The administrative search exception was used to conduct a search of a medical practice, but the Kentucky Supreme Court held that the administrative search exception of Burger v. New York, assuming it applied, did not apply because this was a law enforcement search because law enforcement was working the case for six months before the administrative search was conducted. Williams v. Commonwealth, 213 S.W.3d 671 (Ky. 2006):
In this case, an active criminal law enforcement investigation had been ongoing for six months prior to the engagement of the administrative agency in this case. The Board of Medical Licensure did not initiate a civil investigation into the matter until a formal grievance was filed by the criminal investigators. When the Board's investigation proceeded, it was in complete conjunction with the uninterrupted criminal investigation. Indeed, not only did the criminal investigators supply the Board with all underlying facts and evidence to support its investigation, but the criminal investigators also determined which files were to be seized by the Board and then accompanied and assisted the Board during the actual raid. Such excessive entanglement with law enforcement simply belies any notion that the warrantless raid in this case was somehow "divorced from the State's general interest in law enforcement." Ferguson, supra, at 79, 121 S.Ct. at 1289; see also, New Jersey v. T.L.O., 469 U.S. 325, 341, n. 7, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) (distinguishing searches carried out by administrative authorities "acting alone and on their own authority" from those conducted "in conjunction with or at the behest of law enforcement agencies").
Reasonable suspicion as to the place defendant came from extended to him. State v. Smith, 2006 La. App. LEXIS 2697 (5th Cir. November 28, 2006):
We find the totality of the circumstances support the trial judge's finding of reasonable suspicion of criminal activity. Although the record does not disclose that the officer had specific information about the defendant, he did have information that drugs were being sold out of the particular apartment the defendant visited. All of the factors together, including this experienced officer's observation of the apparent hand-to-hand transaction outside of an apartment under surveillance for narcotics activity in a high crime area, and the fact that the officer had made other narcotics arrests there, formed reasonable suspicion of criminal activity to support an investigatory stop.
Defendant did not engage in headlong flight from the police, and the state failed to show it, and, thus, the state failed to show that there was reasonable suspicion. Rainer v. State, 944 So. 2d 115 (Miss. App. November 28, 2006), on rehearing from Rainer v. State, 2005 Miss. App. LEXIS 917 (November 22, 2005) (reaching same result).
News: Dec. 1st's Atlanta Journal-Constitution reports that two of the officers in the drug raid that led to the death of Kathryn Johnston had good job ratings:
The five Atlanta narcotics officers involved in a drug raid that ended in the death of an elderly woman have earned mostly top job performance ratings, and their personnel files don't indicate they have ever been disciplined for misconduct.
Two of the officers have received commendations from Chief Richard Pennington for their work in drug cases.
. . .
The personnel files on the officers contain a number of documents.
They include standardized job appraisal forms, oath of office forms, personnel data sheets, personal weapons requests, commendations, and police academy information.
Nothing in the personnel records for the five officers suggests they would likely be embroiled in such a controversial case.
The state and federal investigation continues.
The Northern District of California holds that officers exceeding the scope of a search warrant is not subject to the good faith exception. United States v. Chan, 2006 U.S. Dist. LEXIS 85703 (N.D. Cal. November 15, 2006):
Here, after examining the circumstances surrounding the issuance of the warrant, the contents of the search warrant, and the circumstances of the search, the Court concludes that the search of apartment 5B exceeded the scope of the warrant because there was no objective basis for believing that the area was under the control of Tam or Chan. The search warrant affidavit states that 226 Irving Street is a multi-family dwelling, that Tam owned the building, that Tam and Chan resided at other locations, and that Chan had listed his address at various times as "226 Irving Street Apt. 3," and at that address without an apartment number. When officers executed the search, they discovered that the Panatches were tenants of apartment 3, and that Chan received mail at apartment 3. According to the Panatch and Crowe declarations, the Panatches told officers they were not aware of any storage areas in the building, that Chan told them he was renovating the downstairs portion of the building, and that Chan had keys to the entire building and acted as a property manager.
Thus, based upon the search of apartment 3 and the information obtained from the Panatches, there was no basis to conclude that a locked room--much less a rental unit--located off of the garage, containing some personal items, was an area controlled by either Tam or Chan. The facts that Tam owned the building, and that officers understood from the Panatches that Chan had keys to the units in the building, are not sufficient to authorize officers to search every part of that building. See United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980). Officers still needed some objective basis to believe that the area they were searching was a storage area controlled by Tam or Chan. At the very least, once officers crawled through the window and saw the kitchen, bathroom, and bags of clothes, they should have understood that they were not in a storage room, and likely were in another rental unit. Once inside the unit, there was no basis for concluding that the unit was occupied and/or controlled by Chan or Tam, as opposed to some other individual.
The United States argues that the evidence from the search need not be suppressed under the exclusionary rule if officers honestly, and in "good faith," believed that the warrant being executed was valid under United States v. Leon, 468 U.S. 891 (1984). The question is limited "to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization." See Leon, 468 U.S. at 922. Leon does not apply and suppression of the evidence is appropriate when the officers could not have "harbored an objectively reasonable belief that probable cause existed." Id. at 923-24. The government bears the burden of proving that reliance upon the warrant was objectively reasonable. See United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995).
Here, for all of the reasons stated supra, the Court concludes that reasonably well trained officers would have known that they were exceeding the scope of the search warrant, at least at the point when officers saw that the "storage area" had a kitchen, bathroom, and bags of clothes on the floor. At that point, the officers could no longer harbor a good faith belief that the warrant authorized the search of that area. The only rental unit for which a probable cause determination had been made was apartment 3; no other rental unit in the building was covered by the warrant. Accordingly, once officers crawled through the window and saw the kitchen, bathroom and clothes in bags, they had [an objective basis for concluding that they were, in fact, in another rental unit. Indeed, Parry admits as much in his declaration. See Parry Decl. P 7(b) ("It should be pointed out that at this point [prior to entering the unit], it was unclear whether this area was a 'unit'; we could tell that it was vacant and used for storage, but only later--after making entry--did we ascertain that there was a kitchen and a bathroom in there, which then suggested that this was a vacant 'in law' unit unoccupied at [the] present time.").
The Court concludes that a reasonably well trained officer would have known the search of that unit was not covered by the search warrant, and that any search would require a separate warrant. Accordingly, the Court concludes that the Leon good faith exception does not apply.
Defendant as a mere passenger in a car had no standing to challenge the search of the car. Even if he did, he would lose on the merits because furtive movements led to officers have reasonable suspicion to detain him longer. State v. Thomas, 98 Conn. App. 542, 909 A.2d 969 (November 28, 2006).*
Reasonable suspicion required in Idaho for a probationer search, and it was present here. State v. Klingler, 143 Idaho 494, 148 P.3d 1240 (Ida. 2006)*:
Moreover, if a probationer has a drug history, courts should be more willing to find that reasonable grounds exist for a search. Anderson, 140 Idaho at 487-88, 95 P.3d at 638-39. In Anderson, this Court held that a probationer's drug history, indicating that a heightened need of supervision was necessary to protect him or her from society, is a factor for courts to consider in deciding whether reasonable grounds exist for a search. State v. Klingler, 2006 Ida. LEXIS 146 (November 24, 2006)*:
In this case, a probation officer heard from a detective at an intel meeting, with police and probation officers present, that Klingler may be dealing drugs. It was the second time the probation officer had heard allegations about Klingler's drug use. Further, it is apparent the trial court had some concerns about Klingler's possible drug use, as evidenced by its recommendation that Klingler complete an inpatient substance abuse treatment program as well as the court's second probation order requiring him to refrain from possessing or using any controlled substance. Based on the source of the tip (a police detective), the setting in which it was received (an intel meeting regarding felons on probation), and conditions on Klingler's probation, the probation officer had reasonable grounds to search Klingler's residence.
Plain feel was not obvious enough to justify seizing evidence off the defendant. Commonwealth v. Jones, 217 S.W.3d 190 (Ky. 2006)*:
Applying Dickerson and Crowder to the case at hand compels a finding that the search of Jones does not fall within the plain feel exception. In many respects, the facts in those cases are more compelling than those found in this case because, unlike those cases, there is no suggestion in the sparse record that Jones's residence or neighborhood were either high-crime areas in general or were known specifically as being narcotics-trafficking hotspots, nor is there any indication that Jones himself was suspected of being a drug trafficker. As did the suspects in Dickerson and Crowder, Jones began to walk away once he noticed the presence of authorities. But even if Jones's retreat from Teagle is considered to be a "flight," that flight, in and of itself, is insufficient to establish probable cause.
A Michigan District Judge holds that Summers does not grant carte blanche to detain every person who wanders into a search warrant being executed. United States v. Davenport, 2006 U.S. Dist. LEXIS 85965 (E.D. Mich. November 28, 2006):
Although the law, as set forth above, allows non-resident, non-occupant individuals that arrive at a residence that is the target of a search warrant to be detained while the search is being completed, the Court does not believe that the mere presence of a search warrant amounts to an unfettered blanket authorization to detain anyone the police may have a chance to encounter during their execution of the search warrant. In each of the cases extending the holding of Michigan v. Summers, the Sixth Circuit has carefully recognized the particular facts and circumstances that substantiate the legitimate law enforcement interests that support the warrantless seizure. See Fountain, 2 F.3d at 663 (Officers faced "a confined, unfamiliar environment that was likely to be dangerous."); Bohannon, 225 F.3d at 617 (Given defendant's intention to walk into house being searched, safety of officers and defendant was at risk.); United States v. Ridge, 329 F.3d 535, (6th Cir. 2003) (Officers who were searching a methamphetamine laboratory and received information that an armed third-party would soon be arriving at that location were justified in seizing the defendant without a warrant, when he arrived at the residence.).
