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

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

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

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

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

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

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

Defendant and his roommate were suspects in an attempted arson based on a store security videotape of them buying gas in a gas can nearby and shortly before the attempted arson. Officers went to the house and talked to the roommate who admitted presence but inferentially implicated the defendant. The officer asked to talk to the defendant who invoked Miranda. Based on the statement of the other, the officer had probable cause to arrest, so defendant was handcuffed. The officer then secured consent from the roommate, and shoes were found matching shoe prints at the scene. Invoking Miranda did not invoke Randolph as well because nothing in the invocation of rights included a refusal to consent to a search. Indeed, he was never even asked for consent. People v. Lapworth, 273 Mich. App. 424, 730 N.W.2d 258 (2006).

An NYPD officer had no reasonable expectation of privacy in his locker in the precinct house from a search by Internal Affairs. It was alleged, and defendant detective admitted, that he purloined nude photos from two female crime victims. The search of the locker occurred after the detective said that he had destroyed the photos. People v. Vecchio, 2005 N.Y. Misc. LEXIS 3465, 234 N.Y.L.J. 59 (Richmond Co. September 23, 2005).

Officer had reasonable suspicion to stop the defendants' car for being backed into a loading dock at a police building where undercover cars were kept. He first encountered the defendants and made them get in the car and leave. After they left he stopped them, and he made them leave so he could have time for back up to arrive. On the totality, the officer had reasonable suspicion for the stop, and great cause to detain them after his observations during the stop. Commonwealth v. Plante, 2006 PA Super 376, 914 A.2d 916 (December 28, 2006).*

Officer noticed furtive movements during a traffic stop, and told the defendant to keep his hands visible. The defendant said that he would not consent to a search, but he would consent to a patdown. The patdown revealed heroin capsules by plain feel, and the officer was entitled under Dickerson to seize them. Cost v. Commonwealth, 49 Va. App. 215, 638 S.E.2d 714 (December 28, 2006).*

Officer had cause for arrest and impoundment and search of vehicle even though the statute under which the arrest occurred was later invalidated, extending Potter to a different statute because the rationale is the same. State v. Brockob, 159 Wn.2d 311, 150 P.3d 59 (December 28, 2006)*:

We recently determined that a police officer who arrested a person for violating RCW 46.20.342(1)(c) prior to Moore had probable cause to believe that the individual had committed a crime. State v. Potter, 156 Wn.2d 835, 843-44, 132 P.3d 1089 (2006). We concluded that "probable cause is determined at the time of arrest" and "reliable information from the DOL indicated [the defendants] were committing the crime." Id. at 844.

Although Potter involved a different statute, the same principle applies here. Officer Black arrested Gonzales after observing him driving a vehicle with a cracked windshield because, when he verified Gonzales' name on DOL records, he found that Gonzales had a suspended driver's license. Officer Black was entitled to rely on DOL records in accordance with Potter. As in Potter, this court struck down the statute under which Gonzales' license was suspended subsequent to Gonzales' arrest. See id. at 841. Nevertheless, the DOL information available to Officer Black at the time was sufficient to warrant the belief that Gonzales had committed the offense of driving with a suspended license. Officer Black's reliance on the DOL information was reasonably prudent at the time of the arrest, and he had probable cause to believe that Gonzales had committed a misdemeanor in his presence.

"The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets ...."
— Anatole France, "The Red Lilly," 1894

In a civil case filed by the homeless persons of the City of Fresno by the ACLU, the E.D. Cal. held after a four day hearing that they were entitled to an injunction against the city's gathering up all their property and destroying it. Kincaid v. City of Fresno, 2006 U.S. Dist. LEXIS 93464 (E.D. Cal. December 8, 2006):

C. Likelihood Of Success On The Merits Unlawful Seizure.

6. The Fourth Amendment to the United States Constitution protects against unreasonable seizures and searches. Menotti v. City of Seattle, 409 F.3d 1113, 1152 (9th Cir. 2005). Similarly, Article I, Section 13 of the California Constitution provides in part that "[t]he right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches may not be violated ....," a provision that provides at least as much protection as does the Fourth Amendment. See People v. Brisendine, 13 Cal.3d 528, 548-52 (1975), abrogated on other grounds as discussed in In re Lance W., 37 Cal.3d 873, 879 (1985).

7. A seizure for Fourth Amendment purposes occurs when there is some meaningful interference with an individual's possessory interest in property. Soldal v. Cook County, Ill., 506 U.S. 56, 63 (1992). An officer who comes across an individual's property in a public area may seize it only if Fourth Amendment standards are satisfied--for example, if the items are evidence of a crime or are contraband. Id. at 68.

8. As the Ninth Circuit recently further explained:

Reasonableness is the touchstone of any seizure under the Fourth Amendment. Thus, to comply with the Fourth Amendment, the seizure ... must have been reasonable under the circumstances. We look to the totality of the circumstances to determine whether the destruction of property was reasonably necessary to effectuate the performance of the law enforcement officer's duties. A seizure becomes unlawful when it is "more intrusive than necessary." To determine whether the [given seizure] was reasonable, we balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake.

San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005).

9. The City's policy and practice in dealing with the homeless, as implemented, effects seizures of homeless individuals' property. The interference with Plaintiffs' possessory interests is more than just "meaningful;" it is total and irrevocable, since the City seizes and then immediately destroys all of the property that it seizes in its sweeps. Id. at 975 ("[t]he destruction of property by State officials poses as much of a threat, if not more, to people's right to be 'secure in their effects' as does the physical taking of them.").

10. Such seizures, which result in the irrevocable destruction of homeless persons' property, are also "more intrusive than necessary" and therefore unlawful. Id. The City conducts its seizures in a highly intrusive manner, by immediately destroying the property and thus permanently depriving the homeless owners of their property. The City makes no effort to separate and or store for later retrieval items that are clearly owned and are valuable, not trash. Rather, the City's policy is to immediately seize and destroy all property in the area of the sweeps, without regard to the nature or value of the property.

11. The City's sweeps are not confined to seizure and destruction of property that is evidence of a crime or contraband, or that presents immediate threats to public health or safety. Even when homeless people inform City workers that they have been granted permission to keep their belongings where they are, the City seizes and destroys the property regardless. This policy and practice of seizure and destruction without just cause violates the Fourth Amendment and the concomitant protections against unlawful seizure found in the California Constitution.

12. The City has attempted to justify its policies and practices by its rule that the property of the homeless that it seizes and destroys is "abandoned" and is therefore "trash." The City's "rule," developed by Specialist Wallace and adopted by the City Police Department Sanitation Department, and City Manager, is that if a homeless person is not literally beside his or her property laying claim to it during a sweep, then the City deems that property to be abandoned, making the property "trash," which is then destroyed. There is no legal justification for this rule which is demeaning as it places no value on the homeless' property and is not honest because the "rule" purports to transmogrify obviously valuable property into trash.

13. In California, as under the common law, an item is the property of its owner unless the owner intentionally and voluntarily abandons it because "she simply no longer desires to possess the thing being abandoned." 1 Cal.Jur.3d Lost and Escheated Property, Sec. 2; See Katsaris v. United States, 684 F.2d 758, 761-62 (11th Cir. 1982). Here, the evidence demonstrates that Plaintiffs did not intend to abandon their tents, carts, clothing, bicycles, personal effects, memorabilia, and other property that they need to survive, and no reasonable official could believe this to be the case. Nor can the City treat property as abandoned and trash just because the owner has not removed it in the time the government has allotted. A & W Smelter and Refiners, Inc. v. Clinton, 146 F.3d 1107, 1111 (9th Cir. 1998).

14. The City's purported desire for clean and safe streets does not make its conduct lawful. Protection of the public does not require the wholesale seizure and immediate destruction of all Plaintiffs' possessions and in any event "is outweighed by the more immediate interests of the plaintiffs in not having their personal belongings destroyed." Pottinger v. City of Miami, 810 F.Supp. 1551, 1573 (S.D. Fla. 1992).

15. The City's seizure of homeless people's personal property without probable cause and the immediate and permanent destruction of such property without a method to reclaim or to assert the owner's right, title, and interest to recover such personal property violates the Fourth Amendment to the United States Constitution and Art. I, § 13 of the California Constitution.

Rule 41 did not govern a state search where the federal participation prior to warrant execution was minimal and not for the benefit of the federal government. United States v. Slater, 209 Fed. Appx. 489 (6th Cir. 2006) (unpublished) (argued as plain error):

We have held that "[w]hile it is important not to stifle cooperation between federal and state officers, we think it clear that federal officers, investigating a federal crime, must comply with the federal rules governing their conduct." Searp, 586 F.2d at 1121. However, "[m]ere federal involvement is not enough; there must be significant involvement prior to the search." United States v. Hunter, 4 F. App'x 295, 301 (6th Cir. Feb. 9, 2001); see also Searp, 586 F.2d at 1119-21. In Searp, for example, the investigation was a "joint undertaking between the Kentucky police and the FBI from the beginning," they initiated the investigation together, an FBI agent swore out the affidavit supporting the search warrant in question, there were five FBI agents present at the search, and a federal officer directed the search. Searp, 586 F.2d at 1121. On the other hand, in cases where only a single federal agent consulted on an investigation, did not participate in the process of obtaining a search warrant, and a decision to pursue federal charges was not made prior to the search, we have held that the requirements of Rule 41 do not govern the search. See, e.g., United States v. Alcorn, 9 F. App'x 426, 431 (6th Cir. May 16, 2001); Hunter, 4 F. App'x at 301.

The only evidence Slater presents that federal officers were substantially involved in the investigation is the testimony of ATF Agent Malone at the detention hearing held pursuant to 18 U.S.C. § 3142(f)(2). Slater's main evidence is that when asked on cross-examination: "When did the case officially come from [sic] a state case into a federal case?", Malone replied: "When I was contacted by the special investigations unit that they had learned through informants that Mr. Slater was distributing significant quantities of narcotics." JA 125. Neither the question nor Malone's reply demonstrates that all parties involved, both state officers and federal agents, considered that the investigation had become a federal investigation and stopped being a state investigation, nor is Malone's answer on cross-examination binding on this court. In fact, Malone's further testimony that he did not become the case agent, that Detective Floyd remained the case agent, that Floyd obtained the warrant, and that Malone's involvement in the investigation was limited all indicate that the state officers still considered it to be a state investigation at the time. Malone's answer to an ambiguous question may merely have indicated that it was at that time that the federal government began considering a concurrent federal investigation and/or federal prosecution. Based solely on this evidence, we cannot find that federal officers were so involved in the state investigation as to mandate that any warrant be obtained pursuant to federal standards. See Alcorn, 9 F. App'x at 431; Hunter, 4 F. App'x at 301.

A plaintiff prosecuted for a 20 year old child sex abuse allegation who was convicted at trial, affirmed on appeal, and released on federal habeas without retrial, stated a sufficient complaint to at least require the defendants to have to file a responsive pleading. Weimer v. County of Kern, 2006 U.S. Dist. LEXIS 93539 (E.D. Cal. December 22, 2006).*

State liquor control and local and state police officers conducted a raid on a frat house, and they detained all underage persons without cause to believe that they were drinking. The detention was unconstitutional. Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265 (Pa. 2006):

Similarly, this Court has upheld such suspicionless searches and seizures in the following contexts: (1) vehicle checkpoints, see, e.g., Blouse, 611 A.2d at 1179 (holding that suspicionless vehicle stops at fixed checkpoints to detect and remove unlicensed drivers and dangerous automobiles from the road are constitutional); (2) weapons and drugs searches at public schools, see, e.g., In re F.B., 555 Pa. 661, 726 A.2d 361, 368 (Pa. 1999) (deeming constitutional suspicionless point-of-entry search for weapons at public school); Cass, 709 A.2d at 365 (finding that suspicionless canine-sniff drug search of student lockers at public school does not violate Article 1, Section 8 of the Pennsylvania Constitution); but see Theodore v. Del. Valley Sch. Dist., 575 Pa. 321, 836 A.2d 76, 91 (Pa. 2003) (invalidating, under the state Constitution, the random drug testing of extracurricular participants and student drivers, where the record contained no evidence that a drug problem existed at the school or that the targeted group was particularly prone to drug use).

Having identified the framework necessary for our analysis, we now turn to a consideration of whether the search at issue satisfies its requirements. The Commonwealth argues that, upon balancing these three factors, it is clear that such a general search is legal and that suppression should be denied. We disagree.

As to the first prong, the interference with individual liberty was significant. Students who paid to attend the party entered the fraternity house with the reasonable expectation that they would be able to leave at will. Nevertheless, that reasonable expectation was frustrated when the LCE officers detained students under the age of twenty-one.

Next, we must assess the degree to which the seizure advanced the public interest. Certainly, the public has an interest in deterring underage consumption of alcohol. This is evident by, inter alia, the Pennsylvania statute outlawing such behavior. 18 Pa.C.S § 6308. Yet we see no evidence, and the Commonwealth has presented none, that the methods employed in this case are more effective in reducing underage drinking than a myriad of other available options.

Finally, we must address the gravity of the public concern served by the seizure. The United States Supreme Court has held that it would not deem the "general interest in crime control" as a justifiable reason for a regime of suspicionless stops; it has not condoned suspicionless searches where the program is aimed at uncovering evidence of ordinary criminal wrongdoing. City of Indianapolis, 531 U.S. at 42. In the instant case, we can identify no factor that elevates the level of public concern regarding underage drinking beyond that of "a general interest in crime control." The Commonwealth, in its efforts to justify the seizure, presents no evidence that prosecution of underage drinkers qualifies as one of the few areas of criminal wrongdoing for which a regime of suspicionless stops should be deemed constitutional.

. . .

Given the absence of such a paramount public interest in the instant case, we believe that the suspicionless stop sub judice violated both the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution. The conduct of the LCE officers and the WCP does not comport with constitutional requirements as it failed to address an area of paramount importance. Rather, the actions of the officers were geared toward general crime control and the discovery of ordinary criminal wrongdoing, which the United States Supreme Court has deemed insufficient to justify a suspicionless stop. City of Indianapolis, 531 U.S. at 42. Such acts, absent a cause of heightened importance to the citizenry of the Commonwealth, cannot support a suspicionless detention.

The officer had reasonable suspicion to stop the defendant for a fictitious license plate, but, as he walked up to the car, he realized that he misread the license plate, and it was not fictitious. The defendant should have been free to leave at that point. State v. Cromes, 2006 Ohio 6924, 2006 Ohio App. LEXIS 6846 (3d Dist. December 28, 2006).

Comparing defendant's DNA to the CODIS database is not an unreasonable search and seizure. State v. Cannon, 2006 Tenn. Crim. App. LEXIS 994 (December 27, 2006).*

In a March 31 post appears this:

In an unpublished opinion, the Houston TX Court of Appeals held that defendant's girlfriend had apparent authority to consent to the search of a nonpassword protected computer that both of them used, even though the computer belonged to the defendant. Hebert v. State, 2006 Tex. App. LEXIS 2539 (Houston (14th Dist.) March 30, 2006).

The opinion was substituted and published with the same result at Hebert v. State, 2006 Tex. App. LEXIS 11070 (Tex. App. — Houston (14th Dist.) December 28, 2006):

Appellant's brief concedes that Fridell had authority to consent to a search of the trailer's common areas, and challenges only her authority regarding the non-common areas, such as appellant's office and computer. However, appellant's brief cites no cases to support a contention that separate and/or greater authority would be required for non-common areas, either generally or under circumstances similar to those in this case. In addition, appellant's issue does not challenge the evidence supporting the trial court's statements but only its legal conclusion that those facts amount to actual (or apparent) authority in that: (1) there is no evidence that Friddell was a party to the rental or ownership of the trailer; (2) Friddell testified that appellant used the third bedroom as his office and the computer there belonged to him; (3) appellant had the right to exclude Friddell from entering his office or using his computer there; (4) there is no evidence that appellant gave Friddell express or implied consent to enter his office or use his computer; and (5) Friddell testified that she had never used the computer without appellant being present. However, appellant cites no cases reaching a contrary conclusion on the issue of actual authority on facts resembling those relied upon by the trial court, nor does he cite any cases concluding that actual authority was lacking due to factors similar to those he relies upon to preclude a finding of actual authority.

Because: (1) the supported-by-the-record facts recited by the trial court show that Friddell had "joint access or control for most purposes" to the trailer premises; and (3) the factors relied upon by appellant show, at most, a lack of equal, but not joint, access or control over the office or computer, we conclude that appellant's issue fails to demonstrate that the trial court erred in denying his motion to suppress. Therefore, appellant's issue is overruled, and the judgment of the trial court is affirmed.

When the police want to seal part of a search warrant application to protect the identity of their informant, they cannot keep the original in the police department. It is a judicial record that belongs to the court. People v. Galland, 146 Cal. App. 4th 277, 52 Cal. Rptr. 3d 799 (4th Dist. December 28, 2006):

The instant case presents a vivid example of why our courts are the preferred record keepers in judicial proceedings. Hankins presented a search warrant with supporting affidavit to the magistrate on August 9, 2001. In 2006, without the benefit of the original warrant affidavit or authenticated copy retained by the superior court, the parties seek this court's independent review of the magistrate's probable cause determination and the trial court's subsequent rulings on motions to suppress and for discovery. The documents included in the appellate record are too far attenuated from the magistrate's determination of probable cause to serve as a legitimate basis for any decision on the warrant's validity. The events subsequent to the magistrate's determination, Hankins retention of the crucial part of the warrant affidavit, the court's initial handling of the hearing on Galland's motions to disclose that document, and its subsequent and belated review, which yielded an entirely new page to add to it, provides no reasonable belief in the authenticity of any of the documents not retained by the court after the filing of the return.

The most important part of a search warrant is the affidavit of probable cause. Without good reason, Hankins and his department retained the original affidavit, which no longer exists because of that agency's actions, and the appellate record supplies scant evidence on which this court can place its confidence in what is included in the record. How much more disturbing to the average citizen to discover the law enforcement agency involved in a criminal case retained the document that provided legal justification for a search of home, possessions, and person. Human nature precludes an unquestioning faith in a legal procedure that cannot guarantee objectivity and proper respect for important documents. Public confidence in our judicial system is founded on its ability to serve as a neutral player in the proceedings before it. Reliable record keeping is a basic component of public trust.

A search incident to a warrant is a governmental invasion of individual liberty and property. The abuse of that process led to the adoption of the Fourth Amendment and legislation prescribing mandatory procedures to be followed when a warrant is issued and thereby given judicial sanction. (Sgro v. United States (1932) 287 U.S. 206, 210.) Essential to this protection is the state's ability to ensure the authenticity of the supporting affidavit of probable cause. Simply having any judicial officer review an affidavit of probable cause at any point in the criminal proceedings and then conclude the magistrate must have reviewed the same document provides no such assurance. When a police officer submits a written affidavit of probable cause, the issuing magistrate assumes the responsibility of ensuring probable cause existed for the search. It would be much easier to shoulder this responsibility if the magistrate ensures the original affidavit in its entirety is timely filed with the court clerk. We find support for our conclusion in the various statutes governing search warrants.

. . .

We are aware of the practical concerns generated by requiring the magistrate to ensure the entire search warrant affidavit, including any portion ordered sealed, be timely filed with the superior court clerk. Police officers frequently need to secure a search warrant in the middle of the night. Magistrates often live miles from the closest branch of the superior court. The press of work may prohibit the officer affiant from waiting at the courthouse door to file documents. Nevertheless, the entire warrant affidavit becomes a court document when it is presented to a magistrate in support of a search warrant. From then on, the document is a matter of public record to be treated like a public record. It is not evidence of guilt to be produced in a subsequent criminal trial and therefore properly retained by the investigating law enforcement agency. Consequently, to avoid the constitutional and statutory violations that occurred here, the affiant officer must also ensure the entire warrant affidavit, including any portion ordered sealed by the magistrate, is filed with the clerk of the superior court at the officer's earliest opportunity.

No expectation of privacy in a stolen truck in the defendant's driveway. United States v. Malady, 209 Fed. Appx. 848 (10th Cir. 2006)* (unpublished).

Defendant's girlfriend had apparent authority to consent. She left the premises intending not to return but did. She actually consented while not physically there during the hiatus, but that was not fatal to consent. United States v. Ryerson, 2006 U.S. Dist. LEXIS 93244 (W.D. Wisc. December 22, 2006):

Ryerson contends that Lawicki possessed neither actual nor apparent authority to consent to a search of 911 Gillette Lane. Ryerson is incorrect. Lawicki almost certainly had actual authority to consent to the searches. She had lived in the house with Ryerson and their child continuously for over ten months prior to the first search. Lawicki had left for her mother's with the baby on February 5, 2006 with the stated intent not to return, but in fact she changed her mind and she did return to the area to retrieve the baby from Ryerson. Because Lawicki was scared of Ryerson and his minions, she did not stay in the house between February 5-10, but this does not establish that it was not still her residence. After all, Ryerson didn't stay there between February 5 - 10 either; during the relevant time period the house was unoccupied. n2 There was no legal or physical impediment to Lawicki continuing to live at 911 Gillette during this time; she simply chose not to do so. Therefore, I conclude that Lawicki had actual authority to consent to the searches on February 9 and 10, 2006.

Two police officers in the same department cannot conspire to violate civil rights under § 1983. Magee v. City of Daphne, 2006 U.S. Dist. LEXIS 93183 (S.D. Ala. December 20, 2006).*

A Fourth Amendment claim litigated on direct appeal cannot be reviewed on a § 2255 claim. United States v. Figueroa, 2006 U.S. Dist. LEXIS 93218 (D. Nev. December 20, 2006).

In the ongoing Major League Baseball steriod use investigation, the government served subpoenas for drug testing records. When it became obvious that the subpoenas would be challenged for overbreadth, it issued a narrower subpoena. Just as the production date arrived, the government sought search warrants from USMJs in California and Nevada for the same records. The MLB Player's Association sought return of the records. Calling the challenge to the search warrant a "farrago of arguments," the court held that the search warrants were valid. This is a wide ranging opinion that will have an affect on computer searches in general applying the overbroad records search case of United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), to computer searches. United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915 (9th Cir. December 27, 2006) (2-1 decision; free link at case name, in two volumes on court's website). There are a substantial number of arguments, but this is the gist, starting with the conclusion:

The summary:

VII

We now summarize the resolution of these consolidated appeals. We conclude that the government's seizures were reasonable under the Fourth Amendment, and that the district courts erred in ruling that Fed. R. Crim. P. 41(g) required return of all property and agent review notes unrelated to the ten expressly named Balco players.

At the same time, we recognize limits to the government's right to retain evidence seized, even where a broad seizure is reasonable in order to avoid lengthy and intrusive on-site inspection. Our Fourth Amendment precedents explain that the government may retain single "ledgers" of intermingled evidence, but may not keep separate, unrelated evidence. A magistrate is in the best position to sort through the actual evidence and to determine those files that may be kept when aggrieved parties seek relief. Readily separable evidence unrelated to persons named in the search warrants must be returned. The Fed. R. Crim. P. 41(g) cases must be remanded to the District of Nevada and Central District of California to permit such review of the sealed documents by magistrates.

With regard to the May 6 subpoenas, which covered the same evidence as the contemporaneous search warrants, we conclude the order of the Northern District of California quashing the subpoenas was an abuse of discretion. The record, illuminated by caselaw, reveals that the subpoenas were not unreasonable and did not constitute harassment.

Therefore, the orders of the Central District of California, the District of Nevada, and the Northern District of California cannot stand. The three cases consolidated in this appeal are hereby

REVERSED in part and REMANDED in part.

The MLB Player's Association had standing to challenge the search warrants on behalf of its members.

As to the use of a search warrant, there was no constitutional need to show that there would be a destruction of records before a search warrant could issue to a third party for evidence under Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978). The government merely asserted that it was encountering a delay of the investigation. Also, the government did not misrepresent to the court below that a subpoena had been issued.

There was a seizure of intermingled records of some players who were outside the scope of the warrant, but this did not show bad faith. The government brought along a computer analyst to make sure at the scene that the seizure was as narrow as possible. Because another agent who was not a computer expert also viewed the records, this was not a constitutional violation.

The government also copied files on the drug testing company's computer rather than continue to search it on site for the purpose of not disrupting the operations of or inconveniencing the company during the search. A key word search was not constitutionally required when the government searched the files.

In light of these considerations, we conclude that the government properly considered and respected the privacy interests, intrusiveness, and law enforcement needs posed by the searches in question by removing a copy of the Tracey [computer] directory (not the original) and taking only limited diskettes and documents containing relevant information. In seizing these files, the government did not show "callous disregard for the constitutional rights of the movant," Ramsden, 2 F.3d at 325, but instead displayed attentiveness both to the warrant's precautionary procedures and to the importance of avoiding unnecessary disruption of CDT's business operations. For these reasons, we conclude that the first prong of the Ramsden analysis (the existence of "callous disregard") weighs against invocation of the district court's equitable jurisdiction over the Fed. R. Crim. P. 41(g) motions. The district courts' conclusions to the contrary were based on faulty conclusions of law and unsupported assertions of fact. They cannot survive appellate review.

We turn now to the merits of the substantive rulings issued by Judge Cooper and Judge Mahan that ordered return of all property other than evidence directly related to the ten players named in the search warrants.

A

With respect to property taken during search warrants, Fed. R. Crim. P. 41(g) provides that a person who is deprived of property may move for its return. When such a motion is granted, the property in question must be returned to the moving party, but a court "may impose reasonable conditions to protect access to the property and its use in later proceedings." Id. Although the rule itself does not set a standard for determining when property should be returned to a moving party, an advisory committee note explains that "reasonableness under all of the circumstances must be the test." Fed. R. Crim. P. 41 advisory committee's note.

We have repeatedly held that a Fed. R. Crim. P. 41(g) motion is properly denied if "the government's need for the property as evidence continues." United States v. Fitzen, 80 F.3d 387, 388 (9th Cir. 1996) (internal quotation marks omitted); United States v. Mills, 991 F.2d 609, 612 (9th Cir. 1993) (same). The advisory committee note explains: "If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable." Fed. R. Crim. P. 41 advisory committee's note.

It is when the government no longer needs the property as evidence that a presumption arises, giving the owner a right to have the property returned. Fitzen, 80 F.3d at 388. Here, the government already has provided copies of all documents seized, and it states that the remaining evidence is essential to its investigation and prosecution of the distribution of illegal steroids. This legitimate law enforcement purpose makes return of the intermingled evidence improper, as the files were seized legally under the search warrant and our precedent.

Moreover, even in cases where agents seized too much evidence, we have noted that return of property should follow only a particularly egregious violation: "The issue is whether the Government's conduct was sufficiently reprehensible in this [*54] case to warrant this sanction." Ramsden, 2 F.3d at 327. In Ramsden, we refused to impose this extreme sanction on police who had time to obtain a warrant but made no effort to do so and "simply chose not to comply with [their] obligations under the Fourth Amendment." Id. at 325, 327.

Our governing precedent offers no support for a full return of the intermingled evidence. Indeed, both the Beusch and Tamura courts underscored the need for effective criminal law enforcement. Thus, the Beusch court resolved: "As long as an item appears, at the time of the search, to contain evidence reasonably related to the purposes of the search, there is no reason--absent some other Fourth Amendment violation--to suppress it." 596 F.2d at 877. Even the Tamura court--which determined that the agents unambiguously flouted the limits of the search warrant--concluded: "[W]e cannot say, although we find it a close case, that the officers so abused the warrant's authority that the otherwise valid warrant was transformed into a general one, thereby requiring all fruits to be suppressed." Tamura, 694 F.2d at 597.

In Tamura, the government did not seek to use evidence at trial that fell outside the scope of the warrant. Therefore, the court found return of the seized property inappropriate, even though some evidence had been unlawfully taken. In the cases before us today, the government has made clear that it desires to use only information related to the ten named Balco players and to other players who tested positive--and who therefore may have become targets of an expanded grand jury investigation--as a result of intermingled information we have determined was seized lawfully under the warrant. While we agree that some information still retained by the government, at least in duplicate, may fall outside the scope of the warrant, we do not believe a return of the lawfully seized intermingled evidence properly remedies that wrong.

Thus, the district courts erred in granting the Fed. R. Crim.P. 41(g) motions and ordering the government to return all evidence seized from CDT and Quest--and all related notes by agents who reviewed the evidence--that did not relate to the ten Balco players expressly named in the search warrants.

B

We are persuaded that the government's seizure of intermingled evidence for off-site review was lawful and reasonable, and we view the two orders requiring return of all property related to players not specifically named as both unjustified and improper. However, the government has yet to comply with its duty of adequate off-site review. Tamura offered a suggested procedure for review by a neutral magistrate, and we conclude that such review is necessary to ensure that the seizure of intermingled computer records remains reasonable.

The Tamura court urged that off-site review be conducted by a magistrate, in order to avoid giving the task to a party with an interest in retaining too much. We cannot accept the government's argument that it may retain all evidence simply because it assured the Players' Association and CDT (without signs of bad faith) that it did not intend to use all the files. In the case of a lawful and reasonable seizure of intermingled computer records for off-site review, as at bar, our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof.

. . .

It is true that Tamura proposed a pragmatic approach, and not a constitutional rule. We recognize that some courts in other circuits have questioned the procedures advised in Tamura. One district court in Michigan explained: "The Court declines to follow Tamura, at least in this case, because Tamura did not involve computer files and therefore did not consider the specific problems associated with conducting a search for computerized records." Scott-Emuakpor, 2000 WL 288443, at *8. Although declining to apply Tamura's pragmatic approach to computer searches, Judge Quist stated: "This is not to suggest that seizure of all computer disks is permissible whenever the warrant authorizes the seizure of computer records." Id. Another court, also referencing Tamura, noted that in the modern computer context a "'suggestion' by a panel of the Ninth Circuit in a 20-plus year old case is not persuasive." United States v. Kaufman, 2005 WL 2304345, at *4 n.3 (D. Kan).

Like these district courts from other circuits, we recognize that the computer era adds new complexity to the test of reasonableness under the Fourth Amendment. Precisely for this reason, we view Tamura as especially important in the computer context. Although indeed writing over two decades ago, the Tamura court appreciated the same dual--and sometimes conflicting--interests of minimizing the intrusiveness of searches and containing the breadth of seizures. The Tamura court stated that "large-scale removal of material" can be justified "where on-site sorting is infeasible and no other practical alternative exists," Tamura, 694 F.2d at 596, but also advised that a magistrate should oversee the off-site review of documents. We conclude that upon a proper post-seizure motion by the aggrieved parties, the record should be sealed and reviewed by a magistrate--such as the one who originally issued the warrant. This procedure affords the necessary protection against unreasonable retention of property after a seizure of intermingled computer data.

. . .

We conclude that, while the government may seize intermingled data for off-site review to minimize intrusiveness of a computer search, it may not retain or use the evidence after proper objections are raised, unless a magistrate subsequently reviews and filters the evidence off-site. The magistrate must adhere to our precedent in a balanced manner. In her review, the magistrate should apply our precedent, including Beusch, which permits the seizure of single ledgers or files with intermingled data. In the context of computer files, we believe that most seized material scan be pared down considerably, but that certain files--spreadsheets of only a few pages, for example--may be retained in whole.

Finally, the court considered the simultaneous issuance of subpoenas and search warrants and did not find it unreasonable.

V.

Finally, we consider the government's appeal of Judge Illston's order quashing the May 6 subpoenas, which sought drug testing records and specimens for all MLB players who tested positive for steroids.

Under Fed. R. Crim. P. 17(c)(2), a "court may quash . . . [a] subpoena if compliance would be unreasonable or oppressive." The district court found that the May 2004 subpoenas constituted harassment and were unreasonable.

To support its finding, the district court pointed to United States v. American Honda Motor Co., 273 F. Supp. 810 (N.D. Ill. 1967). In American Honda, the government issued subpoenas that were "substantially identical" to one another but in different locations. Id. at 819. As a result, Honda was faced with producing the same documents repeatedly, and the court found this to be harassment. Id. at 819-20. American Honda, however, does not preclude the government from pursuing the same information through the contemporaneous issuance of subpoenas and applications for search warrants.

We addressed the issuance of contemporaneous search warrants and subpoenas in In re Grand Jury Subpoenas Dated December 10, 1987, 926 F.2d at 854. There we upheld the validity of the subpoenas against the challenge that "the subpoenas were served at the same time as the search warrants and the federal agents attempted to 'enforce' the subpoenas through immediate seizure of the documents." Id. at 854. Noting that the challenge to the subpoenas received no support in precedent, we clarified the differences between subpoenas and search warrants:

"Subpoenas are not search warrants. They involve different levels of intrusion on a person's privacy. A search warrant allows the officer to enter the person's premises, and to examine for himself the person's belongings. The officer, pursuant to the warrant, determines what is seized."

Id. By comparison:

"Service of a forthwith subpoena does not authorize an entry into a private residence. Furthermore, the person served determines whether he will surrender the items identified in the subpoena or challenge the validity of the subpoena prior to compliance."

Id. We concluded that "[t]hese differences are not eliminated by the fact that the search warrants and subpoenas were delivered at the same time" and observed that the complaining party had "failed to show that the papers that are described in the subpoenas are outside the scope of a legitimate investigation by the grand jury." Id. at 854-55. In addition, we specifically emphasized the fact that the defendant was given almost a month to comply with the subpoenas. Id. at 854.

Therefore, the district court erred in finding the issuance of subpoenas and the contemporaneous execution of search warrants to be unreasonable. The Players' Association has not argued that the evidence sought by the subpoenas is "outside the scope of a legitimate investigation by the grand jury." Id. at 855. The subpoenas were not returnable on the same day that the search warrants were executed. As in In re Grand Jury Subpoenas, the return dates on the subpoenas were over a month from the date on which the warrants were executed. The district court declared the May 6 subpoenas an "unreasonable insurance" policy, but it failed to recognize the different purposes and requirements of the warrant as compared to the subpoena and the legitimate concern that production of relevant evidence to the grand jury would be unduly delayed. See id. at 854. It was error to conflate the two distinct tools. Insurance it may have been; but, under the Fourth Amendment, unreasonable it was not.

Police seized the "black box" from a demolished car in impound that was immobile without a warrant and then got a warrant showing independent probable cause. The prior warrantless seizure did not void the warrant because of the independent source of the information supplied to get the warrant. People v. Slade, 2005 N.Y. Misc. LEXIS 3217, 233 N.Y.L.J. 11 (Nassau Co. January 18, 2005).

State showed probable cause but failed to show that exigent circumstances existed. Defendant's consent after unlawful warrantless entry was also void. Stone v. State, 279 S.W.3d 688 (Tex. App. — Amarillo December 21, 2006):

However, even with probable cause present, the State must also show that exigent circumstances existed such that the procurement of a search warrant was impractical. The State contends that the exigent circumstances arose when officers confronted the white female outside of the apartment. According to officer testimony, the encounter was within view of the apartment and, if seen, could have led to the destruction of evidence and possible violence and armed resistance from the occupants. However, the apartment occupants must have been aware of the officers' presence before it can be said that knowledge of the officers' presence somehow influenced the occupants' actions. See Grimaldo v. State, No. 07-04-0246, 2006 WL 563027, at *4 (Tex.App.-Amarillo March 8, 2006, no pet. h.). Inferences, opinions, and conclusions stimulating police action must be reasonably objective and supported by fact as opposed to speculation and surmise. Id. Although the lead officer believed that evidence could be destroyed, and that officers were potentially in danger, the record does not contain facts rendering the lead officer's beliefs objectively reasonable. See id. Thus, we conclude the State did not establish the existence of exigent circumstances necessary for a warrantless search. Therefore, we conclude that, although probable cause existed, the absence of exigent circumstances make the warrantless entry into appellant's home unlawful.

Defendant was handcuffed during his stop for officer safety, and the officer saw a Brinks uniform in the car which led him to believe that the defendant was involved in a robbery where a Brinks uniform was worn. While handcuffing occurred, the defendant was under arrest until Mirandized. State v. Snyder, 2006 Ohio 6911, 2006 Ohio App. LEXIS 6817 (9th Dist. December 27, 2006).*

Defendant was a suspect in a murder in Maryland, and a search warrant was obtained in West Virginia. Maryland officers and a crime scene unit came to the scene to assist in the execution of the warrant because they were familiar with the facts of the case. There was no prohibition under West Virginia law for Maryland officers to "assist" (or actually do it) as long as West Virginia officers were there. Also, defendant had no right to see the search warrant for another person and his premises to see if there was anything in there that was exculpatory to the defense. The trial judge did look in camera and found nothing which aided the defense. It was clear that the defendant had no standing in the search of the other person. Daniels v. State, 172 Md. App. 75, 913 A.2d 617 (December 26, 2006).

Summary judgment denied officers because of a factual dispute on the questions of probable cause and exigent circumstances. Hopkins v. Bonvicino, 2006 U.S. Dist. LEXIS 93131 (N.D. Cal. December 21, 2006).

Stop was justified because the defendant matched the general description of a man wanted in an assault with a firearm. This included a frisk of his vehicle that produced a gun. United States v. Yarbrough, 2005 U.S. Dist. LEXIS 44167 (N.D. N.Y. January 4, 2005).*

Officers lacked exigent circumstances for a warrantless entry based on assertions from a person they just arrested that they had to have understood would be seeking leniency for himself and by becoming a snitch. United States v. Markeif, 2006 U.S. Dist. LEXIS 93028 (M.D. Pa. December 22, 2006):

The Government asserts that the basis for exigent circumstances formed upon the arrest of Cummings and the information he subsequently proffered to the officers at that point. We accept that Cummings told the officers to "get him out of here" and that he speculated that the individuals observed down the street, some of whom may have been talking on cellular phones, knew his employers in South Williamsport. However, Cummings was admittedly unknown to the officers, as were the individuals down the street, and therefore the officers had no way of knowing whether Cummings was credible or reliable in his assertion that his employers were being "tipped off." Moreover, the officers did not endeavor to engage the witnessing individuals in a discussion to corroborate Cummings' assertions to them. In fact, Cummings was acting in accordance with the way many arrested drug dealers do; he was attempting to give the officers some information in the hopes that they would grant him consideration regarding his arrest. These experienced officers were, or should have been, well aware that upon his arrest, Cummings' priorities were those of self-interest and self-preservation, and with cognizance of Cummings' motivation, the officers should have proceeded with some caution upon any information proffered by Cummings. We find that there is no credible evidence that tends to show that the occupants of Apartment 1, 1920 Riverside Drive were aware that the police were on their trail. Any assertion in that regard involves rank speculation. Cummings' suppositions could have been checked out by the officers, but they were not. Therefore, as a corollary, we cannot find, based upon Cummings' assertions alone, that the officers had a reasonable belief that contraband was being removed or secreted.

Next and importantly, the actions of the officers following the arrest of Cummings do not indicate to the Court that they wholly believed it was urgent to enter Apartment 1, 1920 Riverside Drive to preserve evidence. Lt. Ungard did not immediately travel to the vicinity of 1920 Riverside Drive upon Cummings' arrest, but rather accompanied him back to Williamsport City Hall. Thereafter, Lt. Ungard proceeded to 1920 Riverside Drive and commenced surveillance. He then observed individuals who fit the description of the suspected residents of Apartment 1 enter and leave the apartment building, however he made no attempt to question or follow these individuals. This is somewhat remarkable, in that Lt. Ungard testified that he was concerned these individuals were leaving with evidence. Further it is clear that Lt. Ungard and other officers were safely able to obtain surveillance positions, and there was no evident danger to the officers if they continued to maintain surveillance while a warrant was being sought.

After a searching review of the facts we are left with the inescapable conclusion that there existed no affirmative evidence that destruction of evidence was imminent, simply because no evidence indicated that the occupants of Apartment 1, 1920 Riverside Drive were aware of Cummings' arrest or his accusations against them. Instead what we find is apparent post hoc reasoning by the Government that attempts to wedge this warrantless entry into a recognized exception to the warrant requirement. Essentially the Government is asking this Court to cure a conundrum of its own making by buying into an artificial construct of both exigent circumstances and probable cause, which we plainly cannot do.

Summary judgment granted arresting officers because plaintiff was stopped while driving a vehicle stolen at gunpoint. Powell v. Hill, 2006 U.S. Dist. LEXIS 92855 (E.D. Mich. December 26, 2006).*

Pro se § 1983 plaintiff survived summary judgment on illegal search claim despite defendant's claim it was barred by Heck because it did not yet challenge a conviction. Medley v. McClindon, 2006 U.S. Dist. LEXIS 93032 (E.D. Mo. December 26, 2006).*

Two anticipatory search warrants were executed on the lawyer defendant for alleged bankruptcy fraud. When confronted by the FBI and an AUSA, he made a proffer. After being charged, he sought to suppress the search via a motion in limine concerning the government's attempt to void the proffer for lack of candor. The motion was denied. United States v. Peel, 2006 U.S. Dist. LEXIS 92880 (S.D. Ill. December 22, 2006).*

Broad allegations that probable cause was lacking without any specifics was insufficient to get a Franks hearing. Motion denied without prejudice. United States v. Trikha, 2006 U.S. Dist. LEXIS 92885 (S.D. Ill. December 22, 2006).*

A large number of officers showed up at defendant's house for a knock and talk without a search warrant, and drugs were tossed out a window when they showed up. Too many officers were present for a mere knock and talk, and this was a submission to a claim of authority. The officers' testimony was just not credible. United States v. Berry, 468 F. Supp. 2d 870 (N.D. Tex. December 21, 2006):

The court does not find credible the testimony that the entry onto Berry's property was merely for the purpose of a permissible "knock and talk." The court determines that the conduct of the officers, who knew they lacked probable cause, reflects a plan or effort to arrest Berry without getting a warrant. The totality of the circumstances suggest a major operation. There were at least eight officers present. The officers carefully planned the operation, staked out their positions surrounding Berry's house, and took cover positions. Four officers entered Berry's patio and approached the front door. This is overkill for the stated purpose of a "knock and talk." See United States v. Jones, 239 F.3d at 720 (reasonable suspicion of criminal activity cannot justify the warrantless search of a house). Moreover, the inconsistency in the testimony of several of the officers casts much doubt as to the stated purpose of a "knock and talk."

Pro se § 2255 denied because of defendant's waiver of relief at guilty plea could not be shown to be based on ineffective assistance of counsel. Also, the guilty plea waived any search claim now asserted. COA denied, too. United States v. Contorelli, 2006 U.S. Dist. LEXIS 92688 (S.D. Tex. December 22, 2006).*

During traffic stop, driver of vehicle was at first thought to be under the influence, but officers determined that she was not. During the questioning she was sked if there was any contraband in the car, and she said "possibly," and that was reasonable suspicion for detaining a few more minutes for a drug dog sniff. United States v. Harris, 2006 U.S. Dist. LEXIS 92717 (W.D. Pa. December 21, 2006).*

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

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

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

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

Officers had an arrest warrant and expected to find the defendant armed. When they found him in a motel room, they had to tazer and tackle him to make the arrest. Before Mirandizing him and after handcuffing him, he was asked where he hid the gun. He told them. Then they cleaned a bruise on his head from the arrest, Mirandized him, and sought consent to search. Under Quarles, his answer was not suppressed. The fact defendant was handcuffed did not alter the outcome. Moreover, the court found the evidence supported the district court's conclusion that he consented after all that (and circuit authority supported it). United States v. Smith, 210 Fed. Appx. 533 (7th Cir. 2006)* (unpublished):

Following Quarles, we have held that when arresting officers have reason to believe that a suspect has concealed a weapon near the place of arrest, they may ask about the weapon to protect themselves or the public "from the immediate danger that a weapon would pose" even after the suspect is handcuffed and searched. United States v. Edwards, 885 F.2d 377, 384 n.4 (7th Cir. 1989); see also United States v. Knox, 950 F.2d 516, 519 (8th Cir. 1991) (police were not required to give Miranda warnings before asking arrestee where his gun was; even though pat-down indicated arrestee did not have a gun, police had reason to believe it could be close by or in a public area).

Here, the officers had reason to believe Smith had a concealed gun nearby. He was wanted on weapons charges and the tipster had told police that Smith was recently armed. The officers could tell that the gun was not on his body, so there was reason to believe Smith had hidden or disposed of it somewhere else close by. Even though Smith was handcuffed and his hotel room was secured, the gun could be elsewhere nearby and thus might pose a threat either to members of the public who could discover it, or even to the officers should Smith again resist arrest. Reasonably believing that Smith had a concealed gun but having not yet seen it, the officers properly invoked the public safety exception to ask Smith where it was.

Smith's second argument--that his waiver and consent to search were involuntary so that the gun itself should have been suppressed--is also meritless. He says that he "consented" only after being tackled and tasered by police, and hitting his head on the door frame. We initially note that Smith "signed a consent form, which weighs heavily toward finding that his consent was valid." United States v. Taylor, 31 F.3d 459, 463 (7th Cir. 1994). Moreover, the district court determined that under the totality of the circumstances, Smith's waiver and consent were not coerced, a factual finding we review for clear error. See Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973); Mendoza, 438 F.3d at 795. The record shows that the officers did not use weapons or any kind of force to obtain the waiver and consent (only the arrest), and that any physical injury Smith sustained during his arrest was insignificant. We have found that arrest-related injuries do not necessarily vitiate valid consent, see Watson v. DeTella, 122 F.3d 450, 454 (7th Cir. 1997) (consent voluntary even though defendant had been kicked in the head by police at the time of his arrest), particularly when arresting officers inflict injuries solely to bring suspects into compliance with police orders and not as a form of interrogation. See id. (suspect was kicked in the head during his arrest not to make him confess but because he refused to raise his hands). That is the case here, so the district court's consent finding was not clearly erroneous.

Generalized flyover in rural Tenneessee led to officers spotting marijuana plants 50 yards behind defendant's house with no enclosures. United States v. Ortkiese, 208 Fed. Appx. 436 (6th Cir. 2006)* (unpublished):

Here, the police spotted several marijuana plants growing in Ortkiese's backyard while conducting a routine helicopter flyover. The marijuana plants were not within the curtilage of Ortkiese's home, as the officers spotted the contraband 50 yards behind the home, out in the open and without any enclosure. The Supreme Court, notably, has reaffirmed the open-fields doctrine in the precise context of the cultivation of marijuana plants some distance from a person's residence. See Oliver, 466 U.S. at 174, 179; cf. United States v. Dunn, 480 U.S. 301 (1987) (defining the curtilage protected by the Fourth Amendment by its "proximity . . . to the home," whether it is "within an enclosure surrounding the home," how it is used by the owner and "the steps taken . . . to protect the area from observation by people passing by").

To the extent Ortkiese means to challenge the government's search of his property by a helicopter, he offers no evidence to support his theory that the police were targeting him for investigation, as opposed to performing a generalized flyover, the latter of which the Court has approved as constitutionally permissible. See Florida v. Riley, 488 U.S. 445, 450-51 (1989) (plurality); id. at 454-55 (O'Connor, J., concurring in the judgment). Because the officers' search for, and seizure of, the marijuana plants were valid in every respect, the district court correctly rejected his Fourth Amendment challenge.

A parolee was stopped and subjected to a search under California law mandating that all parolees are subject to search. All the officer had to know was that the defendant was on parole, which the district court found. United States v. Akin, 213 Fed. Appx. 606 (9th Cir. 2006)* (unpublished):

n. 2. The search-and-seizure condition is mandatory for every prisoner eligible for release on state parole in California. See Cal. Penal Code § 3067(a) (West 2000); Samson, 126 S. Ct. at 2196. Thus, Samson does not hold that a police officer must be familiar with the parolee's particular conditions of release in order to execute a search. We address the issue of Rodriquez's awareness here, however, because it is conceivable that Akin would not be subject to the mandatory condition if he were paroled prior to January 1, 1997, the date this provision became effective. See Cal. Penal Code § 3067(c) (West 2000).

Consent to look in a car in New York is not consent to search it. Suppression order affirmed. People v Hall, 2006 NY Slip Op 9751, 2006 N.Y. App. Div. LEXIS 15595 (4th Dept. December 22, 2006):

The People failed to prove the substance of the conversation between defendant and the police officers, and the court was therefore unable to determine what a reasonable person would have understood from the exchange. In addition, even if we accept either version of the conversation presented at the hearing as the operative one, the People established only that the officers asked defendant if they could check the vehicle or look in the vehicle. Consent to check or look in a vehicle is not consent to search it (see People v Love, 273 A.D.2d 842; People v Saunders, 161 A.D.2d 1202; People v Lazarus, 159 A.D.2d 1027, lv denied 76 N.Y.2d 738).

Police responded to a 911 call of a car alarm going off. They arrived in one minute and heard no car alarm. They saw a pickup truck with a laptop computer in the back, and the indicator light was on and they seized it and a notebook and took them to the police station. When they opened it, they found forged documents. The seizure and search could not be justified under the emergency exception because there was no threat to life and limb of the police. Suppression order affirmed. People v Fravel, 2006 NY Slip Op 9725, 2006 N.Y. App. Div. LEXIS 15618 (4th Dept. December 22, 2006).

After a controlled buy, police got a search warrant for the premises. Due to surveillance, they knew there was a gray car parked outside with a man with a walkie talkie in it. On execution of the warrant, officers were justified in approaching him and ordering him out of the car as a suspected lookout. They smelled burnt marijuana, and that justified a further search. State v. Grant, 2006 Ohio 6821, 2006 Ohio App. LEXIS 6749 (2d Dist. December 22, 2006).*

Police responded to an anonymous child abuse call that also involved drug usage by the defendant. They did a knock and talk, and the defendant refused entry. The court discussed the specificity of the information and added that the police could have also concluded that the defendant's refusal to consent added to their suspicion. After defendant was arrested, the officers could conclude his statement to them supported a second entry to look for drugs. State v. Lane, 2006 Ohio 6830, 2006 Ohio App. LEXIS 6752 (2d Dist. December 22, 2006):

[*P35] The Supreme Court of Wisconsin addressed similar facts in State v. Boggess (1983), 115 Wis.2d 443, 340 N.W.2d 516. In Boggess, an anonymous caller indicated that two children at defendant's home may have been battered and needed medical attention, and also indicated that one of the children was limping, and the defendant had a bad temper. The Court upheld the warrantless entry of the defendant's home and noted the objective test of the emergency rule exception is satisfied when, under the totality of the circumstances, a reasonable person would have believed that there was an immediate need to provide aid or assistance. Like the anonymous call in Boggess, the call in this case contained some specificity. It specifically indicated George Lane at the Dennison address was selling drugs around two children and abusing them causing one to suffer a busted lip. It is also relevant that Lane denied there were any children in his home before one child suddenly appeared. Also, the police could have become even more suspicious of Lane's conduct when he withdrew his permission to permit the officers to look for the other child. Although it is close, we believe the police could have reasonably believed that the other child mentioned in the call was in need of immediate aid at the time they entered Lane's home. The drugs discovered in the living room were discovered in plain view after the lawful entry. The first assignment of error is overruled.

