the police car. In response, Defendant said to PO Martin, “I have the same thing you have on your belt in my pack and I’m not chicken-shit like you to use it. I am going to use it on you. I am going to get you for this.” (Emphasis added.) PO Martin again told Defendant to get back into the patrol car. After Defendant complied, PO Martin closed the car door. PO Martin repeated Defendant’s statements to Officer Carrico.

If this isn’t cause to search the backpack for a gun, what is? What about a probation search? If the government failed to frame the issue correctly, should the court do it for it? No. That would be an “activist judge.” The parties frame the issues, and the court decides. The Ninth Circuit will probably reverse, if the government appeals.

Missouri cannot drug test all employees of its Department of Mental Health where there is no “special need,” and the state carries the burden of proof on where the special need should arise. Security personnel qualify under Von Raab. The state also showed a need at its Habilitation Centers where retarded clients stayed because of a known pattern of drug abuse and drug smuggling and the vulnerable clients there. That justification, however, did not carry over to all employees of other units. “Given this record, Dittemore has failed to prove that there is a special need for random drug testing of Plaintiffs who work at Mid-Missouri Mental Health Center and Southeast Missouri Mental Health Center.” Jakubowicz v. Dittemore, 2006 U.S. Dist. LEXIS 68639 (W.D. Mo. September 12, 2006) [I was somewhat involved in this case. I drafted the complaint, provided a little advice on the phone, and it went on from there. Dan Viets of Missouri NORML carried this case.].

After viewing the videotape of the stop, the officer’s questioning of defendant for 90 seconds after issuance of a warning citation was not unreasonable. United States v. Cano, 2006 U.S. Dist. LEXIS 69049 (D. Kan. August 25, 2006).*

Four weekly trash pulls of defendant’s trash was not a violation of any of his rights under the Fourth Amendment. United States v. Kearns, 2006 U.S. Dist. LEXIS 69095 (N.D. Ga. February 21, 2006):

It is apparent that all of these circumstances were present in this case. The Defendant made no special arrangements with Rural Garbage to keep his trash from public view, no one other than those authorized by the Defendant (i.e., Rural Garbage and Mr. Cofield) entered his property, and no unusual procedures were followed other than to keep the Defendant’s garbage separate and available for inspection. See United States v. Vahalik, 606 F.2d 99 (5th Cir. 1979). n11 Under these conditions, this Court is persuaded that the Defendant retained no legitimate expectation of privacy in his trash once it left the curtilage of his residence.

The House approved its own version of an NSA wiretapping bill yesterday while a separate version was moving toward a vote in the Senate. See House Approves Power for Warrantless Wiretaps in today’s NY Times. The Washington Post article is here.

The Republicans in the House extolled their bill as showing that Democrats were soft on terrorism (see also CNN.com here), never mentioning that they were seeking to crush civil liberties in the process.

A new issue: How far may a police officer go in searching an arrestee’s personal GPS device for where he has been? The apparent first case is now working its way through the courts.

From the Journal Times of Racine, WI, by Janine Anderson: Sheriff’s department uses Google Earth to pinpoint marijuana fields.

The Racine County Sheriff’s Department used Google Earth — an online mapping program — last week to pinpoint marijuana fields in Mount Pleasant and bust a Racine man for harvesting pot.

The investigation began Friday after Racine County Sheriff’s deputies pulled over Dean Brown, 37, of Racine, near highways 75 and 20, according to a criminal complaint. A deputy smelled marijuana as he approached the car, and discovered 18 pounds of freshly harvested marijuana in the car’s cargo area. The marijuana, stuffed in two large garbage bags with heavy stems poking through the plastic, was worth between $63,000 and $140,000.

Brown was arrested for felony drug possession, but that was just the beginning of the investigation. Deputies found a GPS unit around Brown’s neck with coordinates to areas throughout Racine County, the complaint said.