In the instant case, because evidentiary testimony was not presented at the initial hearing on Defendant's motion, an articulable basis for the legitimate detention of Defendant pursuant to Summers, Fountain, and Bohanon has not yet been presented. Accordingly, because testimonial evidence and oral arguments could elucidate the officers' legitimate interests in Defendant's risk of flight, the risk of harm he presented to the officers, and whether Defendant could have, in any way, assisted in the orderly completion of the authorized search of the residence, the Court will set this matter for an evidentiary hearing.
Nexus for search warrant of Custom's officer's house was shown by fact that a shipment of evidence was received at his house. United States v. Schofield, 2006 U.S. Dist. LEXIS 85343 (E.D. Va. November 22, 2006):
The affidavit issued by Officer Izzard provided, inter alia, facts alleging shipment of a package by Defendant to a residence used to make payments for immigration stamps, testimony of an alien that had traveled to the residence in order to obtain false papers, and phone records indicating calls from the residence to suspected co-conspirators. The affidavit also included a determination by the affiant, based on experience of the officer, that evidence related to the crime would likely be found at Defendant's residence. All of this evidence provides an ample nexus between the alleged crimes and the residence to satisfy the criteria of Anderson and Gates.
Officers had reasonable suspicion for detention of defendant. "Based on hundreds of hours of physical surveillance, wire intercepts, statements of informants, and controlled narcotics transactions, DEA had a substantial basis to believe that [his passenger] was trafficking narcotics. Indeed, Defendant acknowledged that DEA had probable cause to believe [the passenger] was a drug trafficker." United States v. Rios-Ruiz, 2006 U.S. Dist. LEXIS 85780 (D. Ore. November 22, 2006).*
Entry on a federal arrest warrant led to a protective sweep and a plain view. United States v. Cantrell, 2006 U.S. Dist. LEXIS 85623 (W.D. Mo. November 21, 2006).
The First Circuit held yesterday that Hudson v. Michigan has to apply to arrest warrants. United States v. Pelletier, 469 F.3d 194 (1st Cir. November 28, 2006):
During its last term, the Supreme Court held that a violation of the "knock and announce" rule in the course of executing a search warrant did not justify the suppression of evidence subsequently discovered. See Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006). This appeal requires us to determine whether Hudson should be extended to a knock and announce violation committed in the course of executing an arrest warrant. We conclude that the Hudson Court's reasoning mandates such an extension.
. . .
It is black-letter law that an arrest warrant carries with it, by implication, a limited grant of authority to enter the target's residence so long as there is reason to believe that the target is inside. See Payton v. New York, 445 U.S. 573, 603 (1980). Generally speaking, this principle extends to the target's hotel or motel room, since such an accommodation is akin to a temporary residence. See Stoner v. California, 376 U.S. 483, 490 (1964); United States v. Beaudoin, 362 F.3d 60, 65 (1st Cir. 2004); see also United States v. Weems, 322 F.3d 18, 22 (1st Cir. 2003) (noting in dictum that if the defendant "effectively lived" where he was found, "the arrest warrant itself would be enough to authorize entry . . . to effectuate his arrest").
Accidental finding of child porn in a box in a university storage room that could be linked to plaintiff led to a seizure of the hard drive from plaintiff's university office computer to determine whether the university's computer policy had been violated. The campus police made the seizure and search, and it was with reasonable suspicion. The defendants have qualified immunity. Soderstrand v. Oklahoma ex rel. Board of Regents of Oklahoma Agric. & Mech. Colleges, 2006 U.S. Dist. LEXIS 85402 (W.D. Okla. November 22, 2006).
Defendant providing officer a counterfeit green card was reasonable suspicion. United States v. Quintanilla, 2006 U.S. Dist. LEXIS 85314 (W.D. Pa. November 22, 2006).*
Call about a drug dealer did not constitute reasonable suspicion for a stop when it did not describe a person or a particular place. United States v. Martin, 2006 U.S. Dist. LEXIS 85436 (M.D. Tenn. November 22, 2006):
The deputies had received a dispatch from someone who identified herself as Christina Beasley. There is no suggestion that this individual was known by these officers, let alone that she was a credible individual. Even assuming Beasley was credible, all she reported was that "he" was using or selling drugs in the house. The officers had absolutely no description of the purported drug user or seller. Even the location of the house was not established by the call and the trace only narrowed the location to two different houses.
W.D. Tenn., with prior encouragement from the Sixth Circuit, conflates probable cause determination into the good faith exception and essentially decides them as one question, of course finding that the GFE applies. United States v. Keller, 2006 U.S. Dist. LEXIS 85438 (W.D. Tenn. November 22, 2006):
In this case, the affiant averred before the issuing judge that the alleged victim told him her father had sexual intercourse and viewed pornographic movies, books and pictures with her. Therefore, he sought a warrant to search Keller's residence for "pornographic movies, magazines and electronic photographs stored on a computer." (Trans., Ex. 1) While there is some factual basis for a probable cause finding as to the computer, it is a close question. Nonetheless, pornographic movies and pictures could be found or stored on a computer which was located inside the Defendant's house. See Davis, 111 F.3d at 1478-79 (search warrant directing officers to search for items pertaining to the display of pornographic material in violation of state obscenity law encompassed computer equipment falling into that category, as the item was one that might be evidence of such activity). The issue need not be resolved, however, as the evidence of pornography contained on the computer escapes exclusion by virtue of the good faith exception to the warrant requirement articulated by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), even if the nexus between the computer and the pornographic images alleged were too tenuous to establish probable cause. See United States v. McCraven, 401 F.3d 693, 698 (6th Cir.), cert. denied, 126 S.Ct. 639, 163 L.Ed.2d 517 (2005) (close question of whether warrant supported by probable cause need not be resolved because denial of motion to suppress proper under Leon); see also Irving, 452 F.3d at 125 ("in a doubtful case, we accord preference to the warrant"). The Leon exception "allows for the inclusion of evidence obtained by an invalid warrant if the officers reasonably and in good faith relied on the warrant at the time the search was conducted." United States v. Pruitt, 458 F.3d 477, 480 (6th Cir. 2006) (citing Leon, 468 U.S. at 922, 104 S.Ct. 3405). "The relevant question is 'whether a reasonably well trained officer would have known that the search was illegal despite the magistrate's authorization." McCraven, 401 F.3d at 698 (quoting Leon, 468 U.S. at 922 n.23, 104 S.Ct. 3405). "The rationale behind the exception is that the exclusionary rule is meant to deter unlawful police conduct." United States v. Abboud, 438 F.3d 554, 578 (6th Cir. 2006), cert. denied, 127 S.Ct. 446, 75 U.S.L.W. 3106, 75 U.S.L.W. 3204, 75 U.S.L.W. 3205 (U.S. Oct. 16, 2006) (No. 06-348).
Todays AJC: Informant in shooting says he never bought drugs at house / He says police asked him to lie, by Rhonda Cook:
An informant who narcotics officers say led them to the house where an elderly woman was killed in a drug raid is accusing the officers of asking him to lie about his role, Atlanta police Chief Richard Pennington said Monday.
The informant, who has not been identified, complained to department officials that the drug investigators involved in the bust had asked him to go along with a story they concocted after the shooting, said Pennington. He said the informant had been placed in protective custody.
The informant told an Atlanta television station that the officers asked him to lie to provide them cover in the shooting.
Pennington confirmed the television station's account of what the informant had claimed and said it mirrored what the informant had told his Internal Affairs Unit over the weekend.
In the NYC shooting case, the Mayor's comments seemed to assume excessive force, while officers and "experts" are rallying around the officers, all before the facts are in. The Queens DA is planning a grand jury.
The failure to sign an affidavit for a search warrant is not fatal to a search warrant if the prosecution can still prove that the affiant was actually sworn. The oath is what is important, not so much the signature. Smith v. State, 207 S.W.3d 787 (Tex. Crim. App. November 22, 2006):
. . . We agree with Vance [v. State, 759 S.W.2d 498 (Tex. App.-San Antonio 1998, pet. ref'd)] and the majority of the out-of-state courts and hold that the failure to sign the warrant affidavit does not invalidate the warrant if other evidence proves that the affiant personally swore to the truth of the facts in the affidavit before the issuing magistrate.
The present situation might usefully be compared to that of self-proved wills. A will may be made self-proved by the affidavits of the testator and his attesting witnesses, as long as the affidavits are signed and certified in accordance with the specific statutory requirements. A self-proved will may be admitted to probate court without the need for testimony of a subscribing witness, but a will is not invalid simply because it does not contain the statutory affidavits. It merely does not qualify as a self-proved will, and the proponent of the will must call one or more of the attesting witnesses to testify.
Although the affiant's signature on an affidavit serves as an important memorialization of the officer's act of swearing before the magistrate, it is that act of swearing, not the signature itself, that is essential. It is important, too, that the law retain some flexibility in the face of technological advances. For example, the federal courts and some state courts, now permit telephonic search warrants, and one can foresee the day in which search warrants might be obtained via e-mail or a recorded video conference with a magistrate located many miles away. In a state as large as Texas, such innovations should not be foreclosed by the requirement of a signed affidavit if the officer's oath can be memorialized by other, equally satisfactory, means. We leave those potential future changes to the Texas Legislature, but we should not stand in the way of the future by declaring that all affidavits, which are properly sworn to but unsigned, are necessarily invalid. That is not to condone carelessness or sloppiness in either police procedure or judicial oversight. Forgetfulness or carelessness in the formalities of an affidavit may well indicate to either the issuing magistrate or the reviewing court that the officer is forgetful or careless in his factual statements as well. Such forgetfulness may affect the credibility of the officer, but that is a matter for magistrates and trial courts. It is sufficient for today to simply conclude that an affiant's failure to sign his affidavit is not necessarily fatal if it can be proved by other means that he did swear to the facts contained within that affidavit before the magistrate.