. . .

[*P44] We believe that it was objectively reasonable for Officer Adams to believe that Lane's statement in the cruiser to him that there were other drugs in his bedroom was an invitation by Lane to him to enter his house and retrieve them. This is so particularly since Lane had seen the police enter his home just minutes earlier and find drugs in his living room. The second assignment is overruled.

Comment: So much for the exercise of a constitutional right not being used against you.

Vehicle remained sufficiently mobile under the automobile exception after defendant's arrest for DUI drugs that it could be searched. The trial court erred in suppressing. State v. Meharry, 342 Ore. 173, 149 P.3d 1155 (December 21, 2006), rev'g 201 Ore. App. 609, 120 P.3d 520 (2005).

NJ statute permits drug testing of students on individualized suspicion of being under the influence at school. Plaintiffs' son was clearly suspected of being under the influence because he was ADD and was suddenly acting like he was stoned, which he was. The testing here was constitutional. Parental consent was not constitutionally required, but the parents were notified according to law. Gutin v. Washington Twp. Bd. Of Educ., 467 F. Supp. 2d 414 (D. N.J. December 21, 2006):

It is important to note at the outset that the policy at issue is not one of suspicionless or random testing. Rather, the School District's policy provides for testing only upon an individualized suspicion that a particular student is under the influence of drugs in school. Contrast Bd. of Ed. v. Earls, 536 U.S. 822 (2002); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)(school district policies authorizing random urinalysis drug testing of students). Therefore, the issue presented is whether the Fourth Amendment requires parental consent in every case before testing a student who is reasonably suspected of being under the influence of drugs while in school. The Court concludes that parental consent is not required by the Fourth Amendment.

. . .

The Court fails to see how lack of consent renders drug testing based on reasonable individualized suspicion unconstitutional. In T.L.O., the search of a student's purse upon suspicion that she was violating her school's smoking prohibition was held constitutional even though the student did not consent to the search. After a teacher took T.L.O. to the Assistant Vice Principal, the Vice Principal "asked T.L.O. to come into his private office and demanded to see her purse. Opening the purse he found a pack of cigarettes." T.L.O., 469 U.S. at 328. Similarly here, Adam was taken to the Assistant Principal's office based on the suspicion that he was under the influence, whereupon Adam's mother was notified and arrangements were made to have Adam screened for drug use at Kennedy Hospital.

Moreover, the Third Circuit's analysis in Hedges v. Musco, 204 F.3d 109 (3d Cir. 2000), supports the conclusion that lack of consent is not fatal to a reasonableness finding. In Hedges, parents of a New Jersey public high school student challenged the drug testing of their daughter pursuant to the school district's drug testing policy. The student was observed by her teacher as having glassy, red eyes with dilated pupils and acting uncharacteristically. Hedges, 204 F.3d at 112-13. Based on these observations, the student was sent to the school nurse upon suspicion of being "high." Id. After being examined by the nurse, the student was eventually taken to a hospital where a blood test and urinalysis were conducted. Id. at 113.

The police could rely on an anticipatory warrant that had a clear triggering point of word from an informant inside that the package had actually gone into the place to be searched. United States v. Serrano, 2006 U.S. App. LEXIS 31523 (10th Cir. December 20, 2006)* (unpublished).

Defendant had no standing to challenge the search of his mother's car when he disclaimed control over it and had no key at the time of the search. United States v. Fisher, 213 Fed. Appx. 584 (9th Cir. 2006)* (unpublished).

The defendant consented to the taking of a DNA sample, but under the police pretext that it was needed for an assault case. They intended to use it in a murder investigation against the defendant, and they had already questioned him about the homicide. State v. Wilcox, 2006 Ohio 6777, 2006 Ohio App. LEXIS 6693 (10th Dist. December 21, 2006):

[*P49] Defendant concedes that he voluntarily gave the police the requested saliva sample; however, he argues that his consent should be considered involuntary considering the police improperly deceived him. Defendant seems to argue that the police deceived him as to how his DNA would be used. Defendant argues that consent was given as to an unrelated assault case, but not for use in this aggravated murder case. In essence, defendant argues that he was deceived because he was not informed that the police wanted a saliva sample in order to investigate the deaths of Mr. Westbrook and Alamar. Defendant's deception argument is unpersuasive, as Detective Dorn's testimony at the suppression hearing indicated that he interviewed defendant regarding the homicides before he asked for the saliva sample. Thus, defendant reasonably understood that the police were investigating the homicides at the time he voluntarily gave the police the saliva sample.

Search warrant in drug case was specific and not overbroad. It was much more specific than the warrants in the cases relied on by the defendant. United States v. Shine, 2006 U.S. Dist. LEXIS 92238 (D. Vt. December 15, 2006).*

When a defendant flees the police, he is not seized. State v. Lott, 2006 Ohio 6796, 2006 Ohio App. LEXIS 6718 (5th Dist. December 19, 2006).*

Consent was given to look in a suitcase, but that did not implicitly constitute consent to the officer to open folded tin foil found inside. The court also disagreed that the folded tin foil "announced its contents." State v. Fugate, 210 Ore. App. 8, 150 P.3d 409 (December 20, 2006):

In that casual, conversational context, [Officer] Huber himself did not appear to believe that defendant had consented to the opening of the tin foil merely by handing it to him. Instead, after defendant did so, Huber asked him what was inside the foil. If Huber had believed that he had permission to open the fold, he would have had no reason to ask defendant what was inside. Although asking the question most prominently suggested that Huber did not subjectively believe that defendant had consented to the search of the tin foil's contents--which is not relevant here--it also is some evidence that a reasonable person would not have understood that handing over the tin foil in response to the officer's request to "see" it included consent to opening it to examine its contents.

Here, each verbal exchange between defendant and Huber was discrete. Significantly, in none of those exchanges did Huber ask defendant if he could look inside anything. Nor did defendant's nonverbal conduct, just seconds earlier, in opening and closing the black carrying case to show Huber the stereo, indicate anything but a very limited desire to cooperate on the part of defendant. By contrast, in Allen, the search of a metal container within a purse was preceded by a request to look inside the purse; the defendant agreed. As a consequence, it was logical to infer that her consent encompassed the opening of other closed containers found within the purse. The same was true in Charlesworth/Parks (search of closed container in car preceded by unrestricted consent to request to search car) and Harvey (same). We find no similar implicit manifestation of consent to open anything in this case. It is true that, as in Allen, defendant here did not object when Huber opened the tin foil. However, there is no evidence that he had a meaningful opportunity to object or, for that matter, that it would have availed him to do so. In the totality of circumstances, we conclude that a reasonable person would have understood that, by handing the folded tin foil to the officer in response to a request to "see" it, defendant was consenting to an examination of the tin foil itself, not to its opening and the examination of its contents. It follows that the trial court erred in denying defendant's motion to suppress.

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

2. Necessity of Warrantless Video Surveillance

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

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

3. Adequate Substitute for a Warrant

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

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

As to qualified immunity:

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

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

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

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

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

The post for Ruttenberg v. Jones from December 16th has been updated with a new title: "Younger abstention did not bar suit where administrative agency could not resolve claim, but plaintiff loses on the merits of the Fourth Amendment claim where the court found it reasonable, despite the fact the administrative search was clearly a criminal search."

Plaintiff's counsel brought to my attention an issue that I overlooked, and thank you.

Yet another update: This case has generated a fair amount of Northern Virginia blog interest, as shown here and here.

AP has this story yesterday: Ex-cop plans 'don't get busted' video:

TYLER, Texas- A one-time Texas drug agent described by a former boss as perhaps the best narcotics officer in the country plans to begin selling a video that shows people how to conceal their drugs and fool police.
Barry Cooper, who once worked for police departments in Gladewater and Big Sandy and the Permian Basin Drug Task Force, plans to launch a Web site next week where he will sell his video, "Never Get Busted Again," the Tyler Morning Telegraph reported in its online edition Thursday.

A promotional video says Cooper will show viewers how to "conceal their stash," "avoid narcotics profiling" and "fool canines every time."

Cooper, who said he favors the legalization of marijuana, made the video in part because he believes the nation's fight against drugs is a waste of resources. Busting marijuana users fills up prisons with nonviolent offenders, he said.

"My main motivation in all of this is to teach Americans their civil liberties and what drives me in this is injustice and unfairness in our system," Cooper told the newspaper.

. . .

Defendant was formally evicted by notice from his grandmother's house, and this led to an officer coming to aid in removing him. The finding of a crack pipe in plain view was reasonable. State v. Hertzel, 2006 Ohio 6770, 2006 Ohio App. LEXIS 6676 (8th Dist. December 21, 2006):

[*P11] Although appellant occupied a room on and off over several years in the home of Hartman, who is his elderly grandmother, he rarely paid rent, frequently drove her car without permission, and caused her various problems. As a result of his behavior, Hartman had served him with an eviction notice demanding that he immediately vacate the premises. On the evening of appellant's arrest, Hartman specifically asked Officer Greenway to aid her in removing appellant from her home. Greenway did not enter appellant's room with the intent to conduct a search -- his only purpose was to enable appellant to pack his belongings and then safely escort him out of Hartman's home.

Officer had reasonable suspicion for stop of a new car with a drive out tag that was not easily visible, although it was determined that the vehicle was in compliance. The question is not whether the vehicle was in compliance; it was whether there was reasonable suspicion to believe it was not at the time of the stop, and there was. The minor was found to be under the influence at the time of the stop. In re Raymond C., 145 Cal. App. 4th 1320, 52 Cal. Rptr. 3d 330 (4th Dist. November 20, 2006, published December 20, 2006).*

Inventory was valid after stop of juveniles for a curfew violation with belief that the car was possibly stolen. The latter also led the officer to believe that the VIN plate was switched, and the vehicle would be towed. A gun and clip were found, but the fact they were not in the inventory was explained by their being booked as evidence. State v. Tisdel, 2006 Ohio 6763, 2006 Ohio App. LEXIS 6682 (8th Dist. December 21, 2006).*

“[E]ven if we assume that the officers violated the rights of Child and his family under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution by entering their apartment without a warrant, the district court properly denied Child's motion to suppress evidence of Child's actions attacking the officers within the apartment.” State v. Travison B., 2006 NMCA 146, 149 P.3d 99 (October 16, 2006).

Day care regulators conducted a search of plaintiff's day care operation which was in her home. This was a search rather than an inspection because plaintiff retained a reasonable expectation of privacy in her home day care center. Summary judgment is denied on this issue and the issue of whether plaintiff consented. Summary judgment was also denied for seizure of records required to be kept because of a factual dispute over whether the defendants claimed they had a court order requiring production. The court finds that day care businesses are pervasively regulated businesses under Washington law, but finds that the inspection statute is flawed under Burger. De La O v. Arnold-Williams, 2006 U.S. Dist. LEXIS 91919 (E.D. Wash. December 20, 2006).

Officers had probable cause to arrest defendant for bank robbery based on a 911 call describing the getaway car with the license number and the license number was traced to a rental agency which rented to the defendant earlier in the day. When the car was stopped, he matched the description of the bank robber, and his story about how he got the car at the airport was inconsisent. His consent and statement thereafter were valid. United States v. Street, 472 F.3d 1298 (11th Cir. December 20, 2006).*

Wal-Mart-type meth materials purchase led a civilian to call the police and describe the vehicle and the driver. Officers were tipped off to the vehicle, and it was seen, clocked on radar, and stopped for speeding (73 in a 70). The stop was valid, despite the mixed motive and the officer's testimony that he would have stopped the vehicle even if it was not speeding. The defendant conceded that everything after that was legal. United States v. King, 209 Fed. Appx. 760 (10th Cir. 2006)* (unpublished).

Habeas petitioner at least gets a hearing on his IAC claim about the suppression hearing, at least because the entire transcript of the hearing is unavailable to the habeas court. Bray v. Cason, 2006 U.S. Dist. LEXIS 91899 (E.D. Mich. December 20, 2006):

Although Fourth Amendment claims are not cognizable on habeas review, Stone v. Powell, 428 U.S. 465 (1976), "federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying error." Kimmelman v. Morrison, 477 U.S. 365, 383 (1986). An evidentiary hearing may assist the Court in discerning what occurred at the suppression hearing and whether Petitioner's claims about Mr. Fishman have any merit. The Court therefore reserves judgment on habeas claim VII. Petitioner may raise that claim at the evidentiary hearing.

Exigent circumstances justified police chase and entry into an apartment because of an obvious risk of destruction of evidence. The person fleeing was yelling to the occupants of the apartment that the police were there. Verelli v. City of Garfield, 2006 U.S. Dist. LEXIS 91265 (D. N.J. December 6, 2006):

Second, the officers reasonably concluded that the drugs would be destroyed or removed if they waited to obtain a search warrant. The officers knew that Verelli lived in the apartment. When it became apparent that he was about to be arrested, Shanks ran into the GHA complex, towards Verelli's apartment, screaming Verelli's name "at the top of his lungs." The only reason Shanks did not actually reach Verelli's apartment is because Detective Martino was able to apprehend him first. The officers had reason to believe that Verelli knew of Shanks's drug distribution activities, giving further legitimacy to their fear that she might remove or destroy narcotics that might be in the apartment. n5 Though it does not appear that the officers knew whether Verelli heard Shanks's screams, the agents in Rubin also did not know whether someone at the gas station had in fact alerted the defendant's brother to destroy the hashish at the place of the search. Nonetheless, the Third Circuit found that the agents had a reasonable belief, based on the defendant's actions, that this could be so. See Rubin, 474 F.2d at 269. Following Rubin, the Court finds here that the officers could reasonably have believed that Shanks's actions were designed to signal Verelli to destroy or remove drugs from the apartment. A knock on Verelli's door by the officers revealed that Verelli was in fact home. Accordingly, exigent circumstances justifying a warrantless search existed.

Defendant was believed to be a pedophile who traveled to the Phillipines nine times in five years for sex with minors. At Customs, he was found in possession of a journal describing sex with minors, and he had photographs in his possession of nude adults. The way he answered the questions, he took pictures but only brought back pictures of adults. Officers believed, however, that it might be likely that digital pictures of minors had been shipped via the internet to himself. The magistrate could fairly conclude on the totality that child porn would be found on the defendant's home computer, and that justified issuance of the search warrant. United States v. Kaechele, 466 F. Supp. 2d 868 (E.D. Mich. November 29, 2006):

Turning to this substantive inquiry, the Court finds that Magistrate Judge McCoun had a substantial basis for concluding that a search of Defendant's residence would uncover evidence of a violation of the federal child pornography statute, 18 U.S.C. § 2252A. This statute, as pertinent here, prohibits the shipment in interstate or foreign commerce, receipt, distribution, or reproduction of child pornography. As noted by the Government, the following facts of relevance to the magistrate's probable cause inquiry were set forth in Special Agent Rankin's affidavit: (i) that journals had been found among Defendant's possessions upon his return from overseas travel, in which he graphically detailed sexual encounters with numerous females, including young girls between the ages of 8 and 15; (ii) that Defendant also was found in possession of several photographs (some nude) of his sexual partners, with log numbers corresponding to entries in his journals; (iii) that, upon being interviewed by customs agents, Defendant admitted "that he takes numerous photographs of females while abroad, but indicated that he does not bring back photos of young girls with him for fear of getting in trouble with U.S. Customs," (Defendant's Motion, Ex. B, Search Warrant Aff. at P 6); and (iv) that Defendant further acknowledged that he had a computer at his residence, that he had used this computer to book his latest overseas travel, and that he had an Internet service provider that he had used to view nude images online and to establish an e-mail account. Thus, as stated by the Government, "the magistrate had before him information detailing a computer-savvy, photograph-taking individual, who in writing, detailed his sexual exploits with children." (Government's Response Br. at 11.)

Although, as Defendant points out, there is no indication that the photographs in his possession were digital, such that they (or others like them, depicting underage girls) could readily be transmitted to his home computer, this is offset by Special Agent Rankin's description in his affidavit, based on his training and experience, of behaviors and activities common to child pornographers. In particular, Special Agent Rankin explained that "[c]omputers and computer technology have revolutionized the way in which" such activities are carried out, with child pornographers now able to "transfer photographs from a camera onto a computer-readable format with a device known as a scanner," making computers "an ideal repository for child pornography." (Defendant's Motion, Ex. B, Search Warrant Aff. at PP 13-16.) Special Agent Rankin further stated that "[b]ased on my knowledge and experience, persons involved in foreign travel for sex with minors document and maintain evidence of these encounters in the form of photographs, video recordings, diaries, etc. as prized possessions or trophies," and he noted that Defendant "possessed notebooks explicitly detailing sex acts with young minor children with log numbers such as those used for digital photos kept on computers as files, indicating the picture files may be maintained on a computer hard drive or software or otherwise available via computer." (Id. at P 9.) Finally, the agent characterized as "deceptive" Defendant's statement to customs agents that "he does not bring back photos of young girls with him for fear of getting in trouble with U.S. Customs," noting that Defendant "would not indicate if pictures of minors were sent to the United States by other means," and that "[i]t has been a technique of previous violators to send prohibited pictures of minors from foreign countries via electronic means to the United States rather than have them in their possession while clearing U.S. Customs." (Id. at P 6.) Under these circumstances, the magistrate had a substantial basis for finding probable cause to search Defendant's residence for evidence of child pornography offenses.

Officers were not justified in entering defendants' backyard and then house for shooting off fireworks. When officers arrived, nothing was happening, but people were standing around and one ducked behind a tree. Still, there was no emergency justification for entering into either. Commonwealth v. Kirschner, 67 Mass. App. Ct. 836, 859 N.E.2d 433 (December 20, 2006).

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

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

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

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

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

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

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

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

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

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

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

Randolph does not require the police to seek out every potential objector to a search before seeking consent from a co-tenant. United States v. Brown, 2006 U.S. Dist. LEXIS 91484 (N.D. Ga. December 18, 2006). Comment: This was the subject of a comment by me five days ago at the bottom of the December 16th post. This is going to keep coming up, but defense counsel should give up on raising this issue.

State search warrant led to federal prosecution. The fact that state officials were the primary investigating agency and federal agents came along and even talked about taking the case federal did not require that a federal judicial officer had to have issued the warrant under Rule 41. It was a state warrant, and the feds were along for the ride to see what they might do, and that does not require issuance of a warrant under Rule 41. United States v. Jones, 2006 U.S. App. LEXIS 31285 (8th Cir. December 20, 2006):

Alternatively, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there still would have been no significant federal participation in the search. Jones contends that the search in the instant case had significant federal involvement based on United States v. Tavares, 223 F.3d 911 (8th Cir. 2000). In Tavares, we found significant federal participation triggered the federal no-knock warrant requirements of 18 U.S.C. § 3109 where federal officers discussed the possibility of a federal prosecution with state police prior to participating in a search authorized by a state-court-issued warrant. Id. at 915. This was so even though the federal officers were not involved in the planning, directing or organization of the search. Id. We held that "where federal agents directly participate in a search conducted pursuant to a state warrant, but with an expectation of federal prosecution, the stage is set for the circumvention of more restrictive federal requirements such as those set forth in section 3109." Id. at 916.

Tavares would not control in the instant case for two reasons. First, the district court made a factual finding that the federal agents had no expectation of federal prosecution prior to the search. Second, Jones has not asserted any potential evasion of a substantive federal requirement, such as the evasion of the § 3109 no-knock warrant requirements in Tavares. Instead, the instant case would appear to be controlled by United States v. Schroeder, 129 F.3d 439 (8th Cir. 1997), where we found no significant federal involvement "even if there were federal officers present at the search ... [because] the warrant was not issued and executed pursuant to federal authority." Id. at 443. Tavares did not overrule Schroeder, but rather distinguished it on the basis that the federal officers in Tavares envisioned a federal prosecution, yet avoided the federal no-knock warrant requirements of § 3109. Tavares, 223 F.3d at 916. In the instant case, as in Schroeder, "[the federal rule] was irrelevant to [the officers] at the time the warrant issued." Schroeder, 129 F.3d at 443 (quoting United States v. Moore, 956 F.2d 843, 847 (8th Cir. 1992)) (alterations in Schroeder). Therefore, even if we were to view the federal officers detailed to the CCU to have participated in the search under the supervision of their respective federal agencies, there would have been no significant federal participation in the search and Rule 41 would not apply.

Failure to object to the U.S. Magistrate Judge's Report and Recommendation on a search and seizure precludes appellate review. United States v. Russo, 210 Fed. Appx. 525 (7th Cir. 2006)* (unpubulished).

During execution of a warrant, officers did not act unreasonably in pointing guns at everybody inside because of officers objectively fearing a risk of violence by others during execution of the warrant. Qualified immunity defeats § 1983 action. Halsell v. Etter, 208 Fed. Appx. 413 (6th Cir. 2006).*

Criminal defendant who succeeded on Fourth Amendment claim in state court could not invoke collateral estoppel against officer as plaintiff in a civil case. Schumacher v. Halverson, 467 F. Supp. 2d 939 (D. Minn. December 15, 2006):

The Eighth Circuit Court of Appeals considered the question of privity in the context of a § 1983 action between a police officer and a state in Duncan v. Clements, 744 F.2d 48 (8th Cir. 1984). There, the plaintiff initially prevailed in a criminal proceeding on his motion to suppress evidence based on illegal search and seizure. Id. at 51. Later, in a civil suit against the police officer, the plaintiff sought to bar the officer from relitigating his previously-successful Fourth Amendment claim. Id. The Eighth Circuit interpreted Missouri's law of collateral estoppel, a body of law substantially similar to Minnesota's, and declined to estop the officer for want of privity. Id. at 52; see Willems, 333 N.W.2d at 621.

The Duncan court reasoned that the police officer's interests in a criminal proceeding are not identical to the state's. Criminal proceedings are designed to vindicate the public interest, and an individual police officer has no personal interest in the outcome. Duncan, 744 F.2d at 52. The Eighth Circuit found a mere interest in the facts is insufficient to establish privity; privity must exist "in relation to an identity of interests in the subject matter of the litigation." Id. (quotations omitted).

Similarly, this Court finds Officer Halverson was not in privity with the Commissioner of Public Safety in the implied-consent hearing. The Commissioner represented the State of Minnesota and its interest in revoking plaintiff's driver's license. The Commissioner had no interest in representing the individual police officer involved in the arrest. The implied consent hearing dealt with plaintiff's driver's license; this case concerns the personal and official liability of Officer Halverson and the Lino Lakes Police Department. See State v. Wagner, 637 N.W.2d 330, 337 (Minn. App. 2001)(holding party to implied consent hearing not precluded from challenging validity of traffic stop in later criminal proceeding). Unlike the present defendants, during the implied consent hearing there was never a question of the Commissioner's having deprived anyone of constitutional rights or the Commissioner's right to official immunity. There is no privity when such disparate interests are at stake. See id.; Duncan, 744 F.2d at 52.

Excessive force claim allowed to proceed, but without the officers uninvolved in the shooting of plaintiff's decedent during a drug raid that produced no drugs. Decedent was shot and killed during the raid when he became "combative." Estate of Brutsche v. City of Federal Way, 2006 U.S. Dist. LEXIS 90883 (W.D. Wash. December 14, 2006).*

Ybarra did not prevent defendant's search during execution of a search warrant on business premises because officers had good reason to believe that defendant was involved in drug trafficking. United States v. Lopera, 2006 U.S. Dist. LEXIS 90929 (S.D. N.Y. October 13, 2006).*

Officers observed a hand to hand transaction and corroborated the informant. The fact that the arrest did not immediately occur did not nullify the probable cause. State v. Sulewski, 98 Conn. App. 762 (December 19, 2006).*

Another case holds that possession of drugs in a car justifies a patdown of a passenger because possession of drugs means guns are likely around. State v. Banda, 639 S.E.2d 36 (S.C. December 11, 2006):

We hold that under the circumstances of this case, [Officer] Lawson had reasonable suspicion to frisk Banda for weapons pursuant to a valid automobile stop. This Court has recognized that because of the "indisputable nexus between drugs and guns," where an officer has reasonable suspicion that drugs are present in a vehicle lawfully stopped, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger in the absence of other factors alleviating the officer's safety concerns. Butler, 353 S.C. at 391 (quoting U.S. v. Sakyi, 160 F.3d 164, 169-170 (4th Cir. 1998)). In this situation, the police clearly had reasonable suspicion to suspect that drugs were present in the vehicle. The police had observed the car leave the residence of a known drug dealer. Furthermore, the car displayed stolen Georgia license tags and the police knew from their confidential informant that the target's drug shipments came from Georgia. Even though the police shortly realized that Banda was not their target, the fact that the activity observed at the target's house corroborated the informant's statements was enough to give the officers a reasonable suspicion that Banda was in some way involved with the target's drug activity and that drugs might therefore be in the vehicle. See Cortez, 449 U.S. 411, at 417, 101 S. Ct. 690, 66 L. Ed. 2d 621. Given the frequent association between drugs and guns, Lawson's safety concerns were justified based on the vehicle's apparent connection to a known drug dealer.

Probable cause for a stop developed after defendant poured the contents of a beer can on the ground because that meant that he had an open container. United States v. Davis, 2006 U.S. Dist. LEXIS 91055 (N.D. Ohio December 18, 2006).*

Video from police car supported officers' claim of need for use of deadly force in responding to shots from plaintiff, so qualified immunity bars plaintiff's action. Hudspeth v. City of Shreveport, 2006 U.S. Dist. LEXIS 91053 (W.D. La. December 18, 2006).*

Question of whether Illinois parole officers needed reasonable suspicion for a parolee search or not under Samson need not be decided. As a matter of Illinois law, they needed it. In this case, there was reasonable suspicion, and that justified the parole search. United States v. Perkins, 2006 U.S. Dist. LEXIS 90799 (S.D. Ill. December 15, 2006).

(More later.)

A federal jury in Manhattan ruled yesterday that an NYPD policy that existed between May and July 2001 to deliberately delay procecessing of protestors when other, similarly situated offenders would get a desk ticket for a later appearance in court was unconstitutional. See Police Policy Found Unconstitutional:

A jury in Federal District Court found yesterday that a police policy applied to demonstrators arrested for minor offenses between May 1 and mid-July 2001 was unconstitutional. In a case presented by some 360 plaintiffs, the jury agreed with lawyers who argued that senior police officials had issued orders for demonstrators arrested on minor charges to be put through a long processing, including a night in jail. The jury found that the police treated the demonstrators more harshly than they did nondemonstrators arrested on the same kind of charges, but rejected a claim that about 300 had been unfairly treated under an unwritten practice dating from 1999. Alan Levine, a plaintiffs’ lawyer, said negotiations on behalf of about 30 clients eligible for damages under the verdict would begin soon.

Two inventory policies lead to different results in Indiana and Ohio:

Putting defendant into handcuffs but advising him that he was not under arrest 40 minutes into a stop made the consent invalid. A reasonable person in his position would not feel free to leave. State's alternative theory that inventory justified the search failed because the defendant was permitted to remove college books from the car before the inventory and state policy permitted owners to remove valuables from the car before the inventory, and here he was not permitted to do so. Friend v. State, 2006 Ind. App. LEXIS 2573 (December 18, 2006).

Where the policy, however, required the officer to actually itemize what the defendant removed from his vehicle that he was taking with him, that policy was not unconstitutional. [Policy here could not be recited exactly by the officer because the handbooks were collected and put online, but that did not trouble the court.] State v. Flynn, 2006 Ohio 6683, 2006 Ohio App. LEXIS 6591 (3d Dist. December 18, 2006).

Dropping a backpack and walking toward officer to talk about a burglary was an abandonment of the backpack. People v. Novakowski, 368 Ill. App. 3d 637, 306 Ill. Dec. 417, 857 N.E.2d 816 (1st Dist. December 8, 2006).

Informant's information was corroborated when he was riding with officers to meet somebody for a drug deal and the defendant showed up as predicted. State v. Guillory, 942 So. 2d 73 (La. App. 3d Cir. November 2, 2006, released for publication December 12, 2006).

Stop was justified based on defendant's vehicle matching description of vehicle involved in multiple burglaries in area. State v. Phillips, 2006 Ohio 6710, 2006 Ohio App. LEXIS 6600 (4th Dist. December 11, 2006).*

Officer's prolonging stop for 25 minutes to get drug dog to scene for a sniff was unreasonable. There was no objective basis for concluding that the defendant was involved in any drug activity, just because he had been seen near a house where there was drug activity as much as two months earlier. The court declined to adopt a bright line rule on length of a stop but had no difficulty concluding that a 25 minute detention to give a warning ticket and stall for a drug dog was unreasonable. Seabolt v. State, 2006 OK CR 50, 152 P.3d 235 (December 15, 2006).

Defendant's admitting an informant into his house was not a violation of the Fourth Amendment, even if the informant was acting as an agent of the police. State v. Smith, 2006 UT App 485, 2006 Utah App. LEXIS 538 (December 7, 2006).

Stop that turned into the officer "ask[ing]" the defendant to get out of his car and "place his hands on top of the car" was a show of authority, and consent was a submission to a show of authority. Davis v. State, 946 So. 2d 575 (Fla. App. 1st Dist. December 18, 2006).

Plain view of a holster after a stop based on reasonable suspicion justified looking for the weapon. United States v. Harlson, 212 Fed. Appx. 694 (9th Cir. 2006)* (unpublished):

Officer Tucker knew of the following facts at the time he detained Harlson: (1) Harlson was present in a high-crime area during an unusual hour; (2) Harlson was outside a business establishment that appeared to be closed; (3) Harlson had the screen door to the business establishment propped open; (4) Harlson had moved between the business establishment and his vehicle multiple times; and (5) Harlson had watched Officer Tucker "very closely" as Officer Tucker drove by. These facts, taken together, were sufficient to justify a Terry stop.

Pointing a gun at an unsuspecting person during a protective sweep of a building during entry for an arrest was not unconstitutional, based on the fact the U.S. Marshals were looking for a violent suspect. Komongnan v. U.S. Marshals Serv., 471 F. Supp. 2d 1 (D. D.C. 2006).

Use of chokehold during plaintiff's arrest raised factual issues that could not be resolved on summary judgment because plaintiff showed enough to get to trial that it might have been excessive. Watts v. Williams, 2006 U.S. Dist. LEXIS 90640 (D. D.C. December 15, 2006).*

Officer had cause to stop the defendant because the license on the vehicle had been reported as stolen. When he observed the defendant fiddling with his keys, he noticed something on the key chain that he recognized as a probable container for drugs, and its search was not unreasonable. LaPlant v. State, 2006 WY 154, 148 P.3d 4 (December 15, 2006).*

Officers were looking for defendant's wife, an EMT, whom they believed was missing. They went to the defendant's home at 4:30 a.m. and knocked, got no answer, but the door was unlocked and they entered. Inside, the officers found the defendant's daughters asleep. They asked the girls where their mother was, and they said that she was at a river with their dad, spending the night. The officers opened a closet looking for her and found a mushroom growing operation. They continued looking for her and found her and then applied for a search warrant to go back. The opening the closet door was reasonable under the emergency exception. Moulton v. State, 2006 WY 152, 148 P.3d 38 (December 15, 2006):

[*P24] Upon arriving at the residence and receiving no response to their efforts to make their presence known, it was reasonable given the urgent sounding early morning radio transmission from an EMT for the deputies to enter the home to look for Ms. Moulton. Even after talking with the daughter, it was reasonable for the deputies to look for Ms. Moulton in other areas of the house, including the master bedroom. Once inside the bedroom, the deputies were authorized to see what was in plain view. All of the evidence indicated the drug growing paraphernalia was in plain view. No evidence was presented to suggest the deputies had intentions, other than to locate Ms. Moulton, when they looked inside the home. After discovering the items in the master bedroom, Deputy Motley said to Deputy Klier, "[W]e are not here for this. We have got a possible emergency. We are here to find Ms. Mouton and make sure she is all right." Once they determined Ms. Moulton was not there, the deputies left the residence. They were inside the house for about seven minutes. Under these circumstances, the district court correctly concluded the search of the Moulton residence for Ms. Moulton was not illegal or improper, but rather fell appropriately with the emergency assistance exception to obtaining a search warrant.

No cases of any significance today.

Defendant worked at a Kroger store, and she was outside with a friend who had just bought a lot of kitchen matches with another friend. The off duty officer working loss prevention suspected the matches were going to be used to manufacture meth. The officer questioned the purchaser, and defendant tried to go back into the store; the officer said "Ms. Botto, can you come back here please?" This was a seizure. She later consented to a search of her work apron which produced a small quantity of meth. Botto v. Commonwealth, 220 S.W.3d 282 (Ky. App. 2006).

Police received an anonymous call about a suspicious person at a particular location, and they saw the defendant and another jump over a short brick wall leaving the premises. When stopped, the defendant said that it was her house, and she hopped over the wall because she had lost her key to the gate. The police entered her house and searched illegally. The motion to suppress should have been granted. State v. Marley, 945 So. 2d 808 (La. App. 4th Cir. November 8, 2006, released for publication January 11, 2007).

Furtive movements to the pocket when a police officer was observed in a high crime area was cause for a patdown for a weapon. State v. Kelly, 946 So. 2d 222 (La. App. 4th Cir. November 21, 2006, released for publication January 25, 2007).*

The fact information from an illegal search made it into a search warrant did not void the search under the warrant. The trial court is directed to excise the information derived from the illegal search from the affidavit and retest the balance to see if probable cause remains. State v. McKinney, 361 N.C. 53, 637 S.E.2d 868 (December 15, 2006), rev’g 174 N.C. App. 138, 619 S.E.2d 901 (2005) (which suppressed whole search).

“After careful review of the record and the applicable case law, we conclude that the duration of the stop is not the determinative issue in this case. At issue is whether, once the warning had been given and Rutledge was told he was free to go, the continued detention of the parties was reasonable.” Here, it was, and the trial court’s suppression order is affirmed. State v. Lavender, 2006 Ohio 6632, 2006 Ohio App. LEXIS 6553 (6th Dist. December 15, 2006).*

Defendant with his girlfriend was questioned by police, and, when the officer asked about a gun because he saw a gun cable lock, defendant’s girlfriend said “Here, I’ll show you.” The trial court’s finding of consent was not clearly errenous. State v. Keggan, 2006 Ohio 6663, 2006 Ohio App. LEXIS 6561 (2d Dist. December 15, 2006).*

In a bizarre case of a citizen's alleged paranoia and impersonating a police officer (which he was acquitted of), he sued various police officers and Assistant State's Attorneys. There were many claims, but the only one that is of interest here is that mailing him a summons was not a seizure. The officer had no ticket book when he stopped the plaintiff. Tweeton v. Frandrup, 2006 U.S. Dist. LEXIS 90533 (D. Minn. December 12, 2006):

As an initial matter, "the view that an obligation to appear in court to face criminal charges constitutes a Fourth Amendment seizure is not the law." Nieves v. McSweeney, 241 F.3d 46, 55 (1st Cir. 2001); see also Jefferson v. City of Omaha Police Dep't, 335 F.3d 804, 806 (8th Cir. 2003) (acknowledging that the Eighth Circuit has not addressed the issue of whether an individual is seized when ordered to appear in court, but noting that "several of our sister circuits have been disinclined to expand fourth-amendment law in" this way). Because court attendance is not a seizure, Tweeton has failed to demonstrate any deprivation of his Fourth Amendment rights.

Stop of bus at permanent immigration checkpoint led to questioning of passenger about her citizenship status, and the immigration officer thought it suspicious how protective the defendant was of her bag [apparently he has never traveled with a computer]. In a quick series of questions taking about ten seconds, she consented to a look into her bag, and a brick of marijuana was seen. The District Court suppressed, but the Fifth Circuit reversed, finding that the stop was of short duration and that it was not unreasonable. United States v. Jaime, 473 F.3d 178 (5th Cir. December 15, 2006):

The second principle thus relied on in Machuca-Barrera is that the permissible duration of a suspicionless stop at a fixed immigration checkpoint includes the time necessary to "request consent to extend the detention." Id. at 433. Thus, we held:

"The scope of an immigration checkpoint stop is limited to the justifying, programmatic purpose of the stop: determining the citizenship status of persons passing through the checkpoint. The permissible duration of an immigration checkpoint stop is therefore the time reasonably necessary to determine the citizenship status of the persons stopped. This would include the time necessary to ascertain the number and identity of the occupants of the vehicle, inquire about citizenship status, request identification or other proof of citizenship, and request consent to extend the detention." Id. (emphasis added; footnotes omitted).

On the basis of the foregoing two principles, we held that Machuca-Barrera's suspicionless detention at the checkpoint was legal because its duration, up to the time he gave his consent to search, was objectively reasonable, and thereafter the duration of his detention could be lawfully extended without any other justification. We stated:

"... the permissible duration of the stop was the amount of time reasonably necessary for Agent Holt to ask a few questions about immigration status. Agent Holt's few questions took no more than a couple of minutes; this is within the permissible duration of an immigration checkpoint stop. Although Machuca-Barrera notes that Agent Holt asked a question about drugs, we will not second-guess Agent Holt's judgment in asking that question. The brief stop by Agent Holt, which determined the citizenship status of the travelers and lasted no more than a couple of minutes before Agent Holt requested and received consent to search, was constitutional." Id. at 435.

It is clear that Machuca-Barrera dictates the result here. There, the time elapsed between the agents' initial contact with the defendant until he consented to the request to search his vehicle was "no more than a couple of minutes;" here the comparable time was clearly less than half a minute. During that period of time three things occurred in Machuca-Barrera. First, citizenship and travel plan questions were asked and answered, the answers reflecting United States citizenship, and that is likewise the case here. Second, in Machuca-Barrera, the agents asked questions about carrying drugs and guns, which were answered in the negative, and we declined to "second-guess" the asking of that question or to engage in "inquiry into the subjective purpose of the officer asking the questions." The next thing that occurred in Machuca-Barrera was that consent to search the car was asked for and given, and we expressly and specifically held that the permissible duration of a suspicionless fixed checkpoint immigration stop included the time reasonably necessary to request consent to extend the detention (and, by necessary implication, to receive the reply to the request) by consenting to search of the vehicle. Here, what immediately followed the citizenship and travel plan questions and answers, was Jaime being asked if the bag was hers, and on her promptly responding that it was, whether she would consent to its search and her affirmative reply. Clearly the question whether the bag was hers was a part of, and a necessary predicate to, asking her consent to search it, and hence should be treated in the same way as the request for and receipt of consent to search was in Machuca-Barrera. But, even wholly apart from that, there is no conceivable justification for holding that the bag ownership question and answer impermissibly extended the duration of the stop here, while the carrying drugs or weapons question and answer in Machuca-Barrera did not.

The Eleventh Circuit held in United States v. Atkinson, 209 Fed. Appx. 957 (11th Cir. 2006)* (unpublished), that a Franks challenge, one of five issues raised, "lack[ed] merit" after oral argument and was not even discussed.

Defendant's flight from approaching officers was not a seizure under Hodari D. "Assuming that the detectives' pursuit of Coley was a show of authority, Coley ran and, therefore, did not submit to it." United States v. Coley, 464 F. Supp. 2d 487 (D. Md. December 13, 2006).*

Officers had no information that defendant was doing anything wrong when they approached him sitting in his car and asked for his driver's license. Nothing was awry. Other officers suspected defendant of dealing drugs. The officer twice asked for consent to search the car and was denied. He then shined his flashlight into the car and saw a soda can designed for smoking marijuana and asked for it. The continued detention was unlawful. State v. Brown, 209 Ore. App. 699, 149 P.3d 294 (December 13, 2006).*

Officers did not violate Randolph by waiting until the defendant went out of town to ask his wife for consent to search, which they obtained. Commonwealth v. Yancoskie, 2006 PA Super 367, 915 A.2d 111 (December 14, 2006).*

Defendant who had one of two motel rooms rented by the co-defendant so defendant could stay with his wife had standing to complain of a search of the motel room. Defendant's wife consented to a search of the room when he was absent. Brown v. State, 212 S.W.3d 851 (Tex. App. — Houston (1st Dist.) December 14, 2006).

Comment: The two cases immediately above erroneously invoked Randolph for the apparent proposition that the police cannot seek consent to search against an absent target of the search. Randolph says nothing of the sort. I can see arguing what one has to, but this argument is a sure loser in any jurisdiction, even under a state constitutional provision that grants more rights. Why the police should have to wait for the absent target to show up serves no legitimate purpose, and it would lead to destruction of evidence. This was the law and practice before Randolph anyway. Of course the police would rather ask an unsuspecting spouse for consent. (In Brown, however, she was not unsuspecting: there was drug paraphernalia in plain view.)

A Virginia ABC permittee sued in federal court to challenge the ABC's action against his liquor permit based, in part, on an alleged search and seizure. The E.D.Va. held that Younger abstention did not bar the action, that he proceeded to lose on the merits anyway. Ruttenberg v. Jones, 464 F. Supp. 2d 536 n.2 (E.D. Va. December 13, 2006):

As a preliminary matter, defendants' motion to abstain or stay this matter pending resolution of plaintiffs' appeal to the ABC Board and the Circuit Court for Prince William County, Virginia is unpersuasive. Specifically, Younger abstention is appropriate only where (i) there is an ongoing state judicial proceeding; (ii) the proceeding implicates important state interests; and (iii) there is an adequate opportunity to present the federal claims in the state proceeding. Cinema Blue v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989). Here, however, Younger abstention is inappropriate because it does not appear that plaintiffs can raise their federal constitutional claims in the pending ABC Board proceedings. Even assuming, plaintiffs may raise constitutional issues before the Circuit Court for Prince William County, Virginia, that does not suffice to require abstention of this entire matter. Defendant's argument for Colorado River abstention merits the same fate. Colorado River abstention "allows a district court to abstain from adjudicating a controversy before it in favor of parallel state proceedings only under exceptional circumstances for reasons of wise judicial administration." Colorado River v. United States, 424 U.S. 800, 817-18 (1976). No such exceptional circumstances are apparent here. Finally, Burford provides that a federal court has the inherent right to abstain from cases if, in its sound discretion, it finds that its exercise of jurisdiction "may be prejudicial to the public interest, for it is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy." Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943). There being no good cause to abstain, Burford abstention is inappropriate. Accordingly, neither a stay nor abstention is appropriate, especially given the result reached here.

Update: I received an e-mail from counsel for the plaintiff in this case, and he pointed out something that I regretfully overlooked

I took note of the 16 December entry in your blog re Ruttenberg v. Jones (Eastern District of Va.) and its ruling re the Younger Abstention. I believe, however, that of more importance with respect to the 4th Amendment is the fact that the Court dismissed Ruttenberg's 4th Amendment claim even though, as the complaint alleges, the authorities knew in advance of the search and seizure that they were going to violate Mr. David Ruttenberg's 4th Amendment rights.

The authorities were operating on false information that Mr. David Ruttenberg's office contained drugs and child pornography. Apparently, however, they were unable to get a search warrant for the office. Accordingly, the search, with more than 50 armed officers, was conducted in the guise of an ABC inspection. Nothing illegal was found in Mr. Ruttenberg's office (or for that matter in the entire premises which was a billiard parlor). The ABC, which took part in the search, admitted under oath at the ABC hearing, that they knew the office searched was not part of the licensed premises and therefore not subject to ABC inspection.Nonetheless, they went ahead with the search, and the seizure of two unopened bottles of vodka. In the Eastern District's zeal to protect the police, the Court ignored a clear, intentional violation of 4th Amendment rights. There is something scary about that.

More from the case:

Thus, the threshold question is whether, the facts alleged show that defendants' conduct violated the Fourth Amendment. See Saucier, 533 U.S. at 201. As plaintiffs concede, RNR is subject to warrantless administrative searches under 3 Va. Admin. Code § 5-50-70(B), which provides that the ABC Board and its special agents "shall be allowed free access during reasonable hours to every place in the Commonwealth where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place," and 3 Va. Admin. Code § 5-50-70(C), which provides that, "[i]n addition to special agents, other law-enforcement officers in the performance of their official duties shall be allowed free access to any retail licensed establishment for the purpose of observation of activities on those licensed premises during reasonable hours." Plaintiffs do not challenge the ABC Board's search authority, but rather contend that the search was unreasonable given the manner in which it was conducted. In particular, plaintiffs allege (i) that Detective Lugo instigated the ABC raid to harm plaintiffs' business by seeking evidence of drug use and distribution at RNR; (ii) that over 50 police officers, including SWAT team members, were used to conduct the search; (iii) that law enforcement officers entered David Ruttenberg's private office; and (iv) that patrons were ordered to line up against the wall to be searched.

To be sure, the Fourth Amendment requires that warrantless administrative searches, as here, be reasonable. New York v. Burger, 482 U.S. 691 (1987). In this case, it is doubtful that plaintiffs' allegations establish an unreasonable administrative search and hence a Fourth Amendment violation. First, plaintiffs' allegation that Detective Lugo was motivated by an improper desire to uncover evidence of drug use and drug transactions at RNR to cause the ABC Board to raid RNR does not suffice to render unreasonable an otherwise reasonable search. As the Sixth Circuit has stated, "the fact that the true motivation for the warrantless search may have been to gather evidence capable of supporting convictions under the criminal laws is not enough to make the search unreasonable." Hamilton v. Lokuta, No. 92-2361, 1993 U.S. App. LEXIS 29172 at *7 (6th Cir. 1993) (citing Burger, 482 U.S. at 715) (noting that the "presumed desire to put [plaintiff] out of business may or may not have been justified, but we do not believe that it could suffice to defeat [defendant's] qualified immunity defense"). Second, as numerous courts have noted, there is no "constitutional significance in the fact that police officers, rather than 'administrative' agents are permitted to conduct the [administrative] inspection." Burger, 482 U.S. at 717. Third, it is doubtful that defendants exceeded the scope of a permissible administrative search by entering David Ruttenberg's private office, as this office is located on the premises of RNR. This is so because the ABC Board and its special agents are allowed "free access" to "every place in the Commonwealth where alcoholic beverages are . . . stored, offered for sale or sold." 3 Va. Admin. Code. § 5-50-70(B). Finally, because the Fourth Amendment right to be free from unreasonable searches is a personal right, which cannot be asserted vicariously, plaintiffs cannot claim that the search was unreasonable because patrons, who are not parties to this suit, were subjected to an allegedly unreasonable search. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); Crosby, 187 F.3d at 1346 (analyzing defendant's qualified immunity claim and stating that plaintiff's "cannot assert Fourth Amendment claims based on governmental intrusions on the rights of others than themselves"). Given these considerations, it is doubtful that defendants violated plaintiffs' Fourth Amendment rights by conducting the administrative search. In any event, where, as here, "there is a legitimate question as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity." Martin v. St. Mary's Dep't of Soc. Servs., 346 F.3d 502, 505-06 (4th Cir. 2003).

WTO protester arrest case in Seattle goes forward because the defense cannot show that any of the arrestees were on notice of the Mayor's Emergency Order not to congregate and to disperse before arresting them since it was not properly publicized and the arrest records all had photocopied statements of fact that they failed to disperse based on the Mayor's order. Hickey v. City of Seattle, 2006 U.S. Dist. LEXIS 90145 (W.D. Wash. December 13, 2006).*

Officer went to a location of a potential shooting suspect and saw that people were loading a moving truck, and he was afraid that the suspect could have been the one moving. He could smell burnt marijuana, and he conducted a patdown. The officer's justification for a patdown was that those who smoke marijuana might be armed, and the appellate court could not say that acceptance of this conclusion by the trial court was clearly erroneous. Brown v. State, 283 Ga. App. 250, 641 S.E.2d 551 (2006).* (Comment: This is really a stretch. Dealer, yes; smoker, no. Was the officer afraid that a bag of potato chips or a Twinkie would be pulled on him?)

Consent to search that started with a canine "free-air search" did not expand the consent. Noble v. State, 283 Ga. App. 81, 640 S.E.2d 666 (December 15, 2006).* (Comment: Note the use of "free-air search" by the Georgia courts is designed to move the subject of the dog sniff away from the car but to the air around it in an effort to keep a dog sniff out of the Fourth Amendment realm. Yes, it is technically just air, but this use of a new phrase seems to me like the court is trying too hard to sustain the search by creating new phrases that connote lack of rights.)

Record brought up on appeal by the State did not support the conclusion that the green leafy matter seen in the defendant's vehicle could be seen from outside the vehicle in a bona fide plain view, particularly where the officer who allegedly made the plain view was not even called by the State at the suppression hearing. Commonwealth v. King, 67 Mass. App. Ct. 823, 858 N.E.2d 308 (December 15, 2006).*

Valid traffic stop led to plain view of crack in a baggie in defendant's hand, and that was probable cause. State v. Thomas, 2006 Ohio 6612, 2006 Ohio App. LEXIS 6525 (2d Dist. December 8, 2006).*

Officers set up a controlled buy of about 100 kilos of cocaine. They stopped a rented car leaving the defendant's premises and found the drugs. They kept the property under surveillance and did not seek a search warrant. While waiting, one officer sneaked into the open garage to look around. Then they did a knock and talk and defendant was found to have consented to the entry. The illegal entry into the garage was unknown by the defendant, and it had no bearing on his consent. United States v. Punzo, 208 Fed. Appx. 468 (7th Cir. 2006)* (unpublished).

Reasonable suspicion developed from officers working off duty at an apartment complex trying to curb crime when they passed a vehicle in the lot twice, and they approached on foot after the second sighting. This time the two in the vehicle were slumped down, and, seeing the officers, they reached under the seats as if hiding something or going for a weapon. Valid consent was then given for a search of the apartment for marijuana one admitted he had there. United States v. Brown, 209 Fed. Appx. 450 (5th Cir. 2006)* (unpublished).