On Saturday, Metro Drug agents plugged coordinates saved in Brown’s GPS unit into Google Earth, a searchable compilation of satellite images available through the Internet. By entering the coordinates, agents were able to find the locations in Racine County programmed into the GPS unit.

Then, the Sheriff’s deputies used Google Earth to locate other marijuana patches. Try it. Enter in your home or work address and zoom in and see the quality of the resolution. It is remarkable. The images are better now than they were just a year ago.

There is, of course, no reasonable expectation of privacy after a flyover; that was settled a long time ago. One might be scared by a helicopter overheard, but what about a satellite constantly taking pictures? You never know it is there.

A decade ago, long before this service, which is general, the North Little Rock Police used private satellite imaging to attempt to locate a car at a house at the time of a murder, and they were able to actually acquire a photograph during a satellite pass for the approximate time of the crime. They did not find anything, but one has to applaud their ingenuity.

[crosslinked to www.talkleft.com]

Rule 41(g) motion for return of property filed by a lawyer whose files were seized was tantamount to a pre-indictment motion to suppress, and the court declined to exercise jurisdiction over it after the MJ recommended it be denied. Trezza v. United States, 2006 U.S. Dist. LEXIS 75991 (D. Ariz. October 16, 2006):

First and foremost, entertaining Mr. Trezza’s motion is an exercise of the Court’s equitable jurisdiction which it undertakes with caution and restraint, and according to equitable principles. Ramsden v. United States, 2 F.3d 322. 324 (9th Cir. 1993) (citing Kitty’s East v. United States, 905 F.2d 1367, 1370 (10th Cir. 1990)). The equities must be balanced between the Plaintiff and Government’s needs for the seized property. There must be a danger of irreparable injury to the movant, stemming from waiting for a remedy rather than from the original seizure, and the movant must have no adequate remedy at law. In the Ninth Circuit the following factors are considered: 1) whether the Government displayed a callous disregard for the constitutional rights of the movant; 2) whether the movant has an individual interest in and need for the property he wants returned, 3) whether the movant would be irreparably injured by denying return of the property, and 4) whether the movant has an adequate remedy at law for the redress of his grievance. Id. at 325 (citing Richey v. Smith, 515 F.2d 1239, 1243-44 (5th Cir. 1975)).

1. Callous Disregard

Here, Mr. Trezza alleges that the Government displayed a callous disregard for his constitutional rights. According to Mr. Trezza, 18 exhibits, including seven declarations from former employees of Trezza and his law firm, reflect that Agent Watson knowingly or recklessly submitted false information to Magistrate Judge Pyle as part of Agent Watson’s application for the search warrants. …

The evidence put forward by Mr. Trezza does not support his allegations that the Government acted with callous disregard for his constitutional rights when it secured the search warrant, which authorized the search and seizure of documents at Mr. Trezza’s law offices.

2. Individual Interest in and Need for the Property

The Plaintiff does not express a need for access to any of the seized documents. “Trezza concedes that documents the taint team determined to be privileged have been returned to him and presumably no copies of those documents have been retained by the Government. The remaining documents have been copied with Trezza being supplied the copies and the Government retaining the originals.” (Report and Recommendation at 2.) He does not argue that he needs to possess the originals nor that the copies will not suffice.

3. Irreparable Injury

Stigma resulting from being a target of a criminal investigation does not constitute irreparable harm. Ramsden, 2 F.3d at 326; In re Search of Law Office, 341 F.3d 404, 415 (5th Cir. 2003). Plaintiff makes no argument of irreparable harm related to not possessing the original documents.

4. Adequate Remedy at Law

When a plaintiff faces criminal charges in the near future, he has an adequate remedy at law. Angel-Torres v. United States, 712 F.2d 717, 718-19 (1st Cir. 1983). If criminal charges are filed against the Plaintiff, he may challenge the constitutionality of the search warrant during those proceedings; if charges are not forthcoming, he may reapply to this Court for the return of his property. Id. The Court notes that the Government argued for the speedy disposition of these pre-indictment motions because until resolved they impede the investigation n2 and the statute of limitation runs for one of the tax years under investigation on April 15, 2007. See (Government’s Response to Motion for Extension of Time, filed August 9, 2006, at 2.) Accordingly, charges should be forthcoming.