The Sixth Circuit held yesterday, on a government appeal from a suppression order by the W.D. Tenn., that the affidavit for the search warrant in this case was truly bare bones, showing no nexus between the drug seizure off of defendant and his house. Even under the deferential standard of review for the good faith exception, the affidavit fails. United States v. McPhearson, 469 F.3d 518 (6th Cir. November 27, 2006):
The third limitation on the good-faith exception, which the district court applied in this case, prevents introduction of evidence seized under a warrant that issued on the basis of a "bare bones" affidavit. Id. at 748. A bare bones affidavit is one that merely "states suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge." Weaver, 99 F.3d at 1378.
Determining whether the affidavit is so bare bones as to preclude application of the good-faith exception is a less demanding inquiry than the one involved in determining whether the affidavit provided a "substantial basis" for the magistrate's conclusion of probable cause. Laughton, 409 F.3d at 748-49 (quoting Carpenter, 360 F.3d at 595). If the inquiries were identical, the probable cause determination would subsume the good-faith exception. Id. at 749. The good-faith inquiry requires examination of the affidavit for particularized facts that indicate veracity, reliability, and basis of knowledge and go beyond bare conclusions and suppositions. Id. at 748-49.
The affidavit in this case was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported. As noted above, the affidavit failed to establish a nexus between McPhearson's residence and evidence of wrongdoing that would support a finding of probable cause. However, the failure to establish probable cause is not dispositive of whether the affidavit could support a reasonable belief in the validity of the search warrant for purposes of the exclusionary rule. "We previously found Leon applicable in cases where we determined that the affidavit contained a minimally sufficient nexus between the illegal activity and the place to be searched to support an officer's good faith belief in the warrant's validity, even if the information provided was not enough to establish probable cause." Carpenter, 360 F.3d at 596. The minimal nexus required to support an officer's good faith belief was not present in this case.
The only connection in the affidavit between 228 Shelby Street and drug trafficking was that Jackson police arrested McPhearson at his residence and found crack cocaine in his pocket in a search incident to the arrest. This connection cannot establish the minimal nexus that has justified application of the good-faith exception in cases where the nexus between the place to be searched and the evidence to be sought was too weak to establish probable cause. See Frazier, 423 F.3d at 536-37; Carpenter, 360 F.3d at 595-96; United States v. Van Shutters, 163 F.3d 331, 337-38 (6th Cir. 1998); United States v. Schultz, 14 F.3d 1093, 1098 (6th Cir. 1994); Savoca, 761 F.2d at 298-99. The application of the good-faith exception in Frazier, Savoca, and Van Shutters depended on the fact that each of the defendants were known to have participated previously in the type of criminal activity that the police were investigating. In Frazier, the defendant was a known drug dealer and drugs had been found at his prior residence. 423 F.3d at 537. In Savoca, the defendants had been identified as the perpetrators of a string of bank robberies in two states. 761 F.2d at 295-98. Similarly, in Van Shutters, the defendant had confessed to perpetrating an auto-theft scheme. 163 F.3d at 336-37. Finally, in Shultz, the court found that the minimal nexus was satisfied by the officer's reliance on his years of experience as a narcotics investigator and the knowledge he had acquired of drug dealers' business practices. 14 F.3d at 1098. Each of these additional facts, although not sufficient to establish probable cause, created the minimal nexus between the place to be searched and the evidence sought that would permit application of the good-faith exception. In this case, there are no analogous facts that establish the minimal nexus. The affidavit merely stated that: (1) "Inv. Mathis and Wiser went to 228 Shelby Street and knocked on the door. A black male answered the door and identified himself to be Martedis McPhearson"; (2) "McPhearson was searched prior to being placed in the police car for transport to booking. Investigator Wiser discovered in McPhearson's right front pocket a clear plastic bag containing . . . [crack cocaine]"; and (3) "E-911 records revealed that 228 Shelby is the residence of Martedis McPhearson." The affidavit did not allege that McPhearson was involved in drug dealing, that hallmarks of drug dealing had been witnessed at his home, such as heavy traffic to and from the residence, or that the investigating officers' experience in narcotics investigation suggested to them that 6.9 grams of crack cocaine was a quantity for resale. Nor did the affidavit allege anything else tying McPhearson or his home to any criminal activity other than personal possession of crack cocaine (and the simple assault for which he was arrested). Instead, the "evidence in the affidavit connecting the crime to the residence [wa]s 'so vague as to be conclusory or meaningless.'" Frazier, 423 F.3d at 537 (quoting Carpenter, 360 F.3d at 596). Therefore, we conclude that the district court properly refused to apply the good-faith exception to validate the search because the affidavit was "so lacking in indicia of probable cause that a belief in its existence is objectively unreasonable." Laughton, 409 F.3d at 748.
Community caretaking function justified officer entering car to check on unconscious driver. Officer could immediately tell that the driver was likely drunk, and he got him out of the car and he could not stand. DUI affirmed. People v. Robinson, 368 Ill. App. 3d 963, 307 Ill.Dec. 232, 859 N.E.2d 232 (5th Dist. November 22, 2006) (released for publication January 5, 2007).*
The Atlanta Journal-Constitution has an article today: Chief vows to review shooting.
Five days after an elderly woman was killed in a gunbattle that left three officers wounded, Atlanta police Chief Richard Pennington said Sunday night his department will review its policy on "no knock" warrants and its use of confidential informants.
Speaking for the first time since the Tuesday night shooting death of Kathryn Johnston at her home in northwest Atlanta, Pennington said his office "will turn over every stone to make sure we get to the reason why this tragic incident happened."
. . .
The police chief said officers found marijuana inside the house but "not a large quantity." Previously, police only said drugs were seized at Johnston's home.
On the recent NYC shooting with 50 shots, the NYTimes.com has this article today: 50 Shots Fired, and the Experts Offer a Theory.
It is known in police parlance as “contagious shooting” — gunfire that spreads among officers who believe that they, or their colleagues, are facing a threat. It spreads like germs, like laughter, or fear. An officer fires, so his colleagues do, too.
The phenomenon appears to have happened last year, when eight officers fired 43 shots at an armed man in Queens, killing him. In July, three officers fired 26 shots at a pit bull that had bitten a chunk out of an officer’s leg in a Bronx apartment building. And there have been other episodes: in 1995, in the Bronx, officers fired 125 bullets during a bodega robbery, with one officer firing 45 rounds.
Just what happened on Saturday is still being investigated. Police experts, however, suggested in interviews yesterday that contagious shooting played a role in a fatal police shooting in Queens Saturday morning. According to the police account, five officers fired 50 shots at a bridegroom who, leaving his bachelor party at a strip club, twice drove his car into a minivan carrying plainclothes police officers investigating the club.
No cases today.
On NYTimes.com today, a story that almost sounds like it came from a third-world country: Police Kill Man After a Queens Bachelor Party.
Witnesses told of chaos, screams and a barrage of gunfire near Club Kalua at 143-08 94th Avenue in Jamaica about 4:15 a.m. after Mr. Bell and his friends walked out and got into their car. Mr. Bell drove the car half a block, turned a corner and struck a black unmarked police minivan bearing several plainclothes officers.
Mr. Bell’s car then backed up onto a sidewalk, hit a storefront’s rolled-down protective gate and nearly struck an undercover officer before shooting forward and slamming into the police van again, the police said.
In response, five police officers fired at least 50 rounds at the men’s car, a silver Nissan Altima; the bullets ripped into other cars and slammed through an apartment window near the shooting scene on Liverpool Street near 94th Avenue.
Mr. Bell — who was to have been wed at 5 p.m. yesterday to Nicole Paultre, 22, the mother of his two small daughters — was shot in the neck, shoulder and right arm and was taken to Jamaica Hospital Medical Center, where he was pronounced dead.
The two wounded men, Joseph Guzman, 21, and Trent Benefield, 23, were taken to Mary Immaculate Hospital, where Mr. Guzman was listed in critical condition and Mr. Benefield in stable condition.
Police Commissioner Raymond W. Kelly said at a news conference last night that the men’s car had been hit at least 21 times. He said he did not know what triggered the shooting and that it was too early to tell if it was justified. No guns were found at the scene, and no charges have been filed against the men, the police said.
. . .
The shootings reverberated with echoes of the 1999 police shooting of Amadou Diallo, an unarmed street vendor and Guinean immigrant who was killed in the vestibule of his Bronx apartment by four police officers who were later acquitted of criminal charges in his death. That killing raised questions of racial profiling and excessive force by the police.
In deadly force cases, as a practical matter, the police always get the benefit of the doubt. I've tried a few, and they are tough. In Diallo, they at least had his cellphone as a scapegoat for shooting in the dark. Here, what will be the asserted justification for 50 shots?