District court sustained a search on Terry grounds, but it was really a lack of a reasonable expectation of privacy in a car defendant was ordered out of by the driver, and he left a gun behind, thereby abandoning it. United States v. Whitsett, 2006 U.S. App. LEXIS 30635 (7th Cir. December 12, 2006).*

Defendant was stopped at the permanent border checkpoint on I-25 about 20 miles north of Las Cruces NM. He was exceedingly nervous, and answered virtually every question put to him (at least as the opinion reflects) wrong. An informant had already told the FBI that the truck already had marijuana in it, and it was loaded with more in Las Cruces, and then would head to Chicago. It was thus being followed. At the checkpoint, a dog sniffed the trailer and alerted. A search revealed 1,000 kg of marijuana. Defense counsel filed an Anders brief on the search, and the issue was meritless. United States v. Mendivil, 208 Fed. Appx. 647 (10th Cir. 2006).*

In a forfeiture case, the officer had reasonable suspicion from defendant's story about attending a funeral and driving a Los Angeles rented car back to Detroit to "enjoy the scenery" whereas the rental agreement said the car was to be left in LA. His demeanor was of extreme nervousness. The officer asked for consent and it was refused, but the use of the drug dog extended the stop two minutes at best. The dog alerted on money. United States v. $49,000.00 in United States Currency, 208 Fed. Appx. 647 (10th Cir. 2006)* (unpublished).

Another remarkable holding yesterday: New York's Third Appellate Department held in People v. Ming, 35 A.D.3d 962, 825 N.Y.S.2d 825 (3d Dept. December 14, 2006), that a search warrant directed to all occupants of a car associated with drugs permitted a strip search of all persons found with the car. An overbreadth challenge was rejected:

Next, defendant contends that the cocaine found upon his person in the course of the strip search should have been suppressed because the search exceeded the scope of the search warrant and, therefore, violated his constitutional rights against unreasonable searches and seizures. Specifically, he claims that the warrant was overly broad because it allowed a search of anyone present in the described vehicle without specifically identifying or naming him as one of the suspected drug dealers. We are unpersuaded. Notably, search warrants that direct a search of a particular place or vehicle, "may also direct a search of any person present thereat or therein" (CPL 690.15 [2]; see People v Vanderpool, 217 A.D.2d 716, 718, 629 N.Y.S.2d 307 [1995], lv denied 86 N.Y.2d 847, 658 N.E.2d 235, 634 N.Y.S.2d 457 [1995]), as long as the search warrant application establishes probable cause for the search (see People v Nieves, 36 N.Y.2d 396, 401, 330 N.E.2d 26, 369 N.Y.S.2d 50 [1975]).

Here, the application for the search warrant clearly established probable cause inasmuch as it demonstrated that, among other things, the specific 1994 red Lincoln vehicle was being used in the possession or sale of cocaine and, therefore, it was permissible for the issuing judge to "infer that anyone present was involved in the ongoing illegal activity" (People v Neish, 232 A.D.2d 744, 746, 649 N.Y.S.2d 48 [1996], lv denied 89 N.Y.2d 927, 677 N.E.2d 301, 654 N.Y.S.2d 729 [1996]; see People v Williams, 284 A.D.2d 564, 565, 726 N.Y.S.2d 740 [2001], lv denied 96 N.Y.2d 909, 756 N.E.2d 95, 730 N.Y.S.2d 807 [2001]). Accordingly, we find no basis to conclude that the suppression motion was improperly denied.

Potentially altered copy of search warrant where original was lost (maybe left at the scene) was an insufficient ground to suppress, despite the appearance of a possible alteration. State v. Shumaker, 945 So. 2d 277 (La. App. 2d Cir. December 13, 2006):

Deputy Langley testified that when he prepared the search warrant, he printed two copies, placed a piece of carbon paper between the copies, and had the judge sign the top copy in blue ink-the bottom copy had a carbon-copy of the judge's signature. At the hearing on the motion to suppress, the state presented the original affidavit, signed in blue ink, and a duplicate original of the search warrant with the carbon-copy signature. Deputy Langley testified that he normally left the duplicate original of the search warrant with the carbon-copy signature at the residence and that the back side of that document contained a carbon-copy of the return from the search warrant, showing what was seized from the residence. This duplicate original of the search warrant with the carbon-copy signature contained the original return on the search warrant, showing what was seized from the residence. Deputy Langley testified that he believed the original warrant signed in blue ink was left at the residence instead of the duplicate original with the carbon-copy signature.

The duplicate original presented by the state at the hearing on the motion to suppress contains language authorizing a nighttime search of the described premises to be searched. Shumaker presented a copy of the search warrant left at his residence, not the original document left at his house, but that document does not contain language authorizing a nighttime search. Both La. C. Cr. P. art. 163(B) and La. R.S. 40:985 state a search or seizure shall not be made during nighttime unless the warrant expressly permits it. When comparing the two documents, it is obvious that one of the documents was altered. The signatures and handwritten date on both copies appear to be identical, but the signature line and date line are much higher on the page of Shumaker's copy than it is on the page of the state's copy. The state's copy clearly contains a carbon-copy of the signature and the date. If Shumaker's copy was truly representative of the original search warrant signed in blue ink, the date and signature line would be placed lower on the page. Accordingly, the trial court did not err in finding that the state's duplicate original was representative of the original search warrant. The trial court also was reasonable in dismissing Shumaker's claim that the original search warrant did not contain language authorizing a nighttime search.

Ultimately, a practical, common-sense evaluation of the circumstances set forth in the affidavit established a fair probability that evidence of methamphetamine use and production would be found at Shumaker's residence, and the issuing magistrate had a substantial basis for concluding that probable cause existed to search Shumaker's mobile home. The trial court's decision to deny his motion to suppress is due great weight, and the preponderance of the evidence does not favor suppression. Therefore, Shumaker's claim that the search warrant was not supported by probable cause is without merit.

Frisk of passenger's coat for weapons was justified under the "circumstances of this case." The officer had reasonable suspicion of drugs, and where drugs are is where guns might be. Drugs were found in her coat. State v. Banda, 2006 S.C. LEXIS 394 (December 11, 2006):

We hold that under the circumstances of this case, Lawson had reasonable suspicion to frisk Banda for weapons pursuant to a valid automobile stop. This Court has recognized that because of the "indisputable nexus between drugs and guns," where an officer has reasonable suspicion that drugs are present in a vehicle lawfully stopped, there is an appropriate level of suspicion of criminal activity and apprehension of danger to justify a frisk of both the driver and the passenger in the absence of other factors alleviating the officer's safety concerns. Butler, 353 S.C. at 391 (quoting U.S. v. Sakyi, 160 F.3d 164, 169-170 (4th Cir. 1998)). In this situation, the police clearly had reasonable suspicion to suspect that drugs were present in the vehicle. The police had observed the car leave the residence of a known drug dealer. Furthermore, the car displayed stolen Georgia license tags and the police knew from their confidential informant that the target's drug shipments came from Georgia. Even though the police shortly realized that Banda was not their target, the fact that the activity observed at the target's house corroborated the informant's statements was enough to give the officers a reasonable suspicion that Banda was in some way involved with the target's drug activity and that drugs might therefore be in the vehicle. See Cortez, 449 U.S. at 417. Given the frequent association between drugs and guns, Lawson's safety concerns were justified based on the vehicle's apparent connection to a known drug dealer.

Search incident did not need to immediately follow arrest. Defendant was stopped because officer knew from talking to the defendant two days earlier that defendant's driver's license was suspended. The officer saw the defendant driving and pulled him over. The driver's license was still suspended, and the officer allowed the defendant to throw away a donut wrapper before arrest. He noticed, however, that the defendant also discarded a baggie likely holding drugs. He handcuffed the defendant, retrieved the drugs and then validly searched the car. People v. Neff, 369 Ill. App. 3d 358, 867 N.E.2d 980 (4th Dist. 2006). (For those from Illinois, the court opined that People v. Stehman, 203 Ill. 2d 26, 270 Ill. Dec. 426, 783 N.E.2d 1 (2002), on the contemporaneity requirement may no longer be good law under Thornton even though Illinois might depart from the Fourth Amendment in some circumstances. One might think that the court is fishing for the state supreme court to take it up now and get it over with.)

Officers asked defendant on a bicycle in a high crime area to come over to talk to them. He started to and then fled. Flight + suspicious behavior + high crime area = reasonable suspicion. State v. Vance, 948 So. 2d 1106 (La. App. 5th Cir. December 12, 2006, released for publication March 2, 2007).*

Smell of burnt marijuana during traffic stop coupled with furtive movements in the car was grounds for search. Commonwealth v. Lites, 67 Mass. App. Ct. 815, 858 N.E.2d 302 (December 14, 2006).*

An officer encountered several men in a high crime area, and she engaged them in conversation. Some of them left, but defendant chose to stick around and talk. The officer asked for his identification, and she ran wants and warrants while engaging him in an apparently friendly conversation. A warrant came up, and a search incident was conducted. The whole scenario was consensual, and the court distinguishes the airport stop cases and police possession of plane tickets (e.g., Mendenhall) because, since the defendant was not driving, he could have walked off and left his driver's license behind. Golphin v. State, 945 So. 2d 1174 (Fla. December 14, 2006).

(Comment: In light of the fact that one's driver's license is now a virtually required document that one has to carry around at all times to get into courthouses, engage in many financial transactions, use a credit card for proof that it is yours, etc., like the papers that the Nazis required everybody else to carry (I've used the pictures from the Holocaust Museum before, so I'll spare you), this opinion is just completely wrong. One cannot walk off and leave a driver's license (the federal government has seen to it), and this opinion is disingenuous at best, manipulative at worst. This opinion defies commonsense and logic.)

(I have court 150 miles away and have to leave. More later.)

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

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

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

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

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

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

Parole search incident conducted before actual arrest was valid. United States v. Evans, 2006 U.S. Dist. LEXIS 89684 (S.D. Ga. December 12, 2006).

Federal DNA upheld again [no surprise there; no court has disagreed], against a laundry list of challenges, including Bill of Attainder. United States v. Hook, 2006 U.S. App. LEXIS 30526 (7th Cir. December 13, 2006).*

Officer responding to an explosion call at a trailer park stopped a motorcycle for running a stop sign. It turned out that the driver was connected to the trailer with the explosion. The officer conducted a "sweep search" of the trailer and saw drugs and paraphernalia in plain view. A pipe bomb was also seen. He used that to obtain a search warrant for drugs, paraphernalia associated with manufacture and trafficking, and "weapons, firearms and ammunition." The warrant was sufficiently specific to include the pipe bomb, and the affidavit made no mention of seeing the pipe bomb, so the magistrate was not misled and there was no taint from the prior invalid search, even assuming the pipe bomb was not validly seen. United States v. Jansen, 470 F.3d 762 (8th Cir. December 13, 2006).*

Officer granted summary judgment on excessive force claim for accidentally breaking plaintiff's malformed leg, a condition the officer was unaware of, when pushing him into the backseat of the patrol car. Todhunter v. Swan, 2006 U.S. Dist. LEXIS 90084 (E.D. Mich. November 29, 2006).*

Affidavit for search warrant showed probable cause for search of various places. Defendant’s staleness argument is also unavailing. While there was information that was a month old, it involved ongoing sales of drugs from the premises, and the informant’s corroborated information was recent. United States v. Bucks, 2006 U.S. Dist. LEXIS 89850 (D. Minn. November 28, 2006). (Note: This is a U.S.M.J.'s R&R, and it is a model for any principled evaluation of probable cause in multiple locations. It is especially gratifying that the M.J. did not feel it necessary to provide a discussion of good faith exception as well.)

On July 7th, I said that the number of U.S. District Court cases on Lexis would hit 90,000 this year. It reached that number today. 2005's total was 45,000; 2004's was 24,000. The increase in numbers means it takes longer to do this blog everyday.

Home Depot is running an ad this month (click on "Pulled Over Santa") where Santa Claus is pulled over by an officer who asks for his license and registration. Santa can't find the registration, and he sits back looking resigned to the fact that something bad may be in the offing. The elf nervously waves to the officer. The officer then asks: "What's in the bag?"

So, if kids, or even the general public, see this ad, are they supposed to believe that it is legally permissible for a police officer during a traffic stop to ask "What's in the bag?"

The ad is funny on one level because it shows the reality of stops of suspicious characters. It is deathly serious on another level if the public thinks that this police conduct is de rigueur and lawful. (The ad appears to have been produced in Canada for Home Depot.)

Update: No, there is no reasonable suspicion. There is no excessive nervousness, failure to make appropriate eye contact, talkativeness, or furtive movements from Santa or the elf or overpowering smell of air fresheners or obvious modifications to the sleigh for a compartment where contraband could be hidden. Also, it appears unlikely from the video that there was any a bona fide moving violation to pull the sleigh over in the first place. There was, however, no registration in hand. That does not, however, translate into justification for the officer to ask "What's in the bag?" How many innocents are stopped and subjected to the same routine for every one that gets arrested? Without police stop statistics, we can never know.

A few years ago, I bought an enlargement of NACDL's Champion cover that showed Santa Claus being rousted, hands up and "assum[ing] the position" at the border by officers from every police agency, going through the sleigh and his bag. The ATF bomb disposal expert examining a box is the best character of the six shaking down Santa Claus. I pull that one out every year to get into the Christmas cheer. And this was before some of the media manufactured a "War on Christmas."

Motion to terminate a 1982 consent decree against strip searches at a county jail is granted under the Prison Litigation Reform Act, 18 U.S.C.S. § 3626(b)(1)(A)(iii). The fact that there were some complaints of unconstitutional strip searches in the last few years is insufficient to keep the case in court. Regan v. County of Salt Lake, 2006 U.S. Dist. LEXIS 89472 (D. Utah December 11, 2006):

Plaintiffs' meager allegations that the existence of two lawsuits against Salt Lake County alleging improper strip searches, which were settled in 1999, as well as certain "ambiguous and/or highly invasive" provisions of the Salt Lake County Jails Policy Manual "suggest" that there are current and ongoing violations of detainees' federal rights are not a sufficient basis upon which the court could make written findings that the prospective relief contained in the Consent Decree remains necessary to prevent Defendants from engaging in a current and ongoing violation of detainees' federal rights. Because Plaintiffs have not alleged specific facts which, if true, would amount to a current and ongoing constitutional violation, the court, in its discretion, finds that an evidentiary hearing is not necessary in this case and that pursuant to the PLRA, the Consent Decree should now be terminated. Therefore, IT IS ORDERED that Defendants' Second Motion to Terminate is hereby GRANTED.

Defendant was stopped for a traffic offense, and he was driving without a valid license. The officer gave him a warning and let the passenger drive. He said they were free to go. As the defendant was going back to his car, the officer mentioned there being "trouble" with guns and contraband and asked for consent, which the defendant agreed to. A drug dog alerted, and a search found cocaine. The search was valid. Garvin v. State, 283 Ga. App. 242, 641 S.E.2d 176 (December 13, 2006).*

In an IAC claim, the court found ample probable cause to believe that the defendant had illegal drugs in his house. The fact the warrant did not specify stolen property would not have changed the outcome. Edwards v. State, 2006 Iowa App. LEXIS 1723 (May 10, 2006).*

The Wisconsin Court of Appeals refuses to reject Miller on there being no reasonable expectation of privacy in bank records under its state constitution. State v. Popenhagen, 2007 WI App 16, 728 N.W.2d 45 (December 12, 2006).* [The reason that the state constitutional provision is virtually identical to the Fourth Amendment is never a controlling factor at all, except where a court can't think of a better reason.]

Defendant was stopped for not having a seatbelt on. By the time the officer made a U-turn and stopped him, he was parked in front of his house. Defendant did not have proof of insurance, and a warrants check produced a warrant. The officer impounded the car and conducted an inventory that produced a gun. The community caretaking function did not justify the search. People v. Williams, 145 Cal. App. 4th 756, 52 Cal. Rptr. 3d 162 (2d Dist. December 13, 2006):

No community caretaking function was served by impounding appellant's car. The car was legally parked at the curb in front of appellant's home. The possibility that the vehicle would be stolen, broken into, or vandalized was no greater than if Morton had not stopped and arrested appellant as he returned home. In this regard, it is significant that other cars were parked on the street and that it was a residential area. The prosecution made no showing that the car was blocking a driveway or crosswalk, or that it posed a hazard or impediment to other traffic. Because appellant had a valid driver's license and the car was properly registered, it was not necessary to impound it to prevent immediate and continued unlawful operation. (Cf. People v. Benites (1992) 9 Cal.App.4th 309 [impoundment proper where neither driver nor passenger had valid driver's license]; People v. Burch (1986) 188 Cal. App. 3d 172, 232 Cal. Rptr. 502 [impoundment proper where car's registration tag was expired and driver's license was suspended].) No other justification that would further a community caretaking function was offered or supported by evidence. Indeed, Morton admitted he decided to impound the car simply because he was arresting appellant and almost always impounded the cars of drivers he arrested. The prosecution simply did not establish that impounding appellant's car served any community caretaking function. It therefore failed to establish the constitutional reasonableness of the seizure and subsequent inventory search.

Traffic stop for running a stop sign that did not exist led to officer searching a backpack on the passenger side of the car at defendant's feet without consent. The trial court suppressed, the state court of appeals affirmed, and the state sought leave to appeal to the state supreme court which remanded for a standing inquiry. On remand, the Michican Court of Appeals said that standing was irrelevant because the search could not be justified by any rationale offered by the state. People v. Labelle, 273 Mich. App. 214, 729 N.W.2d 525 (2006):

Turning to the second argument first, we are not persuaded that the search incident to arrest doctrine is applicable to this case. Michigan courts have held that the search incident to arrest exception to the warrant requirement "applies whenever there is probable cause to arrest, even if an arrest is not made at the time the search is actually conducted." But none of these cases involved traffic stops and the United States Supreme Court has made it clear that the search incident to arrest doctrine does not apply to a traffic stop which does not result in arrest, even if the officer would have been justified in making an arrest.

In Knowles, the officer stopped the defendant for speeding. Although Iowa law authorized the officer to arrest the defendant, the officer issued a citation instead. The officer then conducted a full search of the vehicle, discovering a bag of marijuana and a "pot pipe" under the driver's seat, resulting in the defendant's arrest. The defendant challenged the search, with the prosecution relying on the search incident to arrest doctrine. The Iowa Supreme Court ruled in favor of the prosecution, concluding that a "full-blown search" is authorized where probable cause to make a custodial arrest existed, even though no such arrest was made.

In rejecting the argument that a search incident to arrest is justifiable in such circumstances, the Court noted that neither of the two rationales for such searches applies in the traffic stop scenario which does not result in a full custodial arrest. The first rationale is the need to disarm a suspect when taking him into custody. The Court noted that the concern for officer safety is significantly less in the traffic citation situation because the encounter is briefer (because the suspect is not being transported to jail) and a person receiving a citation might well be less hostile to the police than one who is formally arrested. The Court was satisfied that the actions that police may take for their safety during a traffic stop, such as ordering the occupants out of the vehicle, were adequate without the need for a full-blown search of the vehicle.

The second rationale behind the search incident to arrest doctrine is the need to preserve evidence for later use at trial. The Court found no basis under this rationale because a search of the vehicle would not yield any additional evidence of the offense for which the citation was issued, namely speeding. The Court further rejected the argument that the search could be justified because it might yield evidence of an "as yet undetected crime."

Search warrant papers were judicial documents and were presumptively disclosable. Here, the CIs were not easily discoverable, and, on balance, the records should be ordered unsealed. In re Sealed Search Warrant, 2006 U.S. Dist. LEXIS 89255 (N.D. N.Y. December 11, 2006):

The search warrants, orders, and return in the files of the search warrants do not contain any information which reasonably could reveal the identities of any confidential source of information or either uncharged third-party. Given the presumption of access applicable here, those documents must be unsealed.

The affidavits of Hautau and Bragg present more difficult questions. As noted, the weight of the presumption here is great. That presumption arises from the need to permit meaningful monitoring of judicial actions. As to the confidential sources of information, the confidentiality of the identities of those sources remains critical to law enforcement's ability to obtain reliable information on criminal activity by assuring sources of that information that their identities will remain undisclosed. Amodeo II, 71 F.3d at 1051-52. Here, the need to preserve that confidentiality may easily be accommodated with public access to the affidavits by redacting the limited information in the affidavits which might serve to identify those sources. Redacting such information would not impair meaningful monitoring of the judicial determinations related to the search warrants and in such circumstances, redaction and release rather than continued complete sealing has consistently been employed and approved. See Amodeo II, 71 F.3d at 1052 (approving redaction of the identities of confidential sources from a report filed with the court). Thus, while this factor does not require continued sealing of the entire affidavits, it supports redacting the limited information which would serve to identify the confidential sources.

As to the two uncharged individuals identified by name in the affidavits, the Second Circuit has held that "the privacy interests of innocent third parties . . . should weigh heavily in a court's balancing equation." In re New York Times Co., 825 F.2d 110, 116 (2d Cir. 1987); Gardner, 895 F.2d at 79-80. Prior cases have recognized the need to protect third-parties from the disclosure of information which is "scandalous, unfounded, or speculative." Amodeo II, 71 F.3d at 1052 (sealing portions of a document containing accusations which were unsworn and "of doubtful veracity, possibly stemming in part from personality conflicts.").

Here, the information concerning the two individuals was reported by two FBI agents and made under oath. By their sources and form, therefore, the affidavits bear reasonable indicia of reliability and trustworthiness. Moreover, the information related in the affidavits about the two individuals is not salacious, sensational, or descriptive of private, embarrassing conduct unrelated to the business matters under investigation. The information contained in the affidavits about the two individuals is limited to the details of business transactions in which the two were involved with Dare. Additionally, while the United States asserts that neither individual has been or will be charged with any federal offense, both affidavits assert that there was probable cause to believe that Dare and the two individuals "misappropriated rental proceeds and other income for their own use." While uncharged, therefore, it remains open to question whether their conduct was "innocent." See Gardner, 895 F.2d at 79 (citation omitted).

Finally, the premise of the federal investigation of Dare and those associated with him was that mortgages obtained to finance certain real estate purchases were insured by the United States Department of Housing and Urban Development (HUD), which regulated the use of income received from the property. The individuals involved in the operation of such properties should reasonably have anticipated that their use of the income from the properties would be examined by HUD. Therefore, both because public funds were at stake and because these individuals should have anticipated government scrutiny, their expectations of privacy in the transactions described in the affidavits was substantially reduced. See Amodeo II, 71 F.3d at 1052-53 (finding that the activities of a law firm which were described in a sealed report were "such that the firm might reasonably have expected some public scrutiny.").

Thus, what appears here is a strong presumption of public access to the affidavits weighed against the acknowledged but diminished privacy interests of two third-parties. Given the strength of the presumption here and the third-parties' limited expectation of privacy, the balance tips decidedly in favor of unsealing and access. Redaction of the names of the two individuals remains possible and has been suggested as an alternative by the United States. However, redaction of all information in the affidavits which could serve to identify the individuals would excise from public examination significant material portions of the affidavits. Such redaction would too greatly impair the ability of the public to monitor the judicial process here which stands at the heart of the presumption of access. Accordingly, the secondary protection of redaction is also rejected.

III. Conclusion

For the reasons stated above, it is hereby

ORDERED that:

. . .

3. The documents contained in the two above-captioned matters are UNSEALED except that the Clerk shall maintain the original affidavits of Hautau and Bragg UNDER SEAL pending further order of the Court;

4. On or before December 13, 2006, the United States shall submit to the Court copies of the affidavits of Hautau and Bragg containing the redactions which the United States contends are necessary to prevent identification of the confidential sources of information in the affidavits; and

5. Upon review and determination of the proposed redactions, the redacted affidavits will be ordered filed and made available to the public.

Defendant's wife and entire family had access to his computer, and it was not password protected. Defendant's wife saw a child porn picture that defendant had printed out, and she reported it and then consented to a search of the computer, which she had apparent authority to do. United States v. Albertson, 2006 U.S. Dist. LEXIS 89236 (M.D. Pa. December 11, 2006).*

Officers observed what appeared to be a hand-to-hand drug sale in a high crime area to a prostitute, and they confronted the prostitute who gave up the drugs. That give probable cause to arrest defendant as the seller. United States v. Williams, 2006 U.S. Dist. LEXIS 88927 (E.D. Ky. November 22, 2006).*

In Indiana, an officer must be in a marked police car to make a stop. A narc in an unmarked car wearing a sweatshirt with "Police" on the back cannot make a traffic stop. The fact defendant was in a high crime area is not reasonable suspicion for a stop. Denial of suppression motion reversed. Davis v. State, 858 N.E.2d 168 (Ind. App. December 11, 2006).

In a factually cryptic unpublished opinion, something we will see more of under new F.R.A.P. 32.1, the Ninth Circuit held that a probation search applies to a probationer's business, citing nothing more than Knights. United States v. Brown, 212 Fed. Appx. 608 (9th Cir. 2006) (unpublished).

Officers did a knock and talk of defendant's house after an allegation by defendant's 14-year-old girlfriend who police stopped running down the street. She said that he had sex with her, beat her, and restrained her. They also learned that he was an illegal alien. When they looked through the window, there were several men in the living room, but, after they knocked, the men dispersed through the house. Officers were admitted, and elected to do a protective sweep because of the other men, some of whom could be seen around the house. During the sweep, one officer saw a box of shotgun shells, and defendant was asked about it and whether he had a shotgun, after being told he did not have to answer. He admitted to a shotgun, and officers retrieved it, and it was sawed off. While the Tenth Circuit had previously held that a protective sweep required an arrest, they looked back to the facts of the knock and talk and held that the officers had probable cause to arrest the defendant for domestic abuse [or even sex with a minor], and that, coupled with the others scattered around the house, justified the protective sweep. United States v. Torres-Castro, 470 F.3d 992 (10th Cir. December 12, 2006).

At an immigration checkpoint stop, the defendant, driving a tractor trailer, was excessively nervous, so the officer directed the truck over to a secondary checkpoint, and defendant consented to a search. The officer also "us[ed] an alien and drug detecting dog" which alerted on the truck. "Immigration checkpoint stops, and referral to the secondary inspection area there, do not require individualized suspicion, and asking for consent to search a vehicle does not unreasonably prolong an immigration checkpoint stop." United States v. Harrison, 209 Fed. Appx. 390 (5th Cir. 2006)* (unpublished).

Stop of truck, on review for clear error, was not unconstitutionally prolonged to warrant suppression of search warrant. United States v. Ricardo, 472 F.3d 277 (5th Cir. 2006).*

Federal abstention barred federal jurisdiction under the Younger doctine for a suit concerning the validity of search warrants and investigative subpoenas duces tecum. Fieger v. Cox, 2006 U.S. Dist. LEXIS 88845 (E.D. Mich. December 8, 2006).*

Qualified immunity cannot be granted officers who strip searched protestors arrested at the International Monetary Fund session in D.C. Too many fact questions remain as to whether they were justified at all and who knew what. Bame v. Clark, 466 F. Supp. 2d 105 (D. D.C. December 11, 2006).*

No cases received Monday. Good thing; I'm in trial again, and Friday, and next Monday-Wednesday.

The Kansas Supreme Court held that the smell of ether alone coming from a car after a traffic stop did not justify a search of the car. It was as consistent with lawful activity as unlawful activity. The court distinguishes cases where the smell of ether was corroborating an informant's story. State v. Ibarra, 282 Kan. 530, 147
P.3d 842 (2006) (citing Annot., Validity of Warrantless Search Based in Whole or in Part on Odor of Narcotics other than Marijuana, or Chemical Related to Manufacture of Such Narcotics, 115 A.L.R.5th 477, and discussing cases from many states).

The 9 page affidavit for the search warrant in this case made only a fleeting mention to defendant's car. When describing the places to be searched with the reasons why there was probable cause, there was no connection shown to the car, so there was no probable cause to search the car. Turning to the good faith exception, the court finds that it does not apply because the police, who prepared the affidavit, were effectively blaming the magistrate for the affidavit's deficiencies. The good faith exception did not apply. United States v. Harvey, 2006 U.S. Dist. LEXIS 88590 (D. V.I. November 29, 2006):

The Zimmerman Court noted that "[g]ood faith is not a magic lamp for police officers to rub whenever they find themselves in trouble." Id. (quoting United States v. Reilly, 76 F.3d 1271, 1280 (2d Cir. 1996)). This is particularly true where the affiant is also one of the executing officers.

In Zimmerman, the officer who applied for the warrant was also the author of the supporting affidavit and was one of the executing officers. Id. The court reasoned that

"it is somewhat disingenuous, after having gone to the magistrate with the paltry showing seen here, to suggest . . . that at bottom it was the magistrate who made the error and the search and seizure are insulated because the officer's reliance on that error was objectively reasonable."

Id. This disingenuousness aside, the Zimmerman Court noted that, "[t]he good faith exception requires a sincerely held and objectively reasonable belief that the warrant is based on a valid application of the law to all known facts." Id. (quoting Reilly, 76 F.3d at 1273). Moreover, "[t]he objective standard 'requires officers to have a reasonable knowledge of what the law prohibits.'" Id. (quoting Leon, 468 U.S. at 919-20 n.20).

Except for its initial mention in the list of items to be seized, the affidavit in this case makes no mention of the Acura or its involvement in the drug conspiracy under investigation. Here, as in Zimmerman, the one purported reference to the item to be seized occurs at the end of a lengthy affidavit. The reference to a "car" in Paragraph 27 is more vague and fleeting than the reference to adult pornography in the Zimmerman affidavit that the court held to be "marginal evidence at best." Id. at 437. Additionally, like the pornography reference in Zimmerman, the nebulous reference to "a car" in this case was outdated, as it was based on events that allegedly took place five months prior to the seizure.

Agent Goldfinger was the affiant and one of the executing officers in this case. Especially given his extensive involvement in the Title III investigation, Agent Goldfinger should have known that the marginal evidence contained in the affidavit could not support probable cause to seize the Acura. Thus, it would be "somewhat disingenuous" for the government to claim that the DEA agents were acting in good faith reliance on the magistrate's decision to issue the warrant.

A search conducted under the search incident doctrine does not have any independent requirement of exigent circumstances, although one of the purposes of search incident is to neutralize potential weapons. State v. Cooney, 2006 MT 318, 2006 Mont. LEXIS 642 (December 5, 2006).

Consent was found based on testimony of officers and a recording of defendant's voluntary Mirandized statement where he consented. State v. Ayer, 917 A.2d 214, 154 N.H. 500 (2006).*

Defense counsel could not be ineffective for not challenging what was clearly a private search. State v. Howard, 2006 Ohio 6410, 2006 Ohio App. LEXIS 6372 (8th Dist. December 7, 2006).*

Defendant came to a fire station and was talking to volunteer firemen as they were leaving for a call. They saw and smelled that it was apparent defendant was drunk. They called the police who went to defendant's home where his vehicle was outside still running. His girlfriend invited them in, and there was the defendant drunk. Entry was by consent and there was cause for arrest. State v. Runge, 2006 SD 111, 725 N.W.2d 589 (2006).*

Defendant was stopped for speeding. His suspicious behavior led to reasonable suspicion justifying a greater detention. United States v. Porchay, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006):

At the time of the stop, Barnett had more than eleven years of experience with the highway patrol. He also had received training in kinesics, which is the interpretation of non-verbal behavior related to movement. As Barnett pulled the vehicle over, he noticed unusual movement by the occupants of the vehicle, who appeared to be reaching in the backseat and perhaps under the seat. When Barnett asked Kelley where he was going, Kelley became unusually nervous. He told Barnett that he was going to visit Fred and Dominique Coleman. However, Kelley did not know the Colemans' street address. When Barnett asked Speed where they were going, Speed became unusually nervous as well. She told Barnett that they were going to visit her friends Karen and Carolyn, after which she became defensive and refused to answer anymore of Barnett's questions. Speed was unusually reluctant to identify herself. The inconsistent answers that Speed and Kelley gave Barnett, combined with their nervousness and unusual behavior, justified Barnett's expansion of the scope of the stop to investigate further. Cf. Edmisten, 208 F.3d at 694; Lyton, 161 F.3d at 1170.

Comment: So, police departments are sending their officers for training in body language interpretation, and they use an uncommon word ("kinesics") to make it sound more important and, presumably, more reliable? Will they try to get them declared expert witnesses next? Can the defense get a Daubert hearing?

Customs did not have to have reason to believe that defendant's luggage contained contraband or dutiable goods to conduct a border search. They found ledgers that the FBI was looking for and their turning them over to the FBI was not unlawful. United States v. Gurr, 374 U.S. App. D.C. 21, 471 F.3d 144 (D.C. Cir. 2006).

Officers believed that the renter of a trailer and space had apparent authority to consent to a search of the trailer that was supposedly empty. In plain view, officers found a small quantity of drugs and then found evidence that somebody might be living there, and then they got a warrant. Up to that point, the warrantless search was based on apparent authority and it was valid. United States v. Haynes, 2006 U.S. Dist. LEXIS 88573 (D. Alaska December 6, 2006):

Here, the officers knew that Prato owned the Viskari Trailer Court. Moreover, Prato told them that he owned the trailer and that no one was living in the trailer. Based on the above information, the officers reasonably believed that Prato had actual authority to consent to a search of the trailer. When the officers commenced the consent search and found signs that someone may have been living in the trailer unbeknownst to Prato, the officers decided to apply for a search warrant. During the initial consent search, the police officers saw in plain view a plastic baggie containing a white crystalline substance which later tested positive for methamphetamine. Because Prato had apparent authority to consent to a search of a trailer he owned, the court will deny the motion to suppress the fruits of the consent search on February 21, 2006.

(As of today, the number of cases on Lexis from the U.S. District Courts is double 2005's total.)

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

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

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

An operating meth lab is inherently dangerous and, therefore, exigent circumstances justifying an immediate warrantless entry to neutralize it. A warrant was obtained to continue the search. Barth v. State, 955 So. 2d 1115 (Fla. App. 2d Dist. 2006):

We expressly agree with the conclusions of these courts and hold that the operation of a methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception.

In the instant case, the detectives had reasonable cause to believe that Barth had a methamphetamine lab in operation within the dwelling based on their experience, facts developed during investigation, and observance of Barth's activities that day. Thus, their initial entry into the residence was based on clear exigent circumstances and was therefore lawful.

Because the detectives took the precaution of waiting until the search warrant arrived before reentering the residence and conducting their search, we need not examine whether the exigent circumstances justifying the initial entry also justified the subsequent search and seizure of the evidence Barth sought to have suppressed. Instead, the search was conducted pursuant to a properly executed warrant, and the evidence discovered during that search was therefore admissible. See Segura v. United States, 468 U.S. 796, 810, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); State v. Riley, 462 So. 2d 800, 802 (Fla. 1984); Mercier, 579 So. 2d at 309.

Record supports the conclusion that the defendant consented to a search of his person during a traffic stop. State v. Conn, 2006 Tenn. Crim. App. LEXIS 935 (November 21, 2006). Nothing is mentioned, however, that this extended the detention of the initial stop or that there was any reasonable suspicion. Apparently, in Tennessee, it is permissible to ask any motorist for a search of the person without cause.

Inventory of defendant's car was conducted by a parole officer, even though he was not on parole. The PO was acting as an LEO under state law and as an agent of the officer at the time, and the inventory is valid. State v. Nash, 2006 Ohio 6396, 2006 Ohio App. LEXIS 6346 (5th Dist. December 4, 2006).*

911 call brought officers to defendant's residence, and one of the other two occupants consented to an entry and search, which defendant did not dispute. State v. Ramirez, 2006 Tenn. Crim. App. LEXIS 928 (December 4, 2006).*

In Utah, one judicial district destroyed search warrant papers and let the police be the repository of all search warrant papers. The Utah Supreme Court granted an extraordinary writ against the local courts ordering that they must keep the records to protect the integrity of the warrants and supporting papers. Anderson v. Taylor, 2006 UT 79, 2006 Utah LEXIS 213 (December 5, 2006):

[*P21] The issues raised by this petition are similar to those that confronted this court in In re Criminal Investigation. In that case, this court faced myriad challenges to the constitutionality of the Subpoena Powers Act. 754 P.2d at 636. Among those challenges was the claim that the Act failed to provide for adequate records of subpoenas issued pursuant to the Act. Id. at 644. While acknowledging that the Act did not include a provision expressly requiring the maintenance of investigatory records, the court relied on various provisions of the Act suggesting that the legislature had anticipated detailed record-keeping. Id. at 653. The court further noted that adequate records were necessary in order for the courts to fulfill their constitutional role of protecting against abuse of subpoenas issued under their authority. Id. The court then called upon its inherent supervisory authority to require that all investigations under the Act be fully documented and that "such documentation . . . be maintained by the district court authorizing the investigation." Id.

[*P22] We adopt a similar approach here. Giving law enforcement sole custody of all affidavits and warrants up through the point where the warrant has been executed and a return filed is inherently problematic for at least two reasons. First, it leaves the court without any record of the subpoena or the materials supporting its issuance until after the subpoena is executed and a return filed. Second, it allows for the possibility that affidavits and other court records may be mishandled or even altered without detection. When the records upon which the magistrate acts in issuing a warrant are handled by persons other than court personnel prior to being filed with the court, the court has no basis for confidence in the accuracy, authenticity, or completeness of those documents. In the matter of warrants for the search and seizure of persons or property, more is required. We accordingly require that magistrates issuing search warrants retain in their custody copies of all search warrants issued, as well as the material supporting search warrant applications, rather than surrendering to law enforcement the only copies of such material.

[*P23] To ensure the integrity of our court records, we have concluded that the courts of this state must retain copies of all search warrants and supporting material. Nevertheless, we are without the information necessary to prescribe the particular procedures to be followed in maintaining and disclosing such records. Those particulars are best addressed by study and examination in the context of our rule-making process. We therefore refer those particulars to our Advisory Committee on the Rules of Criminal Procedure for further consideration.

Officer acting on another's information was correct in making a stop, but, without the other officer testifying at the suppression hearing, there is no way to determine whether there was reasonable suspicion for detaining the defendant. The state had to justify the actions of the officer in court, and it was not the officer's fault. People v. Moorman, 369 Ill. App. 3d 187, 307 Ill. Dec. 428, 859 N.E.2d 1105 (2d Dist. November 29, 2006, released for publication January 19, 2007).*

IAC allegation that defense counsel was ineffective for not filing a motion to suppress on lack of apparent authority of another to consent to the search that led to evidence in his case did not show that the motion would have been successful, so petitioner cannot prevail. State v. Stringer, 949 So. 2d 464 (La. App. 3d Cir. 2006, released for publication January 4, 2007).*

The officer had reasonable suspicion during the stop from the defendant passenger's excessive nervousness and his efforts to keep the officer from talking to the driver, his wife. After the officer got her out of the car and talked to her, reasonable suspicion had come together, and consent was sought and refused. Then a drug dog was brought out to sniff the car. The refusal to consent was not a factor in the use of the dog because of the existence of reasonable suspicion. United States v. Jones, 2006 U.S. Dist. LEXIS 88040 (M.D. Tenn. December 5, 2006).

The exclusionary rule does not apply to probation revocation proceedings. United States v. Pittman, 209 Fed. Appx. 725 (9th Cir. 2006)* (unpublished), following United States v. Hebert, 201 F.3d 1103 (9th Cir. 2000).

Confidential informant's statement satisfied NY's Aguilar-Spinelli rule. People v Collins, 2006 NY Slip Op 9061, 2006 N.Y. App. Div. LEXIS 14462 (3d Dept. December 7, 2006):

Judging the warrant, as we must, under the two-pronged Aguilar-Spinelli test ..., we conclude that the application was sufficient to demonstrate the reliability of the source of the information and the basis of at least one of the confidential informant's knowledge .... The information provided by the third informant, in affidavit form, was against such informant's penal interest ... and was both thorough and specific concerning defendant's drug operations at the location sought to be searched .... The identification of defendant as being involved in drug-related activities was also consistent with not only the information provided by the two other informants but also the objective information acquired by the detective that assembled the warrant application .... (citations omitted)

Plaintiff's decedent was shot 22 times fleeing police in Pomona, California. An excessive force action was filed in federal court under § 1983, and defendants prevailed. (Supplemental state claims were bifurcated.) Plaintiff then filed a state action based on negligence. "Based on the procedural circumstances of the case before us we conclude neither res judicata nor collateral estoppel preclude plaintiffs' negligence action against the defendants on the theory defendants' negligent conduct and violation of proper police procedures in effecting Hernandez's arrest was the proximate cause of their use of deadly force against Hernandez." Hernandez v. City of Pomona, 145 Cal. App. 4th 701, 51 Cal. Rptr. 3d 846 (2d Dist. December 6, 2006), noting conflicting authorities in note 6:

Mattson v. City of Costa Mesa (1980) 106 Cal.App.3d 441, 445-448, 164 Cal. Rptr. 913 (state court action barred by res judicata but not by collateral estoppel); Harris v. Grimes (2002) 104 Cal.App.4th 180, 186-187 (state court action not precluded by res judicata or collateral estoppel); City of Simi Valley v. Superior Court (2003) 111 Cal.App.4th 1077, 1082-1083 (state court action barred by res judicata).

Officers executing an arrest warrant at a house knocked and got no answer, but heard movement. Somebody also fled out the back door and over a 6' high fence. One officer looked in a window and saw a closed circuit TV monitor showing the vehicles on the street in front of the house. They had information about drugs and weapons inside, and exigent circumstances thus presented themselves for a warrantless entry because of the apparent threat to the officers' safety. It was not a manufactured exigency. United States v. Newman, 472 F.3d 233 (5th Cir. 2006):

This case involves officer safety. Exigent circumstances existed if the agents' fear for their safety was reasonable. See United States v. Howard, 106 F.3d 70, 76 (5th Cir. 1997) (citing United States v. Rodea, 102 F.3d 1401 (5th Cir. 1996)) ("[W]e will not second-guess the judgement of law enforcement officers when reasonable minds may differ."). The government insists, and the district court found, that at the moment the agents decided to enter the house there was reasonable danger to their safety. Here the agents were first confronted with a individual sprinting from the house and scaling a six-foot wrought-iron fence in an attempt to flee from police. Cf. Vega, 221 F.3d at 799 n.26 (suggesting that flight from police is probative). Then, when the agents, standing before the doorway, saw human movement from behind a curtain, they knew that people were in the house but were not responding to their verbal announcements. Upon seeing the closed circuit TV system and realizing there were people in the house, the present threat of danger was exacerbated when they realized that the dealer, as well as other residents, likely had been watching them through a TV surveillance system. Because the agents already suspected that a drug dealer was in the house, they were reasonable to correlate violence and weaponry with drug dealing. See United States v. Rodea, 102 F.3d 1401, 1408 (5th Cir. 1996) (noting that "firearms are 'tools of the trade' of those engaged in illegal drug activites.") (quoting United States v. Ramos, 71 F.3d 1150, 1158 n. 26 (5th Cir. 1996), cert. denied, 517 U.S. 1227, 116 S. Ct. 1864, 134 L. Ed. 2d 962 (1996)). At that time, the agents were reasonable to believe that the residents were hiding, potentially with weapons, and watching the agents. Anticipation of a violent confrontation was reasonable.

These events alone would lead a reasonable police officer to anticipate danger, even though the agents did not see any weapons before they entered the house. See, e.g., Howard, 106 F.3d at 76 (finding exigent circumstances based on officer safety concerns when there were no visible weapons but the officers suspected there were drugs in a house and there was a crowd of people in front of the house); Rodea, 102 F.3d at 1408-10 (upholding exigent circumstances even though officers had no specific knowledge of any weapons being present but because weapons were common in drug deals). Given the highly deferential standard for reviewing the district court's conclusion, we do not think that the district court erred in finding that exigent circumstances justified the agents' entry into Newman's home.

Next, we assess whether the government's own action or inaction was the likely cause of the exigent circumstances. See Rico, 51 F.3d at 502 (holding that manufactured exigencies are "an exception to an [exigency] exception."); Vega, 221 F.3d at 798-99. Officers may not impermissibly create exigent circumstances by revealing their presence in order to alert suspects who would, in response, destroy evidence or put the police in danger. See Vega, 221 F.3d at 800. Here, Newman argues that the exigent circumstances would not have arisen but for the officers' approaching the house and revealing themselves to the occupants.

When determining whether the exigent circumstances are impermissibly manufactured, we consider "the reasonableness and propriety of the investigative tactics that generated the exigency." Rico, 51 F.3d at 502 (quoting United States v. Duchi, 906 F.2d 1278, 1284 (8th Cir. 1990)). In the instant case, the agents employed a "knock and talk" so they could ask the residents questions about a suspect for whom they had a warrant. This approach has been recognized as legitimate. Jones, 239 F.3d at 720; United States v. Gould, 364 F.3d 578, 590 (5th Cir. 2004) (en banc). Thus, the officers did not manufacture an exigency by employing a legitimate investigative tactic.

"Even in a case where there was an individual suffering from severe depression, such a mental disability did not by itself render the defendant's consent to search and waiver of Miranda rights involuntary. There must be some coercion by an official actor to make the consent and/or waiver involuntary." Defendant was advised of his right to refuse consent to a search of his computer for child porn, and he consented anyway. United States v. Wendehake, 2006 U.S. Dist. LEXIS 87649 (S.D. Fla. November 30, 2006).

On review by the District Court of an MJ's R&R, the defendant cannot raise a new issue to suppress the search. United States v. Hunter, 2006 U.S. Dist. LEXIS 87831 (E.D. Tenn. November 30, 2006).

Maryland, following other states, decides to follow Belton and Thornton and holds that search incident of a recent occupant of a car extends throughout the passenger compartment under Chimel. Purnell v. State, 171 Md. App. 582, 911 A.2d 867 (December 4, 2006):

Notwithstanding that Maryland has yet to extend the Belton/Thornton bright line test specifically to the search of items belonging to a passenger situated several feet from the vehicle arguably outside of the Chimel reach, who is neither under arrest or suspected of criminal activity at the time of the search and who neither poses a threat to the officer's safety or is capable of destroying evidence, we believe that the reasoning of the Supreme Court of Nebraska has divined the clear direction of the Supreme Court in Belton and Thornton. It is the whole of the passenger compartment that is subject to search, including any items or containers and the content thereof, belonging to the driver or an occupant regardless of whether he or she has been placed under arrest or is within or has been ordered out of the vehicle.

The community caretaking function justified a stop of the defendant who had fallen out of a tree to see if he was injured, and, on closer examination, appeared to be intoxicated. People v. Queen, 369 Ill. App. 3d 211, 307 Ill. Dec. 400, 859 N.E.2d 1077 (1st Dist. November 28, 2006, released for publication January 19, 2007):

The principles annunciated in Cady, Ocon, and Smith apply in the present case. The parties agree that Fragale effected a stop when he "directed" defendant over to the squad car. The State, arguing for a community caretaking rationale in substance if not in name, asserts that defendant's bizarre and potentially injurious entry onto the scene gave Fragale warrant to "stop and check on" him. Defendant, operating under the erroneous notion that all seizures must be justified by an objective suspicion of criminal activity, does not challenge the State's position nor could he credibly do so. Defendant had just fallen out of a tree. Although Fragale quickly surmised that defendant was not injured by the fall, Fragale suspected that defendant was intoxicated, based on his unsteady movements. Fragale was justified in having defendant approach and identify himself. When defendant approached, his appearance and demeanor confirmed Fragale's belief that he was intoxicated. Fragale believed that defendant was in need of a courtesy ride in the squad car because he could not proceed safely in his condition without assistance. Fragale's concern was well-founded. Defendant's unexplained bout of tree climbing suggested that he might be capable of further erratic behavior that could endanger himself or others. He was covered in mud that apparently came from some prior escapade.

Stop of vehicle based on an anonymous informant's tip was justified because of location and the fact it appeared to be armored. Officer in plain view saw a banana clip, and that lawfully expanded the stop. Trial court's suppression order reversed. State v. Carrocce, 2006 Ohio 6376, 2006 Ohio App. LEXIS 6331 (10th Dist. December 5, 2006).*

Stop for crossing white line was not justified on the record, so DWI suppressed. State v. Phillips, 2006 Ohio 6338, 2006 Ohio App. LEXIS 6321 (3d Dist. December 4, 2006)*; State v. Purtee, 2006 Ohio 6337, 2006 Ohio App. LEXIS 6323 (3d Dist. December 4, 2006).*

(Still in trial. Tomorrow's posting at unknown time.)

Suppression motion litigated and not appealed in first trial in 1988 involving a search in Montana and used in court in Illinois was collateral estoppel or res judicata after the defendant won a new trial. His allegation of "new evidence" to get around the rule was, inter alia, "Montana law," but all the allegedly "new evidence" was available at the time of the first trial. People v. Sutherland, 223 Ill. 2d 187, 860 N.E.2d 178 (September 21, 2006).

Defendant, who was allegedly shot during a home invasion robbery and the police came to the hospital, did not have standing to challenge the seizure of a hospital glove from the floor of the ER. If the police did not take it, it would just be thrown away. United States v. Nanos, 2006 U.S. Dist. LEXIS 87434 (D. Me. November 30, 2006).

Consent was shown to be voluntary despite the defendant not having been advised of his right to refuse. He was middle-aged, and his interaction showed that he knew his rights. "In this case there is no evidence Defendant was unaware of his rights. To the contrary, Defendant had some knowledge of his rights to refuse to consent as evidenced by his asking permission to speak with Leonard about whether he should voluntarily open the shed and later at the jail when he wrote he 'was not waivering [sic] his rights' beside his signature on the Waiver of Rights form." United States v. Stringer, 2006 U.S. Dist. LEXIS 87302 (M.D. Tenn. November 29, 2006).*

(Trial today. More later.)

When officers came to defendant's house, he said "Get the fuck out of my house." The police removed him from the premises and then sought consent from his wife, and this violated Randolph--the police cannot simply remove the objecting party and then seek consent from the co-tenant in his absence. "His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence." United States v. Henderson, 2005 U.S. Dist. LEXIS 44038 (N.D. Ill. November 29, 2006) [Lexis shows this as a 2005 case, but it is obviously a 2006 case because it cites several 2006 authorities, one as late as August 2006]:

While the motion to suppress was being briefed, the United States Court of Appeals for the Sixth Circuit issued its opinion in United States v. Hudspeth, 459 F.3d 922 (August 25, 2006), in which the defendant, who was not present at his residence, refused consent to search the residence. The police went to the home and obtained a voluntary consent to search by the defendant's spouse, and proceeded to discover incriminating evidence of child pornography on the defendant's home computer. The Eighth Circuit held that, although Randolph does not directly address the situation in which a co-tenant who refuses consent is not physically present at the search, "the same constitutional principles underlying the Supreme Court's concerns in Randolph apply regardless of whether the non-consenting co-tenant is physically present at the residence, outside the residence in a car, or, as in our case, off-site at his place of employment. We believe that the Supreme Court has made it clear that the police must get a warrant when one co-occupant denies consent to search." Id. at 922. The court also noted in passing that "to some degree, the case for respecting the denial of consent by a non-present occupant is stronger than the refusal of the physically-present occupant," because a physical presence might require the police to enter a dwelling to protect a non-consenting spouse. Id.