Plaintiff stated a claim for excessive force during his arrest under the Fourth Amendment and the officers involved in both doing it and those standing by not stopping it. Kimbrough v. City of Cocoa, 2006 U.S. Dist. LEXIS 76087 (M.D. Fla. October 19, 2006).*

Plaintiffs stated a claim for a forced strip search without justification after a consensual entry into the home. They were told to consent to a strip search there or they would be taken in to have it done by a female state trooper. Defendants denied making such statements, but a fact question is presented for trial. DeBlaay v. Smith, 2006 U.S. Dist. LEXIS 75937 (E.D. Mich. October 19, 2006).*

Car traveling on Indian reservation near border had no plates to verify if car was local, was heavily laden, and there was nothing to be driving to all justified stop on RS. United States v. Rico, 182 Fed. Appx. 722 (9th Cir. May 26, 2006) (unpublished).*

Defendant’s initial refusal to consent did not make otherwise valid consent invalid. United States v. Gabaldon, 168 Fed. Appx. 315 (10th Cir. February 24, 2006)* (unpublished).

Defendant lacked REP in a crate of marijuana he shipped by truck. The trucking company identified the crate as suspicious and opened it. United States v. Goldsmith, 432 F. Supp. 2d 161 (D. Mass. March 14, 2006)* (he believed it was private, but that was not enough).

Defendant had no REP “in statements that he made to police officers, who had answered a cellular telephone that the defendant had called, believing it to be in possession of a third party, to whom the defendant intended to sell narcotics.” State v. Gonzalez, 278 Conn. 342 (May 30, 2006).

Jail seizure of defendant’s hightop red sneakers which were identified by a witness to a murder was valid. Gillis v. State, 2006 Fla. App. LEXIS 8542 (3d Dist. May 31, 2006, released for publication June 16, 2006).

Calling for drug sniffing dog after defendant refused to consent to a search during a traffic stop was unreasonable because it prolonged the stop. Wilson v. State, 847 N.E.2d 1064 (Ind. App. 1st Dist. May 26, 2006).

Officers surveilling a crack house walked up to a car parked outside and smelled marijuana coming from it and saw a crack pipe on the seat. Search was with PC. State v. Hunter, 2006 Ohio 2678, 2006 Ohio App. LEXIS 2511 (2d Dist. May 26, 2006).*

Burglar alarm company called in three trips of basement door to defendant’s house and reported that they called and got no answer. Police were justified in entering. United States v. Brown, 449 F.3d 741 (6th Cir. May 31, 2006).

Defendant was stopped for eluding a police officer, but it was manifest that he slowed down and went two blocks for a safe place to pull over. That was not eluding under Oregon law. Officer could check DL and insurance, but the stop was extended solely on a hunch, and the court suppressed the subsequent search. United States v. Beard, 2006 U.S. Dist. LEXIS 75660 (D. Ore. October 16, 2006).

Officers had reasonable suspicion for searching defendant’s home under his probation conditions based on his associating with known drug dealers. United States v. Becker, 2006 U.S. Dist. LEXIS 75490 (N.D. Iowa October 16, 2006).

911 call satisfied emergency aid exception for entry. PC only required on the second prong of the exception. United States v. Goosby, 2006 U.S. Dist. LEXIS 75655 (D. Nev. October 16, 2006):

The government argues that a warrant was not necessary for the police officers to enter the apartment and seize the evidence under the “emergency aid exception.” The emergency aid exception requires: (1) that the police have an objectively reasonable basis for believing that an emergency is at hand and that the assistance of the police is needed immediately for the protection of life or property; and (2) that there is some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched. Brigham City, Utah v. Stuart, 126 S.Ct. 1943, 1948 (2006). The “emergency [aid exception] provides that if a police officer, while investigating within the scope necessary to respond to an emergency, discovers evidence of illegal activity, that evidence is admissible even if there was no probable cause to believe that such evidence would be found.” United States v. Cervantes, 219 F.3d 882, 888 (9th Cir. 2000).