Oregon holds that a search warrant that mistakenly only authorized a search but did not mention a seizure did not prevent a seizure, at least under plain view doctrine, because the police were lawfully inside the premises. State v. Carter, 342 Ore. 39 (November 24, 2006), aff'g in part 200 Ore. App. 262, 113 P.3d 969 (2005):
The history confirms what the text of Article I, section 9, and this court's cases construing it demonstrate. The purpose of the particularity requirement was to prevent the use of general warrants -- to ensure that a warrant described with particularity the person to be seized, the place to be searched, or the thing to be seized. Nothing in that history suggests that the framers intended to require that every warrant authorize both a search and a seizure, as defendant argues. Considering the text of Article I, section 9, this court's cases construing that provision, and its history, we conclude that a warrant that authorizes only a search or only a seizure is facially valid under Article I, section 9.
Defendant raises a second argument. He contends that, unless a warrant authorizes a seizure as well as a search, it will be an impermissible general warrant. The question, however, whether a warrant authorizes both a search and a seizure has nothing to do with the question whether it is a general warrant. A warrant that authorized both a search and a seizure could do so in the most general terms and thus could run afoul of the particularity requirement. See Reid, 319 Ore. at 69-70 (describing vice of general warrants); Joseph Story, 3 Commentaries on the Constitution of the United States 748-50 (1833) (same). Conversely, a warrant that authorized only a search or only a seizure may be sufficiently particular -- a proposition that the warrant in this case illustrates. The warrant in this case authorized the officers to search only for specific types of evidence in defendant's home. It thus limited the areas in which they could search and avoided the vice inherent in general warrants.
The Court of Appeals correctly held that the warrant at issue here was facially valid. Given the state's concession that the warrant does not authorize a seizure as well as a search, the Court of Appeals permissibly remanded the case to the trial court to determine whether the officers could seize the evidence (that they did seize) under the plain view doctrine. In the context of this case, that doctrine permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime. See State v. Sargent, 323 Ore. 455, 463 n 5, 918 P.2d 819 (1996) (evidence of a crime in plain view); State v. Lippert, 317 Ore. 397, 403, 856 P.2d 634 (1993) (contraband in plain view).
Affidavit for search warrant was supported by probable cause, which is a "fair probability" that evidence would be found. Also, the officers corroborated the informant's information. In any event, the good faith exception would also apply. United States v. Amaya, 2006 U.S. App. LEXIS 29109 (10th Cir. November 22, 2006)* (unpublished).
A bank robber had no reasonable expectation of privacy in his bank records or car rental records from production at trial. "'[A]n individual has no claim under the fourth amendment to resist the production of business records held by a third party.' In re Grand Jury Proceeding, 842 F.2d 1229, 1234 (11th Cir. 1988). In short, Grimmette had no Fourth Amendment right of privacy in these records kept and maintained by Wachovia Bank and Accent Car Rental." United States v. Grimmette, 208 Fed. Appx. 709 (11th Cir. 2006)* (unpublished).
Excessive nervousness, rambling conversation, and masking odor all added up to reasonable suspicion. United States v. Powell, 2006 U.S. Dist. LEXIS 85018 (D. Kan. November 21, 2006).*
Today's AJC article on the Atlanta SWAT shooting is here. It adds nothing new.
The Atlanta Journal-Constitution has an article today entitled Probe sought in police shooting of woman, by Bill Montgomery. (The previous post with an update is here.) The AJC article mentions that it was a no-knock warrant, but the AJC has been unable to find out why the police claimed the need for such a warrant because the courts will not release the affidavit, despite its status as a public record. By hiding it, the Atlanta court system is only making things worse for the police department. They need to let it all out now, and help clear the air.
Police contend they obtained a so-called no-knock search warrant for the Neal Street house after buying drugs Tuesday afternoon from a man inside the home.
The no-knock warrant is frequently used in suspected drug cases because police believe their surprise entry into a home prevents drug dealers from flushing away or destroying the evidence. In this case, the warrant did not name a person, referring only to a "John Doe, aka Sam," the standard reference when a person's name is not known, police said.
The Atlanta Journal-Constitution has been unable to independently confirm the police account about the need for the no-knock warrant because it has not been able to read the sworn statement police provided to a judge to obtain the warrant.
State Court Administrator Stefani Searcy has refused to release the information, although state law considers all such documents public record. Searcy has cited "office policy" as her reason for withholding the information.
A cynic might say that the courts are covering their own behinds for granting a no-knock warrant without a proper showing of justification. In my experience, the police are rarely turned down for a no-knock warrant because judges seldom subject the affidavit to critical analysis, if they even read it at all. Why are state court judges seemingly so willing to robotically and unthinkingly grant no-knock warrants on any police assertion that they need one? Judges are supposed to be "neutral and detached" and that includes the request for a no-knock warrant.
The only two justifications for a no-knock warrant are danger to the officers and risk of destruction of the thing sought in the warrant. So, what did the officers show to the issuing judge about their need as facts, under oath? What was the true factual basis for their purported need for a no-knock, or was it just their assumption because they've been getting away with them?
Apparently they did not know whether the drug dealer they wanted lived in Mrs. Johnston's house or simply was not going to be there. There has been nothing in the paper yet that shows me that the guy they wanted even lived there. All they know is "John Doe aka Sam." Sounds to me like the pre-search briefing was non-existent or just pro forma. In police reality shows they show the briefings, but I have often wondered whether what we see on TV is just for show, and the real thing is lacking. Here, it obviously was because the Atlanta Police apparently had no clue they would encounter an elderly woman inside but no drug dealer.
In my oral argument in Wilson v. Arkansas in 1995, I suggested (maybe even stated) that a small quantity of drugs would not support dispensing with announcement because of the gravity of the crime weighed against the interest of the individual. Justice Scalia did not think much of that argument, and he shot it down as soon as I said it.
With the June 2006 demise of the federal exclusionary rule in knock-and-announce cases, this case, no matter how it turns out in the civil case that will inevitably follow, is the prototypical example of why the knock-and-announce rule is so constitutionally important that the exclusionary rule cannot be cast off as an impediment to effective law enforcement. "Effective law enforcement" is not an excuse to shoot first and ask questions later.
If Hudson v. Michigan cannot be overruled federally, it can certainly be rejected in state courts under state law. The day after Hudson was decided, I amended a state motion to suppress a no-knock warrant on the ground that Hudson would likely not be followed in my state.
Regretfully, it takes tragedies like this to point out that the Supreme Court, pretending not to be an activist court but taking an activist stance in giving carte blanche to the police, should stick with precedent instead of encouraging official lawlessness. As Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U.S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
From all appearances and my experience as a criminal litigator, on both sides of the courtroom, the Atlanta Police Department's SWAT team and narcs were woefully incapable of or unprepared for handling this no-knock entry. They treated it as an everyday occurrence instead of inviting gunfire from the occupants inside. The year I was born, Justice Jackson, concurring in McDonald v. United States, 335 U.S. 451, 460-61 (1948), foresaw this:
I am the less reluctant to reach this conclusion because the method of enforcing the law exemplified by this search is one which not only violates legal rights of defendant but is certain to involve the police in grave troubles if continued. That it did not do so on this occasion was due to luck more than to foresight. Many homeowners in this crime-beset city doubtless are armed. When a woman sees a strange man, in plain clothes, prying up her bedroom window and climbing in, her natural impulse would be to shoot. A plea of justifiable homicide might result awkwardly for enforcement officers. But an officer seeing a gun being drawn on him might shoot first. Under the circumstances of this case, I should not want the task of convincing a jury that it was not murder. I have no reluctance in condemning as unconstitutional a method of law enforcement so reckless and so fraught with danger and discredit to the law enforcement agencies themselves.
If they were right, prove me wrong, and I will stand corrected. At the minimum, the Atlanta court system should not act like a party to this by sitting on the affidavit for the search warrant.
The W.D. Ark. holds that a civil action for return of property under Rule 41(g) with a six year limitations period, 28 U.S.C. § 2401(a), must be filed within six years of "the conclusion of criminal proceedings, U.S. v. Sims, 376 F.3d 705 (7th Cir. 2004)." Defendant had to know when his property was seized, and the six years expired August 25, 2006 (six years and ten days after the J&C, from which there was no appeal). His action was filed in December 2005 and was untimely. Only the Seventh and Tenth Circuits have ruled on the issue. United States v. Mendoza, 2006 U.S. Dist. LEXIS 84881 (W.D. Ark. November 21, 2006).
Lack of findings on apparent authority to consent required remand for findings. There was an indication in the record that an objecting co-tenant could have been removed in attempt to avoid denial of consent contrary to Randolph. United States v. Groves, 470 F.3d 311 (7th Cir. November 22, 2006)* (unpublished).
Reasonable suspicion: "suspicious movements (which continued after he was told to stop) together with his extreme nervousness and his close proximity to a street known for illegal drug sales, police officers could reasonably believe their safety or the safety of others was in danger." United States v. King, 2006 U.S. App. LEXIS 28996 (D.C. Cir. October 2, 2006)* (memorandum opinion).
Informant information that public details could only be corroborated was insufficient for reasonable suspicion. Trial court's suppression order affirmed. State v. Kolk, 2006 WI App 261, 298 Wis. 2d 99, 726 N.W.2d 337 (2006):
P17 To recapitulate, the police were able to corroborate: (1) Kolk's identity; (2) what kind of vehicle he drove; and (3) the fact that he would drive it, possibly on the way to Madison. This information strikes us as both more widely available and less significant than that in (Roosevelt) Williams, in which the informant provided specific information about the drug transactions that she was witnessing, and we hold it insufficient to uphold Kolk's detention.