In the instant case, this court finds the reasoning of the Eighth Circuit in Hudspeth to be persuasive. Indeed, the facts are even stronger for defendant than for Mr. Hudspeth. Defendant was physically present in his own home when he refused consent to the police. His rather indelicate instruction for them to leave his home surely included a direction that they not only depart but refrain from searching the residence. Having been denied permission to search defendant's home, under the teaching of Randolph and Hudspeth the police acted unreasonably by conducting a search based upon the later consent of the co-tenant, Patricia, after defendant had been removed from the premises.

In its final brief, the government attempts to distinguish Hudspeth, but in doing so merely reenforces the conclusion that the search of defendant's home was unreasonable. First, the government argues that unlike Hudspeth, in which the police failed to advise the defendant's wife of his refusal to consent to search, "that is not the case here ...." But there is no indication in the instant record that Patricia was informed of defendant's statement, and the Hudspeth court did not base its rationale on any deception by the officers.

District Court affirms Magistrate Judge's finding of lack of consent because the little bit of audible tape that was available supported the Magistrate Judge's conclusion that the defendant did not knowingly consent because he did not speak English well enough to know what was going on. Government's objections to the R&R are overruled, and the motion to suppress is granted. United States v. Trinidad, 2006 U.S. Dist. LEXIS 86971 (D. Mont. November 29, 2006).*

Consent was granted early into a traffic stop before the computer check even came back. The officer looked under the hood and found non-factory screws, and concluded there was a hidden compartment there. Consent was valid. United States v. Palomino, 2006 U.S. Dist. LEXIS 87067 (S.D. Tex. November 29, 2006).*

Pepper spraying a plaintiff who was walking away from officers precluded summary judgment for the officers. There was no showing that plaintiff was armed or posed a danger. Frederick v. Hanna, 2006 U.S. Dist. LEXIS 87037 (W.D. Pa. December 1, 2006).*

Officers arrested defendant at a motel room after she admitted possession of an allegedly stolen truck, claiming that she had permission to drive it. She did not have the keys on her, and the officers asked her boyfriend to look in the room for the keys. He could not find them, and consented to an officer looking, and the officer found drug paraphernalia. The consent was valid. Shuler v. State, 282 Ga. App. 706, 639 S.E.2d 623 (December 4, 2006).*

Officer had probable cause to search for weapons at a farm house after gunshots were fired at young men hunting near defendant's land. In the course of the investigation, the officer had heard that there might also be explosives in the premises, but he omitted any reference to what was essentially a rumor from the affidavit. The warrant, however, sought firearms and explosives. At the hearing, the officer explained the omission because he believed he lacked probable cause for explosives. It was clear from the totality of the evidence in the affidavit that, even if the officer included the omitted information, the issuing magistrate would have still signed off on the warrant because there was probable cause with or without it. United States v. Leeper, 2006 U.S. Dist. LEXIS 87193 (D. Kan. November 29, 2006):

Under the evidence presented, the court finds the agent did not attempt to mislead the Judge by including explosives among the items to be searched for. Moreover, the court finds the Judge was aware of this particular language in the warrant request. At any rate, whatever the reason for the inclusion of "explosives" among the items to be sought, the defendant has failed to show that any omission by the agent was material to the issuance of the warrant. In order for the fruits of a search to be suppressed, the omission must be "necessary to the finding of probable cause." Franks, 438 U.S. at 155. Even had the agent's admittedly flimsy information about explosives been included in this affidavit, the Judge undoubtedly would have still determined there was probable cause to search the farmstead for firearms that were used in the shooting on November 5, 2005. And for the reasons set forth herein, the court concludes that the evidence challenged by the defendant was discovered lawfully within the scope of a search for firearms. Accordingly, the failure to include the agent's information about explosives in the affidavit does not constitute a material omission.

Defendant's actions while under surveillance in participating in hand-to-hand drug buy and carrying what was consistent with packaged heroin to his vehicle was reasonable suspicion. Discounting both that putting on the seatbelt might have been seen by the police as a furtive movement and his using a cellphone were innocuous, the hand-to-hand buy was enough for reasonable suspicion. United States v. Clark, 2006 U.S. Dist. LEXIS 87055 (D. N.J. December 1, 2006).*

Two controlled buys from the premises in the previous 96 hours is probable cause. The defendant failed in making a Franks showing of undefined factual discrepancies, but the court suggests that the two buys eliminates a Franks violation as a viable issue. United States v. Schwab, 2006 U.S. Dist. LEXIS 87059 (S.D. Tex. December 1, 2006).*

Officer pulling up in unmarked car with headlights pointing at occupants, with no blue lights on, evolved into a nonconsensual encounter with a "show of authority" in which the defendants were not free to leave, so motion to suppress is granted. United States v. Wright, 2006 U.S. Dist. LEXIS 86975 (N.D. Fla. November 30, 2006):

As a threshold matter, the court is unpersuaded by the government's contention that the interaction between Coverdale and Wright constituted only a consensual encounter. It is true that Coverdale did not initiate a traffic stop or pull Wright's vehicle over but rather simply approached Wright and Key as they sat in the parked car. In addition, Coverdale did not activate his siren or blue lights prior to approaching the vehicle, display his weapon, or use his vehicle to block the path of the Monte Carlo. Nevertheless, the court concludes that considering the totality of circumstances present on the evening in question, in making contact with Wright Coverdale exhibited a show of authority sufficient to make a reasonable person conclude that he was not free to leave.

First, while Coverdale may have stopped his marked patrol car as far as twenty feet away from the Monte Carlo, parking the cruiser at an angle to Wright's vehicle with the headlights still illuminated and directed at the Monte Carlo -- rather than simply pulling into a parking place and extinguishing the lights -- was a show of authority over the Monte Carlo's occupants, even if a moderate one. In addition, however, almost simultaneously Coverdale brightly illuminated the Monte Carlo with his cruiser's high intensity spot light. Taken together, these actions constituted a show of authority which would have been intimidating, at least to a degree, to a reasonable person. Furthermore, especially given that Wright was in the process of exiting the Monte Carlo under these conditions when Coverdale first spoke to him, a reasonable person would have felt compelled to comply with the directive to remain seated, even if Coverdale's precise words and tone of voice were not overtly coercive. The belief that Wright was not free to leave would have been reinforced when, despite Wright's immediate compliance with the directive to remain in the vehicle, Coverdale (who was wearing official attire which clearly identified him as a law enforcement officer) proceeded directly to the driver's door and began questioning Wright about his driver's license. Moreover, Coverdale testified that he preferred that Wright remain in the vehicle for officer safety reasons because "if he's in the vehicle, he's somewhat contained." The evidence thus reflects that Coverdale intended to convey to Wright that his freedom of movement was restricted -- and in effect he did convey that instruction. In short, considering the totality of the circumstances present on the evening in question, the court concludes that Coverdale exhibited a "show of authority" sufficient to make a reasonable person believe that he was not free to terminate the encounter. Therefore, the court finds that the encounter between Coverdale and Wright was not consensual in nature but rather amounted to an investigatory detention.

The Second Circuit affirmed on Thursday the conviction of former law enforcement officers convicted of civil rights violations under 18 U.S.C. §§ 241 & 242 for falsifying information to get search warrants, fictitious informant payments, and stealing property from targets of search warrants. They were also convicted of using a firearm during a "crime of violence," that is, the drawing of their weapons during the execution of a search warrant which is inherently violent. United States v. Acosta, 2006 U.S. App. LEXIS 29607 (2d Cir. November 30, 2006) (unpublished). This is an unpublished opinion, and the facts are abbreviated, but it is interesting still sheerly because of the fact a police officer was convicted for something that many narcs do without a second thought:

Both Skinner and Acosta claim that there was insufficient evidence to support their convictions for conspiracy to violate civil rights under color of law in violation of § 241. We disagree. At trial the government proved the substantive charges against Skinner and Acosta of violating civil rights under color of law, and aiding and abetting others in the commission of this crime in violation of § 242 and 18 U.S.C. § 2. The proof of these substantive charges constituted some of the proof of the § 241 conspiracy charges. This proof included, inter alia, evidence that (1) Skinner falsified information for at least five search warrants and submitted false informant payment forms; (2) Skinner and Acosta participated in obtaining and executing at least three search warrants based on false information; and (3) Acosta received stolen money from these searches and stole property during two of these searches. The government also presented evidence of additional conduct by Skinner and Acosta in furtherance of the conspiracy that was not a part of the § 242 offenses, including Skinner's and Acosta's participation in a warrantless raid of a hotel room and the execution a search warrant on a home, during both of which money was stolen, and Acosta's stealing from a suspect during a traffic stop. Furthermore, the government presented evidence that Skinner, Acosta and their co-conspirators attempted to cover up the conspiracy, and agreed among themselves not to cooperate with the FBI. Viewing this evidence in a light most favorable to the government, a rational jury could have found beyond a reasonable doubt that Skinner and Acosta knew of the conspiracy to deprive persons of their civil rights, and knowingly and intentionally joined, and participated in, the conspiracy. See United States v. Morgan, 385 F.3d 196, 206 (2d Cir. 2004).

Skinner also claims that there was insufficient evidence to support his misdemeanor conviction under § 242 and § 2. This conviction was based on the discovery of a laptop computer in Skinner's home that had been taken during the search of a suspect's home. Skinner argues that there was no evidence that he acted willfully, because there was no proof that he removed the laptop from the suspect's home. We disagree. The government presented evidence that (1) the laptop was found in Skinner's home, (2) officers were overheard arguing over who would get the laptop, (3) Skinner had purchased personal accessories for this laptop, (4) Skinner was the officer in charge of securing evidence during this raid, and (5) Skinner's superiors directly refuted his explanation that he had the laptop because he was analyzing it as part of an international drug investigation. A rational jury could have found beyond a reasonable doubt either that Skinner stole the laptop, or that he aided and abetted the theft of the laptop. See United States v. Labat, 905 F.2d 18, 23 (2d Cir. 1990).

Finally, Skinner argues that there was insufficient evidence to support his felony conviction for using or carrying a firearm during the commission of a crime of violence in violation of § 924(c), which was based on his underlying § 241 conspiracy conviction. Skinner essentially argues that, even though he was a police officer participating in the execution of search warrants and raids, the government presented insufficient evidence that he carried a firearm during these activities. We disagree. The government presented evidence that it was standard police procedure was for all members of a search team to have their weapons drawn and to keep them drawn while entering a location in connection with drug activity. This fact alone was sufficient for a rational jury to conclude beyond a reasonable doubt that Skinner used or carried a firearm in furtherance of the conspiracy.

Admitting that "this case stretches Leon's good faith exception to its elastic limit," the Tenth Circuit finds the good faith exception saves a search without probable cause of a FedEx package, in part because the officer candidly included information that did not support probable cause showing the efforts to investigate. The District Court found no probable cause but good faith, and the Tenth Circuit, to its credit, fully analyzed the probable cause question first, agreeing with the District Court that probable cause was lacking. United States v. Reed, 195 Fed. Appx. 815 (10th Cir. November 30, 2006) (unpublished):

Our sequential analysis of the factors relied upon to establish probable cause should not be taken as a "divide-and-conquer" approach. United States v. Arvizu, 534 U.S. 266, 274 (2002) (rejecting "divide-and-conquer" approach to determining whether reasonable suspicion existed). We fully appreciate the synergy of disparate elements considered collectively and recognize our obligation to be guided by the totality of the circumstances. Whether considered individually or as an integrated whole, the facts presented do not amount to probable cause. Nevertheless, as we explain next, the evidence seized pursuant to the warrant need not be suppressed because the good-faith exception to the exclusionary rule applies.

The good faith exception was thoroughly analyzed and found to apply, apparently with some misgivings:

The affidavit in this case linked Reed to the envelope as Reed was its intended recipient. It also contained information linking the suspected criminal activity (transfer of contraband) to the envelope. The envelope contained characteristics which in Dunlap's training and experience were associated with criminal courier activity. A previous package containing those same characteristics was found to contain counterfeit credit cards. And Reed's criminal history was consistent with and supported the suspected criminal activity. Admittedly, this case stretches Leon's good faith exception to its elastic limit, but a minimal (barely) nexus existed between the place to be searched, Reed and the suspected criminal activity.

This case also cited new F.R.A.P. 32.1 on the precedental value of unpublished opinions, even though new 32.1 applies to cases decided after January 1, 2007.

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

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

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

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

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

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

In West Virginia, the question of exigent circumstances for an entry into the home is an issue that, even in criminal cases, is to be decided by a jury. State v. Kendall, 219 W. Va. 686; 639 S.E.2d 778 (2006):

In the case sub judice, the Appellant asserts that the lower court abused its discretion by deciding the question of whether exigent circumstances existed, by removing that factual decision from the jury, and by explicitly instructing the jury that neither exigent circumstances nor hot pursuit existed. Courts addressing the issue of the proper entity to decide the question of exigent circumstances have recognized that the issue involves a mixed question of law and fact. United States v. Russell, 436 F.3d 1086, 1089 n. 2 (9th Cir. 2006); United States v. Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Zermeno, 66 F.3d 1058, 1063, n. 2 (9th Cir. 1995). Other courts have expressly stated that the "presence of exigent circumstances is a question of fact within the province of the Jury. ..." Richmond v. City of Brooklyn Center, 2005 WL 1843332, *8 (D. Minn. 2005); see also Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir. 2002) (holding that the determination of exigent circumstances is "normally a question for the jury. ...").

Officers had cause for stopping defendant's car for following too close and reasonable suspicion from the totality of circumstances, which are not given us, developed, and defendant then confessed. United States v. Osuna-Samaniego, 208 Fed. Appx. 554 (9th Cir. 2006)* (unpublished).

Giving the plaintiff the benefit of inferences from his complaint, he stated enough to get to trial. He admittedly shoved officers, but he alleged excessive force used against him in response. Nail v. Gutierrez, 2006 U.S. Dist. LEXIS 86728 (N.D. Ind. November 29, 2006).*

Defendant's guilty plea to an offense involving an alleged search and seizure cut off any Fourth Amendment civil suit over the search and seizure under Heck v. Humphrey because it implied the invalidity of the conviction. Bailey v. Duesler, 2006 U.S. Dist. LEXIS 86722 (S.D. Cal. November 28, 2006).*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. . .

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

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

As to the workplace search:

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

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

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

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

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

USA Today on Friday has, via AP, an article about the controversial body scanner with "backscatter" technology that reveals everything about your body, in an effort to see what an airline passenger may be carrying on his or her body. Don't want to be seen nude on a computer screen? Then you can be subjected to a patdown instead.

Sky Harbor International Airport here will test a new federal screening system that takes X-rays of passenger's bodies to detect concealed explosives and other weapons.

The technology, called backscatter, has been around for several years but has not been widely used in the U.S. as an anti-terrorism tool because of privacy concerns.

The Transportation Security Administration said it has found a way to refine the machine's images so that the normally graphic pictures can be blurred in certain areas while still being effective in detecting bombs and other threats.

The agency is expected to provide more information about the technology later this month but said one machine will be up and running at Sky Harbor's Terminal 4 by Christmas.

The security agency's website indicates that the technology will be used initially as a secondary screening measure, meaning that only those passengers who first fail the standard screening process will be directed to the X-ray area.

Even then, passengers will have the option of choosing the backscatter or a traditional pat-down search.

A handful of other U.S. airports will have the X-rays machines in place by early 2007 as part of a nationwide pilot program, TSA officials said.

From the Electronic Privacy Information Center website:

The backscatter machines use high-energy X-rays that are more likely to scatter than penetrate materials as compared to lower-energy X-rays used in medical applications. Although this type of X-ray is said to be harmless, it can move through other materials, such as clothing. When being screened, a passenger is scanned by high-energy X-ray beam moving rapidly over her body. The signal strength of detected backscattered X-rays from a known position then allows a highly realistic image to be reconstructed. In the case of airline-passenger screening, the image is of the traveler's nude form. The image resolution of the technology is high, so the picture of the body presented to screeners is detailed enough to show genitalia. These images are not necessarily temporary – screeners can save the body images to the system's hard disk or floppy disk for subsequent viewing on either "the system monitor or on any IBM compatible personal computer with color graphics."

What does TSA have to say about patdowns and backscatter technology?

Question: What are TSA’s policies regarding pat-downs and how are they serving a security need?

Answer: TSA expanded its pat down procedures to strengthen its ability to detect explosives at the security checkpoints. Transportation security officers (TSOs) use the front of the hand to screen a passenger’s entire back and abdomen, the arms from shoulder to wrist and legs from mid-thigh to ankle. TSOs communicate with the passenger and explain the process prior to conducting the search. Pat-downs are conducted by TSOs of the same gender whenever possible and private screenings are available at the passenger’s request. Patting down the chest area may be conducted if there is an alarm from a hand-held metal detector or an irregularity in the person's clothing outline. TSOs conduct the inspections in a professional, respectful manner, while maintaining the highest security standards.

Question: How has TSA addressed the issues of privacy while piloting Backscatter technology?

Answer: TSA met with privacy advocates to incorporate privacy concerns into the development of Backscatter Technology. In response to those concerns, TSA required that the companies responsible for developing Backscatter technology incorporate a privacy algorithm into their technology. This privacy algorithm would eliminate much of the detail shown in the images of the individual while still being effective from a security standpoint. Further, Backscatter images will not be retained in the system, will not be capable of being printed, and will be deleted as each individual steps away from the machine to allow a new individual to be screened.

One of these days, you'll have to either strip naked to get on an airplane or be subjected to a virtual voyeur looking at your naked body on a computer screen. Apparently "those days" are not that far away.

Saturday's Atlanta Journal-Constitution has this article, by Bill Torpy and Rhonda Cook: Few results from no-knock warrants, critics say. The Atlanta PD even raided the house next door to Mrs. Johnston's house about 18 months ago, finding no drugs, but the raid was eight days after the buy (which is the point of the staleness requirement, maybe?).

In March 2005, a team of Atlanta narcotics officers, armed with a "no-knock" search warrant, arrived at a northwest Atlanta home looking for a marijuana dealer known only as "Black."

The door was open so the officers didn't have to smash it down; they simply walked in and searched the home, said a resident of the house who was confronted in his living room by armed officers.

The officers found plastic bags and a small scale but no drugs, according to a police report, a point that the resident disputes. Police also did not find "Black" and made no arrests.

The house at 929 Neal St. is next door to and shares a driveway with the home of Kathryn Johnston, the elderly woman who was killed last week in a shootout with Atlanta narcotics officers who came to search for drugs.

The fatal raid, in which three officers were wounded, has shined a spotlight on how the narcotics officers target houses to raid and the tactics used in those raids.

According to police reports, warrant applications and search warrant inventories:

• In each of these two cases, police said a confidential informant made a single, small drug buy at the target house.

• In each case, officers had a no-knock warrant that gave permission to bust down the door.

• In each case, police were looking for a man known only by a nickname who also was not found; last year it was a man named "Black," last week it was "Sam."

• And in each case, members of the same narcotics team were involved.

But these aren't the only cases in which the team served no-knock warrants and came away either empty handed, or with little to show for their effort. Though the legal standard requires police to show special circumstances — that evidence will likely be destroyed or that weapons in the house put officers at risk — these cases and others show that short, routine descriptions and the trust of a judge is all that veteran officers need to obtain such warrants.

The bottom line? It appears to me, from my Fourth Amendment litigator perspective, that these guys are not very well trained, thus proving Justice Scalia and the other four in the majority wrong in Hudson v. Michigan, 126 S. Ct. 2159, 2168 (June 15, 2006):

Another development over the past half-century that deters civil-rights violations is the increasing professionalism of police forces, including a new emphasis on internal police discipline. Even as long ago as 1980 we felt it proper to "assume" that unlawful police behavior would "be dealt with appropriately" by the authorities, United States v. Payner, 447 U.S. 727, 733-734, n. 5, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980), but we now have increasing evidence that police forces across the United States take the constitutional rights of citizens seriously. There have been "wide-ranging reforms in the education, training, and supervision of police officers." S. Walker, Taming the System: The Control of Discretion in Criminal Justice 1950-1990, p 51 (1993). Numerous sources are now available to teach officers and their supervisors what is required of them under this Court's cases, how to respect constitutional guarantees in various situations, and how to craft an effective regime for internal discipline. See, e.g., D. Waksman & D. Goodman, The Search and Seizure Handbook (2d ed. 2006); A. Stone & S. DeLuca, Police Administration: An Introduction (2d ed. 1994); E. Thibault, L. Lynch, & R. McBridge, Proactive Police Management (4th ed. 1998). Failure to teach and enforce constitutional requirements exposes municipalities to financial liability. See Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). Moreover, modern police forces are staffed with professionals; it is not credible to assert that internal discipline, which can limit successful careers, will not have a deterrent effect. There is also evidence that the increasing use of various forms of citizen review can enhance police accountability.

The moral to the story? When the defense proffers a reason for something in the Supreme Court, it is dismissed as unfounded, but, when the government proposes something, citing a book but without evidence in the record, the Supreme Court will seize on it and make it law. Indeed, Justice Scalia wrote that it assumes that "civil liability is an effective deterrent here." Hudson, 126 S.Ct. at 2167-68.

They do not have a clue.

The Atlanta Journal-Constitution's website has a link to the affidavit and search warrant in the search that led to the death of Kathryn Johnston on November 21st.

The no-knock provision was based on the alleged surveillance cameras that the informant reported to the police which showed up in the affidavit. The affidavit also described the house as having a wheelchair ramp in the front. The latter provision would tip off the police that there was somebody else in the house besides the alleged drug dealer.

Something different: The Washington Post has an editorial today about the minor discipline meted out to a Fairfax SWAT team member who accidentally shot an optometrist who they were sent to arrest for being an alleged bookie. The shooting was only tangential to the arrest, but why was the officer's finger on the trigger and the gun pointed toward the non-violent suspect that somebody felt compelled to send the SWAT team to arrest? All dressed up with no place to go?

For months before this egregious shooting, an undercover police detective had been placing bets with Mr. Culosi, who had no criminal record; had never owned a firearm; and presented no threat of violence, flight or resisting arrest. It is still unclear, 10 months after the fact, why despite that profile police decided to arrest Mr. Culosi with a SWAT team, which is trained and equipped for use in dangerous situations. After Mr. Culosi's death, the police department said it would conduct a review of policies and procedures involving the use of such teams. But if there was such a review, its results have not been made public. One wonders if the SWAT team in Fairfax, lacking frequent opportunities to respond to situations involving imminent danger and threats, is deployed simply to give its officers something to do. If so, that's bad policy and bad policing.

Mr. Bullock, a 17-year veteran of the police force, was trained in firearms and tactics. He well knew that during a routine arrest, his finger should not have been on the trigger and his gun should not have been pointed at the suspect. So it is no real excuse that, in jumping from his car, the car door bounced back, striking him in the side and causing him to pull the trigger. Like people in other lines of work who make disastrous mistakes, Mr. Bullock should be held accountable for his actions, even though they were unintentional. The chief prosecutor in Fairfax, Robert F. Horan Jr., already declined to prosecute Mr. Bullock or refer the case to a grand jury, yet now police union officials howl that even a three-week suspension is unfair. It's not. It is in fact little more than symbolic discipline. But in such a case symbolism is important and well placed.

Is this the kind of "professional" police and internal discipline that Justice Scalia was referring to in Hudson v. Michigan? What a farce.

Officers were called for a "civil standby" to aid plaintiff's wife in removing her belongings from the home. Plaintiff showed up and he was cornered and effectively restrained in his own home while his wife allegedly made off with some of his property. Summary judgment for the officers was reversed because the officers' actions constituted a search and seizure. Poteet v. Sullivan, 2006 Tex. App. LEXIS 10240 (Tex. App. — Ft. Worth November 30, 2006).

Georgia holds that a civil order to pick up a person for civil commitment of some sort does not permit a Terry frisk. Alternative justification of inventory also fails. Lindsey v. State, 282 Ga. App. 644, 639 S.E.2d 584 (November 30, 2006).

Defendant's hestitation and shocked demeanor when asked about where he was was sufficient for reasonable suspicion. State v. Porche, 2006 La. LEXIS 3303 (November 29, 2006).*

Defendant's argument that he would not have consented to a search of the car because there was such a large quantity of drugs in the car was resolved against him by the trial court which believed the officers that he consented. State v. Gomez, 2006 La. App. LEXIS 2703 (5th Cir. November 28, 2006).*

Stop was based on reasonable suspicion and so was frisk. It was supported by defendant's probation search condition. State v. Hammonds, 2006 Tenn. Crim. App. LEXIS 919 (November 29, 2006).

California recognizes that In re Tyrell J. not requiring knowledge of probationary status before a probation search has been undermined to the point it should be overruled, particularly in light of Samson v. California. Knowledge of probationary status is required to prevent overbearing and harassing searches. In re Jaime P., 40 Cal. 4th 128, 51 Cal. Rptr. 3d 430 (November 30, 2006).

Habeas petitioner loses on the merits of an ineffective assistance on a search claim because he could not win on the merits. (The convoluted AEDPA formula of "clearly established" case law did not even have to enter into it.) Mosby v. Senkowski, 470 F.3d 515 (2d Cir. November 30, 2006).*

Doctor and his wife sued LVMPD for a false arrest. He claimed that the officers did not properly identify themselves before the arrest. A fact question remained for trial, and the district court improperly granted QI. Vlasak v. Las Vegas Metropolitan Police Department, 213 Fed. Appx. 512 (9th Cir. 2006)* (unpublished).

Exigent circumstances for hot pursuit into plaintiff’s backyard to arrest for misdemeanor fleeing from a fight is a fact question for the jury in this case. Thorne v. Steubenville Police Officer, 2006 U.S. Dist. LEXIS 86059 (S.D. Ohio November 28, 2006).*

Ongoing activity makes information for a search warrant not stale. United States v. Allen, 2006 U.S. Dist. LEXIS 86185 (D. Utah November 15, 2006).*

Not on point, but interesting, is a California Court of Appeals case holding that a motel room is a "habitation" for purposes of the burglary statute, citing Fourth Amendment cases. People v. Villalobos, 145 Cal. App. 4th 310, 51 Cal. Rptr. 3d 678 (4th Dist. November 30, 2006):

The concept of the right to privacy in a hotel room as arising from its status as a sleeping place analogous to the home is recognized in the context of Fourth Amendment search and seizure law as well. "We are at our most vulnerable when we are asleep because we cannot monitor our own safety or the security of our belongings. It is for this reason that, although we may spend all day in public places, when we cannot sleep in our own home we seek out another private place to sleep, whether it be a hotel room, or the home of a friend. Society expects at least as much privacy in these places as in a telephone booth--'a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable,' [citation]." (Minnesota v. Olson (1990) 495 U.S. 91, 99, 109 L. Ed. 2d 85; see also Stoner v. State of Cal. (1964) 376 U.S. 483, 489, 11 L. Ed. 2d 856 [guest in a hotel room receives the same constitutional protections against unreasonable search and seizures as a person in his or her house].)

Under the Maritime Transportation Security Act of 2002 ("MTSA"), 46 U.S.C. §§ 70101-70119, the Secretary of Homeland Security enacted regulations via the Coast Guard governing searching of cargo and vehicles on ferry boats. A search of a car on a ferry crossing Lake Champlain from NY to VT was reasonable. Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. November 29, 2006) (link; case 05-1835):

Based on this [vulnerability] assessment, the Coast Guard determined that certain maritime vessels, including those that weigh more than 100 gross register tons or are licensed to carry more than 150 passengers "are at a high risk of a transportation security incident." Id. at 39,246; see also 33 C.F.R. § 104.105(a) (codifying the Coast Guard's above determination). Under the MTSA implementing regulations, vessels that fall into the high-risk category are required to adopt certain security measures to "[d]eter the unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." 33 C.F.R. § 104.265(a)(1). To determine what security measures are required for such high-risk vessels, a vessel owner must prepare a Vessel Security Assessment ("VSA"), which is "an analysis that examines and evaluates the vessel and its operations taking into account possible threats, vulnerabilities, consequences, and existing protective measures, procedures and operations," id. § 101.105, by collecting specified background information and carrying out an onsite survey of the vessel to check existing protective measures, procedures, and operations for a variety of factors. Id. § 104.305(a)-(b). When complete, the VSA is used by the vehicle's owner or operator to devise a Vessel Security Plan ("VSP"), which is a "plan developed to ensure the application of security measures designed to protect the vessel and the facility that the vessel is servicing or interacting with." Id. § 101.105. The VSP must be submitted to the Coast Guard for review and approval. Id. § 104.410. Owners of a vessel operating under a VSP must "[s]creen persons, baggage (including carry-on items), personal effects, and vehicles for dangerous substances and devices at the rate specified in the approved Vessel Security Plan." Id. § 104.265(e)(1). Owners must also "[c]heck the identification of any person seeking to board the vessel." Id. § 104.265(e)(3).

Owners and operators of high-risk vessels are permitted a certain measure of flexibility within this general framework. They may opt out of "identification checks and passenger screening requirements." Id. § 104.292(b). In place of these search requirements, vessel owners "may ensure security measures are implemented that include":

(1) Searching selected areas prior to embarking passengers and prior to sailing; and
(2) Implementing one or more of the following:
(i) Performing routine security patrols;
(ii) Providing additional closed-circuit television to monitor passenger areas; or
(iii) Securing all non-passenger areas.

The court held that the privacy interests of the passengers on a boat were governed by the Fourth Amendment and not lessened by the mode of travel (boat v. airplane):

Finally, we are not convinced by the government's argument that our airport search cases alter the privacy interest calculus here. In United States v. Edwards, we upheld pre-boarding, suspicionless searches of airline passengers, holding that to brand them "as unreasonable would go beyond any fair interpretation of the Fourth Amendment." 498 F.2d at 500. But airplanes are very different creatures from the more quotidian commuting methods at issue in MacWade and the instant case, and society has long accepted a heightened level of security and privacy intrusion with regard to air travel. Moreover, Edwards did not specifically determine or discuss the privacy interest involved, and we are wary of extending its analysis to a markedly different factual context.

. . .

Because an undiminished privacy interest is not itself dispositive in special needs cases but is merely one among three factors to be weighed, MacWade, 460 F.3d at 272, we must next examine the screening at issue and determine whether searches, which consist of random visual inspections by ferry attendants of vehicles' trunks as well as the carry-on baggage of bicyclists and pedestrians, are minimally or substantially intrusive. In making this examination, courts have looked to various factors, including, inter alia, the duration of the search or stop, see Lidster, 540 U.S. at 427; Sitz, 496 U.S. at 451-52; Martinez-Fuerte, 428 U.S. at 546-47, 558, the manner in which government agents determine which individuals to search, see Lidster, 540 U.S. at 428, Martinez-Fuerte, 428 U.S. at 559, the notice given to individuals that they are subject to search and the opportunity to avoid the search by exiting the premises, see MacWade, 460 F.3d at 273; Edwards, 498 F.2d at 500, as well as the methods employed in the search, see Sitz, 496 U.S. at 451; Martinez-Fuerte, 428 U.S. at 558.

On the basis of these factors, it is clear that the searches in this case are, by any measure, minimally intrusive. As recounted by plaintiffs, the duration of the stops or searches have been "cursory" and of the short duration which the Supreme Court has long held to be minimally intrusive. Lidster, 540 U.S. at 427 (upholding brief stops of vehicles at checkpoint and questioning of drivers); Sitz, 496 U.S. at 451 (same); Martinez-Fuerte, 428 U.S. at 546-47, 558 (same). Plaintiffs have not alleged that the government has given unbridled discretion to LCT employees to carry out searches in a discriminatory or arbitrary manner. Lidster, 540 U.S. at 428 ("[T]here is no allegation here that the police acted in a discriminatory or otherwise unlawful manner while questioning motorists during stops."); Martinez-Fuerte, 428 U.S. at 559 (discussing the intrusiveness of roving patrols that presented "a grave danger [of] unreviewable discretion," but finding that a fixed checkpoint greatly reduced the possibility of abuse). Other factors similarly weigh in the government's favor in this inquiry. For instance, the methods used to conduct the searches at issue are limited to visual inspections of vehicles and their trunks and brief examinations of the contents of carry-on baggage. See Sitz, 496 U.S. at 451 (brief visual inspections); Martinez-Fuerte, 428 U.S. at 558 (same); Edwards, 498 F.2d at 500 (brief examination of contents of carry-on luggage). Ample notice is given to individuals seeking to board LCT ferries that are subject to search and that they may avoid the search by exiting the premises. See MacWade, 460 F.3d at 273 ("[P]assengers receive notice of the searches and may decline to be searched so long as they leave the subway. . . ."); Edwards, 498 F.2d at 499-500 (finding notice central to upholding the constitutionality of airport searches where large signs had been posted near the boarding gates warning: "PASSENGERS AND BAGGAGE SUBJECT TO SEARCH"). Such notice helps "reduc[e] to a minimum any unsettling show of authority that may be associated with unexpected intrusions on privacy." Von Raab, 489 U.S. at 672 n.2 (internal citation and quotation marks omitted); see also Edwards, 498 F.2d at 501 ("The point is . . . that in order to bring itself within the test of reasonableness applicable to airport searches, the Government must give the citizen fair warning, before he enters the area of search, that he is at liberty to proceed no further."). Notice also serves to eliminate any stigma associated with the search. Id. at 500 ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily. . . .") (internal citation omitted).

The court also engaged in a fascinating discussion of the balancing of special needs, discussing: (1) the special needs doctrine does not require a "well-defined target class"; (2) the government has demonstrated a "special need" in this situation; (3) the government's determinations of "high risk" vessels are entitled to deference; and (4) the relevance of the efficacy of the searches.

The administrative search exception was used to conduct a search of a medical practice, but the Kentucky Supreme Court held that the administrative search exception of Burger v. New York, assuming it applied, did not apply because this was a law enforcement search because law enforcement was working the case for six months before the administrative search was conducted. Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006):

In this case, an active criminal law enforcement investigation had been ongoing for six months prior to the engagement of the administrative agency in this case. The Board of Medical Licensure did not initiate a civil investigation into the matter until a formal grievance was filed by the criminal investigators. When the Board's investigation proceeded, it was in complete conjunction with the uninterrupted criminal investigation. Indeed, not only did the criminal investigators supply the Board with all underlying facts and evidence to support its investigation, but the criminal investigators also determined which files were to be seized by the Board and then accompanied and assisted the Board during the actual raid. Such excessive entanglement with law enforcement simply belies any notion that the warrantless raid in this case was somehow "divorced from the State's general interest in law enforcement." Ferguson, supra, at 79, 121 S.Ct. at 1289; see also, New Jersey v. T.L.O., 469 U.S. 325, 341, n. 7, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (distinguishing searches carried out by administrative authorities "acting alone and on their own authority" from those conducted "in conjunction with or at the behest of law enforcement agencies").

Reasonable suspicion as to the place defendant came from extended to him. State v. Smith, 2006 La. App. LEXIS 2697 (5th Cir. November 28, 2006):

We find the totality of the circumstances support the trial judge's finding of reasonable suspicion of criminal activity. Although the record does not disclose that the officer had specific information about the defendant, he did have information that drugs were being sold out of the particular apartment the defendant visited. All of the factors together, including this experienced officer's observation of the apparent hand-to-hand transaction outside of an apartment under surveillance for narcotics activity in a high crime area, and the fact that the officer had made other narcotics arrests there, formed reasonable suspicion of criminal activity to support an investigatory stop.

Defendant did not engage in headlong flight from the police, and the state failed to show it, and, thus, the state failed to show that there was reasonable suspicion. Rainer v. State, 944 So. 2d 115 (Miss. App. November 28, 2006), on rehearing from Rainer v. State, 2005 Miss. App. LEXIS 917 (November 22, 2005) (reaching same result).

News: Dec. 1st's Atlanta Journal-Constitution reports that two of the officers in the drug raid that led to the death of Kathryn Johnston had good job ratings:

The five Atlanta narcotics officers involved in a drug raid that ended in the death of an elderly woman have earned mostly top job performance ratings, and their personnel files don't indicate they have ever been disciplined for misconduct.

Two of the officers have received commendations from Chief Richard Pennington for their work in drug cases.

. . .

The personnel files on the officers contain a number of documents.

They include standardized job appraisal forms, oath of office forms, personnel data sheets, personal weapons requests, commendations, and police academy information.

Nothing in the personnel records for the five officers suggests they would likely be embroiled in such a controversial case.

The state and federal investigation continues.

The Northern District of California holds that officers exceeding the scope of a search warrant is not subject to the good faith exception. United States v. Chan, 2006 U.S. Dist. LEXIS 85703 (N.D. Cal. November 15, 2006):

Here, after examining the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search, the Court concludes that the search of apartment 5B exceeded the scope of the warrant because there was no objective basis for believing that the area was under the control of Tam or Chan. The search warrant affidavit states that 226 Irving Street is a multi-family dwelling, that Tam owned the building, that Tam and Chan resided at other locations, and that Chan had listed his address at various times as "226 Irving Street Apt. 3," and at that address without an apartment number. When officers executed the search, they discovered that the Panatches were tenants of apartment 3, and that Chan received mail at apartment 3. According to the Panatch and Crowe declarations, the Panatches told officers they were not aware of any storage areas in the building, that Chan told them he was renovating the downstairs portion of the building, and that Chan had keys to the entire building and acted as a property manager.

Thus, based upon the search of apartment 3 and the information obtained from the Panatches, there was no basis to conclude that a locked room--much less a rental unit--located off of the garage, containing some personal items, was an area controlled by either Tam or Chan. The facts that Tam owned the building, and that officers understood from the Panatches that Chan had keys to the units in the building, are not sufficient to authorize officers to search every part of that building. See United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980). Officers still needed some objective basis to believe that the area they were searching was a storage area controlled by Tam or Chan. At the very least, once officers crawled through the window and saw the kitchen, bathroom, and bags of clothes, they should have understood that they were not in a storage room, and likely were in another rental unit. Once inside the unit, there was no basis for concluding that the unit was occupied and/or controlled by Chan or Tam, as opposed to some other individual.

The United States argues that the evidence from the search need not be suppressed under the exclusionary rule if officers honestly, and in "good faith," believed that the warrant being executed was valid under United States v. Leon, 468 U.S. 891 (1984). The question is limited "to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization." See Leon, 468 U.S. at 922. Leon does not apply and suppression of the evidence is appropriate when the officers could not have "harbored an objectively reasonable belief that probable cause existed." Id. at 923-24. The government bears the burden of proving that reliance upon the warrant was objectively reasonable. See United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995).

Here, for all of the reasons stated supra, the Court concludes that reasonably well trained officers would have known that they were exceeding the scope of the search warrant, at least at the point when officers saw that the "storage area" had a kitchen, bathroom, and bags of clothes on the floor. At that point, the officers could no longer harbor a good faith belief that the warrant authorized the search of that area. The only rental unit for which a probable cause determination had been made was apartment 3; no other rental unit in the building was covered by the warrant. Accordingly, once officers crawled through the window and saw the kitchen, bathroom and clothes in bags, they had [an objective basis for concluding that they were, in fact, in another rental unit. Indeed, Parry admits as much in his declaration. See Parry Decl. P 7(b) ("It should be pointed out that at this point [prior to entering the unit], it was unclear whether this area was a 'unit'; we could tell that it was vacant and used for storage, but only later--after making entry--did we ascertain that there was a kitchen and a bathroom in there, which then suggested that this was a vacant 'in law' unit unoccupied at [the] present time.").

The Court concludes that a reasonably well trained officer would have known the search of that unit was not covered by the search warrant, and that any search would require a separate warrant. Accordingly, the Court concludes that the Leon good faith exception does not apply.

Defendant as a mere passenger in a car had no standing to challenge the search of the car. Even if he did, he would lose on the merits because furtive movements led to officers have reasonable suspicion to detain him longer. State v. Thomas, 98 Conn. App. 542, 909 A.2d 969 (November 28, 2006).*

Reasonable suspicion required in Idaho for a probationer search, and it was present here. State v. Klingler, 143 Idaho 494, 148 P.3d 1240 (Ida. 2006)*:

Moreover, if a probationer has a drug history, courts should be more willing to find that reasonable grounds exist for a search. Anderson, 140 Idaho at 487-88, 95 P.3d at 638-39. In Anderson, this Court held that a probationer's drug history, indicating that a heightened need of supervision was necessary to protect him or her from society, is a factor for courts to consider in deciding whether reasonable grounds exist for a search. State v. Klingler, 2006 Ida. LEXIS 146 (November 24, 2006)*:

In this case, a probation officer heard from a detective at an intel meeting, with police and probation officers present, that Klingler may be dealing drugs. It was the second time the probation officer had heard allegations about Klingler's drug use. Further, it is apparent the trial court had some concerns about Klingler's possible drug use, as evidenced by its recommendation that Klingler complete an inpatient substance abuse treatment program as well as the court's second probation order requiring him to refrain from possessing or using any controlled substance. Based on the source of the tip (a police detective), the setting in which it was received (an intel meeting regarding felons on probation), and conditions on Klingler's probation, the probation officer had reasonable grounds to search Klingler's residence.

Plain feel was not obvious enough to justify seizing evidence off the defendant. Commonwealth v. Jones, 217 S.W.3d 190 (Ky. 2006)*:

Applying Dickerson and Crowder to the case at hand compels a finding that the search of Jones does not fall within the plain feel exception. In many respects, the facts in those cases are more compelling than those found in this case because, unlike those cases, there is no suggestion in the sparse record that Jones's residence or neighborhood were either high-crime areas in general or were known specifically as being narcotics-trafficking hotspots, nor is there any indication that Jones himself was suspected of being a drug trafficker. As did the suspects in Dickerson and Crowder, Jones began to walk away once he noticed the presence of authorities. But even if Jones's retreat from Teagle is considered to be a "flight," that flight, in and of itself, is insufficient to establish probable cause.

A Michigan District Judge holds that Summers does not grant carte blanche to detain every person who wanders into a search warrant being executed. United States v. Davenport, 2006 U.S. Dist. LEXIS 85965 (E.D. Mich. November 28, 2006):

Although the law, as set forth above, allows non-resident, non-occupant individuals that arrive at a residence that is the target of a search warrant to be detained while the search is being completed, the Court does not believe that the mere presence of a search warrant amounts to an unfettered blanket authorization to detain anyone the police may have a chance to encounter during their execution of the search warrant. In each of the cases extending the holding of Michigan v. Summers, the Sixth Circuit has carefully recognized the particular facts and circumstances that substantiate the legitimate law enforcement interests that support the warrantless seizure. See Fountain, 2 F.3d at 663 (Officers faced "a confined, unfamiliar environment that was likely to be dangerous."); Bohannon, 225 F.3d at 617 (Given defendant's intention to walk into house being searched, safety of officers and defendant was at risk.); United States v. Ridge, 329 F.3d 535, (6th Cir. 2003) (Officers who were searching a methamphetamine laboratory and received information that an armed third-party would soon be arriving at that location were justified in seizing the defendant without a warrant, when he arrived at the residence.).

In the instant case, because evidentiary testimony was not presented at the initial hearing on Defendant's motion, an articulable basis for the legitimate detention of Defendant pursuant to Summers, Fountain, and Bohanon has not yet been presented. Accordingly, because testimonial evidence and oral arguments could elucidate the officers' legitimate interests in Defendant's risk of flight, the risk of harm he presented to the officers, and whether Defendant could have, in any way, assisted in the orderly completion of the authorized search of the residence, the Court will set this matter for an evidentiary hearing.

Nexus for search warrant of Custom's officer's house was shown by fact that a shipment of evidence was received at his house. United States v. Schofield, 2006 U.S. Dist. LEXIS 85343 (E.D. Va. November 22, 2006):

The affidavit issued by Officer Izzard provided, inter alia, facts alleging shipment of a package by Defendant to a residence used to make payments for immigration stamps, testimony of an alien that had traveled to the residence in order to obtain false papers, and phone records indicating calls from the residence to suspected co-conspirators. The affidavit also included a determination by the affiant, based on experience of the officer, that evidence related to the crime would likely be found at Defendant's residence. All of this evidence provides an ample nexus between the alleged crimes and the residence to satisfy the criteria of Anderson and Gates.

Officers had reasonable suspicion for detention of defendant. "Based on hundreds of hours of physical surveillance, wire intercepts, statements of informants, and controlled narcotics transactions, DEA had a substantial basis to believe that [his passenger] was trafficking narcotics. Indeed, Defendant acknowledged that DEA had probable cause to believe [the passenger] was a drug trafficker." United States v. Rios-Ruiz, 2006 U.S. Dist. LEXIS 85780 (D. Ore. November 22, 2006).*

Entry on a federal arrest warrant led to a protective sweep and a plain view. United States v. Cantrell, 2006 U.S. Dist. LEXIS 85623 (W.D. Mo. November 21, 2006).

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

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

. . .

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

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

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

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

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

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

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

Todays AJC: Informant in shooting says he never bought drugs at house / He says police asked him to lie, by Rhonda Cook:

An informant who narcotics officers say led them to the house where an elderly woman was killed in a drug raid is accusing the officers of asking him to lie about his role, Atlanta police Chief Richard Pennington said Monday.

The informant, who has not been identified, complained to department officials that the drug investigators involved in the bust had asked him to go along with a story they concocted after the shooting, said Pennington. He said the informant had been placed in protective custody.

The informant told an Atlanta television station that the officers asked him to lie to provide them cover in the shooting.

Pennington confirmed the television station's account of what the informant had claimed and said it mirrored what the informant had told his Internal Affairs Unit over the weekend.

In the NYC shooting case, the Mayor's comments seemed to assume excessive force, while officers and "experts" are rallying around the officers, all before the facts are in. The Queens DA is planning a grand jury.

The failure to sign an affidavit for a search warrant is not fatal to a search warrant if the prosecution can still prove that the affiant was actually sworn. The oath is what is important, not so much the signature. Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. November 22, 2006):

. . . We agree with Vance [v. State, 759 S.W.2d 498 (Tex. App.-San Antonio 1998, pet. ref'd)] and the majority of the out-of-state courts and hold that the failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.

The present situation might usefully be compared to that of self-proved wills. A will may be made self-proved by the affidavits of the testator and his attesting witnesses, as long as the affidavits are signed and certified in accordance with the specific statutory requirements. A self-proved will may be admitted to probate court without the need for testimony of a subscribing witness, but a will is not invalid simply because it does not contain the statutory affidavits. It merely does not qualify as a self-proved will, and the proponent of the will must call one or more of the attesting witnesses to testify.

Although the affiant's signature on an affidavit serves as an important memorialization of the officer's act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer's oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid. That is not to condone carelessness or sloppiness in either police procedure or judicial oversight. Forgetfulness or carelessness in the formalities of an affidavit may well indicate to either the issuing magistrate or the reviewing court that the officer is forgetful or careless in his factual statements as well. Such forgetfulness may affect the credibility of the officer, but that is a matter for magistrates and trial courts. It is sufficient for today to simply conclude that an affiant's failure to sign his affidavit is not necessarily fatal if it can be proved by other means that he did swear to the facts contained within that affidavit before the magistrate.

The Sixth Circuit held yesterday, on a government appeal from a suppression order by the W.D. Tenn., that the affidavit for the search warrant in this case was truly bare bones, showing no nexus between the drug seizure off of defendant and his house. Even under the deferential standard of review for the good faith exception, the affidavit fails. United States v. McPhearson, 469 F.3d 518 (6th Cir. November 27, 2006):

The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a "bare bones" affidavit. Id. at 748. A bare bones affidavit is one that merely "states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge." Weaver, 99 F.3d at 1378.

Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a "substantial basis" for the magistrate's conclusion of probable cause. Laughton, 409 F.3d at 748-49 (quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49.

The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson's residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. "We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good faith belief in the warrant's validity, even if the information provided was not enough to establish probable cause." Carpenter, 360 F.3d at 596. The minimal nexus required to support an officer's good faith belief was not present in this case.

The only connection in the affidavit between 228 Shelby Street and drug trafficking was that Jackson police arrested McPhearson at his residence and found crack cocaine in his pocket in a search incident to the arrest. This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause. See Frazier, 423 F.3d at 536-37; Carpenter, 360 F.3d at 595-96; United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994); Savoca, 761 F.2d at 298-99. The application of the good-faith exception in Frazier, Savoca, and Van Shutters depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity that the police were investigating. In Frazier, the defendant was a known drug dealer and drugs had been found at his prior residence. 423 F.3d at 537. In Savoca, the defendants had been identified as the perpetrators of a string of bank robberies in two states. 761 F.2d at 295-98. Similarly, in Van Shutters, the defendant had confessed to perpetrating an auto-theft scheme. 163 F.3d at 336-37. Finally, in Shultz, the court found that the minimal nexus was satisfied by the officer's reliance on his years of experience as a narcotics investigator and the knowledge he had acquired of drug dealers' business practices. 14 F.3d at 1098. Each of these additional facts, although not sufficient to establish probable cause, created the minimal nexus between the place to be searched and the evidence sought that would permit application of the good-faith exception. In this case, there are no analogous facts that establish the minimal nexus. The affidavit merely stated that: (1) "Inv. Mathis and Wiser went to 228 Shelby Street and knocked on the door. A black male answered the door and identified himself to be Martedis McPhearson"; (2) "McPhearson was searched prior to being placed in the police car for transport to booking. Investigator Wiser discovered in McPhearson's right front pocket a clear plastic bag containing . . . [crack cocaine]"; and (3) "E-911 records revealed that 228 Shelby is the residence of Martedis McPhearson." The affidavit did not allege that McPhearson was involved in drug dealing, that hallmarks of drug dealing had been witnessed at his home, such as heavy traffic to and from the residence, or that the investigating officers' experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested). Instead, the "evidence in the affidavit connecting the crime to the residence [wa]s 'so vague as to be conclusory or meaningless.'" Frazier, 423 F.3d at 537 (quoting Carpenter, 360 F.3d at 596). Therefore, we conclude that the district court properly refused to apply the good-faith exception to validate the search because the affidavit was "so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable." Laughton, 409 F.3d at 748.