Habeas: “Full and fair opportunity” under Stone v. Powell means only that petitioner had an opportunity to litigate. The fact that the federal court might disagree with the outcome is insufficient under AEPDA; the state court outcome must be unreasonable on the facts and law. Folger v. Conway, 443 F. Supp. 2d 438 (W.D. N.Y. August 17, 2006).

Motion to dismiss counts of destroying or removing property to avoid seizure under 18 U.S.C. § 2232 requires government to prove

three elements: “(1) that a person be authorized to search for or seize certain property; (2) that the accused knowingly destroys or removes or attempts to destroy or remove the property subject to the authorized search or seizure; and (3) that the destruction or removal of the property be for the purpose of preventing its seizure.”
. . .

Notwithstanding, in order for the government to avoid a judgment of acquittal the court agrees with the Sixth Circuit that the government must present sufficient evidence, inter alia, that the government had the authority to seize the property when the alleged transfer occurred.

This is a question for trial and not a motion to dismiss. United States v. Russo, 2006 U.S. Dist. LEXIS 57920 (S.D. Ala. August 16, 2006).*

There is no fixed time limit where a stop on reasonable suspicion becomes unreasonable. Because one court said 75 minutes was too long under its facts is not binding on another case with different facts. Each case is determined on the totality of circumstances. United States v. Woods, 2006 U.S. Dist. LEXIS 57907 (M.D. Ala. August 14, 2006):

Here, it took the entire duration of the stop for Corporal Mills to obtain the warrant-check information. Because it appears from the videotape and courtroom testimony that the duration of the stop fell well within the time-period found to be reasonable in this circuit and because, more importantly, the duration of the stop was entirely justified by “the ordinary inquiries incident to such a stop,” Illinois v. Caballes, 543 U.S. 405, 408 (2005), the court rejects Woods’s challenge to the duration of his stop.

Nexus to defendant’s premises for issuance of a search warrant was established by observations of other officers providing information to the affiant. Informant here was also corroborated by independent police investigation. United States v. Gunter, 2006 U.S. Dist. LEXIS 57960 (E.D. Tenn. August 14, 2006).*

Rwandan nationals indicted in the U.S. for murder of U.S. citizens in Rwanda during the Rwandan genocide challenged the voluntariness of their confessions while in Rwandan custody before they were handed over to the FBI, which was dispatched two days after the murders to investigate. In a 252 page long opinion, issued after a three week hearing, the court concludes that the pattern of coercion and torture at the hands of the Rwandans required suppression of some confessions because the FBI was aware of it and turned a blind eye. United States v. Karake, 443 F. Supp. 2d 8 (D. D.C. August 17, 2006):

7. Conclusion

While the Court has thoroughly explained its reasons for rejecting Kibingo’s testimony and for its finding that defendants’ statements were the product of coercions, there is one further observation that convinces the Court of the correctness of its credibility determinations and its ultimate finding of involuntariness. Over the course of the defendants’ detention at Kami, an unmistakable pattern continually repeated itself. Each defendant initially denied his involvement at Bwindi, but was then held incommunicado at Kami until Kibingo extracted statements that he believed were wanted either by his superiors or the Americans and were needed in order to solve the murders, close the investigation, or support a prosecution. With the exception of Nyaminani, the Rwandans did not even inform the U.S. investigators that they had a suspect in custody until they were informed that a defendant had confessed, and each initial confession was obtained only by Kibingo while no one else was present. He would then deliver the information to his superiors who, in turn, several days later, would contact Kayumba, at which point Bachmann would conduct an interrogation. If the defendant [*222] provided less information than was expected, as happened with respect to each defendant, he was returned to Kami and subjected to further interrogation and mistreatment. Only after Kibingo announced to the Rwandans that he had obtained further information, was the defendant returned to the Americans for more questioning. n107
_________