A defendant who was not the registered owner of the vehicle searched by the police had standing to challenge its search where he had his own keys, helped pay for it, and could drive it anytime he wanted. He showed a subjective expectation of privacy that society would recognize as reasonable. United States v. Cannon, 2006 U.S. Dist. LEXIS 84403 (S.D. Ind. April 5, 2006).
A defendant who lived in the same house with the owner of a vehicle who did repair work on it and could drive it at will had standing. United States v. Harms, 2006 U.S. Dist. LEXIS 84673 (D. Neb. May 2, 2006).
Smell of anhydrous ammonia coming from bed of pickup truck gave officer probable cause to believe that it contained a meth lab. Id.
Flight alone is an insufficient basis for a stop. Flight + hunch ≠ reasonable suspicion. State v. Raphael, 2006 Ohio 6163, 2006 Ohio App. LEXIS 6130 (8th Dist. November 22, 2006).
No law here, but this is typical of meth heads: Defendant and his wife argued over the defendant's meth lab, which she told him to get out of the house, and the defendant became irate and assaulted her which led to a 911 call and her consent to search for the meth. The search was not even an issue on appeal. Defendant was sentenced to 25 years without parole. State v. Riley, 213 S.W.3d 80 (Mo. App. W.D. November 21, 2006).*
The defendant police officer did not show in his motion for summary judgment that deadly force was justified. A fact question remained for trial on whether shooting was necessary. Hayes v. Wickert, 2006 U.S. Dist. LEXIS 84316 (W.D. Wash. November 20, 2006):
Officer Wickert also argues that his use of force was reasonable because he feared for the safety of others based on Plaintiff's speeding, driving without lights at night, and his driving into oncoming lanes of traffic (reckless driving). Considering all the facts and circumstances, Officer Wickert is unable, for the purposes of this motion, to establish that his use of force was reasonable because he feared an "immediate threat" to the safety of others. Graham at 396. The record is silent on whether there were any people nearby. The record does indicate that these events took place at night. Officer Wickert points to Brosseau v. Haugen, 543 U.S. 194 (2004) in support of his position that his use of force was reasonable because he was concerned about the safety of others. Dkt. 17-1, at 9. In Brosseau, the Supreme Court affirmed this Court's judgment, and found that a police officer was entitled to qualified immunity because prior case law did not "clearly establish" that the police officer's conduct violated the Fourth Amendment. Id. at 201. However, at this stage in the inquiry the Court is examining whether a constitutional violation occurred, not whether the violated right was clearly established. The Supreme Court did not address the first factor under Saucier, whether Haugen's constitutional rights had been violated, in that case. In any event, the factual setting in Brosseau was different then in the instant case. There, police were called to neighborhood during day to respond to a fight between Haugen and two other men at Haugen's mother's house. Id. at 196. When the police arrived Haugen fled. Id. After a search, Haugen ran back to his mother's front yard and jumped into a Jeep, parked in the driveway, which was facing an occupied car, also parked in the driveway. Id., at 196. There was another occupied vehicle parked behind the car. Id. An officer ran up to the Jeep, pulled her gun and ordered Haugen out of the vehicle. Id. The police officer broke the driver's side window and tried, but failed, to get the keys. Id. As the Jeep started, or shortly after it began to move, the officer jumped back and to the left and fired on shot at Haugen. Id. at 196-197. The officer there explained that she shot Haugen because she was "fearful for the other officers on foot who she believed were in the immediate area, for the occupied vehicles in Haugen's path, and for any other citizens who might be in the area." Id. at 197. Here, unlike in Brosseau, there is no evidence that there were other people in the area, much less that there was an "immediate" threat to their safety. Accordingly, this factor, at this stage in the case, weighs against a finding that Officer Wickert's use of force was reasonable here. At least, there are material issues of fact.
Tasering a suspect three times who refused to remove his hand from his pocket when officers feared a weapon was justified, and officers lawfully recovered a gun and drugs from his pocket in a search incident. United States v. Hoffman, 2006 U.S. Dist. LEXIS 84299 (N.D. Iowa November 17, 2006).*
Firefighters responding to a call extinguished the fire and cleared smoke from the building finding a marijuana grow operation. One defendant's motion to suppress was denied for his lack of standing to challenge the search, which, by all accounts would be a valid plain view during the extinguishing of the fire. United States v. Lee, 2006 U.S. Dist. LEXIS 84512 (N.D. Cal. November 8, 2006).*
A package seemed suspicious from its handwritten label and its using only the recipient's last name and its weight compared to its likely contents. Pulling the package off the mail line for a dog sniff was a de minimus delay of the package that implicated no constitutional rights. United States v. Alexander, 2006 U.S. Dist. LEXIS 84388 (N.D. Ohio November 20, 2006):
These characteristics combine to defeat Defendant Alexander's overly-general argument that the package's "size and appearance was identical to every other U.S. Postal Service Express mail shipping box that is shipped in U.S. mail." Further, Alexander overlooks the fact that the Fourth Amendment protects legitimate privacy interests, which do not include items exposed to the public. See Katz, 389 U.S. at 351. Briefly detaining the package from the public mail flow, Detective Cook lawfully subjected it to a "sniff test" by his canine partner. See Place, 462 U.S. at 707. The detention of the package and the sniff test did not otherwise delay the delivery of the package. Thereafter, the postal inspectors employed established police procedure to apply for and obtain valid search warrants from Magistrate Judge Vecchiarelli and Cuyahoga County Judge Russo to examine the package's contents and attempt a controlled-delivery to Alexander's home. Taken together, these police procedures do not violate Alexander's constitutional rights against unreasonable search and seizure.
Police officers showed that the protective sweep of plaintiff's home was justified by a legitimate fear of officer safety, so summary judgment should have been granted to the officers. Fishbein v. City of Glenwood Springs, 469 F.3d 957 (10th Cir. November 22, 2006):
In our case, the second of these factors is more easily addressed and we dispose of it first. While the Fishbeins maintain that there is "considerable doubt" as to whether the sweep of their home was narrowly tailored to the preservation of officer safety, there is in fact little evidence to suggest the officers' sweep was meant for anything other than police protection. Neither Officer Keiter nor Officer Hagberry removed any items from the house. No person within the house was arrested. The Fishbeins' argument is based entirely on Plaintiff Aaron Hughes's estimate that it took the officers "a little less than five minutes maybe" to complete their sweep. Appellants' App. at 205. The Fishbeins urge this Court to surmise that the officers were gathering evidence during this time, behavior outside the bounds of a protective search. Buie, 494 U.S. at 326. Such a conclusion, however, would be unsupported speculation. We do not think five minutes is a self-evidently excessive time for police to conduct a limited protective sweep to ensure that there are no armed and dangerous persons lurking on the premises. Buie counsels that the sweep should be "no longer than is necessary to dispel the reasonable suspicion of danger." 494 U.S. at 335-36. But given the cluttered interior of the Fishbein home, the time spent removing the two teenagers, the officers' concerns regarding the cache of weapons, and the fact that Officers Keiter and Hagberry neither removed evidence from the house nor made arrests while inside, we have little trouble in concluding that their sweep was legitimately aimed at securing officers' safety.
Officers had cause for stop based on traffic offenses, and there was reasonable suspicion from other information the officers had gathered before. Ultimately, the police obtained probable cause. "[T]he police are not required to rule out all innocent explanations to establish probable cause, and in any event, the facts here did not suggest innocent activity." United States v. Meeks, 2006 U.S. Dist. LEXIS 84586 (E.D. Mo. November 21, 2006).
In Wyoming, the State admits that defendant's stop was pretextual but based on speeding, so it still wins. Fertig v. State, 2006 WY 148, 146 P.3d 492 (November 17, 2006). The court recognized that it is free to interpret its state constitution more broadly than the Fourth Amendment, and it analyzes all the factors involved and concludes that it should not. (This case has a good discussion of state court decisions that have departed from the U.S. Supreme Court on pretextual stops, and the Wyoming court concludes the better rule is to follow the Supreme Court.)
Pretextual arrest issue was foreclosed by facts that clearly showed officer saw defendant crossing the centerline and that defendant did not have a driver's license. His consent to search the car was clearly heard on the videotape of the stop. Casey v. State, 97 Ark. App. 1,
242 S.W.3d 627 (2006).*
Defendant's IAC claim failed on search issue where the defendant's mother was present when the police showed up and asked about a gun. Defendant's mother interrogated the defendant who admitted to the gun being under the porch, and that was a sufficient basis for the search for the gun. Counsel could not be ineffective. Ricks v. Commissioner of Correction, 98 Conn. App. 497, 909 A.2d 567 (November 21, 2006).*
Smell of marijuana plus a dropped bag of marijuana justified a search warrant for defendant's house. Boldin v. State, 282 Ga. App. 492, 639 S.E.2d 522 (November 20, 2006):
Further, having found these facts, the trial court correctly ruled that White had probable cause to suspect that contraband was in Boldin's residence. Although the odor of marijuana may not suffice by itself to provide probable cause for the search of a residence, the odor of burning marijuana is one of the factors which, under the totality of the circumstances, will support a finding of probable cause. Here, the officer also observed marijuana in a plastic zip-lock bag on the floor of the garage, after it fell from a garbage bag held by defendant as he fled into the house. The officer's observation of objects within the garage from its threshold, that is, from a vantage point outside the home, "was a lawful 'nonsearch plain view situation,' " supporting a finding of probable cause to suspect that contraband was in Boldin's house.
