Archives for: October 2006

10/31/06

Permalink 06:09:23 am, by admin, 335 words, 766 views   English (US)
Categories: General

Police found car in garage involved in head on accident and were permitted to enter to check on allegedly injured driver who might have been unable to call for help

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).*

Permalink 05:47:03 am, by admin, 555 words, 497 views   English (US)
Categories: General

Defendant on community corrections release with electronic monitoring living with sister was treated as a parolee

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.

Permalink 04:23:47 am, by admin, 373 words, 823 views   English (US)
Categories: General

Cert. granted: Does use of deadly force against a fleeing motorist who is not an immediate threat entitle the officer to qualified immunity?

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.]

10/30/06

Permalink 07:06:39 am, by admin, 532 words, 488 views   English (US)
Categories: General

Police direction to a protestor to move to another side of the street is not a seizure

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.

10/29/06

Permalink 10:19:41 am, by admin, 160 words, 483 views   English (US)
Categories: General

Presumption of probable cause in affidavit for search warrant carries over to civil search cases

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).

10/28/06

Permalink 02:50:16 pm, by admin, 251 words, 735 views   English (US)
Categories: General

Meth head's consent was valid since he did not show he was using at the time

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).*

Permalink 02:39:29 pm, by admin, 138 words, 512 views   English (US)
Categories: General

Catheterization in prison for medical purposes that led to seizure of urine was reasonable

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).

10/27/06

Permalink 11:58:09 pm, by admin, 1540 words, 4088 views   English (US)
Categories: General

Being in the courtroom where James Otis Jr. argued against the Writs of Assistance

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.

Permalink 11:48:10 pm, by admin, 684 words, 564 views   English (US)
Categories: General

False representation that officers had a court order for production of a computer in a child porn case made consent invalid

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.

Permalink 10:16:11 pm, by admin, 397 words, 768 views   English (US)
Categories: General

Officer failed to articulate any reason for vehicle frisk under Michigan v. Long

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).*

10/26/06

Permalink 11:34:40 pm, by admin, 1165 words, 1329 views   English (US)
Categories: General

Pawnshops are "closely regulated industries" and inspection of records for crime detection rather than a purely administrative purpose is not unreasonable; the fact state law may provide more rights provides no federal remedy

(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.

Permalink 11:19:48 pm, by admin, 251 words, 769 views   English (US)
Categories: General

NM: Pretexual seatbelt stop was invalid

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).*

Permalink 11:01:18 pm, by admin, 192 words, 443 views   English (US)
Categories: General

Conflict of laws: PA court held stop invalid, but it produced an outstanding warrant and evidence of a MD burglary; MD holds taint dissipated

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).

Permalink 10:50:12 pm, by admin, 847 words, 1159 views   English (US)
Categories: General

Cellphone tracking information subject to production; Fourth Amendment issue still abstract and not decided

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.")

10/25/06

Permalink 07:11:23 am, by admin, 260 words, 591 views   English (US)
Categories: General

Computer search warrants now including flash or "thumb drives"

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).*

10/24/06

Permalink 05:45:40 am, by admin, 565 words, 2096 views   English (US)
Categories: General

Colorado: While Payton was not complied with, exigent circumstances independently justified entry to arrest when defendant refused to show his hands

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.

Permalink 05:42:50 am, by admin, 450 words, 413 views   English (US)
Categories: General

Detention under Summers is not an exception to Miranda

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).

10/23/06

Permalink 04:50:24 am, by admin, 655 words, 473 views   English (US)
Categories: General

Consent to search motel room included the safe within

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).*

10/22/06

Permalink 03:27:59 pm, by fourth, 414 words, 4599 views   English (US)
Categories: General

Nevada casino security guards have statutory authority to arrest

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).*

10/21/06

Permalink 08:25:56 pm, by admin, 1102 words, 4473 views   English (US)
Categories: General

Police ruse of fictitious rape having occurred inside defendant's house made consent coerced

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).*

Permalink 02:28:52 pm, by admin, 654 words, 638 views   English (US)
Categories: General

Seatbelt roadblock led to § 1983 action which was dismissed

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).

Permalink 02:07:53 pm, by admin, 690 words, 1409 views   English (US)
Categories: General

Rule 41(g) motion for return of property cannot be used as a pre-indictment motion to suppress

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).*

Permalink 09:34:03 am, by admin, 293 words, 370 views   English (US)
Categories: General

Search incident 35 minutes after handcuffing in a motel room was not unreasonable where the defendant started by falsely identifying himself and things escalated from there.

(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).

10/20/06

Permalink 06:35:53 pm, by admin, 295 words, 411 views   English (US)
Categories: General

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).

Permalink 12:30:08 pm, by admin, 582 words, 497 views   English (US)
Categories: General

Minn. holds compulsory DNA testing before conviction unconstitutional

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).

Permalink 12:15:44 pm, by admin, 317 words, 362 views   English (US)
Categories: General

Gov't cannot raise standing for first time in objections to MJ's R&R

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).

Permalink 09:43:16 am, by admin, 273 words, 414 views   English (US)
Categories: General

D.Ore. finds justification for extending stop was a hunch and suppresses

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).

10/19/06

Permalink 06:55:21 am, by admin, 144 words, 436 views   English (US)
Categories: General

Citing only federal and state constitutions did not invoke state statute as ground to suppress

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).*

Permalink 06:52:19 am, by admin, 414 words, 575 views   English (US)
Categories: General

Nebraska DMV records error chargeable to executive branch, and exclusionary rule applies

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.