Community caretaking function justified officer entering car to check on unconscious driver. Officer could immediately tell that the driver was likely drunk, and he got him out of the car and he could not stand. DUI affirmed. People v. Robinson, 368 Ill. App. 3d 963, 307 Ill.Dec. 232, 859 N.E.2d 232 (5th Dist. November 22, 2006) (released for publication January 5, 2007).*

The Atlanta Journal-Constitution has an article today: Chief vows to review shooting.

Five days after an elderly woman was killed in a gunbattle that left three officers wounded, Atlanta police Chief Richard Pennington said Sunday night his department will review its policy on "no knock" warrants and its use of confidential informants.

Speaking for the first time since the Tuesday night shooting death of Kathryn Johnston at her home in northwest Atlanta, Pennington said his office "will turn over every stone to make sure we get to the reason why this tragic incident happened."

. . .

The police chief said officers found marijuana inside the house but "not a large quantity." Previously, police only said drugs were seized at Johnston's home.

On the recent NYC shooting with 50 shots, the NYTimes.com has this article today: 50 Shots Fired, and the Experts Offer a Theory.

It is known in police parlance as “contagious shooting” — gunfire that spreads among officers who believe that they, or their colleagues, are facing a threat. It spreads like germs, like laughter, or fear. An officer fires, so his colleagues do, too.

The phenomenon appears to have happened last year, when eight officers fired 43 shots at an armed man in Queens, killing him. In July, three officers fired 26 shots at a pit bull that had bitten a chunk out of an officer’s leg in a Bronx apartment building. And there have been other episodes: in 1995, in the Bronx, officers fired 125 bullets during a bodega robbery, with one officer firing 45 rounds.

Just what happened on Saturday is still being investigated. Police experts, however, suggested in interviews yesterday that contagious shooting played a role in a fatal police shooting in Queens Saturday morning. According to the police account, five officers fired 50 shots at a bridegroom who, leaving his bachelor party at a strip club, twice drove his car into a minivan carrying plainclothes police officers investigating the club.

No cases today.

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

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

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

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

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

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

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

. . .

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

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

Oregon holds that a search warrant that mistakenly only authorized a search but did not mention a seizure did not prevent a seizure, at least under plain view doctrine, because the police were lawfully inside the premises. State v. Carter, 342 Ore. 39 (November 24, 2006), aff'g in part 200 Ore. App. 262, 113 P.3d 969 (2005):

The history confirms what the text of Article I, section 9, and this court's cases construing it demonstrate. The purpose of the particularity requirement was to prevent the use of general warrants -- to ensure that a warrant described with particularity the person to be seized, the place to be searched, or the thing to be seized. Nothing in that history suggests that the framers intended to require that every warrant authorize both a search and a seizure, as defendant argues. Considering the text of Article I, section 9, this court's cases construing that provision, and its history, we conclude that a warrant that authorizes only a search or only a seizure is facially valid under Article I, section 9.

Defendant raises a second argument. He contends that, unless a warrant authorizes a seizure as well as a search, it will be an impermissible general warrant. The question, however, whether a warrant authorizes both a search and a seizure has nothing to do with the question whether it is a general warrant. A warrant that authorized both a search and a seizure could do so in the most general terms and thus could run afoul of the particularity requirement. See Reid, 319 Ore. at 69-70 (describing vice of general warrants); Joseph Story, 3 Commentaries on the Constitution of the United States 748-50 (1833) (same). Conversely, a warrant that authorized only a search or only a seizure may be sufficiently particular -- a proposition that the warrant in this case illustrates. The warrant in this case authorized the officers to search only for specific types of evidence in defendant's home. It thus limited the areas in which they could search and avoided the vice inherent in general warrants.

The Court of Appeals correctly held that the warrant at issue here was facially valid. Given the state's concession that the warrant does not authorize a seizure as well as a search, the Court of Appeals permissibly remanded the case to the trial court to determine whether the officers could seize the evidence (that they did seize) under the plain view doctrine. In the context of this case, that doctrine permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime. See State v. Sargent, 323 Ore. 455, 463 n 5, 918 P.2d 819 (1996) (evidence of a crime in plain view); State v. Lippert, 317 Ore. 397, 403, 856 P.2d 634 (1993) (contraband in plain view).

Affidavit for search warrant was supported by probable cause, which is a "fair probability" that evidence would be found. Also, the officers corroborated the informant's information. In any event, the good faith exception would also apply. United States v. Amaya, 2006 U.S. App. LEXIS 29109 (10th Cir. November 22, 2006)* (unpublished).

A bank robber had no reasonable expectation of privacy in his bank records or car rental records from production at trial. "'[A]n individual has no claim under the fourth amendment to resist the production of business records held by a third party.' In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988). In short, Grimmette had no Fourth Amendment right of privacy in these records kept and maintained by Wachovia Bank and Accent Car Rental." United States v. Grimmette, 208 Fed. Appx. 709 (11th Cir. 2006)* (unpublished).

Excessive nervousness, rambling conversation, and masking odor all added up to reasonable suspicion. United States v. Powell, 2006 U.S. Dist. LEXIS 85018 (D. Kan. November 21, 2006).*

Today's AJC article on the Atlanta SWAT shooting is here. It adds nothing new.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The W.D. Ark. holds that a civil action for return of property under Rule 41(g) with a six year limitations period, 28 U.S.C. § 2401(a), must be filed within six years of "the conclusion of criminal proceedings, U.S. v. Sims, 376 F.3d 705 (7th Cir. 2004)." Defendant had to know when his property was seized, and the six years expired August 25, 2006 (six years and ten days after the J&C, from which there was no appeal). His action was filed in December 2005 and was untimely. Only the Seventh and Tenth Circuits have ruled on the issue. United States v. Mendoza, 2006 U.S. Dist. LEXIS 84881 (W.D. Ark. November 21, 2006).

Lack of findings on apparent authority to consent required remand for findings. There was an indication in the record that an objecting co-tenant could have been removed in attempt to avoid denial of consent contrary to Randolph. United States v. Groves, 470 F.3d 311 (7th Cir. November 22, 2006)* (unpublished).

Reasonable suspicion: "suspicious movements (which continued after he was told to stop) together with his extreme nervousness and his close proximity to a street known for illegal drug sales, police officers could reasonably believe their safety or the safety of others was in danger." United States v. King, 2006 U.S. App. LEXIS 28996 (D.C. Cir. October 2, 2006)* (memorandum opinion).

Informant information that public details could only be corroborated was insufficient for reasonable suspicion. Trial court's suppression order affirmed. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726 N.W.2d 337 (2006):

P17 To recapitulate, the police were able to corroborate: (1) Kolk's identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it, possibly on the way to Madison. This information strikes us as both more widely available and less significant than that in (Roosevelt) Williams, in which the informant provided specific information about the drug transactions that she was witnessing, and we hold it insufficient to uphold Kolk's detention.

A defendant who was not the registered owner of the vehicle searched by the police had standing to challenge its search where he had his own keys, helped pay for it, and could drive it anytime he wanted. He showed a subjective expectation of privacy that society would recognize as reasonable. United States v. Cannon, 2006 U.S. Dist. LEXIS 84403 (S.D. Ind. April 5, 2006).

A defendant who lived in the same house with the owner of a vehicle who did repair work on it and could drive it at will had standing. United States v. Harms, 2006 U.S. Dist. LEXIS 84673 (D. Neb. May 2, 2006).

Smell of anhydrous ammonia coming from bed of pickup truck gave officer probable cause to believe that it contained a meth lab. Id.

Flight alone is an insufficient basis for a stop. Flight + hunch ≠ reasonable suspicion. State v. Raphael, 2006 Ohio 6163, 2006 Ohio App. LEXIS 6130 (8th Dist. November 22, 2006).

No law here, but this is typical of meth heads: Defendant and his wife argued over the defendant's meth lab, which she told him to get out of the house, and the defendant became irate and assaulted her which led to a 911 call and her consent to search for the meth. The search was not even an issue on appeal. Defendant was sentenced to 25 years without parole. State v. Riley, 213 S.W.3d 80 (Mo. App. W.D. November 21, 2006).*

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

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

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

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

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

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

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

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

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

In Wyoming, the State admits that defendant's stop was pretextual but based on speeding, so it still wins. Fertig v. State, 2006 WY 148, 146 P.3d 492 (November 17, 2006). The court recognized that it is free to interpret its state constitution more broadly than the Fourth Amendment, and it analyzes all the factors involved and concludes that it should not. (This case has a good discussion of state court decisions that have departed from the U.S. Supreme Court on pretextual stops, and the Wyoming court concludes the better rule is to follow the Supreme Court.)

Pretextual arrest issue was foreclosed by facts that clearly showed officer saw defendant crossing the centerline and that defendant did not have a driver's license. His consent to search the car was clearly heard on the videotape of the stop. Casey v. State, 97 Ark. App. 1,
242 S.W.3d 627 (2006).*

Defendant's IAC claim failed on search issue where the defendant's mother was present when the police showed up and asked about a gun. Defendant's mother interrogated the defendant who admitted to the gun being under the porch, and that was a sufficient basis for the search for the gun. Counsel could not be ineffective. Ricks v. Commissioner of Correction, 98 Conn. App. 497, 909 A.2d 567 (November 21, 2006).*

Smell of marijuana plus a dropped bag of marijuana justified a search warrant for defendant's house. Boldin v. State, 282 Ga. App. 492, 639 S.E.2d 522 (November 20, 2006):

Further, having found these facts, the trial court correctly ruled that White had probable cause to suspect that contraband was in Boldin's residence. Although the odor of marijuana may not suffice by itself to provide probable cause for the search of a residence, the odor of burning marijuana is one of the factors which, under the totality of the circumstances, will support a finding of probable cause. Here, the officer also observed marijuana in a plastic zip-lock bag on the floor of the garage, after it fell from a garbage bag held by defendant as he fled into the house. The officer's observation of objects within the garage from its threshold, that is, from a vantage point outside the home, "was a lawful 'nonsearch plain view situation,' " supporting a finding of probable cause to suspect that contraband was in Boldin's house.

A municipal judge issued a DNA warrant for a person outside the territorial jurisdiction of the court. While it violated state statute, that did not make a constitutional violation warranting suppression of evidence. The same applies to the officers executing the warrant. State v. Bowman, 2006 Ohio 6146, 2006 Ohio App. LEXIS 6094 (10th Dist. November 21, 2006):

[*P12] R.C. 1901.02 establishes that the jurisdiction of municipal courts is "within the corporate limits of their respective municipal corporations," and it designates them to be "courts of record." R.C. 1901.02(A). The Franklin County Municipal Court has jurisdiction within Franklin County. R.C. 1901.02(B). Neither a statutory violation, nor a violation of Crim.R. 41, requires suppression of the DNA evidence at issue if the search and seizure was constitutionally sound.

[*P13] Within those general parameters, defendant does not assert the court acted unconstitutionally in issuing the search warrant. Specifically, he does not challenge the issuing court's determination of probable cause. Similarly, defendant does not allege that the judge who issued the warrant was anything other than neutral and detached. Nor does defendant suggest police misconduct, such as judge shopping, or contend that absent the warrant at issue, the search would not have occurred, for the warrant could have been obtained as easily from the Pickaway County Municipal Court and would have resulted in law enforcement's obtaining the same DNA evidence.

[*P14] Rather defendant contends a statutory violation occurred when the court issued the warrant. Although the relevant statutory provisions were violated, suppression is not required because no constitutional violation occurred. State v. Hardy (Aug. 28, 1998), Montgomery App. No. 16964, 1998 Ohio App. LEXIS 3928 (holding that although the municipal court did not have the territorial jurisdiction to issue the warrant, suppression of the evidence was not necessary where the warrant was based on probable cause, the officers could have just as easily obtained a warrant from the proper jurisdictional court, and no evidence suggested police misconduct such as judge shopping); State v. Wilmoth (1986), 22 Ohio St.3d 251, 22 Ohio B. 427, 490 N.E.2d 1236.

[*P15] Defendant also argues that suppression is required because the Columbus officers violated pertinent statutes in executing the warrant in Pickaway County, outside their jurisdictional limits. Generally, a police officer does not have the statutory authority to execute a search warrant outside his or her jurisdiction. Klemm; State v. Adams (Mar. 29, 2001), Franklin App. No. 00AP-850, 2001 Ohio App. LEXIS 1448; State v. Leadingham (Feb. 6, 1990), Scioto App. No. CA-1753, 1990 Ohio App. LEXIS 385. Where, however, "probable cause exists to issue a search warrant, the search will be deemed constitutional even though the warrant was executed by police officers outside of their jurisdictional limits." Id.

Trial court's finding that stop of vehicle in a "violent housing project" "was more akin to a hunch than it was to the suspicion needed to justify the stop" was supported by the record and affirmed. State v. Hill, 2006 Ohio 6118, 2006 Ohio App. LEXIS 6091 (2d Dist. November 17, 2006).*

In a health care fraud investigation, the E.D. Pa., following Third Circuit precedent, evaluates the good faith exception first and finds that it applies. As to a particularity challenge, just because "agents conducting the search stripped her medical offices bare and took all of her patients' files, including those from the spa and cosmetic business, financial paperwork, procedural manuals, and other documents" did not mean that the search was overbroad; it depends upon what is being investigated. United States v. Comite, 2006 U.S. Dist. LEXIS 84121 (E.D. Pa. November 17, 2006):

Initially, concerning particularity, Defendant asserts that while Yusuf notes "the government is to be given more flexibility regarding the items to be searched" in complex financial investigations such as money laundering, Yusuf, 461 F.3d at 395, the same is not true for a fraudulent claim case against a physician. The Court rejects this distinction and finds that an investigation into a physician making false claims to an insurance company can be just as, if not even more, complex than other financial-based investigations into federal crimes. See United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982) ("flexibility is especially appropriate in cases involving complex schemes spanning many years"). It is obvious from both the pretrial papers and the arguments made at the hearings before this Court that the government went through painstaking detail to gather the evidence that led to the search and grand jury indictment in this case. This is also reflected in the evidence submitted to the Court at the hearings, including the summary charts referenced above. Proving beyond a reasonable doubt that a physician committed fraud is not an easy undertaking, and investigators with probable cause must have the flexibility noted in Yusuf to complete their task.

Defendant is correct that Attachment B to the search warrant, which lists the types of documents to be seized, is very broad and includes, without limitation, all patient records. Defendant asserts that the agents should have selected specific patient files since the investigation by the agents had given them reason to know the names of the patients for whom Defendant made reimbursement requests when she was out of the office and for whom she upcoded the requests for reimbursement. Instead of making selective seizures of these records, the agents apparently took all of Defendant's files and computers. The government does not dispute this fact, and the photographs taken of the Defendant's office after the agents left corroborate Defendant's account.

While this may seem overly broad in the abstract, the nature of the investigation allowed the government to secure and review data on all of Defendant's patients. It was not required to limit its seizure to the specific patient records which a preliminary investigation had shown might show fraud. As in United States v. Christine, the warrant in this case does not "vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees' papers in search of criminal evidence." 687 F.2d at 753. Instead, the warrant describes "in both specific and inclusive generic terms what is to be seized" as determined by the magistrate. Id. The Affidavit suggests Defendant had a pattern and practice of overcharging third-party payors on a regular basis. The extent of Defendant's practice, even the total universe of her patients, may be probative as to Defendant's intent or motive before a jury, even if there is no specific charge in the indictment with respect to every patient. Otherwise, the jury might not get a full picture of the Defendant's intent, an element the government must prove at trial. Because of this, a more precisely enumerated list of items was not feasible. Even though the government had evidence that certain patient records were likely to show fraud, it could not know precisely what other documents and information would assist it in proving Defendant's intent or motive. See United States v. Rankin, 442 F. Supp. 2d 225, 230 (E.D. Pa. 2006).

Plaintiff, identified in the press as a possible serial killer because he refused to provide a DNA sample when he had an alibi which led to a search warrant for his DNA which was publicly filed, stated a claim for relief based on the affidavit for the DNA search warrant which failed to show probable cause. The plaintiff was cleared two months later when the DNA did not match. Also, his shoe size did not match the suspect's footprint. The police had a tip line, and plaintiff's name was provided by two anonymous sources. The officer threatened plaintiff with disclosing that he was uncooperative with the press if plaintiff did not consent, and he still did not. Kohler v. Englade, 470 F.3d 1104 (5th Cir. November 21, 2006).

"Plaintiff alleges that the confiscation of his religious materials [in prison] constitutes a 'cruel and unusual seizure.'" This fails to state a claim for relief. Kitchen-Bey v. Hoskins, 2006 U.S. Dist. LEXIS 84090 (W.D. Mich. November 20, 2006).*

Motion to suppress denied in child porn case based on the affidavit. Probable cause was shown and the allegations of a Franks violation were not material enough to warrant suppression. United States v. Gaynor, 2006 U.S. Dist. LEXIS 83929 (D. Conn. November 9, 2006):

There is . . . a presumption of validity with respect to the affidavit supporting [a] search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). "In certain circumstances, however, a defendant may challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure." United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). "However, every statement in a warrant affidavit does not have to be true." United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (internal quotation marks omitted).

In Northeast Atlanta, near Georgia Tech, police made a drug buy from a house and came back with a search warrant, raiding the house. They shot dead a 92 year old woman who had a gun defending her house. The Atlanta police involved seemed, to me, particularly cavalier about the entire matter. "'This seems like another tragedy involving drugs,' [ADA] Howard said."

How much of this is attributable to flawed Supreme Court policy statements?

The Atlanta Journal-Constitution has this story today: Questions surround fatal shooting of woman, 92, by Jeffry Scott & S.A. Reid:

As a northwest Atlanta neighborhood roiled over news that police had stormed a house and shot a 92-year-old woman, Atlanta police officials said Wednesday that cops had made a drug buy at the home and were returning to search the residence.

Three narcotics investigators were wounded in the Tuesday night shooting when the home's occupant emptied a six-shot revolver at them. Police identified the dead woman as Kathryn Johnston. The investigators were released from the hospital Wednesday morning.

Assistant Police Chief Alan Dreher said a suspect was not arrested after the buy. He said the suspect's identity is not known, nor is it known what relationship, if any, the suspect had to the dead woman.

Dreher, in a news conference on Wednesday, said the officers broke through a burglar bar entry door and then a wooden door. The police, whom Dreher called "experienced officers," were not wearing uniforms but had on vests with "police" on the front. He said they were inside the house when they were shot.

Investigator Gregg Junnier, 40, was shot three times, police said, in the side of the face, in the leg and in the center of his protective vest. Investigator Gary Smith, 38, was shot in the left leg, and Investigator Cary Bond, 38, was shot in the left arm.

"There is going to be a complete investigation," Dreher said. "There have been no predeterminations made in this case."

He said that "suspected narcotics" were found at the home at 933 Neal Street, an area west and north of the Georgia Dome known for drug activity.

Dreher handled details of the incident because Chief Richard J. Pennington was out of town for the Thanksgiving holiday.

Fulton County District Attorney Paul Howard said the officers in such situations "use what they believe is their best intelligence" when entering a home to make an arrest. "They thought they could enter the home safely."

"This seems like another tragedy involving drugs," Howard said.

It was not immediately clear how long Johnston had lived at the Neal Street home. Neighbors said she lived alone. On Wednesday morning, they described her as a "good neighbor" and said she was "law abiding."

State Rep. "Able" Mable Thomas (D-Atlanta) called Johnston's death "unfortunate" and said a number of upset neighbors and other residents called to say neither Johnston nor her Neal Street home were in any way connected to illegal drug activity, as police suggested.

"The community does not want to digest that there was a 92-year-old woman in that house and all of a sudden there's a confrontation with police and now she's dead," said Thomas, whose district includes the neighborhood where the shooting occurred. "A confrontation with police and a 92-year-old woman don't go together."

Police say they followed proper procedures. Thomas hopes they did, but added: "When you see a 92-year-old being the victim of circumstances like this, we know something is going wrong."

Atlanta is CNN's hometown, but their story is much shorter, but includes a video of a relative of the deceased.

Comment: Since Justice Scalia and his cohorts on the U.S. Supreme Court decided last Term in Hudson v. Michigan that the exclusionary rule no longer applies to knock-and-announce, the police no longer have any incentive to comply with the law, although the Court said that there were other purported protections of citizens besides the exclusionary rule. (Mrs. Johnston and her family would differ.) And, if the police no longer have an incentive to comply with the law, it is only natural that innocent deaths will happen, both of officers and civilians. I wrote the brief in the knock-and-announce case of Wilson v. Arkansas and I wrote most of the brief in Richards v. Wisconsin. The government always talks about the need to not announce to protect officers from injury or death at the hands of criminals, but they never wrote in any brief that they were the slightest bit concerned with potential deaths of civilians or of police at the hands of innocent civilians.

Mr. Justice Scalia and those who voted with you, this death was encouraged by your holding. I'm not going to the extreme of saying that this poor woman's death is "on your hands," but her death certainly points out that you did not know what you were talking about when you wrote Hudson and uncritically took all the "empirical evidence" and government arguments at face value, ignoring reality and common sense. In my fourteen years of intimate experience with the knock-and-announce rule since the suppression hearing in Wilson, I have seen the callousness of police and courts to the "right of the people to be secure" "from unreasonable searches and seizures." Please, just admit that you were wrong in uncritically accepting police arguments about their needs and ignoring citizen protections, and overrule Hudson so Mrs. Johnston will not have died in vain.

Update on Thursday: Drugs were found in the house after officers searched. An arrest warrant has been issued for a "John Doe aka Sam."

Defendant signed a general consent to search his house, and, during the course of the search, officers picked up a pager and looked through the numbers. The pager was included within the search, and the defendant never voiced objection. Guy v. State, 913 A.2d 558 (Del. November 16, 2006).

Police were not required to contact the owner of a car before inventorying it after arrest of the driver. The car might be left on the parking lot indefinitely. State v. Kerr, 2006 Ohio 6058, 2006 Ohio App. LEXIS 6007 (6th Dist. November 17, 2006):

When considered together, these sections of the Northwood policy provide an established procedure which permitted the officers to tow the vehicle appellant was driving. Appellant was not the owner of the vehicle and was being taken into custody. Although the owner was known, the police were not required to try to locate that owner prior to the decision to tow. The vehicle was parked in a gas station and, under the circumstances of appellant's arrest, the police had no way of knowing how long it would remain there before the owner might retrieve it.

Search of student's car in school parking lot had to be based on reasonable suspicion, and here it was. State v. R.D.S., 2006 Tenn. App. LEXIS 733 (November 17, 2006).

Probable cause was a close question, but it existed, for photographs which would show a computer in defendant's possession for evidentiary use only. Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. November 20, 2006).

Defendant's discovery motion sought to invoke the "silver platter" doctrine of Elkins, but that applies to suppression motions, not discovery. United States v. Hunter, 2006 U.S. Dist. LEXIS 83836 (D. Conn. November 16, 2006).

Officer saw defendant walking down the street, and defendant walked faster after seeing the officer. The officer pulled up to him, without lights, and said: "Excuse me." Defendant came over to the patrol car and talked to the officer, and the officer could smell alcohol. Defendant was a minor. The stop was valid and consensual. State v. Ruehl, 2006 Ohio 6054, 2006 Ohio App. LEXIS 6010 (6th Dist. November 17, 2006).

Defense counsel at trial was ineffective for not filing a motion to suppress that would have prevailed on protective sweep. Habeas relief granted. State courts' conclusions were contrary to clearly established Fourth Amendment law under Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Howie v. Crow, 2006 U.S. Dist. LEXIS 82283 (W.D. N.C. November 9, 2006).

Question of PC need not be decided in this case because it is clear that the GFE applied. United States v. Jimenez, 205 Fed. Appx. 656 (10th Cir. 2006)* (unpublished). Comment: This is not the preferred method of resolving good faith exception claims, and I vehemently disagree with punting the PC issue without thinking. But, if the court, in its gut, knows that PC was present, why spend a long time discussing it when the GFE claim is obvious? If so, they should at least just mention something like "we believe probable cause was present, but we do not address it because the good faith exception obviously applies."

Really. One unreported case. Will this be a slow week? Or, will Wednesday have a bunch of cases?

In Louisiana, officers received a report from an informant that the defendant was operating a meth lab in a shed behind his house and cooks started at midnight. Officers staked out the area and attempted to approach from open fields. They turned on lights of their cars and yelled to the defendant to try to flush him out, and he was arrested and they searched. The trial court suppressed and the appellate court affirmed, finding that the area was within curtilage (although the record was deficient, so the trial court's findings got deference) and not open fields. The officers' two day wait belied exigency. State v. Hemphill, 942 So. 2d 1263 (La. App. 2d Cir. November 17, 2006):

The Tip and Entry on Curtilage:

In this case, the anonymous tip provided some information that predicted criminal activity as well as merely descriptive information. The caller stated that Mr. Hemphill ran a meth lab in a shed south of his mobile home and that the methamphetime "cooks" generally started after midnight. Det. Pittman was able to confirm activity after midnight in the shed and associated that activity with meth production by the smell of what he said was ether, but not before entering the defendant's backyard and moving near the shed. The state attempted to establish that Det. Pittman corroborated the requisite predictive elements of the tip before entering defendant's yard by establishing that Det. Pittman saw the mobile home and some kind of other structure "upon arrival of the officers." However, the testimony of Det. Pittman indicates that he only identified a mobile home and some unidentified structure. These are merely general descriptive facts not predictive of any criminal activity. See Florida v. J.L., supra. The existence of a mobile home residence and a structure in the backyard is commonplace in Louisiana, particularly in outlying areas.

We also observe that a photograph in evidence shows that the property was partially enclosed with a privacy fence. The officers entered the defendant's property from the unenclosed portion of the yard that appears to be the backyard of the defendant. Det. Pitman testified that the yard was clearly distinguishable from the field by the grass, so he clearly knew he was entering the yard of the defendant.

Although the district court found that the defendant was adversely affected by the agents' entry into the neighboring property as well as the defendant's property without a warrant, it did specifically state that it had determined that crossing into the defendant's yard itself was a violation of the Fourth Amendment. There has been no argument on appeal that the backyard constituted "open fields," that is, the land outside the curtilage of the home and was therefore excepted from the warrant requirement of the Fourth Amendment since it is entitled to no more protection than public land. Oliver v. U.S., 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984). Nor has it been argued that the backyard was within the curtilage and therefore protected.

. . .

Although the evidence in this record to make a determination on this issue is weak, applying an objective standard, we conclude that the defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation, according to Det. Pittman. It was after midnight when the agents were sneaking furtively around the defendant's yard, thereby creating the possibility of a violent confrontation. We also note that the state prosecutor was clearly concerned by the entry into the yard because she tried to establish that the MNU agents confirmed predictive elements from the anonymous tip before entering the defendant's property. This was clearly not established, however, and Det. Pittman testified that the yard was clearly distinguishable from the field and other testimony and evidence indicates that there were some steps taken by the defendant toward privacy. Accordingly, we must conclude that the trial court was not clearly wrong in its finding that the defendant was adversely affected by this entry. We further conclude that the state did not carry its burden in showing that the warrantless entry into the yard was justified by the agent's corroboration of some of the descriptive information from the anonymous tip.

Probable Cause Based On the Smell of Ether:

Even if we were to assume that the warrantless entry into the defendant's yard was justified, the next issue is whether the agents obtained probable cause to search or arrest the defendant without a warrant. As stated above, the anonymous tip provided some predictive information regarding the defendant's criminal activities, namely, that the defendant was operating an active meth lab and the meth "cooks" generally began after midnight. The agents arrived at the scene about 12:30 AM. Once in the defendant's yard, they observed, with night vision equipment, a male walking from the trailer to the shed. Det. Pittman testified that he saw the person make three trips back and forth, ending in the trailer, while the defendant testified he only made one trip from his trailer to the shed. At this point in the investigation, there was at least partial confirmation that there was some activity taking place after midnight, albeit nothing criminal at this point. Detectives positioned themselves to the west of the shed, and Det. [Pg 18] Pittman said that they smelled a strong odor of ether, but they could not pinpoint the source of the odor. It appeared to be coming from the general direction of the trailer and shed because the wind was from the east. Based upon his experience in drug enforcement, Det. Pittman knew that ether is used in the production of methamphetamine, and his past experience was that this confirmed the existence of an active meth lab. The agents then moved closer to the shed and Det. Pittman said that the smell of ether was stronger and he heard activity in the shed that sounded like what could have been someone sharpening mower blades and he did not associate it with meth lab activity. Nevertheless, he associated the activity in the shed with an operating meth lab because of the odor from the shed and the fact that there was some activity in the shed, although its exact nature was unknown.

Because this information tended to corroborate the predictive information from the anonymous tip, that is, activity after midnight and the odor associated with methamphetamine production, we conclude that the MNU agents had probable cause that would justify obtaining a search warrant to enter the shed. Det. Pittman, however, elected not to obtain a search warrant. Rather, he decided that he would flush out the defendant from the shed and shut down the meth lab. The state contends that his decision was justified based on exigent circumstances.

Exigency, Seizure of Defendant, and "Plain View" or "Plain Smell":

A warrantless search is per se unreasonable unless the police are able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. United States v. Richardson, 208 F.3d 626 (7th Cir. 2000). A police officer's subjective belief that exigent circumstances exist is insufficient to justify a warrantless search; instead, the test is an objective one. See U.S. v. Richardson, 208 F.3d at 629 (7th Cir. 4/3/00); U.S. v. Elder, 352 F. Supp. 2d 880 (C.D.Ill. 1/19/05). As previously stated, exigent circumstances may arise from the need to prevent the offender's escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, supra; State v. Hathaway, 411 So. 2d 1074 (La. 1982).

The district court found that exigent circumstances did not exist to justify the actions of the police. The court believed that exigency based on the concern of police for safety was "watered down," inasmuch as the agents waited two days before investigating the tip. The state argues that the deputies entered the defendant's shed to look for the defendant for the purpose of ensuring the safety of Mr. Hemphill, the agents near the shed and the neighbors in the house next door.

According to Det. Pittman, he decided to shut the operation down after he smelled ether and the activity he heard in the shed. He first attempted to lure the defendant out of the shed by sending for the units that were held back, telling them to come down the driveway with all lights. After positioning himself and the other agents by the shed door, Det. Pittman either opened the door himself, or when defendant opened the door, he reached into the shed and pulled the defendant out. On the one hand, he testified that he did not really take time to look into the shed from the doorway because he was handling the arrest of the defendant. On the other hand, he testified later that he was able to see and smell ether emanating from the meth lab located in the unlighted shed 30 feet from the door in the back corner. Subsequently officers found two unopened containers of ether and a meth lab set up in the shed. Defendant contends that the officers were smelling anhydrous ammonia, which is used in the meth cooking process, and which the defendant admits he was mixing.

We agree with the district court that the agent's actions were unjustified on any of the grounds constituting exigency. First, there was no likelihood of escape. Det. Pittman and four other agents were present at or near the shed. Additional officers were waiting "there for Mr. Hemphill," presumably to take Mr. Hemphill into custody or to assist in case Mr. Hemphill attempted to escape. Second, once the agents smelled ether and heard activity going on inside, they could have obtained a search warrant provided their intrusion into the yard was justified. If the officers were concerned with safety, they could have moved to a safe distance from the shed and evacuated the neighbors, if they were indeed threatened. Third, the officer's concern for Mr. Hemphill's safety is indeed watered down by the two-day delay investigating the tip.

Hence, we conclude that the district court's determination that exigent circumstances were not present to justify the warrantless arrest of Mr. Hemphill was not plainly wrong.

We also reject the search of the shed based on "plain view" or possibly "plain smell."

Search of car by consent was not overly intrusive because the search did not materially alter the car as prohibited by NY law. People v Reed, 2006 NY Slip Op 8588, 34 A.D.3d 1364, 825 N.Y.S.2d 600 (4th Dept. 2006).*

A reasonable person would have felt free to leave, so the stop was not extended by the officer's actions. Saldivar v. State, 209 S.W.3d 275 (Tex. App. — Ft. Worth November 16, 2006).*

Consent had been obtained to search a boat on a trailer on the roadside, as a Coast Guard inspection. Officers in the meantime got a search warrant for the boat. The fingerprints and palmprints were in plain view for seizure under the search warrant. United States v. Zaldivar, 2006 U.S. Dist. LEXIS 83460 (M.D. Fla. November 16, 2006).

Factors in reasonable suspicion were (1) furtive movement, (2) "nervous demeanor," and (3) stop was in "reasonably high-crime area." United States v. Meredith, 2005 U.S. Dist. LEXIS 43940 (E.D. La. July 6, 2005).*

Defendant's guilty plea waived his right to appeal search claim. Johnson v. State, 282 Ga. App. 464, 638 S.E.2d 873 (November 17, 2006).*

Even if defendant revoked his consent, it occurred after admissions were made, which remained admissible. State v. Beckwith, 725 N.W.2d 659 (Iowa App. November 16, 2006).

Officers got word from a farm supply store that a woman in a particular vehicle bought two bottles of iodine. Officers cruised by the house until the vehicle arrived, waited a while, and then did a knock and talk. The woman came to the door with iodine stains on her hands and wafting from the house was the unmistakable smell of an operating meth lab. Entry was justified. Bottom v. Commonwealth, 2006 Ky. App. LEXIS 340 (November 17, 2006).*

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

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

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

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

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

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

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

A Terry frisk does not permit a search of a cigarette pack because weapons cannot be secreted there. State v. Horton, 136 Wn. App. 29, 146 P.3d 1227 (November 16, 2006) (raised in the context of an IAC claim; defense counsel found ineffective for not raising issue).

Stop for not having seatbelt on was valid and supported DUI conviction. State v. Beffrey, 2006 Tenn. Crim. App. LEXIS 892 (November 16, 2006).*

Under Idaho law, in an administrative proceeding on a suspension of a driver's license, the defendant has the burden of proving that the officer lacked reasonable suspicion or probable cause for the stop. In re Driver's License of Gibbar, 155 P.3d 1176 (Ida. App. 2006).*

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

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

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

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

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

NJ applies New York v. Harris, 495 U.S. 14 (1990), and concludes that an arrest on an arrest warrant but not a search warrant for a third party's location was not grounds to suppress his statement. State v. Bell, 388 N.J. Super. 629, 909 A.2d 1179 (November 17, 2006):

Defendant contends that his arrest was unlawful because it was the product of an unlawful search, and hence his confession should be suppressed as the product of an unlawful arrest. We find no merit in this contention. Defendant's arrest was not unlawful, as it was authorized by an arrest warrant. Consequently, the cases on which defendant relies, concerning suppression of confessions that result from unlawful arrests, are not on point. See Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Chippero, 164 N.J. 342, 753 A.2d 701 (2000); State v. Worlock, 117 N.J. 596, 569 A.2d 1314 (1990). As the Supreme Court observed in Payton, the fact that defendant's person was seized during an unlawful search does not preclude the State from prosecuting him. Payton, supra, 445 U.S. at 592, 100 S. Ct. at 1383, 68 L. Ed. at 654, n.34. Nor does it transform his eventual confession into the "fruit of the poisonous tree," subject to suppression under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963). See also Brown, supra, 422 U.S. at 591-92, 95 S. Ct. at 2256, 45 L. Ed. 2d at 420.

In New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the Supreme Court addressed a case in which the police illegally entered defendant's home in order to effect his arrest for which they had probable cause. Id. at 15, 110 S. Ct. at l642, 109 L. Ed. 2d at 19. Thus, as in this case, the arrest was otherwise legal, although the entry into the house without a search warrant violated Payton. Id. at 21, 110 S. Ct. at 1644-45, 109 L. Ed. 2d at 22. In Harris, the Court declined to suppress defendant's confession:

"[W]e decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime."

[Id. at 17, 110 S. Ct. at 1643, 109 L. Ed. 2d at 20.]

Administrative inspection for electrical code violations ("Be my guest.") was valid consent. Furgeson v. City of Tacoma, 2006 U.S. Dist. LEXIS 83277 (W.D. Wash. November 15, 2006).*

Officers received a report that several men were in a Boise park smoking marijuana, and a plainclothed officer responded and watched them, confirming the report. He approached the group and asked them to provide the joint and be cited or be subjected to a search and arrested if it was found. Defendant admitted to having brought the joint, and he then consented to a search of his car which produced more marijuana. The consent was not coerced or involuntary. State v. Garcia, 143 Idaho 774, 152 P.3d 645 (2006):

Initially, it should be noted that bowing to events, even if one is not happy about them, is not equivalent to being coerced. United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978). The voluntariness of consent is not impaired simply because one is faced with two unpleasant choices--which here, Garcia argues, was choosing between consenting to the search and allowing the marijuana in his truck to be discovered and not consenting and risking arrest of himself and his companions. In State v. Abeyta, 131 Idaho 704, 963 P.2d 387 (Ct. App. 1998), this Court addressed the voluntariness of consent to search in light of police threats to obtain a search warrant. Id. at 708-09, 963 P.2d at 391-92. There, the appellant's choice boiled down to consenting to a search or having his premises searched pursuant to a warrant--two unappealing options for one who knew incriminating evidence would be found. This Court found the threat of securing a search warrant "does not necessarily render consent involuntary, [although] it is clearly a significant factor in determining whether consent to search was freely and voluntarily given." Id. at 708-09, 963 P.2d at 391-92. In viewing the threat in light of all the circumstances, we concluded it was appropriate for officers to inform an individual of the police's ability and intent to seek a search warrant as long as they "did not falsely or erroneously state they had a legitimate right to search his residence." Id. at 709, 963 P.2d at 392. Accord Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (holding consent is coerced where obtained after an officer asserts he has a warrant when, in fact, he does not). Accordingly, we concluded the officer's threat to seek a search warrant was legitimate because, under the totality of the circumstances, the evidence gathered by the officer prior to the threat being vocalized provided requisite probable cause to support the acquisition of a search warrant. Id. See also United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974) (statement of officer's intention to obtain search warrant if consent was not given did not render consent per se involuntary).

Similarly, an officer's implied or explicit offer not to arrest a suspect if he "turns over what he has" is not coercive if it merely informs the suspect of the officer's intention to do something that is within the officer's authority based on the circumstances. See State v. Medenbach, 48 Ore. App. 133, 616 P.2d 543, 545 (Or. App. 1980) ("[T]he action of the officer in advising defendant that he would be arrested unless he agreed to take some field sobriety tests was not constitutionally objectionable coercion because the trooper then had probable cause to arrest defendant for driving under the influence. Therefore, the officer threatened 'only to do what the law permitted him to do.'"). Again, the district court in this case found the statement was in effect "Turn over what you have, and we'll cite you" and "If you do not turn over what you have and if, in fact, you have drugs on you, then you're going to be subject to arrest." Thus, an initial inquiry here is whether the officers had probable cause to actually effectuate an arrest.

Police had a DV report by a wife that required an arrest under Wisconsin law. She also told the police that her husband had drugs and guns in the house. The victim consented to a search of the house and gave them a key to enter. Police went to the house and obtained entry by a ruse that the defendant's wife had been in a car wreck and the police wanted to talk to him. Once inside, defendant was arrested, and the consent was valid for the search that produced guns and drugs. United States v. DiModica, 468 F.3d 495 (7th Cir. November 16, 2006).*

Anonymous uncorroborated tip was insufficient for a stop. United States v. Melvin, 2006 U.S. Dist. LEXIS 83034 (M.D. Ala. November 14, 2006):

The court concludes that, in this case, the United States has failed to establish that officer Crooks had reasonable, articulable suspicion sufficient to justify stopping Melvin. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the "totality of the circumstances -- the whole picture." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). See also United States v. Heard, 367 F.3d 1275, 1278 (11th Cir. 2004). The undisputed evidence at the hearing demonstrated that Crooks stopped Melvin simply because Herring said "the guy you are looking for is in that car." (Evid. Hr'g Tr. at 10).

Q: What did you do when they pointed to that car and said the person that you are looking for was in that car?

A: I pulled out behind it, ma'am, and started following it.

(Evid. Hr'g Tr. at 12).

Without more, Herring's statement is simply insufficient to support the stop. The United States did not present any evidence that at the time Crooks stopped the car, he relied on any other information which he had or that he made any attempt to connect that information to the Herring's statement about the "guy" in the teal-colored car. Consequently, the court concludes that these facts are insufficient as a matter of law to give rise to a reasonable suspicion that criminal activity was afoot and the defendant was involved.

An officer was talking to two people in a breezeway, and defendant happened by. The officer asked him for his identification without justification and ran wants and warrants on him, finding a warrant. A search incident followed and drugs were found. The stop was illegal but not flagrantly illegal. Thus, the existence of the arrest warrant was an independent intervening circumstance that dissipates the taint of the initial illegal stop vis-a-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant. Birch v. Commonwealth, 203 S.W.3d 156 (Ky. App. March 17, 2006). Comment: So, police can just stop people to check their IDs to see if there are warrants on them as long as they don't keep them too long? What is wrong with this picture?

Search of house for key to lock door after defendant was arrested for a DV complaint exceeded defendant's consent to search. He had a key on his person and he told the officers where to look for a key inside, but they searched drawers contrary to the consent and found guns, which he was charged with. They never bothered to take the key from his person to lock the door. The search was illegal. Commonwealth v. Thomas, 67 Mass. App. Ct. 738, 856 N.E.2d 892 (November 15, 2006).

Excessively tight handcuffing that injured plaintiff stated a claim against the officer that did it and the officers plaintiff complained to who did nothing. Pheneger v. City of Lima, 2006 U.S. Dist. LEXIS 82902 (N.D. Ohio November 14, 2006):

Plaintiff alleges the officers used excessive force when putting on the handcuffs. Plaintiff further alleges the officers failed to do anything after plaintiff told them that the handcuffs were causing severe pain and swelling to her wrists. Plaintiff states that on removal of the handcuffs her hands were swollen to twice their normal size and red marks and bruising were evident where the handcuffs had been. Plaintiff alleges that she later required surgery and other medical care as a result of the injuries inflicted on her by the excessively tight handcuffs.

Plaintiff asserts a Fourth Amendment excessive force claim against the officer who applied the handcuffs and the other officers present. With regard to her claims against those other officers, the Sixth Circuit has held that a police officer who fails to act to prevent the use of excessive force may be held liable when "(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring." Smoak v. Hall, 460 F.3d 768, 784 (6th Cir. 2006) (citing Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1977)); see also Barton v. Norrod, 106 F.3d 1289, 1299 (6th Cir. 1997) (holding that an officer present where other officers are violating a person's civil rights may have a duty to intervene).

Georgia v. Randolph applies to objecting resident and not one who consents. Defendant consented. United States v. Wilson, 2006 U.S. Dist. LEXIS 82737 (D. Neb. November 8, 2006).*

General motion to suppress that did not address the sworn affidavit already in the case file was insufficient to even warrant granting a hearing in N.Y. under CPL 710.60(1). People v Long, 2006 NY Slip Op 8198, 2006 N.Y. App. Div. LEXIS 13447 (2d Dept. November 14, 2006).*

The officer preparing a search warrant had a computer problem in trying to create a search warrant for defendant's premises. He took a previously issued warrant from another case and changed information in it, but he left the previous name in there. The court refused to suppress finding the mistake reasonable, and there was no problem of the wrong place being searched. United States v. Sirmans, 2006 U.S. Dist. LEXIS 82652 (D. Del. November 14, 2006):

The Fourth Amendment mandates that an issued warrant specifically describe the person or things to be searched and seized. United States v. Doe, 703 F.2d 745 (3d Cir. 1983). "Fed. R. Crim. P. 4(c)(1) provides that a warrant 'shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be described with reasonable certainty,' and this Rule has been read as a gloss on the fourth amendment." Id. at 747. (citation omitted). The warrant must contain either on its face or by attachment a particular description of what is to be seized. Bartholomew v. Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000). The "requirement of particularity has been described as a question of practical rather than technical accuracy." United States v. Dollson, 2004 U.S. Dist. LEXIS 22478, 2004 WL 2577551 at *3 (E.D. Pa. Oct. 24, 2004). To that end, clerical errors will not automatically render a warrant defective. United States v. Carter, 756 F.2d 310, 313 (3d Cir. 1995). The crucial issue is "whether there has been such a variance as to 'affect the substantial rights' of the accused." Id., citing Cromer v. United States, 78 U.S. App. D.C. 400, 142 F.2d 697 (D.C. Cir. 1944)).

The court finds Herron's uncontradicted testimony credible and his explanation for the mistake reasonable. Considering the affidavit in conjunction with the warrant, it is evident that Herron was referencing defendant and that the inclusion of Henderson's information was an inadvertent error that does not impinge defendant's substantive rights.

Alien detained in international waters far from the United States who was in possession of 9200 kgs of cocaine on a ship was not denied any Fourth Amendment rights by there being no prompt determination of probable cause before he was brought to the U.S. for trial. As an alien outside the U.S., the Fourth Amendment did not apply to him under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The search on the ship took five days. United States v. Zakharov, 468 F.3d 1171 (9th Cir. November 15, 2006) (this case was under submission for two years).

Reasonable suspicion of drug trafficking was clearly present for detaining defendant to bring in a drug dog. Also, officer was not obliged to seek a telephonic warrant for use of the dog and then search of the car. United States v. Mendoza, 468 F.3d 1256 (10th Cir. November 15, 2006).

Defendant was a mere visitor whose connection to the premises did not rise to the level of a guest under Olson. United States v. Wineinger, 208 Fed. Appx. 286 (5th Cir. 2006)* (unpublished).

The SWAT team was ordered to enter at 5:50 a.m., and the entry occurred before 6:00 a.m. "Thus, the execution must have occurred sometime after 5:50 a.m.--close enough to the 6:00 a.m. hour to make any deviation from the warrant de minimis. See United States v. Twenty-Two Thousand, Two Hundred Eighty Seven Dollars, 709 F.2d 442, 448-49 (6th Cir. 1983)." The court also notes that it was not nighttime since sunrise at that locality, according to the United States Naval Observatory's Sunrise Calculator, was at 5:49 a.m. Rodriguez v. Beninato, 469 F.3d 1 (1st Cir. November 14, 2006).

Ten seconds was a reasonable time between announcing and entry of a small motel room. State v. Johnson, 2006 NMSC 49, 146 P.3d 298 (October 17, 2006):

In the present case, the trial court found the following: (1) the size of the motel room was no larger than twelve feet by twelve feet; (2) the bed was within three or four feet of the door; (3) the officers knocked while announcing notice of presence, identification of authority, and statement of lawful purpose for at least ten seconds before using the battering ram; (4) Defendant must have been within twelve feet of the door at the time of the attempted entry; and (5) there was no response from inside the room during the entire time the officers were knocking and announcing. Based on these facts, the court found that there was constructive refusal to answer the door.

Note: 29 cases received today, 26 were updated citations.

Even if information illegally obtained from an illegal search was removed from the affidavit for the search warrant, there still would be probable cause for the warrant. United States v. Lawrence, 205 Fed. Appx. 786 (11th Cir. 2006)* (unpublished). The same result occured in Ohio on November 9th. State v. Newell, 2006 Ohio 5980, 2006 Ohio App. LEXIS 5903 (2d Dist. November 9, 2006) (emergency entry in response to a shooting in progress; police re-entered after situation was resolved, and that was purged from the affidavit still leaving PC).

On November 4th there is a post about Microsoft creating software that permits tracing back webcasts of child porn that was used in Ontario to rescue a child from a live production. Related to that, and just before that article was published, there was an opinion from the District of Idaho involving a live transmission of child porn from Edmonton to Idaho which the police became aware of, and they obtained a search warrant in Idaho. United States v. Banks, 2006 U.S. Dist. LEXIS 82368 (D. Idaho October 27, 2006). The issue here was particularity: When the affidavit for the search warrant states the crime under investigation, the fact parts of the material sought do not specify a crime within them does not matter because it relates back to the overall possible crime mentioned in the affidavit:

By contrast, in this case, it is quite clear from the face of the warrant that the search related to criminal possession, production and/or transportation of child pornography and the visual depiction of minors engaged in sexually explicit conduct. As defendant himself observes, the ten sections to which he does not object contain explicit and repeated mention of this specific criminal conduct. (Reply at 5.) Defendant's hyper-technical reading of the cases above runs afoul of Supreme Court authroity, which has stated clearly that courts are to read a "warrant in a common sense fashion." Cardwell, 680 F.2d at 77 (citing United States v. Ventresca, 380 U.S. 102 (1965)); Andresen v. Maryland, 427 U.S. 463, 479-482 (1976) (rejecting a particularity challenge because the relationship between the items to be seized and the alleged criminal conduct was "clear from the context"). In this instance, there is a clear, commonsense, logical nexus between the items described in those six categories and the crimes listed elsewhere throughout in the warrant. Indeed, many of the disputed categories authorize seizure of items which are directly necessary for adequately processing and searching items listed in the undisputed categories. Therefore, the May 21, 2005, warrant has given a more than adequate "indication of the alleged crime to which the seized [items] pertained." Kow, 58 F.3d at 427.

Voluntariness of Miranda warning and consent to search was supported by the record. People v Knudsen, 2006 NY Slip Op 8149, 2006 N.Y. App. Div. LEXIS 13361 (2d Dept. November 8, 2006).*

ICE officers may approach a person and ask his nationality without violating Terry. United States v. Torres-Lona, 2006 U.S. Dist. LEXIS 82365 (N.D. Iowa November 9, 2006):

When the ICE agents initially approached Defendant, they asked him where he was born and if he had immigration documents. These simple questions did not constitute a "seizure." See Florida v. Bostick, 501 U.S. 429, 434 (1991) ("Since Terry [v. Ohio, 392 U.S. 1 (1968)], we have held repeatedly that mere police questioning does not constitute a seizure."). Here, no Fourth Amendment seizure occurred because the ICE agents did not use "physical force" or a "show of authority." Id.