A municipal judge issued a DNA warrant for a person outside the territorial jurisdiction of the court. While it violated state statute, that did not make a constitutional violation warranting suppression of evidence. The same applies to the officers executing the warrant. State v. Bowman, 2006 Ohio 6146, 2006 Ohio App. LEXIS 6094 (10th Dist. November 21, 2006):
[*P12] R.C. 1901.02 establishes that the jurisdiction of municipal courts is "within the corporate limits of their respective municipal corporations," and it designates them to be "courts of record." R.C. 1901.02(A). The Franklin County Municipal Court has jurisdiction within Franklin County. R.C. 1901.02(B). Neither a statutory violation, nor a violation of Crim.R. 41, requires suppression of the DNA evidence at issue if the search and seizure was constitutionally sound.
[*P13] Within those general parameters, defendant does not assert the court acted unconstitutionally in issuing the search warrant. Specifically, he does not challenge the issuing court's determination of probable cause. Similarly, defendant does not allege that the judge who issued the warrant was anything other than neutral and detached. Nor does defendant suggest police misconduct, such as judge shopping, or contend that absent the warrant at issue, the search would not have occurred, for the warrant could have been obtained as easily from the Pickaway County Municipal Court and would have resulted in law enforcement's obtaining the same DNA evidence.
[*P14] Rather defendant contends a statutory violation occurred when the court issued the warrant. Although the relevant statutory provisions were violated, suppression is not required because no constitutional violation occurred. State v. Hardy (Aug. 28, 1998), Montgomery App. No. 16964, 1998 Ohio App. LEXIS 3928 (holding that although the municipal court did not have the territorial jurisdiction to issue the warrant, suppression of the evidence was not necessary where the warrant was based on probable cause, the officers could have just as easily obtained a warrant from the proper jurisdictional court, and no evidence suggested police misconduct such as judge shopping); State v. Wilmoth (1986), 22 Ohio St.3d 251, 22 Ohio B. 427, 490 N.E.2d 1236.
[*P15] Defendant also argues that suppression is required because the Columbus officers violated pertinent statutes in executing the warrant in Pickaway County, outside their jurisdictional limits. Generally, a police officer does not have the statutory authority to execute a search warrant outside his or her jurisdiction. Klemm; State v. Adams (Mar. 29, 2001), Franklin App. No. 00AP-850, 2001 Ohio App. LEXIS 1448; State v. Leadingham (Feb. 6, 1990), Scioto App. No. CA-1753, 1990 Ohio App. LEXIS 385. Where, however, "probable cause exists to issue a search warrant, the search will be deemed constitutional even though the warrant was executed by police officers outside of their jurisdictional limits." Id.
Trial court's finding that stop of vehicle in a "violent housing project" "was more akin to a hunch than it was to the suspicion needed to justify the stop" was supported by the record and affirmed. State v. Hill, 2006 Ohio 6118, 2006 Ohio App. LEXIS 6091 (2d Dist. November 17, 2006).*
In a health care fraud investigation, the E.D. Pa., following Third Circuit precedent, evaluates the good faith exception first and finds that it applies. As to a particularity challenge, just because "agents conducting the search stripped her medical offices bare and took all of her patients' files, including those from the spa and cosmetic business, financial paperwork, procedural manuals, and other documents" did not mean that the search was overbroad; it depends upon what is being investigated. United States v. Comite, 2006 U.S. Dist. LEXIS 84121 (E.D. Pa. November 17, 2006):
Initially, concerning particularity, Defendant asserts that while Yusuf notes "the government is to be given more flexibility regarding the items to be searched" in complex financial investigations such as money laundering, Yusuf, 461 F.3d at 395, the same is not true for a fraudulent claim case against a physician. The Court rejects this distinction and finds that an investigation into a physician making false claims to an insurance company can be just as, if not even more, complex than other financial-based investigations into federal crimes. See United States v. Christine, 687 F.2d 749, 760 (3d Cir. 1982) ("flexibility is especially appropriate in cases involving complex schemes spanning many years"). It is obvious from both the pretrial papers and the arguments made at the hearings before this Court that the government went through painstaking detail to gather the evidence that led to the search and grand jury indictment in this case. This is also reflected in the evidence submitted to the Court at the hearings, including the summary charts referenced above. Proving beyond a reasonable doubt that a physician committed fraud is not an easy undertaking, and investigators with probable cause must have the flexibility noted in Yusuf to complete their task.
Defendant is correct that Attachment B to the search warrant, which lists the types of documents to be seized, is very broad and includes, without limitation, all patient records. Defendant asserts that the agents should have selected specific patient files since the investigation by the agents had given them reason to know the names of the patients for whom Defendant made reimbursement requests when she was out of the office and for whom she upcoded the requests for reimbursement. Instead of making selective seizures of these records, the agents apparently took all of Defendant's files and computers. The government does not dispute this fact, and the photographs taken of the Defendant's office after the agents left corroborate Defendant's account.
While this may seem overly broad in the abstract, the nature of the investigation allowed the government to secure and review data on all of Defendant's patients. It was not required to limit its seizure to the specific patient records which a preliminary investigation had shown might show fraud. As in United States v. Christine, the warrant in this case does not "vest the executing officers with unbridled discretion to conduct an exploratory rummaging through appellees' papers in search of criminal evidence." 687 F.2d at 753. Instead, the warrant describes "in both specific and inclusive generic terms what is to be seized" as determined by the magistrate. Id. The Affidavit suggests Defendant had a pattern and practice of overcharging third-party payors on a regular basis. The extent of Defendant's practice, even the total universe of her patients, may be probative as to Defendant's intent or motive before a jury, even if there is no specific charge in the indictment with respect to every patient. Otherwise, the jury might not get a full picture of the Defendant's intent, an element the government must prove at trial. Because of this, a more precisely enumerated list of items was not feasible. Even though the government had evidence that certain patient records were likely to show fraud, it could not know precisely what other documents and information would assist it in proving Defendant's intent or motive. See United States v. Rankin, 442 F. Supp. 2d 225, 230 (E.D. Pa. 2006).
Plaintiff, identified in the press as a possible serial killer because he refused to provide a DNA sample when he had an alibi which led to a search warrant for his DNA which was publicly filed, stated a claim for relief based on the affidavit for the DNA search warrant which failed to show probable cause. The plaintiff was cleared two months later when the DNA did not match. Also, his shoe size did not match the suspect's footprint. The police had a tip line, and plaintiff's name was provided by two anonymous sources. The officer threatened plaintiff with disclosing that he was uncooperative with the press if plaintiff did not consent, and he still did not. Kohler v. Englade, 470 F.3d 1104 (5th Cir. November 21, 2006).
"Plaintiff alleges that the confiscation of his religious materials [in prison] constitutes a 'cruel and unusual seizure.'" This fails to state a claim for relief. Kitchen-Bey v. Hoskins, 2006 U.S. Dist. LEXIS 84090 (W.D. Mich. November 20, 2006).*
Motion to suppress denied in child porn case based on the affidavit. Probable cause was shown and the allegations of a Franks violation were not material enough to warrant suppression. United States v. Gaynor, 2006 U.S. Dist. LEXIS 83929 (D. Conn. November 9, 2006):
There is . . . a presumption of validity with respect to the affidavit supporting [a] search warrant." Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). "In certain circumstances, however, a defendant may challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure." United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). "However, every statement in a warrant affidavit does not have to be true." United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (internal quotation marks omitted).
In Northeast Atlanta, near Georgia Tech, police made a drug buy from a house and came back with a search warrant, raiding the house. They shot dead a 92 year old woman who had a gun defending her house. The Atlanta police involved seemed, to me, particularly cavalier about the entire matter. "'This seems like another tragedy involving drugs,' [ADA] Howard said."
How much of this is attributable to flawed Supreme Court policy statements?
The Atlanta Journal-Constitution has this story today: Questions surround fatal shooting of woman, 92, by Jeffry Scott & S.A. Reid:
As a northwest Atlanta neighborhood roiled over news that police had stormed a house and shot a 92-year-old woman, Atlanta police officials said Wednesday that cops had made a drug buy at the home and were returning to search the residence.
Three narcotics investigators were wounded in the Tuesday night shooting when the home's occupant emptied a six-shot revolver at them. Police identified the dead woman as Kathryn Johnston. The investigators were released from the hospital Wednesday morning.
Assistant Police Chief Alan Dreher said a suspect was not arrested after the buy. He said the suspect's identity is not known, nor is it known what relationship, if any, the suspect had to the dead woman.
Dreher, in a news conference on Wednesday, said the officers broke through a burglar bar entry door and then a wooden door. The police, whom Dreher called "experienced officers," were not wearing uniforms but had on vests with "police" on the front. He said they were inside the house when they were shot.
Investigator Gregg Junnier, 40, was shot three times, police said, in the side of the face, in the leg and in the center of his protective vest. Investigator Gary Smith, 38, was shot in the left leg, and Investigator Cary Bond, 38, was shot in the left arm.
"There is going to be a complete investigation," Dreher said. "There have been no predeterminations made in this case."
He said that "suspected narcotics" were found at the home at 933 Neal Street, an area west and north of the Georgia Dome known for drug activity.
Dreher handled details of the incident because Chief Richard J. Pennington was out of town for the Thanksgiving holiday.
Fulton County District Attorney Paul Howard said the officers in such situations "use what they believe is their best intelligence" when entering a home to make an arrest. "They thought they could enter the home safely."
"This seems like another tragedy involving drugs," Howard said.
It was not immediately clear how long Johnston had lived at the Neal Street home. Neighbors said she lived alone. On Wednesday morning, they described her as a "good neighbor" and said she was "law abiding."