n107 The Americans in fact became accustomed to this routine. For instance, Bimenyimana was sent back to Kami after his first interview with RSO Bachmann with the expectation that if investigators were to “give him some time” before they “talk to him again,” as explained by Bachmann, “[m]aybe his story will change like the last one.” (5/11 p.m. tr. at 50.) Similarly, when Nyaminani refused to confess to the rape of one of the three women, but instead confessed to killing two non-Americans, he was “instructed to think hard about his situation and [he] was taken away into military custody” with the “Rwandan national police believ[ing] that he is near confession.” (Gov’t Ex. 30, tab 2 at 3.)
__________

While it is unclear whether the specific information that Kibingo sought from the defendants correctly reflected what the Americans needed or, alternatively, what the Rwandans believed was necessary to solve the murders, it is clear that they were relentless in their efforts to obtain this information. For instance, even though Karake confessed to the murder of Richard Haubner on February 5 and 6, the Rwandans (unlike the Americans) were not satisfied with the extent of his confession, so Karake was returned to Kami for several days and was interrogated by only the Rwandans on February 12 until he confessed to two additional killings.

. . .

This striking similarity in the course of events, relating to each defendant’s statements, just like the scarring on their bodies, cannot be chalked up to mere coincidence. Rather, the inescapable conclusion is that defendants’ statements to the Rwandans were the product of coercion. Indeed, based on the totality of circumstances, the Court finds that the conditions under which defendants were held at Kami and the abuse and mistreatment they endured while being interrogated shock the conscience and therefore render the statements involuntary and inadmissible.

The fact the FBI had to be aware of what was going on made the conduct attributable to the prosecution.

Defendant’s van was standing in a no parking zone, and a police officer ran the license number, apparently not even intending to issue a ticket. The owner of the vehicle came back with a felony warrant, and that led to an arrest. There is no reasonable expectation of privacy in a license plate. United States v. Ellison, 462 F.3d 557 (6th Cir. September 5, 2006):

No argument can be made that a motorist seeks to keep the information on his license plate private. The very purpose of a license plate number, like that of a Vehicle Identification Number, is to provide identifying information to law enforcement officials and others. The reasoning in Class vis-a-vis Vehicle Identification Numbers applies with equal force to license plates: “[B]ecause of the important role played by the [license plate] in the pervasive governmental regulation of the automobile and the efforts by the Federal Government to ensure that the [license plate] is placed in plain view,” a motorist can have no reasonable expectation of privacy in the information contained on it. 475 U.S. at 114 (discussing Vehicle Identification Numbers).

Comment: This is not a remarkable holding. A license plate sits there for the rest of the public to see, and it cannot be credibly argued that the police cannot run “wants or warrants” off the license number of any vehicle, even if just for curiosity. The book argues otherwise, but I’ve mellowed over the years, and, as appealing as it sounds that a motorist should not be subjected to unnecessary stops for official curiosity, there is no way to enforce such a rule as to license plates. (The District Court suppressed, and the government appealed.)

Bounty hunter entered habeas petitioner’s house to capture him on bond, but defense counsel did not file a motion to suppress. “Counsel’s failure to file a motion to suppress does not mean that petitioner did not have the opportunity to litigate this claim.” It would have failed anyway. Moore v. Campbell, 2006 U.S. Dist. LEXIS 62641 (E.D. Cal. September 1, 2006)* (besides, a bounty hunter’s entry is not “state action” for purposes of the Fourth Amendment).

Controlled buy by confidential informant is PC for a search warrant. State v. James, 2006 Ohio 4543, 2006 Ohio App. LEXIS 4488 (11th Dist. September 1, 2006).*