When Defendant told SA Cantrell and SA Spalding that he was from Mexico but had no immigration documents, they had probable cause to believe that Defendant was an illegal alien, and they had the authority to place him under arrest. See 8 U.S.C. § 1325 (prohibiting aliens from entering the United States, except under the approval of immigration officers). Cf. United States v. Flores-Sandoval, 422 F.3d 711, 713-14 (8th Cir. 2005) (concluding that the ICE agents' detention of the defendant was not justified because they had no admissible reason to believe the defendant was an illegal alien). Once he was arrested, the ICE agents could search Defendant and any items found on his body. United States v. Robinson, 414 U.S. 218, 235 (1973) ("A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.").

Removal of Fourth Amendment claim: A case filed in state court under the Fourth Amendment could be removed because 28 U.S.C. § 1331 provides for original jurisdiction for the claim. (But, the Fourth Amendment cannot be an independent basis for federal jurisdiction without a jurisdictional statute. Since plaintiff did not allege a violation of § 1983, he was granted leave to amend to add it.) Cerros v. North Las Vegas Police Dep't., 2006 U.S. Dist. LEXIS 82364 (D. Nev. November 9, 2006).

A prior drug arrest is not sufficient reason to patdown a motorist ordered from his vehicle during a traffic stop. The patdown revealed a rock of crack. State v. Stewart, 2006 Ohio 5934, 2006 Ohio App. LEXIS 5897 (8th Dist. November 9, 2006):

[*P13] The issue in this case is not whether the officer could order Stewart out of the car, but whether he could search Stewart upon his exit from the vehicle. When the suspect exits the vehicle, the officer must have an articulable particularized suspicion that the suspect is dangerous or concealing contraband in order to conduct a pat-down search. The officer is not allowed to search for evidence merely because the person has a prior arrest record.

Generalized consent to search a car in Texas apparently includes having to endure the officer chosing to move it to a different location to remove the gas tank. Montanez v. State, 211 S.W.3d 412 (Tex. App.–Waco November 8, 2006), on remand from Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (decision on other grounds: standard of review). Comment: If the vehicle had to be moved, the driver could object and limit the search. The problem with that is, however, if the officer develops a real reason to check the gas tank (by tapping on it or scoping it), the officer has greater cause to remove the gas tank.

Nebraska holds that the State Court of Appeals cannot raise the good faith exception where the state did not do it on its own. "While a defendant has the burden of showing that there was not probable cause to support the issuance of a search warrant, the State has the burden to show that the good faith exception applies." State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (November 9, 2006).

Kansas holds that a forfeiture claimant who prevailed in a criminal suppression motion and suppressed the search of his vehicle, but the state dismissed the criminal case, was not able to invoke collateral estoppel or res judicata against a forfeiture action because there was no final judgment in the criminal case. State I-135/I-70 Drug Task Force v. 1990 Lincoln Town Car, 145 P.3d 921 (Kan. App. November 9, 2006).

Informant was corroborated by surveillance, including a large number of persons on cellphones who appeared to be lookouts. United States v. Thompson, 2006 U.S. Dist. LEXIS 82163 (E.D. Mich. October 31, 2006).*

All brake lights are required to work, including the one in the rear window (state statute incorporates the federal regulation on third brake light). That equipment violation is enough for a stop. United States v. Brewer, 2006 U.S. Dist. LEXIS 81984 (D. Utah October 26, 2006).*

Threats to others about shooting the police if they came to defendant's house justified no knock. "McClendon testified that Johnson and Lebo stated that Medley had made threats about 'killing the cops if they came out there, and that kind of thing, that they knew that he had guns out there, and to be careful.' (Tr. 54)." United States v. Medley, 2006 U.S. Dist. LEXIS 81747 (E.D. Mo. November 8, 2006).*

A prisoner lawsuit was dismissed on filing as frivolous. Plaintiff attempted suicide by overdose in hoarding lithium pills. He claimed that his suicidal intentions were laughed off by the guards. He sued alleging various constitutional violations, including a Fourth Amendment claim that he should have been searched more often. Anderson v. Pollard, 2006 U.S. Dist. LEXIS 81960 (E.D. Wis. November 7, 2006)*:

In this case, the plaintiff does not contend that his cell was illegally searched. Rather, he claims that it was not searched frequently enough (on a twice weekly basis). Based on the foregoing, the plaintiff has failed to state a claim under the Fourth Amendment.

Comment: I cannot even fathom how a reverse Fourth Amendment claim would even exist. Maybe as a due process violation or a reckless disregard of a known risk, but that is about it. The "right to be free from unreasonable searches and seizures" cannot really include a right to be continually subjected to searches and seizures. It just does not follow. This isn't even a remotely creative argument--it is just typical jail house lawyer thinking.

A similarly strange prisoner case was a claim rejected in the District of Nevada in an internet child solicitation case that the e-mail sent to the plaintiff's computer was an unlawful entry. Cherer v. Flaherty, 2006 U.S. Dist. LEXIS 81920 (D. Nev. November 1, 2006)*:

Entry into a person's home to obtain evidence is a search that should bring into play all the protections of the Fourth Amendment. Osborne v. U.S., 385 U.S. 323, 345 (1966). However, the submission of an email to an individual's personal computer, which may or may not be opened and read, does not constitute entry. Plaintiff admits that he could have ignored the email or "deleted it as junk mail." Complaint, p. 5. In fact, he states that is what he did, although the complaint is inconsistent on this point. Thus, either no actual entry was made or the entry requested by the email was granted. In either case, no invasion of his right to privacy occurred.

The defendant did not have to be told he was free to leave to make a stop consensual. United States v. Chavira, 467 F.3d 1286 (10th Cir. November 9, 2006):

Considering the totality of the circumstances, the district court's factual findings do not suggest a coercive show of authority. It is true that more than one officer was present and that Mr. Chavira was not told that he was free to leave. However, the other officer stayed in his patrol car until after the trooper obtained consent to search and the other officer's presence alone would not indicate to a reasonable person that he was not free to leave. Advising a defendant that he is free to leave is not an essential prerequisite for a consensual encounter, let alone a voluntary consent to search. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997). Significantly, from the time the trooper resumed questioning Mr. Chavira about his travel plans until the time he obtained consent to search, Mr. Chavira's path to his vehicle was unobstructed and the trooper was separated from him by the open patrol car door. On this record, we must hold that Mr. Chavira had no objectively reasonable belief that he was not free to leave, and thus his subsequent consent to search was not the product of an unlawful detention.

Comment: Two police cars have the defendant pulled over and he is objectively "free to leave"? This is intellectual dishonesty of the worst sort. What person in his right mind would think he actually was free to leave? None. Perhaps if federal appellate judges spent a while detained on the side of the highway, they might come to appreciate that this argument is pure fiction.

Civilly detained plaintiff could be strip searched when he returned from a ceramics class out of the secure area of the institution. Ratzel v. Ziegler, 2006 U.S. Dist. LEXIS 81602 (E.D. Wis. November 3, 2006).

Officers had probable cause to arrest defendant after having observed multiple hand to hand drug sales. The defendant got into a taxi, and the officers stopped the cab and found a gun between his feet and drugs in the backseat. United States v. Scott, 2006 U.S. Dist. LEXIS 81719 (E.D. Pa. October 13, 2006).

It did not matter whether officers who stopped defendant's car thought that the odor of marijuana coming from it was from the defendant's being around smokers or from marijuana in the car. They asked for consent and got it. State v. Donald, 2006 Tenn. Crim. App. LEXIS 870 (November 7, 2006).*

After plaintiff had been arrested, he was in custody and he asked to call his lawyer. The officers recorded the conversation, and it became a part of suit over his arrest. Plaintiff was granted summary judgment on his claim that his Fourth Amendment rights were violated by their recording a conversation between him and his lawyer. Sherbrooke v. City of Pelican Rapids, 2006 U.S. Dist. LEXIS 81730 (D. Minn. November 6, 2006):

Summary judgment is granted in Sherbrooke's favor as to this claim. He had a clearly established right of privacy in his conversation with his attorney. This right was violated by the unconsented search performed by the officers, who should have known that their conduct violated Sherbrooke's Fourth Amendment rights. As to Defendants' argument that Sherbrooke failed to make efforts to protect the privacy of his call, there was nothing he could do while in a situation controlled by the officers. As in Jaras, consent cannot be reasonably implied from Sherbrooke's failure to object where Sachs did not ask for his consent to execute the search. Accordingly, Sherbrooke is entitled to summary judgment as to his claim that the Individual Defendants violated his Fourth Amendment right by recording his conversation with his attorney.

Two trucks were driving apparently in tandem too closely in Kentucky. One truck was suspicious because the fifth wheel was rusty and the sign on the side appeared hastily affixed. A full truck safety inspection was conducted, and the paperwork seemed odd. Finally, consent was sought and granted, and heroin was found by a drug dog. United States v. Garrido, 467 F.3d 971 (6th Cir. November 9, 2006).

Officer concerned by furtive movements in vehicle during traffic stop justified ordering defendant out of the car under Mimms. United States v. Steplight, 2006 U.S. Dist. LEXIS 81712 (E.D. Pa. November 8, 2006).*

During a protective sweep, officers saw the barrel of a shotgun sticking out from under a futon. While the officer did not see the entire gun, it was apparent there was a shotgun. When fully revealed, it was sawed off. United States v. Weymouth, 2006 U.S. Dist. LEXIS 81282 (D. Me. November 6, 2006).

9/11 related investigation led to defendant being handcuffed. He was able to consent to a search because the situation was not otherwise coercive. United States v. Awan, 2006 U.S. Dist. LEXIS 81289 (E.D. N.Y. November 6, 2006).*

Basis of knowledge of informant was shown by his first hand knowledge. United States v. Williams, 2006 U.S. Dist. LEXIS 81010 (W.D. Pa. October 23, 2006).*

Smashed computer equipment left in a state park was abandoned. United States v. Kiderlen, 2006 U.S. Dist. LEXIS 81405 (E.D. Mo. August 1, 2006) (also, PC was shown for search warrant for computers in home).*

Finding a small quantity of marijuana in the passenger compartment permits the officer to search the trunk for more. State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. November 7, 2006).

Knock and talk of non-English speaking defendant's home was valid. Officer just took a Spanish course and read the request to the defendant who said "si" and backed away from the door. That was consent. State v. Penalosa, 2006 N.C. App. LEXIS 2223 (November 7, 2006).

Officers are justified in running wants or warrants on any traffic stop to know who they are dealing with for officer safety. United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. November 7, 2006):

The next question then is whether the officer was justified in using Mr. Villagrana-Flores's identity to run a warrants check during the course of the Terry stop. In other words, we must determine whether running the warrants check was "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20-21. We have previously held, in the context of traffic stops based on reasonable suspicion alone, that a "motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with such prior criminal history." United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc). Several of our sister circuits have similarly held. See United States v. Brigham, 382 F.3d 500, 507-08, 507-08 n.5 (5th Cir. 2004) (en banc) (holding similarly and collecting cases). We explained in Holt that "[t]he justification for detaining a motorist to obtain a criminal history check is, in part, officer safety" because "[b]y determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop." 264 F.3d at 1221-22. As long as the detention is for a short period, "the government's strong interest in officer safety outweighs the motorist's interests." Id. at 1221.

Officer safety, however, is just as strongly implicated where the individual being detained for a short period of time is on foot, rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen's interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot. Moreover, permitting a warrants check during a Terry stop on the street also "promotes the strong government interest in solving crimes and bringing offenders to justice." See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). Indeed, an identity's utility in "inform[ing] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder," Hiibel, 542 U.S. at 186, would be non-existent without the ability to use the identity to run a criminal background check. Thus, we hold that Mr. Villagrana-Flores's Fourth Amendment rights were neither violated when his identity was obtained during a valid Terry stop nor when his identity was shortly thereafter used to run a warrants check.

Stop lacked reasonable suspicion. Defendant was merely sitting in a car idling on the street. United States v. Duty, 204 Fed. Appx. 236 (4th Cir. 2006) (unpublished):

We find that Winston lacked the reasonable suspicion necessary to seize Duty. The only evidence presented was that Duty was sitting in an idle car on a private street, and looked at Winston when she drove by. Such evidence plainly does not provide a basis for reasonable suspicion.

Accordingly, the seizure was invalid because Winston did not possess articulable, reasonable suspicion that criminal activity was afoot when she pulled behind Duty with the emergency lights activated. Because the seizure was illegal, the district court erred in denying Duty's motion to suppress evidence.

911 call of a domestic disturbance and a man with a gun justified a stop of a man that matched the description. United States v. Hicks, 2006 U.S. Dist. LEXIS 81154 (N.D. Ind. November 6, 2006):

Here, the 911 caller was reporting an ongoing emergency - a domestic dispute in which the perpetrator was armed with a gun - and therefore Officer Tinsley was entitled to presume that the caller's information was reliable without further corroboration. Furthermore, there is no indication that Officer Tinsley was aware of the caller's inconsistent information, particularly since there was no mention of the caller in the dispatch. See Lenoir, 318 F.3d at 729. Accordingly, Officer Tinsley was entitled to rely on the dispatch report as reliable information that an ongoing emergency was occurring at 4033 Buell.

The state carries the burden of proof of exigency for dispensing with announcement. Mere possibility of exigency is not enough. Commonwealth v. Wagstaff, 2006 PA Super 312, 911 A.2d 533 (November 6, 2006):

[*P10] Stated otherwise, while the Commonwealth makes an argument premised upon exigent circumstances, there was no evidence presented at the suppression hearing of the existence of any exigencies at the time of the execution of the warrant. Cf. Grubb, 595 A.2d at 135 ("The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed.").

[*P11] Herein, the lack of evidence supportive of the Commonwealth's destruction of evidence argument is inimical to its position excusing the manner and method by which the police executed the search warrant. Similarly, in Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143 (1997), the police announced their presence but did not announce their purpose and forced the door after twenty to thirty seconds. The Supreme Court noted that the police failed to state their purpose prior to entering the dwelling and that there were no exigent circumstances that would have excused the police from announcing their purpose. ...

[*P12] Sub judice, the police identified themselves, but they failed to state their purpose.

Store clerk's call that a man called another man from the store and requested that he bring him a gun gave reasonable suspicion for a stop. State v. Taylor, 2006 Ohio 5866, 2006 Ohio App. LEXIS 5807 (10th Dist. November 7, 2006).*

Plain feel of a bullet during a patdown justified a greater search. State v. Clay, 2006 Ohio 5864, 2006 Ohio App. LEXIS 5816 (5th Dist. November 7, 2006).*

Small lane crossings are not enough for a field sobriety test, but this was more. State v. Hunter, 2006 Ohio 5810, 2006 Ohio App. LEXIS 5785 (9th Dist. November 6, 2006):

Generally, de minimis lane violations and small marked lane errors alone are not sufficient to justify the administration of field sobriety tests. State v. Spillers (Mar. 24, 2000), 2nd Dist. No. 1504, 2000 Ohio App. LEXIS 1151, at *6; United States v. Frantz (2001), 177 F.Supp.2d 760. However, in this case, Officer Greiner personally observed Defendant crossing outside the lane three times and he had a tip from the Task Force officer that Defendant was driving erratically and was a vehicle of interest. This properly constitutes a reasonable and articulable suspicion that Defendant was drinking, thus properly enabling Officer Greiner to conduct field sobriety tests.

Washington's sexually violent predator law was narrowly drawn to allow the state access to a convicted SVP's computer to determine whether he was complying with the law. State v. Williams, 135 Wn. App. 915, 146 P.3d 481 (November 7, 2006):

Contrary to Williams' assertions, the SCC's search of his room and computer hard drives was reasonable and in accord with Hydrick. Internal SCC policies authorize the searches and seizures to, in part, enforce the SCC prohibition on the residents' possession of sexually explicit material. These policies are necessary to both treat and protect the resident and to protect others. They balance the rights of SCC residents with the State's interest in treatment and protection and do not violate Williams' privacy rights. See Campbell, 139 Wn.2d at 355-56.

Eleventh Circuit essentially holds that the fact a person is driving a vehicle not registered to him is reason enough to stop him, particularly when the vehicle is a Bentley and the defendant is a suspected drug dealer and money launderer. He admitted he had a gun in the car, and the officers knew he was a felon. United States v. Bivens, 204 Fed. Appx. 835 (11th Cir. November 6, 2006) (unpublished).

When beeper in package went off inside a building, officers had probable cause and exigent circumstances. United States v. Chiem Euy Saechao, 204 Fed. Appx. 612 (9th Cir. November 6, 2006) (unpublished):

The officers had probable cause to search the trailer as soon as Saechao brought the package of drugs inside. Furthermore, once the alarm went off, indicating that the package had been opened, the agents were confronted with exigent circumstances. Saechao hurried his girlfriend and children away from the trailer immediately after opening the package, and then peered suspiciously through the window. And when the agents stopped his girlfriend, she indicated that there was something wrong with the package. Even though the agents were able to detain Saechao in the front yard, the agents could not rule out the possibility that someone else was in the trailer who could destroy the package and its contents. Indeed, Saechao's mother was found during the subsequent search. Thus, a reasonable person would believe it necessary to enter the trailer in order to prevent destruction of relevant evidence. See United States v. Hackett, 638 F.2d 1179, 1182 (9th Cir. 1980).

Consent after a knock and talk was voluntary. United States v. Childs, 2006 U.S. Dist. LEXIS 80824 (E.D. Mich. October 25, 2006):

Although Defendant could have refused by "simply standing pat, saying 'no', or closing the door," Carter, 378 F.3d at 588, the Court finds that during this brief conversation, Defendant freely and voluntarily, without coercion or a threat of force, gave police permission to come inside and search the residence. See Rodriguez, 497 U.S. at 181; Schneckloth, 412 U.S. 218. After Defendant told the officers that drugs and a gun were present, he instructed the officers where those items could be found. Consequently, Sergeant Sorensen found, and legally seized, a loaded handgun and eighteen baggies of marijuana.

In the case where two brothers, one of whom was a police officer, read about bank robberies in Illinois and determined that their father was the robber, the brothers conducted a search of their father's house for evidence of the bank robberies. They were determined to be acting as private citizens for the purpose of the search, even though the officer brother came with a bulletproof vest and badge. United States v. Ginglen, 467 F.3d 1071 (7th Cir. November 6, 2006).

Reasonable suspicion not required for a knock and talk. Consent was not coerced. Officers asked for ID and returned it before asking for consent. United States v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. November 6, 2006).

Having been told he was free to leave, the defendant voluntarily consented to further discussion with the officer that [apparently was a stall to keep them there long enough and] led to a dog sniff. United States v. Farrior, 2006 U.S. Dist. LEXIS 80560 (W.D. Va. November 3, 2006)* (it's a close question):

The court finds that the defendant's initial consent to search the vehicle was voluntarily given. The fact that Officer Morris returned Farrior's license and explicitly told Farrior that he was free to go before asking the defendant to consent to a search of his vehicle strongly indicates that no seizure occurred at that point within the meaning of the Fourth Amendment. United States v. Weaver, 282 F.3d 302, 311 (4th Cir. 2002). That fact alone, however, is not dispositive. The voluntariness of Farrior's consent is also supported by the circumstances surrounding Officer Morris' request and Farrior's response. Officer Morris testified that after telling the defendant that he was free to go, he asked Farrior if he would step out of the car. Farrior responded that he could talk from inside the car. Officer Morris proceeded to do so. Officer Morris testified that he explained to Farrior that the Town of Pulaski was having a lot of drug problems in that area. Officer Morris next asked Farrior if he had any drugs or guns, to which Farrior replied in the negative. Officer Morris then asked Farrior if he could search his car. Farrior consented and stepped out of the car. The court believes that these circumstances indicate that Farrior was not intimidated and that a reasonable person in his position would believe that he had a choice to exercise. Therefore, the court finds and concludes that a reasonable person in Farrior's position would have felt free to decline Officer Morris' request.

Apparent overseizure of computer equipment was reasonable. Warrant specified one document, in paper or electronic form, and the police seized 16 computers for off-site analysis. United States v. Cook, 2006 U.S. Dist. LEXIS 80557 (W.D. Wash. November 3, 2006):

The object of the search was a document titled "Secured Promissory Note," and all copies of the document, whether in hard-copy or electronic form. Id. at 23. The warrant authorized the seizure and removal of computer systems and components for off-site forensic analysis. Id. at 24. The search took place on June 29, 2005, and included both a hand search for documents and the removal of sixteen computer systems with seventeen hard drives and various removable storage media. See Johnson Decl., docket no. 126, P 3. Special Agent Kim Young, a computer forensic examiner, took control of the sixteen computers and spent approximately 21 hours imaging their seventeen hard drives. Id. P 4. Agent Young completed her imaging on June 30, 2005. Id. Twelve computers were returned to the Cooks on July 5, 2005, and the remaining four computers were returned on August 22, 2005. Id.

While standing may be asserted on appeal by the state for the first time, it must not be inconsistent with the position taken in the trial court. Thus, where the state argued only consent in the trial court, it could not argue lack of standing on appeal. "When the deputy told Cardenas 'he needed to come speak to [the deputy],' under the circumstances, Cardenas was seized. As in Zubizareta and McAfee, the officer's language was inherently coercive such that reasonable people would not believe they were free to go about their business." This was not consent. State v. Cardenas, 143 Idaho 903, 155 P.3d 704 (2006).

Police responding to a domestic disturbance call were told by defendant's girlfriend that he pointed a gun at her when he came to the house. He came to the door and they handcuffed him and emptied his pockets. No gun was found on him, and she directed the police to the back yard, but no gun was found there. He consented to a search of his car, but he denied knowing where the keys were. The officer got his keys and looked in the car, and two handguns were found in a briefcase, and he was a convicted felon. He voluntarily consented to the search although he was handcuffed. United States v. Flowers, 203 Fed. Appx. 221 (10th Cir. November 2, 2006)* (unpublished).

Co-defendant who tried to hide from police in motel parking lot professed to be staying in room 32. Officers approached the door, and they could smell marijuana, so they asked her for consent. Based on the totality, she had sufficient apparent authority to consent to an entry into the room. State v. Wallace, 2006 Tenn. Crim. App. LEXIS 858 (November 1, 2006):

Applying these principles to the facts of this case, we conclude that the officers had valid consent to enter and search the motel room. The facts show that Ms. Arnold was standing in the parking lot of the Savannah Motel and attempted to hide from Officer Rich when he drove by the motel on patrol. Officer Rich found her behavior suspicious and approached her to ascertain her identity and her reason for being at the motel. She gave her name and told Officer Rich that she was staying in room thirty-two at the motel. When Officer White arrived as back-up, Ms. Arnold agreed to accompany the officers to room thirty-two so that they could verify her identity and whether she was staying at the motel. As the officers approached the motel room, the door to the room opened and the officers immediately smelled marijuana. The occupants in the room verified Ms. Arnold's identity and the fact that she was staying in the room. The officers then asked Ms. Arnold, "Do you care if we search the apartment? Because we do smell marijuana coming [from the room]." Ms. Arnold subsequently consented to a search of the room. Under the circumstances, it was reasonable for the officers to believe that Ms. Arnold had the authority to consent to a search of the motel room. Consequently, the search was a valid, legal search and was not in violation of Defendant's Fourth Amendment rights. Defendant is not entitled to relief on this issue.

The Supreme Court hears oral argument today in Wallace v. City of Chicago, 04-1240 (docket), decision below: Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006), cert. granted June 19, 2006 as Wallace v. Kato. The question presented: "When does a claim for damages arising out of a false arrest or other search or seizure forbidden by the Fourth Amendment accrue when the fruits of the search were introduced in the claimant's criminal trial and he was convicted?" The petitioner's brief here, and respondent's brief here.

From Willamette University College of Law summary delivered by list serv:

The issue in this case is whether damages arising under a claim for false arrest, brought under 42 U.S.C. § 1983, arise at the time a false arrest occurs, or upon a claimant’s criminal conviction.

The present civil case arises out of a criminal case. Andre Wallace (Petitioner) was arrested, charged, and found guilty of murder. On January 17, 1994, a construction worker was shot and killed. The police brought Petitioner in for questioning two days later. Officers Roy and Kato (“Officers”) tricked the Petitioner into making a false confession by using various interrogation techniques. During his trial, Petitioner filed several motions to suppress his statements, all of which were denied. He was subsequently found guilty and served 8 years in prison. After several years of appeals, his conviction was reversed. The Illinois Appellate Court held that his arrest had not been based upon probable cause and the court remanded for a new trial. The Illinois Supreme Court denied review and the prosecutor eventually dropped all charges against the Petitioner.

In 2003, Petitioner filed the § 1983 action asserting violation of his Fourth Amendment right by the Officers as well as state claims for malicious prosecution and false arrest. The United States District Court for the Northern District of Illinois granted summary judgment for the Officers. On appeal, the Seventh Circuit held that the § 1983 claim accrued at the time of the arrest, rather than when the Petitioner’s criminal conviction was overturned, thus the claim was time barred. Judge Posner wrote a lengthy dissent in the denial for rehearing en banc, upon which the Petitioner bases his arguments.

On cert. to the United States Supreme Court, Petitioner will argue the Seventh Circuit rule is an unwarranted extension of the rule in Heck v. Humphrey, 512 U.S. 477(1994), which held that damages for an allegedly unconstitutional conviction are the conviction and sentence, and do not accrue until the direct reversal of the conviction. Petitioner will further argue that the Seventh Circuit's rule does not remedy the “injury” of being falsely convicted and imprisoned—-this is in direct conflict with the Court holding that the “injury is the false arrest. [Summarized by Loren Cohen.]

Yesterday's Examiner: Three Santa Barbara elementary schools to fingerprint students. The purpose: use of the cafeteria.

A plan to fingerprint elementary school students when they buy lunch has some parents worrying that Big Brother has come to the cafeteria.

The Hope Elementary School District has notified parents that beginning this month, students at Monte Vista, Vieja Valley and Hope elementary schools will press an index finger to a scanner before buying cafeteria food.

The scan will call up the student's name and student ID, teacher's name and how much the student owes, since some receive government assistance for food.

"It raises sanitary issues, privacy issues -- it is kind of Orwellian," said Tina Dabby, a parent of two at Monte Vista Elementary. "It just sounds kind of creepy."

School administrators said the idea is to speed up the cafeteria line. The same information is currently handled with old-fashioned paper and then transferred to computer so that reports can be compiled.

Invasion of privacy? Yes. Violation of the Fourth Amendment? Not necessarily, I regret to say.

What are the competing interests? The school already gathers this information, just without a fingerprint. Parents voluntarily fingerprint their children in case of abduction. Kids in elementary school don't have a choice because of their age, and parents are not being asked for consent. Here, the school will likely use a single finger or thumb, like used at customs for visitors coming into the U.S., or the use of a finger to access a secure computer. Can the fingerprint stored in the school computer be used to investigate a crime? What are the internal restrictions on the use of the fingerprint? If none, the fingerprint may not be able to be used to investigate a crime later, even years later after the elementary school student has come of age to commit an offense for which he or she can be arrested.

Compare an employee of an airport working in a "sterile area" who has to use a fingerprint scan to open a door. The prison system in my home state has been using retina scans at some prisons to identify employees on entering and leaving the prison. With adults, they choose their jobs and thereby consent to the process. But, both of these examples involve adult employees who may have had to submit to a fingerprinting to get their job, so these may not be the best examples.

Virginia holds that physical arrest for a low level offense that was statutorily subject only to a summons was invalid under the Fourth Amendment under Knowles. Atwater is distinguishable because the statute there gave the officer discretion to arrest or issue a summons. Defendant was subjected to a search incident at his house after he consented while in custody. The search incident produced drugs on him. Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395 (November 3, 2006), rev'g 47 Va. App. 55, 64, 622 S.E.2d 253, 258 (2005) (en banc). Comment: Atwater was one of the worst decisions of last decade because it permitted a physical arrest of a mother in front of her children for not wearing a seatbelt. The Supreme Court essentially left it to the discretion of the officer how to proceed, no matter how badly that discretion was exercised. Virginia, at least, takes discretion away in some minor offenses.

Consent to taking a blood sample in a hospital ER was not coerced. The defendant was free to leave afterward and did. Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (November 3, 2006):

In the present case, it is undisputed that neither Officer Doyle nor Officer Eberts physically restrained Bristol at the hospital after Officer Doyle told Bristol that he was "under arrest." Therefore, Bristol was arrested at the hospital only if his consent to the blood test constituted a complete surrender of his personal liberty in submission to Officer Doyle's assertion of authority. We conclude that Bristol's consent to the blood test was not such a surrender of his personal liberty.

Bristol merely agreed to submit to a blood test. He did not make any statement nor did he act in a manner demonstrating a complete surrender of his personal liberty to Officer Doyle's control.

The events that occurred at the hospital confirm the limited nature of Bristol's acquiescence. After Officer Doyle informed Bristol of the implied consent provisions of Code § 18.2-268.2 and Bristol agreed to have the blood sample drawn, Doyle did not restrict Bristol's movements in any manner. Officer Doyle merely accompanied Bristol to the emergency room where Bristol's blood was drawn. Officer Doyle then left the hospital, taking no action to constrain Bristol's personal liberty. Likewise, Officer Eberts did not act in a manner that could be construed as constraining Bristol's personal liberty. Bristol left the hospital on his own, and the police did not take any immediate action to restrain him. Thus, Bristol's consent to the blood test did not constitute a submission to police authority resulting in an arrest.

The arrest of the defendant for a murder, that it turned out he did not commit, but for which there was probable cause, was still valid under Hill v. California. Two witnesses mistakenly identified him as involved in the murder, and he was identified as having the tattoo "Outlaw" on his neck. The fact that defendant did not have such a tattoo did not dissipate PC on the spot because of the possibility the tattoo was not permanent. Guns and drugs were found after the arrest, and the arrest was objectively reasonable, despite the fact defendant was not the right man. United States v. Sykes, 2006 U.S. Dist. LEXIS 80322 (E.D. La. November 2, 2006).

Arrest warrant for defendant authorized officers to enter his house and look in closets for him. United States v. Itayem, 2006 U.S. Dist. LEXIS 80323 (N.D. Ohio November 2, 2006).

While the question was close, the District Court finds that consent was valid and not coerced. The police told defendant's cotenant that they had to enter to check the premises, and she offered the keys. United States v. Williams, 2006 U.S. Dist. LEXIS 80244 (W.D. Tenn. November 1, 2006).*

The defendant was arrested for drug sales, and a drug dog positively alerted on his car, but no drugs were found. A strip search was justified at the jail. As to the merits of the original arrest, "'Sixth Circuit precedent clearly establishes that the affiant need only specify that the confidential informant has given accurate information in the past to qualify as reliable.' United States v. Greene, 250 F.3d 471, 480 (6th Cir.2001)." Here, there were two prior buys from the defendant at the place previously specified, so that takes care of it. United States v. Warfield, 2006 U.S. Dist. LEXIS 80334 (W.D. Ky. November 2, 2006).

Without findings of fact, unless these are it, the S.D. Miss. sustains a third-party consent. United States v. Perez-Vera, 2006 U.S. Dist. LEXIS 80342 (S.D. Miss. October 31, 2006):

The Court, having considered the testimony of the witnesses and arguments of counsel, credits the testimony of the government's witnesses, and finds by the requisite standard of proof the following: (1) that the defendant's consent to search was not sought by the state officers, nor (2) was he sequestered in such a way that his refusal to consent could not be heard. The Court further finds that (3) the wife, who was shown by proof to be the lease-holder of the residence, had the apparent authority to consent, and (4) that she did consent to the search of the residence wherein she had standing to consent or refuse. Such consent as was obtained of her is consonant with the Court's holdings in United States v. Matlock, 415 U.S. 164 (1974), and in Illinois v. Rodriguez, 497 U.S. 177 (1990), and does not offend the Fourth Amendment of the Constitution of the United States. Matlock, supra, at 170-171.

Using a program developed by Microsoft, the Toronto police child exploitation unit was able to trace the internet source of a live sexual assault of a child and apparently raid the house where it originated. See the AP's Canadian Nabbed in Live Web Sex Assault.

[Officer] Krawczyk, who was posing as an online pedophile, said he established a relationship with the man in an Internet chat room for pedophiles in January.

After the detective gained his trust, the suspect on Sunday sent still images recorded on a Web cam, which were transmitted in "real time" to a private site, which Krawczyk declined to disclose.

"I can't get into exactly what the program is," Krawczyk told The Associated Press. "But you see the images immediately. I was talking with him and, I can't get into the details of what were in the pictures, but I knew that it was happening live."

The article does not mention a warrant, and the images were not transmitted into the U.S., but this would be a classic case of exigent circumstances. Also, the police are reluctant to talk about the program other than to say that it exists, as though providing details would somehow defeat it.

We should expect similar occurrences here, if they haven't happened already.

Tennessee DUI roadblock satisfied its tough constitutional standards of State v. Downey, 945 S.W.2d 102 (Tenn. 1997). State v. Clark, 2006 Tenn. Crim. App. LEXIS 849 (October 20, 2006):

We note that the ultimate question in this case is whether the third prong of the Downey test weighs in favor of the checkpoint's reasonableness. The witnesses' testimony established that the MCSD announced the checkpoint in the local newspaper prior to March 12 and that all vehicles traveling in both directions were stopped at the checkpoint. When traffic became congested, Sergeant Tucker temporarily suspended the checkpoint until traffic cleared and the checkpoint could resume. The MCSD set up signs at each end of the checkpoint to warn approaching motorists; the MCSD used safety cones and marked patrol cars with emergency lights; and officers wore safety vests and carried flashlights, demonstrating that the checkpoint was conducted in a safe manner. All of these factors were enumerated in Downey and weigh in favor of finding that the checkpoint did not violate constitutional requirements. Moreover, Sheriff Lewis' selecting the location for the checkpoint and the MCSD's setting up and operating the checkpoint in accordance with predetermined guidelines weigh particularly heavily in the State's favor. See Hicks, 55 S.W.3d at 533 (stating that "the most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field"); Downey, 945 S.W.2d at 110-11 (stating that "[v]irtually every court has emphasized the importance of limiting the discretion of police officers at the scene").

According to the predetermined guidelines in this case, officers were to approach stopped motorists, identify themselves, and announce the purpose of the checkpoint. Officers then were required to "release the vehicle without further delay" if they saw no signs of intoxication or to detain any driver suspected of impaired driving. The appellant has made no claim that the checkpoint officers failed to follow these procedures. Therefore, we conclude that the level of intrusion to motorists was minimal in this case and that the stopping of motorists at the checkpoint was reasonable. The trial court properly denied the appellant's motion to suppress the evidence against her.

Private search of former boyfriend's place did not involve the Fourth Amendment. The police got into it after it happened. State v. Willis, 169 Ohio App. 3d 364, 2006 Ohio 5754, 862 N.E.2d 906 (2d Dist. 2006).*

Defense counsel was not ineffective for not filing a suppression motion after he determined that it would not be successful, which it would not have been. Ex parte Jones, 2006 Tex. App. LEXIS 9563 (Tex. App. – Dallas November 3, 2006).*

Arrest for disorderly conduct was unjustified, and the defendant consented to a frisk for weapons. In the watch pocket of his jeans, the officer felt what he thought was a joint, but it turned out to be a dollar bill. Opening the dollar bill exceeded the consent, even though the officer had reason to believe that the dollar bill contained crack, which it did. State v. Chauvin, 945 So. 2d 752 (La. App. 5th Cir. October 31, 2006).

Defendant had no standing to contest the search of a garbage bag of marijuana that he placed in the trunk of a friend's car before he got in it. He had standing to challenge the stop but not the search of the bag. Valle v. State, 2006 Ga. App. LEXIS 1361 (November 2, 2006).

Officers had PC for defendant's arrest when he called informant back and arranged a meet for a drug sale and then showed up. State v. Guillory, 945 So. 2d 798 (La. App. 3d Cir. November 2, 2006).*

Traffic stop at night led officer to window of car, and he shined his flashlight in and saw drugs in plain view. State v. Gray, 2006 La. App. LEXIS 2388 (5th Cir. October 31, 2006, released for publication January 19, 2007).*

Stop for riding bicycle at night without a headlight was justified, and defendant abandoned drugs when he was stopped. Because there was a factual basis for the stop, pretext could not be shown[, no matter how much it looked like it]. State v. Leonard, 945 So. 2d 764 (La. App. 5th Cir. October 31, 2006, released for publication January 19, 2007).

ICE officers had reason to believe that aliens were in a house in Puerto Rico, but they were waiting for confirmation, and they kept the house under surveilllance. When a car leaving it was stopped, officers got confirmation of the illegals inside. That gave PC, but the officers were also told that the illegals would move shortly, so they could not leave to get a warrant. The move did not occur at the time described by the persons stopped, so the officers waited a little longer, then approached the house for a knock and talk, and everybody bailed from the house. District court goes so far as to find exigent circumstances for an entry. United States v. Perez-Quirzola, 2006 U.S. Dist. LEXIS 80032 (D. P.R. October 5, 2006).

"Defendant's consent for the law enforcement agents to search his home was obtained in writing at his office prior to any interrogation. The audio recording of his interrogation further confirms that the search was made with the voluntary consent of the Defendant. In the absence of any factual allegations of coercive conduct, the Court finds that Defendant's consent was given voluntarily and his motion to suppress the fruits of the search is denied." United States v. Conteh, 2006 U.S. Dist. LEXIS 80063 (S.D. N.Y. November 1, 2006).*

"The distinct odor of burnt marijuana, by itself, coming from the window of a stopped vehicle will provide probable cause to search a vehicle. United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993). The detection of the odor of marijuana justifies a search of the entire passenger compartment, including locked compartments where contraband is likely to be concealed. Id. at 1489." United States v. Baylor, 2006 U.S. Dist. LEXIS 80042 (D. Kan. October 31, 2006).

Crime victim was not an informant. The information from the victim was also corroborated and not stale, albeit three weeks lapsed between the information about a gun and drugs and the issuance of the warrant. United States v. Johnson, 2006 U.S. Dist. LEXIS 79988 (D. Ore. October 26, 2006).*

Unjustified entry with guns drawn, ordering elderly man out of house first, was obviously not consensual. Later attempted consent was invalid because it was tainted by the original entry. United States v. Minnis, 2006 U.S. Dist. LEXIS 79920 (S.D. Fla. November 1, 2006):

Accordingly, not having obtained valid consent to enter the residence, officers needed either a search warrant--which they did not have--or probable cause and exigent circumstances before it was legally permissible for them to enter that home. Steagald, 451 U.S. at 205; United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000) (citing United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc)). As explained in the August 28, 2006 R&R, there were neither in this case. Because none of the constitutional prerequisites for a warrantless entry without consent were present, and because the law deems this entry presumptively unconstitutional, the undersigned recommends that Defendant's motion to suppress be granted, and that the evidence seized from Defendant's residence and the statements Defendant made on April 25, 2006, be suppressed.n6

n6 We have, however, drawn a distinction between the initial entry - that lacked legal consent - with the consent that was later obtained, after the passage of time and after additional steps were taken by law enforcement to establish voluntariness. As explained in footnote 15 of the R&R, if a legal initial entry occurred contrary to the R&R's conclusion, the passage of time, the use of a consent form that was later read to Ferguson and the Defendant, and their express consent at that point without any threat or show of force, all made it possible for Ferguson and Defendant to consent to a search after the protective sweep was conducted. Officers in fact obtained that consent. But for the other reasons argued in the R&R, that later consent to search (not enter) cannot save the government's unlawful and warrantless entry into the apartment. See, e.g., Santa, 236 F.3d at 676-79 (illegal warrantless entry tainted consent to search provided immediately after illegal entry and all evidence seized thereunder).

Plaintiff's actions gave officers reasonable suspicion to detain him. He was disheveled, smelled bad, and pacing around the front of the Cook County courthouse at 6:30 a.m. They decided to ask him for identification, and he claimed to be a "federal process server," but he refused to identify himself. He was attempting to serve the sheriff with process at a shift change. Plaintiff's conduct and words made them have reasonable suspicion that he was potentially dangerous, and summary judgment was properly granted. Cady v. Sheahan, 467 F.3d 1057 (7th Cir. November 3, 2006).*

Plaintiff was at a Breeder's Cup event in Texas, and he was drawing the structure of the building with pictures of pigs in military uniforms and other references to possible religious beliefs. Security guards were notified by a patron, and they came and looked. After detaining him, they called the ATF which sniffed his van, and they looked in it in the parking lot. ["Paranoia strikes deep. Into your life it will creep." --Stephen Stills] The detention and search were reasonable enough to qualify for qualified immunity. Govea v. ATF, 2006 U.S. App. LEXIS 27216 (5th Cir. November 2, 2006)* (unpublished).

Defendant was driving his girlfriend's car with her permission, so he had standing to challenge its search. Search of the car was based on PC, and it was valid. United States v. Brown, 203 Fed. Appx. 997 (11th Cir. November 2, 2006).

The Eleventh Circuit rejected an IAC claim on grounds not related to the Fourth Amendment, but it mentioned that two defendants removed from a car with two "cookies" of crack were put in a police car and recorded where they made admissions of knowledge of the drugs in the car. United States v. Downs, 217 Fed. Appx. 841 (11th Cir. 2006)* (unpublished).

A guest of a motel guest had standing to challenge the search of the room. While he might have somehow violated hotel policy [something not really realistic], he had a reasonable expectation of privacy in the room, one that society would recognize as reasonable. United States v. Rollins, 2005 U.S. Dist. LEXIS 43849 (D. Utah July 18, 2005).

Assuming, without deciding, that a cotenant could not consent to a search that produced clothing identifiable by a robbery victim, it was harmless beyond a reasonable doubt when the cotenant also testified to defendant's appearance that day. People v. Bass, 155 P.3d 547 (Colo. App. 2006):

Here, the victim described her attacker as having bushy hair and a scraggly beard, and she stated that he was wearing "dark clothing and dark blue jeans" and "[h]e had a black shirt on, that ... had some sort of writing on it or picture." Likewise, the tenant testified that, on the early morning of July 10, Bass appeared "scruffily and scraggly . . . his hair was all out of place," he had several days growth of beard, and he was wearing a "black shirt, a camel T-shirt" and dark blue jeans.

Bass argues that the admission of the seized clothing was not harmless because it helped bridge a gap between the victim's description of her attacker and Bass's physical appearance. However, the tenant testified in detail regarding Bass's appearance, and the seized clothing merely served to corroborate that description. Accordingly, we conclude the guilty verdict rendered in this case was surely unattributable to the error, see Bernal, supra, and, therefore, was harmless beyond a reasonable doubt.

The community caretaking function could not be applied to seizure of a defendant who fled from officers. Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 856 N.E.2d 189 (November 2, 2006), aff'd 450 Mass. 1030, 879 N.E.2d 1242 (2008):

The motion judge concluded that the flight of the defendant was a nonverbal response to the officer that the defendant was not in need of assistance and that the action of the police did not come within the community caretaking function. We agree.

The community caretaking function "applies when the purpose of the police [intrusion] is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property." Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 & n.2 (1990). Even though the defendant appeared impaired and possibly injured, he was being assisted by another person. Certainly the police would have been warranted in offering aid, but in these circumstances, chasing the defendant and ordering him to stop went beyond the scope of the community caretaking function. Contrast Commonwealth v. Murdough, 428 Mass. 760, 762 (1999) (police officers acted reasonably in asking defendant to get out of vehicle because they were "concerned about his condition" and they "thought that the defendant might have been on a narcotics bender and fresh air might do him good", quoting from Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738 [1998]). Here, the defendant was not operating a motor vehicle, which could, in his condition, have posed a potential danger to the public. Contrast Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002) (police may ask whether driver of automobile parked in breakdown lane with blinker flashing needs assistance). See generally Commonwealth v. Brinson, 440 Mass. 609, 615 (2003).

Nor was this a proper exercise of police power, as the Commonwealth argues, under the protective custody statute, G. L. c. 111B, § 8, which provides, among other provisions, that the police may temporarily detain people and determine whether they are intoxicated. The authority of the police to act under c. 111B, § 8, is limited to persons incapacitated by alcohol who are "(1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or damage property, or (4) disorderly." G. L. c. 111B, § 3, as inserted by St. 1971, c. 1076, § 2. "The reasonable suspicion standard is ... appropriate to G. L. c. 111B, § 8, the protective custody statute." Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 716 (2000). There is nothing in the record to indicate that Horan was aware of sufficient facts to support a belief that the defendant was incapacitated due to alcohol within the meaning of the statute. To the extent there may be a gap in the statute because it only pertains to incapacity due to alcohol consumption, it is for the Legislature to enact a statute that provides for protective custody of persons incapacitated from the ingestion of drugs or for other reasons.

Defendant's overbreath challenge to a drug premises statute was rejected. On the search and seizure claim, there was nothing in the statute that mandated a search, so that challenge is rejected as well. State v. Macelman, 154 N.H. 304, 910 A.2d 1267 (2006).*

Defendants' conduct of one hiding face behind a map during traffic stop and then both coming out of the car and walking back to the patrol car, to the officer's great alarm, while the officer was on the radio was reasonable suspicion. People v. Leiva, 33 A.D.3d 1021, 823 N.Y.S.2d 494 (2d Dept. October 31, 2006):

In light of the suspicious conduct of the defendant's passenger in attempting to cover his face with a map, in light of the "very very rare" conduct of the two men in later approaching the officer while she was speaking over the police radio, the defendant having given contradictory responses when asked about his destination, together with the various other circumstances revealed at the pretrial hearing, the officer at the very least had a founded suspicion that criminal activity was afoot so as to authorize her and the other officers to request the defendant's consent to a search of the minivan.

A bottle cap folded around a plastic bag is commonly associated with containing drugs, and that is PC to believe drugs are inside when it is seen in a vehicle. State v. Stock, 209 Ore. App. 7, 146 P.3d 393 (November 1, 2006).

Defendant as a passenger in a vehicle did not prove standing to contest the opening of a cooler in the back seat. United States v. Parada, 2006 U.S. Dist. LEXIS 79639 (D. Kan. October 23, 2006):

In this case, defendant does not challenge the search of luggage, but a cooler designed to store food and beverages. The cooler was not stored in the trunk of the vehicle, but was in the back section of the van. The cooler was not being used to transport defendant's personal belongings while traveling, and contained only the two apple juice jugs of PCP seized by the police. Moreover, defendant never asserted ownership over the cooler, either at the time of the stop or at the suppression hearing. Instead, his ownership assertion is based on Kelley Bradley's testimony, a witness whose veracity defendant consistently disputed at trial. Based on these facts, the Court cannot find that defendant clearly manifested a subjective expectation of privacy in the cooler and that his expectation was one that society has recognized as reasonable. The Court therefore finds that defendant lacks standing to challenge the search of the cooler found in the van.

Defendant approached police car that came onto a convenience store parking lot. That conversation was not a seizure. The bulge in defendant's pocket, his reaching toward his pocket, and a gang bandana sticking out of his pocket gave reasonable suspicion. The defendant offered to be searched. United States v. Kindelay, 2006 U.S. Dist. LEXIS 79600 (D. Ariz. October 31, 2006).*

While the question was close, the defendant handcuffed during a Terry stop was not "in custody" for Miranda purposes when he was asked about the location of a gun that the officers had previously seen. United States v. Denson, 2006 U.S. Dist. LEXIS 79430 (W.D. Pa. October 31, 2006):

The court of appeals [in another case], noted that when reaching the question with respect to whether a Terry stop has risen to the level of a custodial interrogation, a district court should consider (1) the purpose of the question; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police or acquiesced to their requests to answer some questions. Id. at 529 (cited in United States v. Thomas, 142 Fed. Appx. 896 (6th Cir. 2005), which found that where police asked a suspect, who was sitting in the police car and had been seen throwing an object believed to be a gun, whether he had a license to carry a firearm, the question was "benign and unintrusive" and did not cause the Terry stop to rise to the level of a custodial interrogation).

Respondents against a Dept. of Labor subpoena failed in their burden to show that the subpoena was unreasonable. The agency made a prima facie showing the subpoena was valid, and the respondents did not overcome it. Chao v. Potter, 2005 U.S. Dist. LEXIS 43850 (W.D. Mich. August 10, 2005).

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

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

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

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

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

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

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

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

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

Defendant, when confronted by police, put a baggie of cocaine in his mouth in an attempt to swallow it, and he began to choke on it. The officer acted reasonably in applying pressure to the back of his neck to get it out, considering that defendant could have OD'ed on the cocaine. Grier v. State, 855 N.E.2d 1043 (Ind. App. October 31, 2006):

The circumstances were much different in the instant case. Here, Officer Moncrief applied pressure to Grier's neck for approximately fifteen seconds, a much shorter amount of time than in Conwell. Furthermore, the officers did not mace Grier. Officer Moncrief testified that he applied pressure to Grier's neck to prevent him from swallowing the baggie, but there was no evidence that Grier's airway was blocked or that he was being choked by Officer Moncrief. In fact, Grier was already choking and gagging on the baggie when Officer Moncrief began to apply pressure. Therefore, we conclude that there was an insignificant threat--and perhaps even a benefit, when one considers the potential risk of ingesting cocaine--to Grier's health and safety and that the intrusion upon his dignitary interests and bodily integrity was minimal. Also, Officer Moncrief acted in the community's interest to preserve evidence that is necessary to determine Grier's guilt or innocence. In sum, there is sufficient evidence to support the trial court's finding that Officer Moncrief's search of Grier's person was reasonable. The trial court did not abuse its discretion in concluding that no Fourth Amendment violation occurred.

The search warrant did not give a postal address of the place to be searched, but, at the scene, there were four trailers out of order by number and one without a number. The officers at the scene were still able to determine the correct place because one of the officers had been there before to serve papers. People v. McCarty, 223 Ill. 2d 109, 306 Ill. Dec. 570, 858 N.E.2d 15 (October 19, 2006):

In this case, the warrant did not list the specific postal address of the premises to be searched. Therefore, the confusion that occurred regarding the addresses of the various trailers subsequent to the execution of the warrant is inapposite. Instead, the warrant described the location to be searched with respect to three factors: (1) the identity of an individual, (2) the approximate mileage between an intersection and the property on which the trailer to be searched was located, and (3) the position of that trailer in relation to other trailers.

The description was accurate with regard to the first factor, as it is undisputed that McCarty stayed regularly at the trailer that was searched, kept personal belongings there, and came and went from it as he pleased. Furthermore, McCarty's son lived there. Thus, while McCarty did not hold title to the trailer, he did exhibit numerous indicia of permanent occupancy.