State Rep. "Able" Mable Thomas (D-Atlanta) called Johnston's death "unfortunate" and said a number of upset neighbors and other residents called to say neither Johnston nor her Neal Street home were in any way connected to illegal drug activity, as police suggested.
"The community does not want to digest that there was a 92-year-old woman in that house and all of a sudden there's a confrontation with police and now she's dead," said Thomas, whose district includes the neighborhood where the shooting occurred. "A confrontation with police and a 92-year-old woman don't go together."
Police say they followed proper procedures. Thomas hopes they did, but added: "When you see a 92-year-old being the victim of circumstances like this, we know something is going wrong."
Atlanta is CNN's hometown, but their story is much shorter, but includes a video of a relative of the deceased.
Comment: Since Justice Scalia and his cohorts on the U.S. Supreme Court decided last Term in Hudson v. Michigan that the exclusionary rule no longer applies to knock-and-announce, the police no longer have any incentive to comply with the law, although the Court said that there were other purported protections of citizens besides the exclusionary rule. (Mrs. Johnston and her family would differ.) And, if the police no longer have an incentive to comply with the law, it is only natural that innocent deaths will happen, both of officers and civilians. I wrote the brief in the knock-and-announce case of Wilson v. Arkansas and I wrote most of the brief in Richards v. Wisconsin. The government always talks about the need to not announce to protect officers from injury or death at the hands of criminals, but they never wrote in any brief that they were the slightest bit concerned with potential deaths of civilians or of police at the hands of innocent civilians.
Mr. Justice Scalia and those who voted with you, this death was encouraged by your holding. I'm not going to the extreme of saying that this poor woman's death is "on your hands," but her death certainly points out that you did not know what you were talking about when you wrote Hudson and uncritically took all the "empirical evidence" and government arguments at face value, ignoring reality and common sense. In my fourteen years of intimate experience with the knock-and-announce rule since the suppression hearing in Wilson, I have seen the callousness of police and courts to the "right of the people to be secure" "from unreasonable searches and seizures." Please, just admit that you were wrong in uncritically accepting police arguments about their needs and ignoring citizen protections, and overrule Hudson so Mrs. Johnston will not have died in vain.
Update on Thursday: Drugs were found in the house after officers searched. An arrest warrant has been issued for a "John Doe aka Sam."
Defendant signed a general consent to search his house, and, during the course of the search, officers picked up a pager and looked through the numbers. The pager was included within the search, and the defendant never voiced objection. Guy v. State, 913 A.2d 558 (Del. November 16, 2006).
Police were not required to contact the owner of a car before inventorying it after arrest of the driver. The car might be left on the parking lot indefinitely. State v. Kerr, 2006 Ohio 6058, 2006 Ohio App. LEXIS 6007 (6th Dist. November 17, 2006):
When considered together, these sections of the Northwood policy provide an established procedure which permitted the officers to tow the vehicle appellant was driving. Appellant was not the owner of the vehicle and was being taken into custody. Although the owner was known, the police were not required to try to locate that owner prior to the decision to tow. The vehicle was parked in a gas station and, under the circumstances of appellant's arrest, the police had no way of knowing how long it would remain there before the owner might retrieve it.
Search of student's car in school parking lot had to be based on reasonable suspicion, and here it was. State v. R.D.S., 2006 Tenn. App. LEXIS 733 (November 17, 2006).
Probable cause was a close question, but it existed, for photographs which would show a computer in defendant's possession for evidentiary use only. Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. November 20, 2006).
Defendant's discovery motion sought to invoke the "silver platter" doctrine of Elkins, but that applies to suppression motions, not discovery. United States v. Hunter, 2006 U.S. Dist. LEXIS 83836 (D. Conn. November 16, 2006).
Officer saw defendant walking down the street, and defendant walked faster after seeing the officer. The officer pulled up to him, without lights, and said: "Excuse me." Defendant came over to the patrol car and talked to the officer, and the officer could smell alcohol. Defendant was a minor. The stop was valid and consensual. State v. Ruehl, 2006 Ohio 6054, 2006 Ohio App. LEXIS 6010 (6th Dist. November 17, 2006).
Defense counsel at trial was ineffective for not filing a motion to suppress that would have prevailed on protective sweep. Habeas relief granted. State courts' conclusions were contrary to clearly established Fourth Amendment law under Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Howie v. Crow, 2006 U.S. Dist. LEXIS 82283 (W.D. N.C. November 9, 2006).
Question of PC need not be decided in this case because it is clear that the GFE applied. United States v. Jimenez, 205 Fed. Appx. 656 (10th Cir. 2006)* (unpublished). Comment: This is not the preferred method of resolving good faith exception claims, and I vehemently disagree with punting the PC issue without thinking. But, if the court, in its gut, knows that PC was present, why spend a long time discussing it when the GFE claim is obvious? If so, they should at least just mention something like "we believe probable cause was present, but we do not address it because the good faith exception obviously applies."
Really. One unreported case. Will this be a slow week? Or, will Wednesday have a bunch of cases?
In Louisiana, officers received a report from an informant that the defendant was operating a meth lab in a shed behind his house and cooks started at midnight. Officers staked out the area and attempted to approach from open fields. They turned on lights of their cars and yelled to the defendant to try to flush him out, and he was arrested and they searched. The trial court suppressed and the appellate court affirmed, finding that the area was within curtilage (although the record was deficient, so the trial court's findings got deference) and not open fields. The officers' two day wait belied exigency. State v. Hemphill, 942 So. 2d 1263 (La. App. 2d Cir. November 17, 2006):
The Tip and Entry on Curtilage:
In this case, the anonymous tip provided some information that predicted criminal activity as well as merely descriptive information. The caller stated that Mr. Hemphill ran a meth lab in a shed south of his mobile home and that the methamphetime "cooks" generally started after midnight. Det. Pittman was able to confirm activity after midnight in the shed and associated that activity with meth production by the smell of what he said was ether, but not before entering the defendant's backyard and moving near the shed. The state attempted to establish that Det. Pittman corroborated the requisite predictive elements of the tip before entering defendant's yard by establishing that Det. Pittman saw the mobile home and some kind of other structure "upon arrival of the officers." However, the testimony of Det. Pittman indicates that he only identified a mobile home and some unidentified structure. These are merely general descriptive facts not predictive of any criminal activity. See Florida v. J.L., supra. The existence of a mobile home residence and a structure in the backyard is commonplace in Louisiana, particularly in outlying areas.
We also observe that a photograph in evidence shows that the property was partially enclosed with a privacy fence. The officers entered the defendant's property from the unenclosed portion of the yard that appears to be the backyard of the defendant. Det. Pitman testified that the yard was clearly distinguishable from the field by the grass, so he clearly knew he was entering the yard of the defendant.
Although the district court found that the defendant was adversely affected by the agents' entry into the neighboring property as well as the defendant's property without a warrant, it did specifically state that it had determined that crossing into the defendant's yard itself was a violation of the Fourth Amendment. There has been no argument on appeal that the backyard constituted "open fields," that is, the land outside the curtilage of the home and was therefore excepted from the warrant requirement of the Fourth Amendment since it is entitled to no more protection than public land. Oliver v. U.S., 466 U.S. 170, 180, 104 S. Ct. 1735, 1742, 80 L. Ed. 2d 214 (1984). Nor has it been argued that the backyard was within the curtilage and therefore protected.
. . .
Although the evidence in this record to make a determination on this issue is weak, applying an objective standard, we conclude that the defendant had a heightened expectation of privacy in his yard. The yard was partially enclosed and fenced, and distinguishable from adjoining agricultural fields. The shed itself was partially obscured from view by the fence and vegetation, according to Det. Pittman. It was after midnight when the agents were sneaking furtively around the defendant's yard, thereby creating the possibility of a violent confrontation. We also note that the state prosecutor was clearly concerned by the entry into the yard because she tried to establish that the MNU agents confirmed predictive elements from the anonymous tip before entering the defendant's property. This was clearly not established, however, and Det. Pittman testified that the yard was clearly distinguishable from the field and other testimony and evidence indicates that there were some steps taken by the defendant toward privacy. Accordingly, we must conclude that the trial court was not clearly wrong in its finding that the defendant was adversely affected by this entry. We further conclude that the state did not carry its burden in showing that the warrantless entry into the yard was justified by the agent's corroboration of some of the descriptive information from the anonymous tip.
Probable Cause Based On the Smell of Ether:
Even if we were to assume that the warrantless entry into the defendant's yard was justified, the next issue is whether the agents obtained probable cause to search or arrest the defendant without a warrant. As stated above, the anonymous tip provided some predictive information regarding the defendant's criminal activities, namely, that the defendant was operating an active meth lab and the meth "cooks" generally began after midnight. The agents arrived at the scene about 12:30 AM. Once in the defendant's yard, they observed, with night vision equipment, a male walking from the trailer to the shed. Det. Pittman testified that he saw the person make three trips back and forth, ending in the trailer, while the defendant testified he only made one trip from his trailer to the shed. At this point in the investigation, there was at least partial confirmation that there was some activity taking place after midnight, albeit nothing criminal at this point. Detectives positioned themselves to the west of the shed, and Det. [Pg 18] Pittman said that they smelled a strong odor of ether, but they could not pinpoint the source of the odor. It appeared to be coming from the general direction of the trailer and shed because the wind was from the east. Based upon his experience in drug enforcement, Det. Pittman knew that ether is used in the production of methamphetamine, and his past experience was that this confirmed the existence of an active meth lab. The agents then moved closer to the shed and Det. Pittman said that the smell of ether was stronger and he heard activity in the shed that sounded like what could have been someone sharpening mower blades and he did not associate it with meth lab activity. Nevertheless, he associated the activity in the shed with an operating meth lab because of the odor from the shed and the fact that there was some activity in the shed, although its exact nature was unknown.