Permalink 06:19:12 am, by admin, 331 words, 358 views   English (US)
Categories: General

"Drug sniffing deputy's" testimony found incredible

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).*

10/18/06

Permalink 08:23:40 am, by admin, 312 words, 755 views   English (US)
Categories: General

GPS lawfully placed on rental car before rental; "Unauthorized" rental car driver loaned car by the renter had standing

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).

Permalink 01:20:23 am, by admin, 386 words, 1040 views   English (US)
Categories: General

WI sheriff uses Google Earth to locate additional marijuana patches on defendant with a GPS locator showing his grow operations

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]

10/17/06

Permalink 05:38:45 am, by admin, 636 words, 673 views   English (US)
Categories: General

Alaska rejects Hodari D. under state constitution--the exclusionary rule applies to abandonment in flight from an illegal stop

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).*

10/16/06

Permalink 08:17:18 pm, by fourth, 210 words, 13082 views   English (US)
Categories: General

45 minute roadside detention for sorting out authority to drive a rental vehicle was reasonable

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).

10/15/06

Permalink 05:44:46 pm, by admin, 531 words, 368 views   English (US)
Categories: General

Officer's inquiry of name and DOB for operating a bicycle for no light was not a seizure where there was no "stop"

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).*

10/14/06

Permalink 02:15:58 pm, by admin, 379 words, 386 views   English (US)
Categories: General

USPS worker had no REP in his lunch bag while at work

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).

10/13/06

Permalink 07:20:43 pm, by admin, 196 words, 1777 views   English (US)
Categories: General

Student illegally searched after coming back from suspension put principal in contempt

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).*

Permalink 06:59:23 pm, by admin, 431 words, 609 views   English (US)
Categories: General

Emergency probate pick up order did not authorize entry into premises where address not shown in order

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).

10/12/06

Permalink 08:02:32 pm, by admin, 795 words, 645 views   English (US)
Categories: General

FL holds that defendant could not possibly feel he was free to leave, despite officer's testimony to the contrary

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).*

Permalink 07:32:42 pm, by admin, 1311 words, 1439 views   English (US)
Categories: General

CA holds Hudson's "discussion of alternatives to the exclusionary rule as dictum" and finds possible police misconduct reason enough to suppress

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].)

Permalink 06:48:33 pm, by admin, 306 words, 461 views   English (US)
Categories: General

E-mailed copy of signed warrant was not violation of ND rule or Fourth Amendment

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).

10/11/06

Permalink 08:53:05 am, by admin, 1030 words, 524 views   English (US)
Categories: General

Colorado finds a CI's statement alone insufficient to show PC, and the "bare bones" affidavit did not support application of the good faith exception

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?)

Permalink 08:34:00 am, by admin, 493 words, 5792 views   English (US)
Categories: General

Border search doctrine did not permit search of laptop computer without reasonable suspicion

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).

10/10/06

Permalink 08:01:17 am, by admin, 489 words, 2660 views   English (US)
Categories: General

Entry into garage at defendant's request to relay a message he had been arrested was not an investigative purpose and plain view sustained

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.

10/09/06

Permalink 07:45:33 am, by admin, 25 words, 603 views   English (US)
Categories: General

No reported cases today, and today is a federal holiday

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.

10/08/06

Permalink 01:15:56 pm, by admin, 261 words, 1516 views   English (US)
Categories: General

Suppression hearing is a "critical stage," and conducting it without counsel is not harmless

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.

Permalink 12:47:58 pm, by admin, 376 words, 4309 views   English (US)
Categories: General

Guest standing found where defendant stayed about four nights a week and kept stuff there

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.

10/07/06

Permalink 09:19:34 am, by admin, 197 words, 2052 views   English (US)
Categories: General

Warrant check on passenger produced outstanding warrant, and that justified search incident of car

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).

Permalink 07:26:56 am, by admin, 558 words, 404 views   English (US)
Categories: General

Report from work that woman who had been in an abusive relationship had not been at work in days justified entry

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).*

10/06/06

Permalink 01:09:39 pm, by admin, 717 words, 423 views   English (US)
Categories: General

Wyoming holds SW deficient for lack of nexus shown between the place to be searched and the things to be seized; even the state's proferred inference was weak

(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.

10/05/06

Permalink 07:06:28 am, by admin, 268 words, 750 views   English (US)
Categories: General

6th Cir. stays NSA wiretapping order pending appeal

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.

Permalink 06:24:03 am, by admin, 333 words, 399 views   English (US)
Categories: General

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).*

10/04/06

Permalink 08:46:43 am, by admin, 401 words, 381 views   English (US)
Categories: General

Lawyer charged with obstruction had REP in his telephone calls with client in jail

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).*

10/03/06

Permalink 07:01:41 pm, by admin, 1074 words, 401 views   English (US)
Categories: General

Military high court finds a REP in e-mail in government computer as to all but system administrator

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.

Permalink 06:52:12 pm, by admin, 478 words, 365 views   English (US)
Categories: General

911 caller about a burglary who stayed on telephone until police arrived was credible

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).*

10/02/06

Permalink 08:05:58 pm, by admin, 345 words, 336 views   English (US)
Categories: General

Defendant near place of search was validly stopped

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).

10/01/06

Permalink 04:08:30 pm, by admin, 669 words, 370 views   English (US)
Categories: General

OH holds that effort to limit consent showed defendants knew what was there

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

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

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

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

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

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

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

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

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

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  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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