The description's reference to the second factor was similarly accurate. As the warrant noted, the three-quarters of a mile distance measurement was an approximation. This approximation was sufficiently specific to direct the officers executing the search warrant to the property on which the particular trailer to be searched was located, as it is undisputed that driving three-quarters of a mile south from the Kinlou Road-O'Leary Road intersection would, at a minimum, place an individual at the beginning of the private drive and, at a maximum, place him at the doorstep of the trailer that was searched.

Finally, the description's reference to the third factor, the position of the trailer searched in relation to the other trailers, was also accurate. There unquestionably were four trailers located alongside the private drive. However, only three of those trailers were inhabited, and the appearance of the trailer that was not stood in marked distinction to the appearances of those that were. The uninhabited trailer still had wheels and a hitch, and it lacked underpinning. It was also positioned on a slight incline adjacent to a farm building. Furthermore, the testimony at the suppression hearing indicated that all of the other trailers were visible prior to the uninhabited trailer upon approaching the property from the Kinlou Road-O'Leary Road intersection.

In cases such as this one, where the particularity of a warrant is called into question only upon its execution, and where the extent of the warrant description's inaccuracy is minimal, courts generally are "receptive to a showing that the executing officer had some other information ***, via the warrant affidavit or otherwise, which made it apparent which place was intended." 2 W. LaFave, Search & Seizure § 4.5(a), at 570 (4th ed. 2004). We believe this to be a sensible approach and therefore make note in this case of the fact that Deputy Rose, the officer in charge of executing the warrant, had served papers at the trailer that was searched on a previous occasion and was therefore familiar with its location. See also People v. Burmeister, 313 Ill. App. 3d 152, 158, 728 N.E.2d 1260, 245 Ill. Dec. 903 (2000) ("Inaccuracies will not necessarily invalidate a warrant if the officer applying for the warrant also executed the warrant"). This factor, coupled with those discussed above, persuades us to conclude that the warrant's description of the premises to be searched was sufficiently particular.

Defendant was found to be illegally detained when he fled. If he were searched when first detained, it would have been unlawful. He fled, however, and the officer tackled him. When he pulled the defendant up, there was meth under him, and it was not suppressed under Hodari D. State v. Zuniga, 143 Idaho 431, 146 P.3d 697 (2006).*

Defendant was stopped in Arizona for no vehicle license, which turned out to be mistaken. In the vehicle was the defendant and three small children. Defendant was ordered out of the vehicle, and the officer noticed likely gang tat on defendant's hand. He ordered the defendant to interlock his fingers behind his head and sit on the curb while the DL was run. He asked about the gang tat and was told it was from the Latin Kings in Chicago. The records check came back clean. In the meantime, another officer had arrived and was questioning the defendant. "At that time, [the officer] overheard Mendez telling Det. Jaensson, in response to the detective's questioning, that he had come to Arizona 'trying to get away from the gang life.' Det. Bracke also overhead him answer that he had spent time in prison in Illinois. Det. Bracke then questioned Mendez as to why he had been imprisoned. Mendez replied that he had been convicted of a weapons violation. Det. Bracke then asked him if he had any weapons in the car. According to Det. Jaensson and Det. Bracke's testimony, Mendez became agitated, told them that he was a good father and was trying to make a good life for himself in Arizona, and then said that there was a firearm in the driver's door handle. At this point, the officers arrested him. Det. Bracke then searched the vehicle and found a loaded, small caliber, semi-automatic pistol in the driver's side armrest." The continuation of the stop was unreasonable, and the gun should have been suppressed. United States v. Mendez, 467 F.3d 1162 (9th Cir. October 30, 2006).

Inmate's claim that there was a difference in Hudson v. Palmer between having a greater privacy right interest outside one's cell rather than in it is just wrong. [It also makes no sense.] Essentially, there is no general privacy interest of inmates anywhere in a prison. Wappler v. Brevard, 2006 U.S. Dist. LEXIS 78793 (W.D. Mich. October 30, 2006).*

Officers were sued for entering property for investigation of mistreatment of horses, for which the plaintiff was convicted. "The dispositive factor in the Heck inquiry is whether judgment in favor of the [plaintiff] would 'necessarily imply' the invalidity of the conviction or sentence." This one does, so case dismissed. Shaughnessy v. Garrett, 2006 U.S. Dist. LEXIS 78921 (N.D. N.Y. October 30, 2006).*

Just because officers are congregating in your apartment does not mean that you are not free to walk away and not talk with them. United States v. McGraw, 2006 U.S. Dist. LEXIS 78740 (E.D. Tenn. October 27, 2006). (Comment: This is ridiculous; yet another example of a judicial lack of common sense or knowledge of human nature.)

Defendant cannot change his testimony before the MJ by filing an affidavit in the objections to the R&R. Id.

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).*

A defendant on release after conviction in a community corrections program on electronic monitoring is to be treated as a parolee in Michigan. Officers with a corrections officer could enter the house. United States v. Smith, 457 F. Supp. 2d 802 (E.D. Mich. October 18, 2006).

A violation of state law by police does not require suppression if the Fourth Amendment was not violated. United States v. Barger, 2006 U.S. Dist. LEXIS 78388 (D. Colo. October 27, 2006)*:

Assuming, arguendo, that the Fort Collins police officers violated Colorado law by executing the search warrant in Weld County, this violation would not mandate suppression. The exclusionary rule only applies to violations of the United States Constitution. United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999). Police officers' "violation of state law is not, without more, necessarily a federal constitutional violation." United States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003). Indeed, the Tenth Circuit has specifically held that where police officers conducted a search pursuant to a lawful warrant outside of their jurisdiction in violation of Kansas law, the search did not offend the United States Constitution. Green, 178 F.3d at 1104-06. Accordingly, the search and seizure did not violate Colorado law, and even if it did violate Colorado law, the search and seizure does not provide grounds for the suppression of the evidence and statements obtained. Defendant's argument as to this point is therefore without merit.

Comment: I had a case years ago with a clear violation of Arkansas' nighttime search rule, which the Arkansas Supreme Court takes quite seriously. I filed a motion to suppress in state court. Before the suppression hearing could be held, the client was indicted federally because the search did not violate the federal nighttime search rule. The client later pled because there was no Fourth Amendment issue in the execution of the warrant.

Evidence inadmissible at trial may be relied upon in determining a motion to suppress. The defendant claimed standing in a search of his friend's barn where he stored things that were seized. The friend told the police that the defendant had no permission to keep the stuff there. The District Court credited the hearsay over the defendant's live testimony. United States v. Kellogg, 202 Fed. Appx. 96 (6th Cir. October 27, 2006)* (unpublished):

The district court had before it two contradictory pieces of evidence: White's statements to the police that he did not give Kellogg general permission to store items in his barn, and Kellogg's testimony that he did. The district court had an opportunity to assess Kellogg's demeanor during his live testimony and obviously chose not to credit his testimony, an assessment that receives deference on appeal. And while White's statements were hearsay, there was no reason not to rely upon them: They were consistent with what White had told police officers at the time of the search; Officer Gutierrez declared under penalty of perjury that the transcript was accurate; and there is no reason to think that White, who had consented to the search in the first instance, suddenly had a reason to dissemble to the police. In ultimately choosing to credit White's statements, see JA 196 (crediting "evidence that Mr. White did not permit the defendant to store items on the property, other than his vehicle" in "find[ing] that the defendant had no reasonable expectation of privacy"), we cannot say that the district court committed clear error.

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.]

Plaintiff was involved in an animal rights protest, and a police officer ordered him to move to the other side of the street. This was not a seizure. Deardorff v. Louisville/Jefferson County Metro Gov't, 2006 U.S. Dist. LEXIS 78235 (W.D. Ky. October 20, 2006):

Count III of Deardorff's complaint, which alleges that he was unreasonably and unconstitutionally seized when he submitted to Baker's order to cross to the east side of Blakenbaker, must also be dismissed. The Fourth Amendment protects the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. However, "a person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained. ... As long as the person remains free to ... walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870-1877, 64 L.Ed.2d 497 (1980). Nowhere has Deardorff alleged that Baker somehow impeded his ability to leave the area. On the contrary, Deardorff was always free to leave, but chose to remain and protest on the east side of Blakenbaker to avoid potentially violating the law.

Defendant's wife suspected him of having an affair, so she searched through his belongings and found child porn video and computer images of their granddaughter and grandniece. She turned them over the police who also viewed them. This was a private search that was used to get a search warrant. Bruce v. State, 2006 Ark. LEXIS 535 (October 26, 2006).

During routine traffic stop, defendant kept putting his hands in his pockets [a sign of nervousness, perhaps?], and that justified a patdown for weapons. The evidence supports the District Court's finding that the stop was not unnecessarily extended. United States v. Chavarria, 202 Fed. Appx. 310 (10th Cir. October 26, 2006)* (unpublished).

Defendant's own actions in removing marijuana from his sock during a search of his person factored into District Court's determination that he considered the sock to be within the scope of consent. United States v. Richardson, 2006 U.S. Dist. LEXIS 78334 (D. Neb. October 23, 2006):

It is undisputed that Richardson was of adequate age and intelligence, and was not under the influence of any drugs or alcohol during his encounter with the police on February 17, 2006. (Filing No. 29, 4). Richardson consented to the search after being questioned only briefly, and although he argues in his brief that he was physically threatened, there is nothing on the record to verify that assertion. Rather, the record is completely devoid of any threats, physical intimidation, or punishment prior to Richardson's consent. Further, when Richardson consented, he was standing on a terminal platform, outside, in a public place. There is no evidence of misrepresentation by Investigator Lutter in gaining Richardson's consent, and no evidence that Richardson was in custody at the time he consented. Finally, although there is some evidence of limited consent--testimony that Richardson stepped back when Investigator Lutter reached for his left sock a second time--the fact that Richardson then reached into his own sock, withdrew the marijuana, and handed it to Investigator Lutter demonstrates the scope of the search at least included examination of the marijuana.

Presumption of probable cause in affidavit for search warrant carries over to civil cases. Affidavit here clearly showed PC. Coyle v. Ludwig, 2006 U.S. Dist. LEXIS 78208 (N.D. Okla. October 25, 2006).*

Child abuse investigator gained consent to enter and then consent was withdrawn by at least one of the adult occupants, and this is a fact question for trial in this § 1983 case. A jury could also conclude that the seizure of plaintiffs' computer and other things were unreasonable. MSJ on these claims denied. Lowery v. Atkinson, 2006 U.S. Dist. LEXIS 78209 (E.D. Ark. October 23, 2006).*

Search claim raised in trial court but not on appeal was waived, even though it was raised in state post-conviction before federal habeas. Skillern v. Georgia, 202 Fed. Appx. 403 (11th Cir. October 27, 2006)* (unpublished).

The fact defendant was handcuffed and under arrest by uniformed officers does not necessarily make consent to search involuntary. Record supports the district court's conclusion. United States v. Villanueva-Fabela, 202 Fed. Appx. 421 (11th Cir. October 27, 2006)* (unpublished).

Consent not invalid just because defendant was a meth head since it was not shown he was high at the time he consented. United States v. Lopez-Lopez, 2006 U.S. Dist. LEXIS 77726 (W.D. Mo. June 8, 2006):

In this case, the totality of the circumstances demonstrate that Defendant's consent was voluntarily given. Defendant's personal characteristics do not indicate that his consent was involuntary. At the time of consent, Defendant was 51 years old. He consented to the search of his apartment after having been advised of his Miranda rights and after he was told he could refuse consent.

There is conflicting evidence surrounding whether Defendant was under the influence of methamphetamine at the time he gave consent. Defendant testified he was high when taken into custody on September 29, 2005. Detective Howe stated that although he believed Defendant to be a methamphetamine user, Defendant did not give any indication he was actually high at that time.

Allegation in search warrant application that defendant had threatened to kill the decedent and had "written it all down" was sufficient nexus to search his apartment for the writing. Cavazos v. State, 2006 Tex. App. LEXIS 9332 (Tex. App. – Dallas October 27, 2006).*

Informant's reliability was corroborated by defendant's own surreptitiously recorded statements made by the informant. United States v. Mustapher, 459 F. Supp. 2d 752 (N.D. Ill. October 26, 2006).*

Child porn knock-and-talk led to officers running an "image scan" of the computer which produced child porn, so they got consent to seize it. United States v. Renshaw, 2006 U.S. Dist. LEXIS 77743 (S.D. Ohio October 25, 2006).*

Plaintiff inmate sought medical care from the prison infirmary, and a catheterization was required. From that catheterization, the prison officials seized his urine for drug testing. The process was by consent, and he had no reasonable expectation of privacy in his urine in prison. Johnson v. Bowers, 2006 U.S. Dist. LEXIS 78111 (S.D. Ill. October 26, 2006).

Search incident includes defendant's wallet. United States v. Torres-Lona, 2006 U.S. Dist. LEXIS 77791 (N.D. Iowa October 23, 2006).

Time SOL begins to run on a seizure claim is from the seizure; on a forfeiture claim from the time of the alleged defective forfeiture process. Kripp v. Luton, 466 F.3d 1171 (10th Cir. October 26, 2006).*

In a mail theft case against a USPS worker, consent to search her car for "stolen mail" permitted a fairly intensive search. United States v. Jason, 203 Fed. Appx. 625 (5th Cir. October 25, 2006)* (unpublished).

During a break in the meeting today, I met two friends from Memphis to go to the site of the 1770 Boston Massacre at the Old State House in Boston. We toured the building, and it turned out that the Council Chamber on the second floor was used as a courtroom and there, in 1761, James Otis, Jr., then a lawyer only eleven years, argued the famous case against the Writs of Assistance that John Adams wrote fifty years later “breathed into the nation the breath of life.” Treatise, § 1.19 at n. 36. From the exhibit: "This Writ is against the fundamental Principals [sic] of the law.--The Privilege of House. A Man is as secure in his house, as a prince in his castle...."

As Adams recounted it:

“May it please your honors, I was desired by one of the court to look into the books and consider the question now before them concerning writs of assistance. I have, accordingly, considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that, whether under a fee or not (for in such a cause as this I despise a fee), I will to my dying day oppose with all the powers and faculties God has given me all such instruments of slavery, on the one hand, and villainy, on the other, as this writ of assistance is.

“It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English lawbook. I must, therefore, beg your honors’ patience and attention to the whole range of an argument, that may, perhaps, appear uncommon in many things, as well as to points of learning that are more remote and unusual: that the whole tendency of my design may the more easily be perceived, the conclusions better descend, and the force of them be better felt. I shall not think much of my pains in this cause, as I engaged in it from principle. I was solicited to argue this cause as Advocate General; and because I would not, I have been charged with desertion from my office. To this charge I can give a very sufficient answer. I renounced that office, and I argue this cause from the same principle; and I argue it with the greater pleasure, as it is in favor of British liberty, at a time when we hear the greatest monarch upon earth declaring from his throne that he glories in the name of Briton, and that the privileges of his people are dearer to him than the most valuable prerogatives of his crown; and as it is in opposition to a kind of power the exercise of which, in former periods of history, cost one king of England his head and another his throne. . . .

“Your honors will find in the old books concerning the office of a justice of the peace precedents of general warrants to search suspected houses. But in more modern books you will find only special warrants to search such and such houses, specially named, in which the complainant has before sworn that he suspects his goods are concealed; and will find it adjudged that special warrants only are legal. In the same manner I rely on it that the writ prayed for in this petition, being general, is illegal. It is a power that places the liberty of every man in the hands of every petty officer. I say I admit that special writs of assistance, to search special places, may be granted to certain persons on oath; but I deny that the writ now prayed for can be granted, for I beg leave to make some observations on the writ itself, before I proceed to other acts of Parliament. In the first place, the writ is universal, being directed ‘to all and singular justices, sheriffs, constables, and all other officers and subjects’; so that, in short, it is directed to every subject in the king’s dominions. Everyone with this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control, imprison, or murder anyone within the realm. In the next place, it is perpetual; there is no return. A man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses, shops, etc., at will, and command all to assist him. Fourthly, by this writ, not only deputies, etc., but even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan with a witness on us; to be the servant of servants, the most despicable of God’s creation? Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Customhouse officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court, can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this power is not a chimerical suggestion of a heated brain. I will mention some facts. Mr. Pew had one of these writs, and when Mr. Ware succeeded him, he indorsed this writ over to Mr. Ware; so that these writs are negotiable from one officer to another; and so your honors have no opportunity of judging the persons to whom this vast power is delegated. Another instance is this: Mr. Justice Walley had called this same Mr. Ware before him, by a constable, to answer for a breach of the Sabbath Day Acts, or that of profane swearing. As soon as he had finished, Mr. Ware asked him if he had done. He replied: ‘Yes.’ ‘Well, then,’ said Mr. Ware, ‘I will show you a little of my power. I command you to permit me to search your house for uncustomed goods’; and went on to search the house from the garrett to the cellar, and then served the constable in the same manner! But to show another absurdity in this writ, if it should be established, I insist upon it that every person, by the 14th of Charles II, has this power as well as the customhouse officers. The words are: ‘It shall be lawful for any person or persons authorized,’ etc. What a scene does this open! Every man prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor’s house may get a writ of assistance. Others will ask it from self-defense; one arbitrary exertion will provoke another, until society be involved in tumult and in blood. . . .”

Even today, parts of this argument can be adapted for a policy argument for a particular application of the Fourth Amendment or one's state search and seizure provision.

For a Fourth Amendment buff, it was humbling to just be in the room where one of the seeds of both the American Revolution and the Fourth Amendment were sown 245 years earlier. I just had to sit there and picture who was standing where, where the bench was, where counsel tables were, where Otis stood, where John Adams sat in the audience, and what was going through Otis' mind as he prepared and made the argument. What was his body language, his voice inflection? How emotional did he get?

The judges were troubled by the sheer weight of the argument, and they had to write to England for direction, and, of course, Otis ultimately lost the case, but he helped turn the colonists against the Crown for its unrestrained searches and seizures under the Writs of Assistance.

Despite the traffic outside and the subway underneath, this room seemed like a hallowed place, like courtrooms where all major trials have been held that altered the course of the law, even when the lawyer lost on that day. This room is special for another reason: from the balcony outside the middle window of that room, the Declaration of Independence was first read to the public on July 18, 1776.

Little is known about Otis' argument except for what Adams shared 50 years later because Adams took copious notes, producing a near transcript. Otis is often a forgotten figure in the history of the American Revolution and the Bill of Rights, but his picture appears numerous times in the building. Bostonians remember, even today.

And what were you doing as a lawyer after eleven years?

Update: David McCollugh wrote in John Adams (2001), at 62, that, by 1765, Otis had apparently become senile. What a waste.

The police entered defendant's house and sought to search his computer and represented that they had a subpoena, which they did not show to the defendant, but they did show part of a document. The search was invalid, and any consent was coerced. State v. Giebel, 2006 WI App 239, 297 Wis. 2d 446, 724 N.W.2d 402 (2006):

P18 Consent must be more than mere acquiescence to a claim of lawful authority. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968). In State v. Kiekhefer, 212 Wis. 2d 460, 471-74, 569 N.W.2d 316 (Ct. App. 1997), we held that where the police represented that they could obtain a search warrant when in fact they could not, that misleading statement of authority led to consent that was not the product of free and unconstrained choice. Orderly submission to law enforcement officers who, in effect, incorrectly represent that they have the authority to search and seize property, is not knowing, intelligent and voluntary consent under the Fourth Amendment. See United States v. Elliott, 210 F. Supp. 357, 360 (D. Mass 1962).

P19 Subtle suggestions, strategically made, may amount to deception or trickery where the intent is a misrepresentation of authority. Here, we cannot fathom any other reason for Lewis' display of the subpoena. The subpoena simply showed Giebel's address as the one associated with an email account. Had Giebel asked Lewis how the investigation led to his home, perhaps the subpoena would have been relevant. Here, the subpoena simply had no application to the conversation as it occurred.

P20 Like the circuit court, we ascertain no outright deceit or blatant misrepresentation by Lewis or Mack; however, we believe that a reasonable police officer would understand, appreciate, and anticipate that a person of average intelligence would not grasp the distinction between a subpoena and a warrant. We are convinced that when the officers offered Giebel a fleeting glimpse of the subpoena signed by a judge, they suggested authority they did not possess. It was this suggestion of authority that led Giebel to believe he could not refuse consent for the officers to search his room and seize his computer.

The New York Supreme Court, New York County, has also ruled in a cellphone tracking case that "pinging" a cellphone to locate it is not an unreasonable search under the Fourth Amendment and is permitted by federal law. Also, cellphone records are not barred from production under the Fourth Amendment. People v Hall, 2006 NY Slip Op 26427, 2006 N.Y. Misc. LEXIS 3057 (New York Co. October 17, 2006). (A week later, the S.D. N.Y. similarly ruled in a more comprehensive decision reported below.)

Stop for lane change violation was supported by the record. State v. Allison, 2006 Ohio 5550, 2006 Ohio App. LEXIS 5542 (5th Dist. September 29, 2006).*

Tipster was sufficiently corroborated to justify stop. State v. Patton, 2006 WI App 235, 297 Wis. 2d 415, 724 N.W.2d 347 (2006):

P18 We reject Patton's argument that this case is governed by J.L. The tipster in that case simply provided a description of a person who would be at a particular bus stop in possession of a gun. The troubling thing for the Supreme Court was the absence of anything that indicated the reliability of the tipster's "assertion of illegality." J.L., 529 U.S. at 272. "All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about [the suspect]." Id. at 271.

P19 Here, although the anonymous tipster did not provide any information indicating the basis of his or her knowledge of the alleged armed robbery, the tipster's additional information about the location of the suspects, their direction of travel and their appearance was contemporaneously verified by Schroeder's observations as he was receiving the tipster's information via the police dispatch. The Wisconsin Supreme Court deemed this same factor important in Rutzinski when the court held that the tipster's information carried sufficient indicia of reliability. Rutzinski, 2001 WI 22, 241 Wis. 2d 729, P33, 623 N.W.2d 516. In short, the totality of the circumstances in this case conveys a greater indicia of the tipster's reliability than in J.L.

On reconsideration, motion to suppress is granted. The officer lacked justification for the stop, and, once the vehicle was stopped, there was no justification for a vehicle frisk under Michigan v. Long. United States v. Herrera, 2006 U.S. Dist. LEXIS 77089 (N.D. Cal. October 13, 2006):

In the case at bar, the evidence is similarly deficient. There is no evidence that Mr. Herrera exhibited any signs of drug use, behaved in a manner suggestive of drug use, or was nervous or evasive. Nor was there evidence that this particular location was a known drug spot. The only evidence supporting a likelihood that contraband would be found was that Mr. Herrera appeared to be illegally parked in a handicap space late in the evening in the Presidio, made some movement towards the center console upon Officer Campbell's approach, and had white residue on his pants. While this evidence suffices to establish reasonable suspicion, it does not establish a "fair probability that contraband or evidence of a crime will be found" necessary to constitute probable cause.

Console of truck was within defendant's reach at time of arrest for purposes of search incident. United States v. Lopez, 2006 U.S. Dist. LEXIS 77469 (D. Minn. September 11, 2006).*

Vehicle stop was not unduly prolonged to conduct a dog sniff. Defendant refused consent, and the officer was running his name through the state computer system and ran a dog around the car while waiting. The detention was not unreasonable. United States v. Kennedy, 2006 U.S. Dist. LEXIS 77571 (S.D. Ga. September 20, 2006).*

Videotape showed that defendant’s consent was valid and equivocal. United States v. Simmons, 202 Fed. Appx. 82 (6th Cir. October 24, 2006)* (unpublished).

Officers approached a car outside a known drug house for suspicious activities, and they asked the driver to open a hand he had balled into a fist. The driver opened his hand and out fell a baggie of crack. Furtive movements in the car were reasonable suspicion. United States v. Davis, 2006 U.S. Dist. LEXIS 77576 (N.D. Ohio October 25, 2006).*

The use of an electronic tracking device on a vehicle in a public place was not prohibited by the Fourth Amendment. United States v. Kurt, 2006 U.S. Dist. LEXIS 77385 (E.D. Wash. October 24, 2006).*

Search warrant for premises for gambling proceeds led to a request for consent to search defendant for cash, and consent was voluntary. United States v. Mihalich, 2006 U.S. Dist. LEXIS 77304 (N.D. Ohio October 23, 2006).*

(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.

New Mexico holds a pretexual seatbelt stop was invalid. State v. Ochoa, 2006 NMCA 131, 144 P.3d 132 (October 23, 2006) (writ of cert granted) and the court's summary tells it all:

This case requires us to determine if it is constitutionally reasonable for a police officer to stop a vehicle for a seatbelt violation when he does not personally observe a violation and does so only because he was told to do so by another police officer who wants to talk to the driver of the vehicle. We conclude that such a stop is not constitutionally reasonable. We therefore reverse the order of the district court denying Defendant's motion to suppress.

In Ohio, it was held that the officer's ulterior motive for a stop was irrelevant were there was, in fact, cause for the stop. State v. Bennett, 2006 Ohio 5530, 2006 Ohio App. LEXIS 5510 (5th Dist. October 18, 2006).*

Lack of findings of fact by the trial court required the appellate court to look for implied findings of fact, and it found the record supported the trial court's finding on one issue but not another. The court of appeals' decision reversing the trial court's suppression order was affirmed. Without the findings, the appeals court compares the evidence and finds the record lacking on that issue. Here, the defendant intentionally disclaimed the Fourth Amendment issue and instead went on the issue that a hospital blood draw by acquiescence was "in violation of law" sufficient to warrant suppression under Texas law. State v. Kelly, 204 S.W.3d 808 (Tex. Crim. App. October 25, 2006).*

A Pennsylvania stop on suspicion of burglary led to production of an outstanding warrant on the defendant. The product of the stop led to execution of a search warrant in Maryland. The stop was later held invalid in Pennsylvania, and the defendant moved to suppress in Maryland. The Maryland court held that the taint was dissipated. From the court's headnote: "Assuming arguendo, that the initial stop was illegal, we hold that any taint from the unconstitutional seizure was dissipated by the subsequent discovery of an outstanding warrant for the person and the subsequent legal arrest on that warrant and search incident thereto. Therefore, the evidence obtained during the search of the petitioner and his vehicle was admissible as a search incident to a lawful arrest. In addition, the search of the Hagerstown residence and the search of petitioner's person to obtain blood samples were sufficiently attenuated from the illegal stop." Myers v. State, 395 Md. 261, 909 A.2d 1048 (October 24, 2006).

Driver's license/sobriety checkpoint led to defendant's stop and smelling alcohol, and a consent search produced meth which was validly found. The trial court's order suppressing was reversed. State v. Johnson, 2006 Ga. App. LEXIS 1315 (October 25, 2006).

Another cellphone tracking case has been decided, and it surveys all the cases to date. The case finds that the information is subject to production, as long as triangulation is not sought, in a comprehensive decision that should be read if one gets such a case: In re Application of the United States, 460 F. Supp. 2d 448 (S.D. N.Y. October 23, 2006):

Accordingly, the Court accepts the government's argument that the Pen Register Statute and the Stored Communications Act, combined pursuant to CALEA, permit a court to authorize the disclosure of prospective cell site information, at least where, as here, the government does not seek triangulation information or location information other than that transmitted at the beginning and end of particular calls.

B. Section 3117 and the Fourth Amendment

The analysis cannot end here, however. Amicus and the magistrate judge opinions raise two additional issues that the Court must address.

First, some of the magistrate judge opinions suggest that because cell site information renders a cell phone a "tracking device" under 18 U.S.C. § 3117, cell site information may be disclosed only pursuant to a warrant obtained by a showing of probable cause. Even assuming arguendo that a cell phone is a tracking device under Section 3117, this argument is unavailing.

First, Section 3117 provides that "[i]f a court is empowered to issue a warrant or other order for the installation of a mobile tracking device, such order may authorize the use of that device within the jurisdiction of the court, and outside that jurisdiction if the device is installed in that jurisdiction." Accordingly, Section 3117 specifically "contemplates that a tracking device may be installed pursuant to an 'order' -- that is, without a warrant and thus without a probable cause showing."

Further, Section 3117 speaks only to the "installation" of a tracking device. Here, the government does not seek to install any sort of tracking device, as cell phones provide location information on their own by transmitting signals to nearby antenna towers.

Amicus next argues that permitting the disclosure of cell site information under the Pen Register Statute and the Stored Communications Act would violate the Fourth Amendment prohibition on unreasonable searches and seizures. It contends that granting this application would permit the government to track the location of the target cell phone -- and its user -- without a warrant and a showing of probable cause. This, it says, would run afoul of United States v. Karo, which held that the government may not install a tracking device without the knowledge of the person being tracked or a warrant if the device would disclose its location inside a person's home and that information could not have been observed from public spaces.

The government argues that there is no Fourth Amendment problem because cell phone users have no legitimate privacy interest in information they voluntarily turn over to third parties. It relies chiefly on Smith v. Maryland, in which the Supreme Court held that there is no legitimate privacy interest in telephone numbers dialed because telephone users voluntarily convey those numbers to the telephone company in order to place calls, thereby assuming the risk that the telephone company will pass that information on to law enforcement officials.

The Court cannot resolve the Fourth Amendment question in the abstract. Although the government is correct that, under Smith, there is no legitimate expectation of privacy in the telephone numbers dialed from a particular telephone, it does not necessarily follow that a cell user abandons any legitimate expectation of privacy in his or her location by carrying a cell phone that signals its presence in the network to the service provider. Assuming arguendo that a cell phone user maintains at least some expectation of privacy in location, the government could violate Karo if it used cell site information to surveil a target in a private home that could not be observed from public spaces. At this point, however, the Court has no way of knowing if the government will use any cell site information it obtains in this manner. If it does, and information obtained leads to indictment, the issue can be litigated on a motion to suppress.

Whether wrong house was searched under a warrant (2112 vs. 2110) did not need to be resolved. First, the officer testified that he pointed out the correct house to the search team. There is no reason to believe, after the hearing, that the wrong place was searched. Second, photographs of mailboxes taken 9 months after the search raised more questions than answers, and one could conclude that the mailboxes were not as represented at the time of the search. United States v. Smoke, 2006 U.S. Dist. LEXIS 76824 (M.D. Ala. October 10, 2006):

The United States Supreme Court deems it "enough if the description is such that the officer with a search warrant can, with reasonable effort[,] ascertain and identify the place intended." Steele v. United States, 267 U.S. 408, 503 (1925); Maryland v. Garrison, 480 U.S. 79, 83 (1987) ("The Warrant Clause of the Fourth Amendment categorically prohibits the issuance of any warrant except one 'particularly describing the place to be searched and the persons or things to be seized.")

A state search warrant adopted by the feds in United States v. Hansel, 2006 U.S. Dist. LEXIS 76683 (N.D. Iowa October 20, 2006), included "thumb drives" in the description of computer equipment to be seized. The issue there, however, was whether photographs could be seized in a child porn warrant when the officers had to look fairly intensively for them. "A warrant to search a residence generally extends to every part of the residence in which the items sought may be found. United States v. Ross, 456 U.S. 798, 820-21 (1982); see also United States v. Hughes, 940 F.2d 1125, 1127 (8th Cir. 1991) ('A lawful search extends to all areas and containers in which the object of the search may be found.')."

Neighbors complained of drug deals in the area, so police set up surveillance. Defendant, a known drug dealer, showed up, and apparent hand to hand sales with cars were occurring. The officers observed three sales and moved in, one defendant tried to run into a house, and the police gave chase. The entry was valid. United States v. Goode, 2006 U.S. Dist. LEXIS 76767 (E.D. Pa. October 20, 2006).*

Defendant's consent was not an acquiescence to authority. It was apparent that he knew the evidence would ultimately be found, and he decided to get it over with. United States v. Mendoza-Rodriguez, 2006 U.S. Dist. LEXIS 76625 (N.D. Ga. October 17, 2006).*

Consent was found voluntary under the totality of circumstances. Here, the defendant consented twice, and, while there were multiple officers arriving at the scene, defendant only talked to one. Navarro v. State, 855 N.E.2d 671 (Ind. App. October 23, 2006).*

Police had cause to believe that the defendant, wanted on an arrest warrant, was in his friend's apartment, so they went there to arrest him. When the door was opened, they found the defendant sitting in a recliner, but he refused repeated commands to show his hands. Officers then entered to remove him. While Payton was not complied with, there were exigent circumstances for that entry. After that, a plain view and protective sweep were permissible. People v. Aarness, 150 P.3d 1271 (Colo. October 23, 2006):

In addition to the three specific categories of exigent circumstances we have recognized, we have developed a set of factors to be considered when determining whether exigent circumstances are present. People v. Miller, 773 P.2d 1053, 1057 (Colo. 1989) (citing Dorman v. United States, 140 U.S. App. D.C. 313, 435 F.2d 385, 392-93 (D.C. Cir. 1970)). In Miller, we followed the Dorman factors for determining whether exigent circumstances exist: (1) whether a grave offense is involved, particularly a crime of violence; (2) whether the suspect is reasonably believed to be armed; (3) whether there exists a clear showing of probable cause to believe that the suspect committed the crime; (4) whether there is a strong reason to believe the suspect is in the premises being entered; (5) the likelihood that the suspect will escape if not swiftly apprehended; and (6) whether the entry is made peaceably. Id. Whether the entry is made at night is an additional consideration. Id.

Applying the Dorman factors, other jurisdictions have found exigent circumstances in situations substantially similar to this one. See generally 3 LaFave, supra, § 6.1(f) nn. 198-206 (listing cases finding exigent circumstances under the Dorman factors). For example, the First Circuit held that exigent circumstances justified entry into a third party's residence to execute an arrest warrant where the arrestee had outstanding arrest warrants, had been seen by an informant earlier that day carrying a firearm, and tried to escape through the attic when he saw police outside the residence where he was staying. United States v. Weems, 322 F.3d 18, 20-21, 23 (1st Cir. 2003). The court reasoned that the police needed to act quickly in that situation, and that the arrestee had been given ample time to surrender before the police entered the residence to arrest him. Id. at 23.

Considering the Dorman factors as approved of by this Court in Miller, the particular circumstances present here were sufficient to conclude that there existed a substantial safety risk to both police and the occupants of the apartment that justified police entry to arrest Aarness. Most important to our finding are the facts that police had information that Aarness was armed, coupled with his behavior when he saw the police at the door. Aarness reached into the seat of his recliner and disobeyed multiple commands to show his hands. Instead, he kept his right hand in the recliner, raising the need for immediate police action. Under the facts here, it was reasonable for police to believe that Aarness was reaching for a weapon and that their entry into the apartment at that time was necessary to protect the safety of the other occupants present, as well as their own safety. Further, police had reason to believe that Aarness was an escape risk because of his outstanding California warrant for a parole violation. While it is also true that Aarness eventually responded by raising his hands, on balance, we hold that exigent circumstances justified the police entry into the apartment to arrest Aarness.

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).

Consent, found otherwise validly granted (after repeated requests: "Odom said, 'you are going to find it anyway. Go ahead.' Odom did not place any limitations on the scope of his consent."), permitted the officer to search the safe in the room. The defendant denied having the key to the safe, so the officer got the motel manager to open it with a master key and found crack cocaine. State v. Odom, 2006 ND 209, 722 N.W.2d 370 (October 17, 2006).

There were false statements in the affidavit for the search warrant, but whether they were intentional or reckless did not matter. Instead, court takes the simpler and more logical route and excises the information, retests it, and finds PC. State v. Ebel, 2006 ND 212, 723 N.W.2d 375 (October 17, 2006):

[*P27] Here, after correcting the potentially false information in Hill's testimony in support of issuance of the warrant, we conclude the remaining information is sufficient to establish a nexus to support probable cause. With regard to the rubber gloves and shop towels found in the sewer, even without the information that their origins pointed to only two houses, Ebel's residence remained one of seven residences as a potential source for these items. Hubrig's proffered affidavit neither rebuts the fact that the gloves and towels were found in the sewer, which as Officer Hill testified indicated the presence of methamphetamine production, nor does the affidavit eliminate Ebel's house as a potential source for these materials.

[*P28] Ebel argues Officer Hill also made a false statement by failing to inform the district court that Ebel is a welder by profession. Again, Ebel has not presented any evidence whether this omission by Officer Hill was either intentional or reckless. Ebel asserts his occupation as a welder provides an innocent explanation for possessing the cylindrical tanks observed being taken into Ebel's house. But our inquiry is not whether conduct is innocent or guilty; rather the degree of suspicion that attaches to it. See Ballweg, 2003 ND 153, P18, 670 N.W.2d 490. We conclude the fact Ebel was a welder does not alone preclude the existence of probable cause to support the issuance of the warrant. We therefore hold that Ebel did not make a substantial preliminary showing requiring an evidentiary hearing under Franks.

[*P29] We conclude the district court's denial of Ebel's request for a Franks hearing was proper. We therefore affirm the district court's denial of a Franks hearing and the court's determination that probable cause existed to support the issuance of the search warrant.

Destruction of evidence exception permitted warrantless entry to search for drugs. State v. Sturdivant, 2006 Ohio 5451, 2006 Ohio App. LEXIS 5436 (8th Dist. October 19, 2006):

[*P8] Here, the police had an objectively reasonable belief that the destruction of evidence was imminent. First, Sturdivant's co-defendant told the police that it was likely that Sturdivant had drugs in the house where he parked his Cadillac. Second, Sturdivant, who had just been arrested for throwing four and a half ounces of cocaine on the ground and having additional cocaine in the Yukon, informed the police that there were people in his house and that he had at least $10,000 cash there. Finally, two males ran out of the Yukon and were not apprehended, which supports a reasonable belief that those two males could instantly spread the word to those in the house that there was a drug bust, placing any additional evidence at the risk of destruction. Based on these facts, the destruction of evidence exception authorized the initial search of Sturdivant's home without a warrant.

[*P9] After the initial search, the police obtained a search warrant.

Defendant's handcuffing was a mere custodial detention but not an arrest for Miranda purposes. State v. Bishop, 2006 Tex. App. LEXIS 9084 (Tex. App. - Dallas October 20, 2006).*

Totality of circumstances supported reasonable suspicion. Court analyzed at length all the facts in the case and concludes that reasonable suspicion existed from known facts and corroborated informant tips. State v. Alverez, 2006 UT 61, 563 Utah Adv. Rep. 10, 147 P.3d 425 (October 20, 2006).*

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

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

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

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

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

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

Police ruse, a complete lie, to get consent to enter at 4 a.m. made consent coerced. The police wanted to do a knock-and-talk, but they knew that the defendant would never agree to let them in to look for drugs. They also knew they lacked PC. So, they made up a rape allegation, and knocked on the door and told the occupants that it was alleged that a rape occurred and they wanted to look around to make sure that this was not the place described by the "victim." They used that as a pretext to get inside to make a plain view. The Kentucky Court of Appeals affirmed (no citation on Lexis, but it is on Westlaw: Krause v. Commonwealth, 2004 WL 2414011 (Ky. App. October 29, 2004) (unpublished)), but the Kentucky Supreme Court reversed. If they did not suppress this search, they noted that citizens would be less inclined to cooperate with police in the future; this was exploitation of civic duty. Krause v. Commonwealth, 206 S.W.3d 922 (Ky. 2006) (This opinion is well worth reading because of the astute balancing of policy questions, but getting it for free is another matter. To say the Kentucky S.Ct.'s website is not remotely user friendly is an understatement; in fact, it sucks. To get the opinion, click the "website" link in the previous sentence, then click on "Supreme Court cases" and enter "Krause" as a search term; you get a .pdf but not a ready link; it is the second link, case 2004-SC-1009; the first link is the court of appeals decision from October 29, 2004):

In this case, Trooper Manar confronted Appellant and his roommate at an alarming hour (4:00 a.m.) with unnerving news -- a young girl had just been raped and he needed to look around the house in order to determine if it was the place that she had described to police. Stunned and sure that they were not the perpetrators of this heinous crime (since in fact, it never occurred), Appellant and his roommate made a split second decision to allow Trooper Manar into the residence in order to assist the trooper in his investigation. The trooper testified, and the trial court found that Appellant and his roommate would have never consented to the search if they knew the trooper's true purpose. Furthermore, Trooper Manar had no legal right, independent of receiving some kind of valid consent, to enter or search the home. Under these unique circumstances, we believe that the ruse utilized by Trooper Manar absolutely undermined the purposes inherent in requiring consent to be voluntarily obtained without any implied or express coercion.

Our belief that Appellant's consent to search was coerced is based on several factors. First, given the time and nature of the trooper's ruse, we believe that Appellant and his roommate were in a particularly vulnerable state. A knock on the door at 4:00 a.m. by uniformed police officers is a frightening event in and of itself. Couple this knock with a heinous and shameful accusation, such as the rape of a young girl, and nearly any person would feel overwhelmed and stunned.

Second, Trooper Manar's tactics were unnecessary in this instance and not based on any pressing or imminent tactical considerations. In contrast, the ruse utilized by the police in Adcock was primarily employed for safety reasons and to avoid the destruction of evidence that commonly takes place when entry into a home for the purposes of executing a search warrant is delayed or hindered.

Finally, we believe that if the type of ruse utilized by Trooper Manar was sanctioned by this Court, citizens would be discouraged from "aiding to the utmost of their ability in the apprehension of criminals" since they would have no way of knowing whether their assistance was being called upon for the public good or for the purpose of incriminating them. Schneckloth, supra, at 243, 93 S.Ct. at 2056 (internal quotation omitted). Moreover, widespread use of this type of tactic could quickly undermine "the set of values reflecting society's deeply felt belief that the criminal law cannot be used as an instrument of unfairness." Id. at 225, 93 S.Ct. at 2046.

We are careful to note that our holding is limited and narrow. We do not hold that the use of ruses, in general, is unconstitutional. ...

. . .

What distinguishes this case most, perhaps, from the bulk of other ruse cases is the fact that Trooper Manar exploited a citizen's civic desire to assist police in their official duties for the express purpose of incriminating that citizen. The use of this particular ruse simply crossed the line of civilized notions of justice and cannot be sanctioned without vitiating the long established trust and accord our society has placed with law enforcement.

Arrest warrant for probation violation coupled with PC to believe the defendant was in the place where he lived with others was sufficient under Alaska's interpretation of Payton to permit an entry by police, even though the rights of third persons would be involved. [That is a consequence of the person named in the warrant living with others, I'm afraid.] This case arose in connection with a hindering prosecution where the act that led to the warrant was not even a separate crime.] Anderson v. State, 145 P.3d 617 (Alaska App. October 20, 2006):

Case law from around the country supports the view that, in situations like the Andersons' case, an arrest warrant alone (coupled with a reasonable belief that the person named in the warrant is currently in the residence) authorizes the police to enter the suspect's own home to execute the warrant, regardless of whether the suspect has co-residents. The suspect need not be the owner of the dwelling.

We, too, adopt this view of the law. Accordingly, because the troopers had a warrant for Daniel Anderson's arrest, the troopers needed no additional warrant to enter the residence that Daniel shared with his parents, so long as the troopers had probable cause to believe that Daniel was inside that residence.

Somewhat similar is Sublett v. Commonwealth, 203 S.W.3d 701 (Ky. October 19, 2006), where a parolee lived with his mother, and she was found to have consented to the entry that led to her son's arrest and conviction. Aside from the authority to enter, the parole officer also had the authority to search defendant's backpack and jeans under the parole conditions. (Also, a parole officer has statutory authority to arrest in Kentucky.)

Two traffic stops led to two informants giving information against the defendant that police substantially corroborated and put into an affidavit for the search warrant. Reliability was shown in the affidavit. Olden v. Commonwealth, 203 S.W.3d 672 (Ky. October 19, 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).

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).*

(Federal appeals cases today are largely unpublished. More cases provided later.)

Police were investigating unusual activity in a motel, as was their practice. Hotel management reported unusual activity between rooms 329 and 333 and backup was called for a simultaneous knock and talk. Before back up arrived, it was determined that an arrest warrant existed for Rollins. His search incident 35 minutes in the motel room after initial contact with the officer was valid. Important was that he repeatedly falsely identified himself and set in motion the evolving situation. Defendant had been handcuffed long before the search incident. United States v. Rollins, 190 Fed. Appx. 739 (10th Cir. October 17, 2006)* (unpublished)

Affidavit for search warrant was not plainly deficient or "bare bones." While caselaw decided after the warrant in this case pointed to a lack of probable cause, it was not obvious, and the court proceeds to discuss numerous cases of parallels on sufficiency of probable cause to show the lack of such obviousness. Therefore, the good faith exception applies. United States v. Harju, 466 F.3d 602 (7th Cir. October 20, 2006).*

Inmate's pro se § 1983 case was erroneously dismissed without service of process: his claim was not barred by Heck or Younger abstention, and he has a right to proceed. Moore v. Inman, 210 Fed. Appx. 550 (8th Cir. 2006)* (unpublished).

Inventory was valid. Defendant's car was stopped after an illegal turn, but police already had a BOLO for one matching it for being involved in pointing a gun at the person in a drive through window at a liquor store. When defendant was stopped, he had no DL and was arrested for driving without a license. Inventory followed producing gun. He was arrested for being a felon in possession of a firearm. United States v. Player, 2006 U.S. App. LEXIS 25895 (6th Cir. October 16, 2006)* (unpublished).

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).

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).

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).

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).

Defendant did not preserve a statutory argument on validity of an arrest warrant by invoking the federal and state constitutions in his motion to suppress. Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. October 18, 2006).

Traffic stop was justified because the drive out tag was missing the state seal. It turned out that the defendant had been under surveillance for months, and an informant gave significant predictive information that was corroborated, too. Green v. State, 282 Ga. App. 5, 637 S.E.2d 498 (October 18, 2006).*

Evidence supported stop of defendant for suspicion of kidnapping. The vehicle fully matched the description given by the victims. State v. Talley, 2006 Tenn. Crim. App. LEXIS 802 (October 16, 2006).*

Vehicle parked in front yard was subject to being observed, and inevitable discovery applied. [But the court could have just said that it was in a public area.] State v. Stallings, 2006 Tenn. Crim. App. LEXIS 796 (October 3, 2006).*

DMV mistake (an Evans v. Arizona type error) charged to the police because the police and DMV work hand in hand on records keeping and interchange. The exclusionary rule applies to them, too. State v. Hisey, 15 Neb. App. 100, 723 N.W.2d 99 (October 17, 2006). (Comment: This case also talks in terms of a "good faith exception" (GFE) in warrantless search cases, which is a logical inference from Evans, but the GFE applies under Leon to searches under warrants and not warrantless searches. This is a somewhat understandable misuse of the phrase "good faith exception," but it should be avoided in warrantless search cases.)

Officer was acting within his authority when he tried to enter house for the protection of defendant's wife after defendant shut and tried to lock the door on him sufficient to support obstruction charge. Bassett v. State, 941 So. 2d 439 (Fla. App. 4th Dist. October 18, 2006):

The evidence revealed that the arresting officer arrived at the defendant's home after receiving a call for service. He made contact with the defendant's wife, who exited the house to speak with the officer. The officer spoke with the wife on the porch for approximately fifteen to twenty minutes. The backup officer was present for most of the interview. The wife appeared scared. During that time, the officers heard a click at the door. When the interview concluded, the wife attempted to reenter the house, but the door was locked.

The arresting officer testified that he and the backup officer approached the door and knocked, trying to speak with the defendant. The door was unlocked and opened. At that point the wife went inside the house and the arresting officer attempted to follow her to complete the investigation. As the officer entered the threshold of the door, the defendant slammed the door on him.

Because of safety concerns for the wife, the arresting officer grabbed the door handle to prevent the door from being locked. As he did so, he took a step or two into the house when the defendant "immediately aggressively" pushed the officer in the chest, causing the officer to stagger back. The officer attempted to grab the defendant, who was very sweaty and smelled of alcohol. When he did so, he advised the defendant he was under arrest. The defendant then pushed the officer several (six to seven) times, each time lowering his center of gravity and putting his weight behind the push. During the shoving, the defendant was yelling and screaming at the officer.

Defendant was stopped on the highway, and the officer testified that he could smell marijuana coming from a baggie within a few seconds of walking up to the car window. The court does not buy it. United States v. Jennings, 2006 U.S. Dist. LEXIS 74972 (M.D. Fla. October 16, 2006):

The Government has failed to demonstrate that Cavanaugh had probable cause to search Jennings' vehicle. The Government's contention that the search was reasonable is based solely on Cavanaugh's testimony that within a few seconds of standing outside the vehicle he could smell a small amount of cannabis which was sealed in a plastic bag several feet away in the center console. This unplausible scenario is without corroboration.

Although the Court has a poor sense of smell, it could not detect any odor emanating from the bag, even when held close. Even Cavanaugh admitted in his testimony that he could detect no odor from the bag at the hearing, claiming that the conditions in the courtroom were not the same as those in the truck. This Court has never before encountered a "drug sniffing deputy." Typically, specially trained dogs, not humans, are used to identify marijuana by scent alone. (footnotes omitted)

Inventory of boat being towed behind a vehicle was invalid, but it was based on consent. The view of the boat led to officers getting a search warrant for evidence of alien smuggling. United States v. Zaldivar, 2006 U.S. Dist. LEXIS 75005 (M.D. Fla. October 16, 2006).*

Record supported a finding of consent. Defendant signed a consent form and followed the officers around during the search. United States v. Turner, 2006 U.S. Dist. LEXIS 75346 (N.D. N.Y. October 4, 2006).*

On a preapproved no-knock provision, assuming a violation, reviewing the question of good faith first, the court finds that the affidavit was sufficient for application of the good faith exception to the exclusionary rule. (Hudson not cited because the case was decided just before Hudson.) United States v. Robinson, 2006 U.S. Dist. LEXIS 75325 (D. Minn. May 19, 2006).*

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).

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]

Officers received word that two men were walking down the street smoking a joint. Officer followed up and found four men standing around, nobody smoking. The officer asked one to approach his car, and he could smell burnt marijuana, and the defendant fled. First, possession of small amounts of marijuana did not qualify as an offense that showed the defendant was a danger justifying a stop. Second, Alaska joins several other states and rejects Hodari D. under the state constitution. The exclusionary rule applies to the fruits of abandonment from an illegal stop. Joseph v. State, 145 P.3d 595 (Alas. App. 2006):

If we are to continue to follow the rule that we announced in Castle--that is, if we are to continue to apply the exclusionary rule to suppress the fruits of unlawful police attempts to detain citizens--then we must do so as a matter of state law.

In this, we would not be alone. Courts in more than a dozen states have already expressly rejected Hodari D. as a matter of state law: See State v. Oquendo, 223 Conn. 635, 613 A.2d 1300, 1309-1310 (Conn. 1992); Flonnory v. State, 805 A.2d 854, 857 (Del. 2001); State v. Quino, 74 Haw. 161, 840 P.2d 358, 362 (Hawai'i 1992); Baker v. Commonwealth, 5 S.W.3d 142, 145, 46 15 Ky. L. Summary 8 (Ky. 1999); State v. Tucker, 626 So.2d 707, 712 (La. 1993); Commonwealth v. Stoute, 422 Mass. 782, 665 N.E.2d 93, 96 (Mass. 1996); Matter of Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993); State v. Clayton, 2002 MT 67, 309 Mont. 215, 45 P.3d 30, 34 (Mont. 2002); State v. Beauchesne, 151 N.H. 803, 868 A.2d 972, 978-981 (N.H. 2005); State v. Tucker, 136 N.J. 158, 642 A.2d 401, 405 (N.J. 1994); People v. Hollman, 79 N.Y.2d 181, 590 N.E.2d 204, 211-12, 581 N.Y.S.2d 619; 79 N.Y.2d 181, 590 N.E.2d 204, 581 N.Y.S.2d 619, 626-27 (N.Y. 1992); State v. Puffenbarger, 166 Ore. App. 426, 998 P.2d 788, 792-94 (Or. App. 2000); Commonwealth v. Matos, 543 Pa. 449, 672 A.2d 769, 775 (Pa. 1996); State v. Randolph, 74 S.W.3d 330, 336-37 (Tenn. 2002); State v. Young, 135 Wn.2d 498, 957 P.2d 681, 687 (Wash. 1998).

See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (4th ed. 2004), § 9.4(d), Vol. 4, p. 456, where the author declares that the result reached in Hodari D. is "incorrect", and that the decision in Hodari D. is "aptly characterized ... as [a] manifestation of the [Supreme] Court's surreal and Orwellian view of personal security in contemporary America". (footnotes omitted)

Nolo plea bars later civil action over PC for that arrest. Phelps v. City of Akron, 2006 U.S. Dist. LEXIS 74539 (N.D. Ohio October 13, 2006).*

Plaintiff's detention or arrest for her own good after she exhibited signs of mental illness was based on PC. Douglass v. Sanok, 2006 U.S. Dist. LEXIS 74561 (W.D. Va. October 11, 2006).*

Defendant was stopped for seatbelt violation, and she was excessively nervous. Officer asked for consent to search and got it, and in plain view in her purse was a baggie of meth. Search sustained. Blitch v. State, 281 Ga. 125, 636 S.E.2d 545 (October 16, 2006).*

Officer observed car in an interstate highway rest area taking two spaces in early morning, so he woke up driver and passenger, and they appeared to be under the influence of drugs since no alcohol could be smelled. They were unkempt, and he suspected they were carrying drugs, although they were only 30 minutes from their destination in Arkansas. The officer asked for and obtained consent "only 22 minutes" into the stop at the rest stop, and it was a reasonable detention. State v. Dodson, 942 So. 2d 579 (La. App. 2d Cir. October 16, 2006).* (Comment: When a court talking about the length of detention says "only 22 minutes," you know exactly where the court is going. Here, 22 minutes is just too long to be reasonable, unless the court was subconsciously factoring in that they would be asleep otherwise.)

Passenger has standing to challenge the stop of the vehicle. Here, however, a gun was seen in plain view and that justified the search. State v. Rollins, 2006 Ohio 5399, 2006 Ohio App. LEXIS 5395 (2d Dist. October 13, 2006).*

Defendant was stopped for speeding. The officer noticed the California tag was expired. The driver's DL had been expired for two years. He and the passenger, his sister, said that the vehicle was a rental from Enterprise in another person's name, but neither had a copy of the rental agreement. The driver was asked to come back to the patrol car while Enterprise was contacted, and they entered into conversation. Occasionally the officer asked questions of the passenger. Enterprise finally advised that it was their car, it was rented in California and not supposed to be in Wyoming, and neither of the occupants were authorized to be driving it. Therefore, the officer was impounding the car. He wrote traffic tickets and gave the occupants an option to walk to a nearby town with their luggage or he would drive them. As a condition of driving them, however, the officer said he needed to know whether the bags contain contraband or weapons. They both consented to a search and cocaine and meth were found in the bag. The consent was valid. The 45 minute detention was reasonable while the issue of the rental car was resolved. The consent to search the bag was not coerced. Hembree v. State, 2006 WY 127, 143 P.3d 905 (October 11, 2006).

The defendant was seen riding his bicycle without a light, and the officer pulled up behind the bicycle and slowly followed, but never put on his lights. The defendant stopped the bicycle and looked back at the officer who got out of the patrol car and walked toward him. The blue lights were never activated. Defendant had no ID on him when asked, but the officer asked for name and DOB which was given. It came back that defendant had a warrant out on him, so the officer arrested him and a search incident revealed a baggie of meth. The search was reasonable, and the police car was parked far enough away to not block his path. The officer never pulled a gun or issued any commands. The officer did not have any ID in hand, so that could not constitute a seizure itself. Motion to suppress denied. State v. Tehero, 2006 UT App 419, 562 Utah Adv. Rep. 36, 147 P.3d 506 (October 13, 2006). Comment: Once again, our common understanding of police-citizen encounters is contrary to the legal understanding advanced by the courts and prosecutors. And, once again, we get unmitigated fiction from the courts to find the detention voluntary or reasonable. Be realistic: When a cop is questioning a person, does that person really feel that he can turn his back and walk away? The answer clearly is "no." I always ask "was the defendant free to leave?" The answer usually is "no," or if there is a hesitation before the answer, I ask "what would you have done if he turned around and walked away [or got in his car and drove off leaving his driver's license in your hands]?" The response always is "I would arrest [detain] him." "Physically?" "Yes." If the answer is "yes, he was free to leave," the next question is "how did you communicate this to him?" I have actually gotten mileage from "aren't people usually taught as children to respect the police and do what they are told?" It would be better to preface the questions with a short series of questions on who was standing where, what words were exchanged, the radio call had been made, etc. to commit the office to the scenario being one of him in control. Again, if it is a stop by a patrol car, get the videotape.

Plain view supported seizure of drugs. Police received a call that a red Chevrolet with the license plate "CLASSIC" parked in the yard of an elderly couple, and the husband went outside to ask (or tell) him to move it. The defendant then pointed a gun at the man. 911 was called and names were given, and the vehicle was seen and an officer tried to pull it over, and defendant bailed from the car and ran. When the officers approached the car, drugs were in plain view. United States v. Martin, 205 Fed. Appx. 648 (10th Cir. 2006)* (unpublished).

Detention was reasonable in length before consent was sought and obtained. The record supports the denial of suppression. The fact the detention was fairly long is not coercion in itself because the whole detention was based on facts. State v. Felder, 2006 Ohio 5332, 2006 Ohio App. LEXIS 5311 (8th Dist. October 12, 2006).*

A USPS worker had no reasonable expectation of privacy in his lunch bag while on postal service property at work. The issue arose in the context of a race and age discrimination case. The Ninth Circuit held 31 years ago that a USPS worker had no REP in his locker at work. Zachary v. Potter, 2006 U.S. Dist. LEXIS 74205 (D. Haw. October 4, 2006):

Additionally, Zachary claims that the search of his lunch bag on December 18, 2003 violated his Fourth Amendment right to privacy. This claim also fails because even if Zachary had a subjective expectation of privacy in his lunch bag, such expectation was not reasonable. The USPS Rules and Regulations Governing Conduct on Postal Property state that "[p]urses, briefcases, and other containers brought into, while on, or being removed from the property are subject to inspection." (Defs.' Ex. B.) Moreover, even where a USPS employee had a subjective expectation of privacy in her locker, this expectation was not reasonable. United States v. Bunkers, 521 F.2d 1217 (9th Cir. 1975). Thus, the search of Zachary's lunch bag did not violate the Fourth Amendment.

In a DUI case, the police came back to the hospital and obtained the defendant's blood from the hospital without a search warrant. The defendant argued that she had a reasonable expectation of privacy in the blood sample. The court was able to dodge the question by deciding that the error was harmless beyond a reasonable doubt. State v. Wall, 154 N.H. 237, 910 A.2d 1253 (2006).*

Seizure of animals not being fed or cared for, specifically provided for by NY statute, implicated the Fourth Amendment, but it was reasonable under the circumstances. Gilfus v. Vargason, 2006 U.S. Dist. LEXIS 74037 (N.D. N.Y. September 30, 2006).*

Traffic stop was based on PC, and the detention thereafter was reasonable. While the record is not crystal clear on the events and the time logs from various sources seem somewhat off, the court finds that the detention could not have lasted so long it was unreasonable. United States v. Hogsett, 2006 U.S. Dist. LEXIS 73964 (S.D. Ill. October 11, 2006).*

Motion to suppress statements made on the eve of trial which the government mooted by agreeing not to use, and did not use, mooted the argument for appeal, too. United States v. Howell, 199 Fed. Appx. 697 (10th Cir. October 10, 2006)* (unpublished).

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).*

A probate court order that authorized a pickup of the plaintiff on a mental commitment was governed by the Fourth Amendment, and the fact the plaintiff's address was not shown in the court papers. Motion to suppress evidence found granted. United States v. Sullivan, 2006 U.S. Dist. LEXIS 73859 (M.D. Ala. August 18, 2006):

The emergency order alone is insufficient to support a reasonable belief on the part of the deputies that the Yarbrough Circle address was, in fact, Yeager's "dwelling," rather than merely her "location," as required by the first part of the Bervaldi test -- if, indeed, the deputies even harbored this belief. See supra at n. 3. Nothing in the record indicates that the deputies conducted any investigation, other than reviewing the emergency order -- for example, by checking a telephone directory or verifying the receipt of mail, seeking information from neighbors or relatives, or observing activity at the house -- to confirm that the Yarbrough Circle home was in fact Yeager's residence prior to their entry.

Officer had reasonable suspicion for detention of the defendant, who had been found passed out at the wheel of his car in a convenience store parking lot. Paramedics said he was "acting weird" and likely on drugs, but he was medically cleared. Defendant said he fell asleep drinking coffee and lived a few doors away, and that was inconsistent with the prior version. United States v. Bailey, 2006 U.S. Dist. LEXIS 73878 (D. Utah October 10, 2006).*

Plaintiffs stated claims for discriminatory or unconstitutional stops based on the Fourth Amendment but they failed on a Fourteenth Amendment claim on summary judgment, except a plaintiff who showed that race was a possible factor coupled with reports from the police department that race should not be a factor in stops. Maryland State Conf. of NAACP Branches v. Maryland State Police, 454 F. Supp. 2d 339 (D. Md. September 29, 2006).*

Federal action that was but an appeal from a state court decision on the same issue was barred by the Rooker-Feldman Doctrine. Johnson v. City of Prospect Hts., 2006 U.S. Dist. LEXIS 73649 (N.D. Ill. September 27, 2006)*:

The Rooker-Feldman doctrine mandates that district courts do not have subject-matter jurisdiction to hear claims which are essentially appeals from the state courts. Burke v. Johnston, 452 F.3d 665, 667 (7th Cir. 2006). "It applies to cases brought by state court losers complaining of injuries caused by state court judgements... inviting district court review and rejection of these judgements." Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280 (2005). The Seventh Circuit instructs that the "doctrine applies only where a litigant seeks to overturn a state-court judgment." Kathrein v. McGrath, 2006 WL 287433 (7th Cir. 2006).

In a case cutting through the intellectual dishonesty so often seen in traffic stop cases on the question of whether the detainee was free to leave before the different series of questions began, the Florida First District Court of Appeals held that no reasonable person in the defendant's position could possibly have felt free to leave. Sizemore v. State, 939 So. 2d 209 (Fla. App. 1st Dist. October 11, 2006):

Given the cautionary instructions of Schneckloth, of which the Robinette Court was well aware, we are convinced that the test approved in Robinette, as applied to the particular circumstances before it, does not encompass an officer's coercive tactics, involving, as here, the presence of a canine unit at the scene and the positioning of the officers' vehicles in such a manner as to make the defendant's departure from the scene difficult, if not impossible; notwithstanding the fact that the officer no longer had any reasonable ground for the continued detention of appellant, once he had satisfied the purpose of the stop. Despite the officer's statement that the defendant was free to go, we cannot conceive that a reasonable person in appellant's position would have believed his freedom of movement was unrestricted. We therefore conclude that appellant's consent to search cannot be objectively viewed as voluntary, and, in the absence of a volitional search, the continued detention of the defendant was improper, requiring that the seizure of the items be suppressed. See State v. Diaz, 850 So. 2d 435 (Fla. 2003). As in United States v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002), "the consent to search was not an independent act of free will, but rather a product of the unlawfully extended detention."

Similarly, Florida's Fourth District Court of Appeals held that a defendant held during a stop who was not free to go was in custody for Miranda. State v. Hackett, 944 So. 2d 399 (Fla. App. 4th Dist. October 11, 2006, released for publication January 16, 2007).

Washington holds that a police entry based on an alleged exigency of the smell of ammonia from a possible meth lab was not supported by the state in the proof; officers apparently just assumed they could enter. State v. Lawson, 135 Wn. App. 430, 144 P.3d 377 (October 10, 2006):

When the State invokes the emergency exception, it must satisfy us that the claimed emergency is not merely a pretext for conducting an evidentiary search, Schlieker, 115 Wn. App. at 270 (citing Lynd, 54 Wn. App. at 21). In Schlieker, deputies responded to a domestic disturbance call reporting screaming, yelling, and a gunshot at a home. Schlieker, 115 Wn. App. at 267. When the deputies arrived, the occupants explained that a cigarette lighter had exploded in the clothes dryer. Schlieker, 115 Wn. App. at 267. The occupants then told the deputies that they suspected drug activity in a trailer the defendants had parked on the property. Schlieker, 115 Wn. App. at 267. As the deputies approached the trailer to investigate, two individuals ran to a nearby car and drove away from the trailer. Schlieker, 115 Wn. App. at 267. Concerned that the individuals stole the car and that someone in the trailer might be injured, the deputies entered the trailer. Schlieker, 115 Wn. App. at 267.

The deputies found the defendants hiding in the trailer, handcuffed them both, and removed them from the trailer. Schlieker, 115 Wn. App. at 267. The deputies then reentered the trailer and found evidence of methamphetamine manufacture. Schlieker, 115 Wn. App. at 268. In denying the defendants' motion to suppress, the trial court concluded that the community caretaking exception justified the initial entry. Schlieker, 115 Wn. App. at 269. On appeal, we found significant that (1) the deputies were not at the trailer out of concern for the defendants' safety, but to investigate trespassing and drug activity allegations; (2) the deputies had no information that someone inside the trailer had been injured; and (3) after finding the defendants unharmed, the deputies did not inquire about their well-being, but handcuffed and arrested them and searched for evidence of criminal activity. Schlieker, 115 Wn. App. at 271-72. We held that the emergency exception did not justify the warrantless entry because "[t]he deputies' actions and that they did not inquire into the occupants' safety, but instead handcuffed and arrested them, convince us that this was not a circumstance wherein the deputies were attempting to help people who were injured or in danger." Schlieker, 115 Wn. App. at 272.

. . .

Because the State did not prove and the trial court did not find that the deputies subjectively believed someone on Lawson's property needed assistance for health or safety reasons, the court erred in denying Lawson's motion to suppress. See Kinzy, 141 Wn.2d at 386.

Cause for stop was an informant's non-predictive and uncorroborated tip and it violated Fourth Amendment. Court also notes discrepancies between officers' testimony about reaching for a gun and where the gun was found made their testimony not credible. Motion to suppress granted. People v. Nibbs, 2006 V.I. LEXIS 16 (August 3, 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].)

Detaining a Fed Ex package at the Fed Ex office for a dog sniff did not impinge on any privacy interest in the recipient. United States v. Zacher, 465 F.3d 336 (8th Cir. September 26, 2006), following United States v. Va Lerie, 424 F.3d 694, 701, 706 (8th Cir. 2005) (en banc), cert. denied, 126 S. Ct. 2966 (2006). The court also dealt with an e-mailed warrant issue, but it is only a tangential issue in the case. The magistrate took testimony over the telephone and attempted to fax the warrant to the Fed Ex office, but it failed to properly go through. So, the magistrate e-mailed the warrant to the officer at the Fed Ex office. The signed original, however, was in the magistrate's hands, and the magistrate signed the e-mailed version, too. That was not a substantial violation of N.D.'s version of Rule 41.

The officer pulled the defendant over for weaving and driving too slow while talking on a cellphone. When he talked to the officer, he was extremely nervous, and the officer ran the DL number which came up suspended. The officer then asked for permission to search, and "Fishel's legs seemed to fail and he had to brace himself against his vehicle. He then changed his story of ownership and said that he could not give consent to search the vehicle because it did not belong to him. The officer then radioed for the K-9 unit and, within a few minutes, the dog arrived and alerted to indicate the presence of drugs. A search of the vehicle located the methamphetamine." There was reasonable suspicion to call for the drug dog, and the alert gave PC. United States v. Fishel, 467 F.3d 855 (5th Cir. October 10, 2006).*

Bailbondsmen who had aid of police in seizing their fugitive bond client could be sued under § 1983. Tirreno v. Mott, 2006 U.S. Dist. LEXIS 73416 (D. Conn. September 29, 2006).

The Colorado Supreme Court affirms a trial court suppression of evidence in an interlocutory appeal by the State. The informant's statement alone was not enough to show probable cause because it was bare bones and was propped up with a six year old stale tip. The court also held that the good faith exception could not save this search. People v. Pacheco, 175 P.3d 91 (Colo. 2006):

The first issue we must address, therefore, is whether the trial court correctly concluded that Detective Colbert's affidavit failed to provide a substantial basis for the magistrate to find probable cause. We hold that the trial court was correct in this conclusion. Where, as here, an affidavit is based on an informer's tip, the totality of the circumstances inquiry looks to all indicia of reliability - including the informer's veracity and the basis of his knowledge, the amount of detail provided by the informer, and whether the information provided was current. Randolph, 4 P.3d at 481-82; see also People v. Leftwich, 869 P.2d 1260, 1266 (Colo. 1994).

The affidavit in this case fails all indicia of reliability. Under our case law, probable cause requires there be current information of criminal activity or contraband located at the place to be searched. Miller, 75 P.3d at 1115 (holding that month old information of methamphetamine manufacture at the defendant's house was stale); Randolph, 4 P.3d at 482 (holding two months old information of methamphetamine use to be stale). Here, none of the anonymous tips received by the Department in 1999 concerned Defendant selling illegal drugs from vehicles; even if they did, information that is six years old is clearly stale and cannot establish probable cause. The anonymous tip received on April 26, 2005, that "Jimmy Pacheco" was selling illegal drugs only from vehicles, was two and a half months old when the application for the search warrant was filed. The affidavit contained no details regarding how the anonymous informant gained this information and did not provide facts linking "Jimmy Pacheco" to Defendant. Such information, even if not stale, does not alone rise to the level of probable cause. This leaves only the report of Informant, which was conveyed within forty-eight hours prior to Detective Colbert applying for the warrant. Although this information was current, Informant's veracity and basis of knowledge were not sufficiently described in the affidavit.

We have previously held that bare assertions of knowledge are insufficient to establish the basis of an informer's knowledge. Leftwich, 869 P.2d at 1266. An affidavit must instead contain enough facts "to allow a magistrate to determine how the informant obtained the information on which the affiant relies." Id. The affidavit in this case contained no information regarding how Informant knew that (1) Defendant sold illegal drugs from vehicles and (2) Defendant frequently changed vehicles to evade the police. Although Informant and Defendant reportedly "had contact," the affidavit's description of this encounter did not contain details as to where, when, how, or why the meeting occurred. With regard to Informant's veracity, the affidavit simply stated that Informant had provided the Department with reliable information in the past. These statements were conclusory, however, and conveyed no additional information upon which the magistrate could independently determine Informant's veracity or reliability.

Where an informant's statements do not alone rise to the level of probable cause, probable cause may be established by independent police corroboration of the information. Randolph, 4 P.3d at 482; Leftwich, 869 P.2d at 1267-68. If only non-criminal activity is corroborated, the question whether probable cause exists focuses on "the degree of suspicion that attaches to [the] particular types of corroborated non-criminal acts and whether the informant provides details which are not easily obtained." Leftwich, 869 P.2d at 1268. In this case, Detective Colbert only confirmed that Defendant drives different vehicles throughout the week. Detective Colbert's affidavit did not describe the time frame of his surveillance, the number of vehicles in which Defendant was seen, or the type of vehicles Defendant drove. At the suppression hearing, Detective Colbert only stated that Defendant was seen driving the silver Ford Taurus and "a little red car." Driving two different cars during an unspecified time period is neither criminal activity nor inherently suspicious. Furthermore, this information does not include details that would be difficult to obtain. Corroboration of this information therefore does not provide probable cause for the search warrant, and Detective Colbert did not confirm any of the other information provided by Informant.

Pseudo-conflict of laws in a traffic stop: The fact a license plate was legally visible under the law of the home state did not mean that it was, as a matter of law, lawful in the state where the vehicle was stopped, so stop was valid. United States v. Martinez, 2006 U.S. Dist. LEXIS 73181 (D. Kan. October 6, 2006):

This statute grants duly licensed nonresident drivers the privilege of driving in the State of Kansas even though they are not licensed by the State of Kansas. It does not grant such drivers the right to display or not display tags in violation of Kansas law, even though the driver and vehicle are properly licensed and registered in another state. See Hayes, 660 P.2d at 1389.

Proven informant coupled with corroboration by officers led to stop that showed the defendant with a suspended DL, and that justified a search incident. United States v. Alcantar-Garcia, 2006 U.S. Dist. LEXIS 73178 (D. Ore. October 6, 2006).

Stop based on computer check that the owner's DL was expired was valid. When the officer found the owner was not driving because he recognized the driver as not the owner, he could still then check the DL of the driver. State v. Rose, 2006 Ohio 5292, 2006 Ohio App. LEXIS 5280 (4th Dist. September 28, 2006). (Comment: This case gives me serious trouble. The officer knew that the driver was not the owner, so the cause for the stop evaporated at that moment. How the court rationalizes the officer being able to go beyond that to check the driver's DL escapes me. One (i.e., the state) could say that it is no different than checking the vehicle's license number, but it is vastly different. The vehicle's license number was done without a stop. Here, the officer extended the stop without any justification. Is extending the stop subject to a de minimus rule in Ohio?)

A border stop at LAX led Customs to search a laptop computer without reasonable suspicion. Such a search is highly invasive and must be based on reasonable suspicion. Search suppressed. United States v. Arnold, 454 F. Supp. 2d 999 (C.D. Cal. October 2, 2006):

The Supreme Court recognized in Flores-Montano that highly intrusive searches of persons implicate dignity and privacy interests. Flores-Montano, 541 U.S. at 152. Likewise, opening and viewing confidential computer files implicates dignity and privacy interests. Indeed; some may value the sanctity of private thoughts memorialized on a data storage device above physical privacy. See United States v. Molina-Tarazon, 279 F.3d 709, 716 (9th Cir. 2002) (recognizing that "government intrusions into the mind--specifically those that would cause fear or apprehension in a reasonable person--are no less deserving of Fourth Amendment scrutiny than intrusions that are physical in nature"), rev'd on other grounds, Flores-Montano, 541 U.S. 149.

The government argues that the officers searched Arnold's tangible property, not his person, and therefore the search was routine and did not require reasonable suspicion. However, as the Court recognized during the evidentiary hearing, the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object.

A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records. Attorneys' computers may contain confidential client information. Reporters' computers may contain information about confidential sources or story leads. Inventors' and corporate executives' computers may contain trade secrets. In this case, Arnold kept child pornography on his laptop and in his storage devices; however, "[i]t is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Montoya de Hernandez, 473 U.S. at 548 (Brennan, J., dissenting) (quoting United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

Comment: This is a significant case. The court recognizes the obvious: A computer search is highly invasive, a violation of personal privacy, and should only be undertaken with articulable justification, whatever the circumstances. The only other border search case involving a computer that I am aware of is United States v. Romm, 455 F.3d 990 (9th Cir. July 24, 2006), where Customs actually had PC to believe that the computer coming in at the Seattle airport had child porn on it because Canadian customs searched the computer and denied Romm entry and called U.S. Customs to tell them he was coming back.

The Fifth Circuit held in a case three weeks ago, received only today, that, while the police may have unlawfully entered the defendant's premises without consent, they were going with her there to get ID and went inside for self-protection. The actions of those inside were suspicious enough to justify a protective sweep. United States v. Ibarra-Zelaya, 465 F.3d 596 (5th Cir. September 20, 2006).

Defendant was challenging six separate searches in a general motion to suppress, which the court snidely commented on. "Although Defendant has made little effort to explain to the Court why certain searches and seizures were unconstitutional, the Court will nonetheless analyze all six searches under prevailing Fourth Amendment jurisprudence." All were found valid searches. Of particular note was an entry into a garage to notify the occupant that defendant had been arrested, and a plain view occurred. "Defendant asked Officer Kenan to notify Nash that he was being arrested and that she needed to pick up their child from daycare. The evidence shows that the officers' visit to 1839 McCallum was undertaken in order to accomplish that task, not to investigate the crime." United States v. Barr, 454 F. Supp. 2d 229 (E.D. Pa. September 28, 2006).*

Driving a snowmachine on the sidewalks of Fairbanks was sufficient cause for a stop. DUI affirmed. Bessette v. State, 2006 Alas. App. LEXIS 156 (October 6, 2006).*

Stop of known burglar within a block of a burglary report was reasonable. He dropped his backpack and walked to the officer. Another officer retrieved the backpack and in it was stuff from another burglary. The backpack was found to be abandoned because it was 60' away from defendant. People v. Novakowski, 2006 Ill. App. LEXIS 911 (1st Dist. October 6, 2006):

In the instant case, shortly after investigating a residential burglary a block away, Officer Salas witnessed defendant drop his backpack and walk toward Salas's marked squad car. As he approached, Salas recognized defendant to be a suspect in other resident burglaries. Accordingly, we find that it was objectively reasonable for Salas to initiate a stop for investigative purposes.

Moreover, Salas's questioning was reasonably related to the initial purpose of the stop. Although nothing was reported missing from the initial burglary, it was not unreasonable to question defendant about the contents of a backpack that he suspiciously dropped prior to approaching Salas. When defendant failed to respond to the question, Salas articulated his purpose for continuing to question defendant. Defendant, however, was still unable to provide a clear answer regarding his prior whereabouts. Throughout the questioning, defendant was evasive and appeared noticeably nervous. Defendant's responses aroused further suspicion in Salas's mind, adding to more than an individual merely being present in an area of expected criminal activity. See People v. Beverly, 364 Ill. App. 3d 361 (2006); see also James, 365 Ill. App. 3d at 853 ("investigatory stops are evolving encounters and *** the court is not limited to considering the situation as it existed at the precise moment the stop occurred"). Consequently, we find that the initial Terry stop was valid.

Defendant next contends that his fourth amendment rights were violated when his backpack was searched. The State responds that defendant's backpack was abandoned and, therefore, there was no "search" for fourth amendment purposes. [It was held to be abandoned because of the distance from him because anyone could have perceived it as abandoned.] Therefore, Salas's "search" of the backpack was proper.

Federal courts are not sitting today. Many state courts are, such as mine, but my state appellate courts do not hand down opinions on Mondays.

A suppression hearing is a critical stage of the proceedings that cannot be conducted without defense counsel being present. The error cannot be harmless, even if the trial court was going to deny the motion on the pleadings. State v. Curry, 2006 UT App 390, 562 Utah Adv. Rep. 6, 147 P.3d 483 (October 5, 2006).

911 call and facts developed by officers and defendant's history showed an emergency for an entry. United States v. Porter, 2006 U.S. Dist. LEXIS 72770 (D. Utah October 4, 2006):

In this case, officers were responding to a 911 call which indicated an immediate need to protect lives because it purported to relate to an assault by a man with a gun. The call indicated an immediate need at least as great, if not greater than, the call in Najar, as it communicated specific information regarding a specific threat of violence. Furthermore, officers knew that they were responding to a call: by a caller who was known by them as [a] person who frequently got into trouble; at the residence of a known and potentially violent convicted felon; in an area with a reputation for drug traffic and crime. Moreover, like the defendant in Najar, Defendant here was uncooperative once officers arrived, refusing to show them his left hand, despite repeated requests, and otherwise acting in a belligerent manner. In this context, Defendant's glances towards the bat could reasonably be interpreted as deliberation as to whether he should attack the officers. Accordingly, the Court finds that a prudent, cautious, and trained officer would have acted as Irvine did, grabbing Defendant before he had a chance to act.

A co-defendant in a drug search case had standing where he kept stuff in the premises and he stayed there about four nights a week. Although he did not have a key, he pretty much was able to come and go as he pleased. He kept a car and phone there, and he used the washing machine. United States v. Lafaele, 2006 U.S. Dist. LEIS 72877 (D. Haw. October 5, 2006).

Officers had an anticipatory warrant, but the triggering condition was unconstitutional: use of a beeper inside that went off when the package was opened. Id.

The affidavit for the search warrant and descriptions relayed by the affiant to officers at the scene reasonably assured that only the correct premises would be searched and, thus, was not unconstitutional. Parker v. Henderson County, 450 F. Supp. 2d 842 (W.D. Tenn. October 5, 2006):

In this case, the warrant gave detailed directions from the police department to the Plaintiff's trailer. The Plaintiff has offered no evidence to dispute that the language of the search warrant did not, other than the address, accurately set forth the directions to the trailer in which he lived. He also does not dispute that he resided in the mobile home approached by the officers and at which he was arrested. Moreover, James, the affiant, was involved in the execution of the search warrant and personally gave Defendant David Stanhope verbal directions on how to locate the trailer to be searched. Based on these facts, there was no reasonable probability that some other premises may have been mistakenly searched. Accordingly, the Court finds that no Fourth Amendment violation occurred. See Johnson v. Wolgemuth, 257 F.Supp.2d 1013, 1036 (S.D. Ohio 2003) (reiterating that "where a description of the house to be searched is given, specific reference is made to the house's occupant, and the warrant is executed by an officer already familiar with the location, due to prior surveillance, inaccuracies in the description of the street address will not render a warrant unconstitutional," citing Pelayo-Landero). As the Court finds that the officers' conduct concerning the search warrant did not violate a constitutional right, summary judgment on the grounds of qualified immunity is appropriate. See Saucier, 533 U.S. at 200-01 (setting forth elements necessary for finding of qualified immunity). The motion is therefore GRANTED.

A warrant check on the passenger in a car made during a stop violated no constitutionally protected interest in privacy; it did not change the fundamental nature of the traffic stop. When a warrant was found on the passenger, the officer could conduct a search incident of the vehicle. People v. Roberson, 367 Ill. App. 3d 193, 304 Ill. Dec. 975, 854 N.E.2d 317 (4th Dist. August 23, 2006, released for publication September 28, 2006).

Officer parked behind the defendant, and the officer did not turn on blue lights or take down lights. The defendant got out of his vehicle and approached the officer on his own. This was not a stop. When the defendant got to the officer, the officer could smell marijuana, and things escalated from there. Blake v. State, 939 So. 2d 192 (Fla. App. 5th Dist. October 6, 2006).*

Five and a half month delay was not stale in seeking search warrant for child porn on a computer in Florida after discovery in Maryland that defendant sent child porn pictures from an e-mail address registered at the Florida address where the computer was found. Child porn is commonly retained on computers. State v. Felix, 942 So. 2d 5 (Fla. App. 5th Dist. October 6, 2006, released for publication December 4, 2006).

An emergency entry based on the fact a woman had not shown up for work in days was justified, and the officers were entitled to qualified immunity. Campbell v. Sarrazolla, 2006 U.S. Dist. LEXIS 72486 (D. Idaho October 3, 2006):

Under the first prong in this analysis, the police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance to protect life or property. Stafford, 416 F.3d at 1073. In a recent Ninth Circuit case, the court held that the first prong was met where a father had phoned the police concerned about his daughter's welfare because she could not be reached for several days, her car was in the driveway when the officers arrived at the address given by her father, a neighbor suggested that she should be home, and there was a lack of response to repeated knocking and phone calls to the daughter's phone went unanswered. Martin v. City of Oceanside, 360 F.3d 1078, 1082 (9th Cir. 2004).

Defendants argue they had reasonable grounds to believe that there was an immediate need for assistance based on the followings facts: Plaintiff's employer called the Garden City police and was concerned for her safety; Plaintiff had not shown up for work nor called to explain her absence and this was said to be out of character for her; Plaintiff had told co-workers about an abusive ex-boyfriend that may try to harm her; Plaintiff received flowers at work that day from her ex-boyfriend; Defendants were told by Neuberger's neighbor of loud arguments and concerns of drug activity occurring in his home; Neuberger hesitated when asked about Plaintiff and his explanation for her absence from work - she was at Lucky Peak Reservoir - was inconsistent with the type of person the officers had been told that Plaintiff was; there was no response to the officers' knocks and announcement at Plaintiff's residence; and the front door was ajar.

District Court's finding of reasonable suspicion was supported by the record [but I find it really thin]. United States v. Chatterpaul, 200 Fed. Appx. 147 (3d Cir. October 5, 2006)* (unpublished):

In this case, [officer] Overcash had a reasonable and articulable suspicion of illegal activity sufficient to justify asking Chatterpaul additional questions about the purpose of the trip. At the time, Overcash knew that: (1) Chatterpaul and his brother were speeding; (2) either Chatterpaul and his brother or the occupants of the white box truck were lying about whether the two trucks were traveling together; (3) Chatterpaul and his brother appeared nervous; (4) based on his prior experience in narcotics interdiction, rental trucks are frequently used to transport illicit drugs or other contraband.

Defendant consented to an entry and search by a representative of the Division of Child and Family Services because of a call that the house was filthy and had a meth lab. In spite of this, she consented to an entry, including a search of places where children might go. United States v. Williams, 199 Fed. Appx. 828 (11th Cir. October 3, 2006)* (unpublished).

Reasonable suspicion developed from a traffic stop of a new Cadillac Escalade [not reason in and of itself, but it is getting there] when the vehicle had drive out tags, the driver was nervous and moving around (making the trooper nervous), and the paperwork did not match much of anything he said about ownership. United States v. Vo, 2006 U.S. Dist. LEXIS 72590 (D. Kan. October 4, 2006).*

(Catching up: I was at an NACDL Executive Committee meeting that started Thursday night and ended Friday night, and I had a 4:30 wake up call for an early flight.) Friday's cases:

The state failed to prove by anything more than mere suspicion that the evidence sought would be found in the place to be searched. Inferences here are weak and unavailing, particularly because of the "four corners" rule. Bouch v. State, 2006 WY 122, 143 P.3d 643 (September 27, 2006):

We must disagree with the State that we can substitute "inferences" for these essential facts under the guise of a "common sense" reading. In the absence of facts within the affidavit, establishing a nexus between the place to be searched and the evidence sought, we cannot find probable cause.

Evidence supported the district court's conclusion that consent of third person was not obtained by threat, and there was probable cause for a search warrant. United States v. Rodriquez, 464 F.3d 1072 (9th Cir. October 5, 2006):

Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A "statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi's] consent involuntary as a matter of law." United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (citations omitted). Rather, application of this factor "hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner." Soriano, 361 F.3d at 504 (citations omitted). "Even assuming, however, that [Deputy Thompson's statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists, the weight of the fifth factor is significantly diminished." Id. at 504-05 (citations omitted).

Probable cause to justify a warrant existed in this case. "Probable cause exists when there is a fair probability or substantial chance of criminal activity. It is well-settled that the determination of probable cause is based upon the totality of the circumstances known to the officers at the time of the search." Id. at 505 (citations and internal quotation marks omitted).

Officer who stopped near defendant's car but did not block it or use blue lights, and who then walked up with his flashlight on to talk to the defendant sitting in the car did not unlawfully seize the defendant before officer saw open container. People v. Luedemann, 222 Ill. 2d 530, 306 Ill. Dec. 94, 857 N.E.2d 187 (October 5, 2006), rev'g 357 Ill. App. 3d 411, 293 Ill. Dec. 385 828 N.E.2d 355 (2d Dist. 2005).*

Length of detention was reasonable based on reasonable suspicion. Birgans v. State, 2006 Tex. App. LEXIS 8617 (Tex. App. – El Paso October 5, 2006):

Appellant was talkative and nervous. He and his passenger gave differing stories as to why they were in the area. Both officers noticed the smell of marijuana and alcoholic beverages coming from the vehicle, and two plastic cups filled with a dark liquid were seen in the car. It does not appear the officers used dilatory tactics to detain Appellant longer than necessary. Given these circumstances, we conclude that the search of the vehicle resulted from a valid investigatory detention sufficiently limited in scope and duration.

CI's statement provided probable cause on the totality. Schirber v. State, 2006 WY 121, 142 P.3d 1169 (September 27, 2006):

Many factors may be relevant to a determination of the veracity and the basis of knowledge of an informant. A non-exhaustive lists includes: whether the informant has previously given reliable information to law enforcement; whether the statements of the informant are against the informant's penal interests; whether the informant acquired knowledge of the events through firsthand observation; whether the amount of detail provided is sufficient to make the statement self-verifying; the interval between the date of the events and the law enforcement officer's application for a warrant; and the extent to which law enforcement officers have corroborated the informant's statements. Also relevant is whether the law enforcement affiant included a professional assessment of the probable significance of the facts related by the informant, based on experience or expertise. See Gates, 462 U.S. at 233-34; United States v. Harris, 403 U.S. 573, 584-85 (1971); United States v. Mykytiuk, 402 F.3d 773, 776-77 (7th Cir. 2005); United States v. Zayas-Diaz, 95 F.3d 105, 111 (1st Cir. 1996). No one factor is dispositive in the credibility analysis, and a deficiency in one may be compensated by a strong showing of another. Id.

The Sixth Circuit granted a stay pending appeal yesterday in the NSA wiretapping case in ACLU v. National Security Agency/National Security Service, 2006 WL 2827166 (6th Cir. October 4, 2006):

The government moves for a stay pending appeal of the district court’s order holding the Terrorist Surveillance Program unconstitutional and permanently enjoining the Government from utilizing the Program “in any way, including, but not limited to, conducting warrantless wiretaps of telephone and internet communications, in contravention of [FISA and Title III].”

In considering whether a stay pending appeal should issue, we balance the traditional factors governing injunctive relief: (1) whether the applicant has demonstrated a substantial likelihood of success on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other interested parties; and (4) where the public interest lies. Baker v. Adams County/Ohio Valley Sch. Bd., 310 F.3d 927, 928 (6th Cir. 2002); Michigan Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). This court, in Grutter v. Bollinger, 247 F.3d 631, 633 (6th Cir. 2001), noted that

"Michigan Coalition said that the success on the merits which must be demonstrated is inversely proportional to the harm. More than a possibility of success must be shown, and 'even if a movant demonstrates irreparable harm that decidedly outweighs any potential harm to the nonmoving party if a stay is granted, he is still required to show, at a minimum, "serious questions going to the merits."' (edits and citations omitted)."

After careful review, we conclude that this standard has been met in this case. Accordingly, the motion for a stay pending appeal is GRANTED.

Five month imprisonment for contempt sanction for failure to provide handwriting exemplars when ordered to do so is affirmed on appeal. In re Solomon, 465 F.3d 114 (3d Cir. October 2, 2006).*

Reasonable suspicion was found where, after an accident, the defendant got out of the car with a laptop bag and a plastic bag which he placed near the stairs of a subway and then returned to the car. United States v. Branch, 2006 U.S. Dist. LEXIS 72042 (S.D. N.Y. October 2, 2006) ("Branch contends that there was nothing suspicious in his behavior, even to the trained eye of an experienced law enforcement officer. Common sense suggests otherwise.").*

Georgia v. Randolph inapplicable where the defendant did not veto the co-tenant's consent. Reconsideration denied. United States v. Stanley, 2006 U.S. Dist. LEXIS 71429 (N.D. Ohio October 2, 2006).*

Seizure of guns under a search warrant for drugs was proper because the officers knew that defendant was a felon and on bond. United States v. Jones, 2006 U.S. Dist. LEXIS 71499 (S.D. Ala. September 29, 2006).*

Defendant did not have a reasonable expectation of privacy in the outdoors area that was searched by the police finding physical evidence. Vidos v. State, 2006 Ark. LEXIS 429 (September 14, 2006)*:

Here, the police officer did not violate appellant's Fourth Amendment right to be free from unreasonable searches and seizures by merely walking from the house to the barn. After the officer knocked at the residence and discovered that no one was home, he walked around the house to see if Acuff was in the backyard. There, he saw the tractor with a front-end loader parked at the gate. He saw blood, the Velcro patch, and thistles in the radiator. The officer made these observations from a lawful vantage point. For these reasons, we hold that the circuit court did not err in refusing to suppress this evidence.

Defendant who was trespassing was asked three times to move on, and he refused. His arrest for refusing was justified. A.D. v. State, 939 So. 2d 1126 (Fla. App. 3d Dist. October 4, 2006).*

A criminal defense lawyer charged with obstruction of justice had a reasonable expectation of privacy in phone calls with his client, Holyoke, from the jail, so the recordings were suppressed. United States v. Novak, 2006 U.S. Dist. LEXIS 71281 (D. Mass. September 26, 2006):

In apparent recognition of the traditional sanctity of conversations between attorney and client and the requirements of state regulations, in this case, the Jail attempted to exempt attorney-client calls from its general monitoring procedure. The attempt, however, was poorly executed. First, as noted above, Securus, using a database of Massachusetts attorneys, created a list of telephone numbers that were to be exempt from monitoring. The list was flawed because it did not include Novak's telephone number, despite the fact that Novak's number was listed in the Lawyers' Diary. Second, the evidence establishes that there was essentially no communication, either to inmates or to attorneys, of the Jail's policy regarding the exemption from monitoring of attorney-client calls, or the procedure that the Jail used to identify attorney phone numbers so as to exempt them from monitoring. Because the calls to Novak's office were answered by his secretary, and routed to Novak after the warning message was received, Novak did not hear the warning of potential monitoring played at the beginning of the phone call. He therefore was not placed on notice that his normal expectation of confidentiality might be different with respect to the call from Holyoke.

Drug arrest seven months earlier was too stale for reasonable suspicion for a probation violation search. People v. Ward, 2006 Ill. App. LEXIS 891 (5th Dist. September 29, 2006).

Affidavit for search warrant was specific because it sufficiently alleged that there was evidence of a crime at the place to be seached (Zurcher) and not just that the defendant was the holder. United States v. Allen, 2006 U.S. Dist. LEXIS 71189 (N.D. Okla. September 29, 2006).* Similar is United States v. Flynn, 2006 U.S. Dist. LEXIS 70942 (W.D. Pa. September 27, 2006)* ("although the affidavit must set forth the nexus between the items to be sought and seized and the place to be searched, direct evidence linking the place to be searched with a crime is not required for a warrant to issue.").

Plaintiff's claim he was choked to retrieve a cocaine baggie that he attempted to swallow was not a constitutional violation, but his allegation of a second choking was. Stokes v. Porretto, 2006 U.S. Dist. LEXIS 71060 (S.D. Tex. September 29, 2006).*

In a significant e-mail privacy case, the Court of Appeals of the Armed Forces held in United States v. Long, 64 M.J. 57 (Ct. App. Armed Forces September 27, 2006), that a service member had a reasonable expectation of privacy in her e-mail in a government computer as to all but the system administrator. [Many footnotes are omitted, and a lot of the opinion is quoted.]

This case presents us with questions certified by the Judge Advocate General of the Navy regarding the reasonable expectation of privacy a military person has in e-mail messages sent and stored on a government computer system. Lance Corporal Long, in a cross-petition, questions the holding by the lower court that the search and seizure violation it found was harmless beyond a reasonable doubt. We conclude that based on the particular facts of this case, Appellee did have a subjective expectation of privacy in these e-mails, that her expectation of privacy was objectively reasonable, and that the error in admitting these e-mails was not harmless beyond a reasonable doubt.

...

THE SUBJECTIVE EXPECTATION OF PRIVACY

This Court previously considered military members' subjective expectations of privacy in Maxwell and Monroe. In Maxwell, the accused used America Online's (AOL) e-mail service to communicate with another junior Air Force officer about the accused's sexual interests and to send and receive obscene material and child pornography. This Court concluded that Maxwell possessed a subjective expectation of privacy where it was AOL's policy to offer "contractual privacy protection," including nondisclosure of e-mail without a court order.

In Monroe, this Court concluded that, in contrast to Maxwell, the e-mail system in question was owned by the government. We noted that Monroe's subjective expectation of privacy was not governed by contractual agreement, as in Maxwell, and we concluded that, based on the totality of the circumstances, Monroe had no expectation of privacy, at least from persons maintaining the electronic mail host system.

In making the case that she had an expectation of privacy, Appellee argues that access to her computer and therefore her e-mail account was protected by a password known only to her. Indeed, the network administrator testified that he did not know her password.

In response to the argument that Appellee's password created an expectation of privacy, the Government points out that the passwords are required as a part of the government computer security concerns in order to limit unauthorized access to the government system. Accordingly, the Government concludes that passwords protect governmental interests, not individual privacy concerns.

The Government relies most heavily on the log-on banner to support its notion that Appellee could not have believed her e-mail communications were private. The Government argues that courts have looked at similar warnings and policies, and found them sufficient to establish that the employee had no expectation of privacy. Conversely, Appellee argues that the language of the banner is not sufficient to remove her expectation of privacy from unreasonable, warrantless searches conducted for law enforcement purposes.

In light of the particular facts of this case, we conclude that the lower court was not clearly erroneous in its determination that Appellee had a subjective expectation of privacy in the e-mails she sent from her office computer and in the e-mails that were stored on the government server.

We conclude that the testimony of the network administrator is the most compelling evidence supporting the notion that Appellee had a subjective expectation of privacy. ...

. . .

THE REASONABLENESS OF THE PRIVACY EXPECTATION

In O'Connor, the Supreme Court recognized that there may be an expectation of privacy in a government workplace but that there is no talisman for determining the reasonableness of such an expectation in cases involving public employees. Instead, the reasonableness of a privacy expectation will differ according to the context, and the "operational realities of the workplace." M.R.E. 314 discusses searches not requiring probable cause, and subsection (d) of M.R.E. 314 deals specifically with searches of government property. M.R.E. 314(d), which is consistent with the holding in O'Connor, indicates that searches of government property may be made without probable cause unless an individual has a reasonable expectation of privacy in that property and that the determination of the reasonableness of an expectation of privacy "depends on the facts and circumstances at the time of the search."

The e-mails seized in this case were originally prepared in an office in HQMC on a computer owned by the Marine Corps and issued to Appellee. They were transmitted over the HQMC network system, stored on the HQMC server, and retrieved by the HQMC network administrator. Each of those factors might arguably fit a situation where society would be unwilling to recognize an individual expectation of privacy. Other evidence in this case, however, convinces us that Appellee's subjective expectation of privacy in these e-mails is one that society is prepared to accept as reasonable.

We consider the testimony of Mr. Asesor, the network administrator, describing the agency practices and policies to be most persuasive. We look to office practices because the Supreme Court in O'Connor indicated that privacy expectations in the workplace may be reduced by virtue of office practices, procedures, or regulation. In this case, the policies and practices of HQMC reaffirm rather than reduce the expectations regarding privacy on office computers. These policies, among other things, require individual users to have passwords known only to themselves and to change their passwords periodically to ensure privacy. Additionally, these policies limit outside network access to the network administrator and describe very limited conditions under which he would monitor the network for unauthorized use.

The testimony of the Government's witness about policies and practices is strong evidence that Appellee's subjective expectation of privacy was objectively reasonable. Mr. Asesor explained that HQMC's policy regarding using the network to send personal e-mails had always been lenient and that such use of the network was considered authorized. Mr. Asesor further testified that when doing the testing and monitoring of the network, he did not monitor individual accounts because "it's a privacy issue."

The totality of the circumstances in this case leads us to conclude that, unlike in Monroe, Appellee's expectation of privacy was objectively reasonable. The HQMC log-on banner explained that the network administrator had access to Appellee's computer as a "monitoring" function. The e-mails retrieved in this case were from Appellee's account on an unclassified government computer system on which she was authorized limited personal use and were not obtained for maintenance or monitoring purposes.

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).*

Defendant was in his car near the place of execution of a search warrant, and the police drove up to block his path. He then moved to dispose of drugs. While the officers had guns drawn, the defendant apparently did not even know it. The stop was reasonable. United States v. Jennings, 2006 U.S. Dist. LEXIS 70603 (N.D. Ind. September 15, 2006):

The holdings of Baker, Bohannon, and Burchett demonstrate the reasonableness of the police conduct in this case. Those cases teach that officers executing a narcotics search warrant need not confine their attention to the area contained by the walls of the building they are authorized to search. They may detain--briefly, and with no more than reasonable force--those whose presence adjacent to the scene of a search poses a potential significant risk to the officers or to the persons detained. They may detain persons who might be occupants, and if the premises have a history of people coming and going frequently, those who might be customers or suppliers. People who draw near a place where a narcotics search warrant is in the beginning stages of execution are, at best, in danger and, at worst, may be threats themselves or confederates of those operating from the place to be searched.

There may be factual situations in which it would be unreasonable for police to act as they did here. But under the facts of this case, it was reasonable to seize the occupants of the Cadillac. As noted earlier, courts have upheld the display of firearms during a warrantless seizure if it is consistent with the reason for the seizure. See, e.g., United States v. Vega, 72 F.3d 507, 516 (7th Cir. 1995); United States v. Tilmon, 19 F.3d 1221, 1224 (7th Cir. 1994). Given the circumstances of this detention, the display of the firearms did not convert the stop into an arrest.

Officer was invited into hotel room by co-tenant, and that validate his plain view that validly made it to an affidavit for a search warrant. United States v. Beasley, 2006 U.S. App. LEXIS 24560 (6th Cir. September 26, 2006)* (unpublished).