Because this information tended to corroborate the predictive information from the anonymous tip, that is, activity after midnight and the odor associated with methamphetamine production, we conclude that the MNU agents had probable cause that would justify obtaining a search warrant to enter the shed. Det. Pittman, however, elected not to obtain a search warrant. Rather, he decided that he would flush out the defendant from the shed and shut down the meth lab. The state contends that his decision was justified based on exigent circumstances.
Exigency, Seizure of Defendant, and "Plain View" or "Plain Smell":
A warrantless search is per se unreasonable unless the police are able to show that it falls in one of a carefully defined set of exceptions based on the presence of exigent circumstances. United States v. Richardson, 208 F.3d 626 (7th Cir. 2000). A police officer's subjective belief that exigent circumstances exist is insufficient to justify a warrantless search; instead, the test is an objective one. See U.S. v. Richardson, 208 F.3d at 629 (7th Cir. 4/3/00); U.S. v. Elder, 352 F. Supp. 2d 880 (C.D.Ill. 1/19/05). As previously stated, exigent circumstances may arise from the need to prevent the offender's escape, minimize the possibility of a violent confrontation which could cause injury to the officers and the public, and preserve evidence from destruction or concealment. State v. Brisban, supra; State v. Hathaway, 411 So. 2d 1074 (La. 1982).
The district court found that exigent circumstances did not exist to justify the actions of the police. The court believed that exigency based on the concern of police for safety was "watered down," inasmuch as the agents waited two days before investigating the tip. The state argues that the deputies entered the defendant's shed to look for the defendant for the purpose of ensuring the safety of Mr. Hemphill, the agents near the shed and the neighbors in the house next door.
According to Det. Pittman, he decided to shut the operation down after he smelled ether and the activity he heard in the shed. He first attempted to lure the defendant out of the shed by sending for the units that were held back, telling them to come down the driveway with all lights. After positioning himself and the other agents by the shed door, Det. Pittman either opened the door himself, or when defendant opened the door, he reached into the shed and pulled the defendant out. On the one hand, he testified that he did not really take time to look into the shed from the doorway because he was handling the arrest of the defendant. On the other hand, he testified later that he was able to see and smell ether emanating from the meth lab located in the unlighted shed 30 feet from the door in the back corner. Subsequently officers found two unopened containers of ether and a meth lab set up in the shed. Defendant contends that the officers were smelling anhydrous ammonia, which is used in the meth cooking process, and which the defendant admits he was mixing.
We agree with the district court that the agent's actions were unjustified on any of the grounds constituting exigency. First, there was no likelihood of escape. Det. Pittman and four other agents were present at or near the shed. Additional officers were waiting "there for Mr. Hemphill," presumably to take Mr. Hemphill into custody or to assist in case Mr. Hemphill attempted to escape. Second, once the agents smelled ether and heard activity going on inside, they could have obtained a search warrant provided their intrusion into the yard was justified. If the officers were concerned with safety, they could have moved to a safe distance from the shed and evacuated the neighbors, if they were indeed threatened. Third, the officer's concern for Mr. Hemphill's safety is indeed watered down by the two-day delay investigating the tip.
Hence, we conclude that the district court's determination that exigent circumstances were not present to justify the warrantless arrest of Mr. Hemphill was not plainly wrong.
We also reject the search of the shed based on "plain view" or possibly "plain smell."
Search of car by consent was not overly intrusive because the search did not materially alter the car as prohibited by NY law. People v Reed, 2006 NY Slip Op 8588, 34 A.D.3d 1364, 825 N.Y.S.2d 600 (4th Dept. 2006).*
A reasonable person would have felt free to leave, so the stop was not extended by the officer's actions. Saldivar v. State, 209 S.W.3d 275 (Tex. App. — Ft. Worth November 16, 2006).*
Consent had been obtained to search a boat on a trailer on the roadside, as a Coast Guard inspection. Officers in the meantime got a search warrant for the boat. The fingerprints and palmprints were in plain view for seizure under the search warrant. United States v. Zaldivar, 2006 U.S. Dist. LEXIS 83460 (M.D. Fla. November 16, 2006).
Factors in reasonable suspicion were (1) furtive movement, (2) "nervous demeanor," and (3) stop was in "reasonably high-crime area." United States v. Meredith, 2005 U.S. Dist. LEXIS 43940 (E.D. La. July 6, 2005).*
Defendant's guilty plea waived his right to appeal search claim. Johnson v. State, 282 Ga. App. 464, 638 S.E.2d 873 (November 17, 2006).*
Even if defendant revoked his consent, it occurred after admissions were made, which remained admissible. State v. Beckwith, 725 N.W.2d 659 (Iowa App. November 16, 2006).
Officers got word from a farm supply store that a woman in a particular vehicle bought two bottles of iodine. Officers cruised by the house until the vehicle arrived, waited a while, and then did a knock and talk. The woman came to the door with iodine stains on her hands and wafting from the house was the unmistakable smell of an operating meth lab. Entry was justified. Bottom v. Commonwealth, 2006 Ky. App. LEXIS 340 (November 17, 2006).*
Backpack in the back of a small SUV was within immediate control for search incident purposes. It could not be compared to the truck because it was within reach within the vehicle. United States v. Allen, 469 F.3d 11 (1st Cir. November 17, 2006).
Customs officers had reasonable suspicion for search of a laptop computer for child porn at the border, distinguishing United States v. Arnold, posted Oct. 11, where there was no reasonable suspicion. United States v. Furukawa, 2006 U.S. Dist. LEXIS 83767 (D. Minn. November 16, 2006):
Defendant argues that a border search of the files on a personal computer, laptop, computer disk or other electronic storage device is a not a routine search and therefore requires a reasonable suspicion. See United States v. Arnold, -- F. Supp. 2d --, 2006 WL 2861592, at *4 (C.D. Cal. Oct. 2, 2006) (search of computer hard drive nonroutine and requires reasonable suspicion because electronic storage devices implicate substantial privacy and dignity interests based on the amount of information they are capable of containing). However, the court need not determine whether a border search of a laptop is "routine" for purposes of the Fourth Amendment because, regardless, the magistrate judge correctly found the customs official had a reasonable suspicion in this case. Cf. United States v. Irving, 452 F.3d 110, 124 (2d Cir. 2006) (declining to decide whether search of computer disks and film is routine because reasonable suspicion existed); United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001) (assuming search to be nonroutine but affirming district court's holding on reasonable suspicion).
Telling a suspect that they would get a search warrant was not proof of involuntariness. United States v. Baker, 2006 U.S. App. LEXIS 28591 (11th Cir. November 17, 2006)* (unpublished).
Lack of supporting affidavit for search warrant permitted District Court in the 2d Cir. to deny motion without a hearing. United States v. Thornton, 2006 U.S. Dist. LEXIS 83435 (D. Conn. November 16, 2006):
The unsupported factual assertions of his counsel are insufficient to warrant an evidentiary hearing or justify the relief requested by the defendant. Moreover, these unsworn assertions are disputed by statements in the Hartford Police Department incident report and in the sworn affidavit submitted in support of the Criminal Complaint. See Government's Resp. to Def.'s Mot. To Suppress and Objection to Def.'s Req. for a Hr'g (Doc. No. 18) ("Government's [*8] Resp."), Ex. A; Compl., Borysevicz Aff. (Doc. No. 1). By way of contrast, in the absence of a sworn statement by an affiant with personal knowledge, the defendant has no accountability for the assertions that his counsel has made.
The defendant argues that he should not be required to substantiate his claims with a sworn statement because he is at risk for an enhancement for obstruction of justice should he be convicted and the court concludes he proffered a false sworn statement. The defendant provides no legal support for his request that the court convene an evidentiary hearing without him being required to show that there is a genuine dispute as to a material fact. However, a key reason for requiring a sworn affidavit is to make the defendant and any other witnesses accountable for their statements to the court. The investigating agents have asserted the relevant facts in a police incident report and in a sworn affidavit. The relevant case law requires the same of the defendant. There is no reasonable basis here to excuse the defendant from satisfying the requirements for being given an evidentiary hearing.
A Terry frisk does not permit a search of a cigarette pack because weapons cannot be secreted there. State v. Horton, 136 Wn. App. 29, 146 P.3d 1227 (November 16, 2006) (raised in the context of an IAC claim; defense counsel found ineffective for not raising issue).
Stop for not having seatbelt on was valid and supported DUI conviction. State v. Beffrey, 2006 Tenn. Crim. App. LEXIS 892 (November 16, 2006).*
Under Idaho law, in an administrative proceeding on a suspension of a driver's license, the defendant has the burden of proving that the officer lacked reasonable suspicion or probable cause for the stop. In re Driver's License of Gibbar, 155 P.3d 1176 (Ida. App. 2006).*
A Texas court holds that an unMirandized question to a detainee who fled a stabbing "Where's the knife?" was valid under the public safety exception. The officer saw defendant's vehicle flee from a crowd where a man who had been stabbed was lying on the ground. When he caught the defendant, as he was handcuffing him, he asked "Where's the knife?" and the defendant told him he dropped it in the crowd. Russell v. State, 2006 Tex. App. LEXIS 9997 (Tex. App. — Waco November 15, 2006):
From these cases, it is clear that the public safety exception is merely an exception to the prophylactic requirements that Miranda warnings be given but not an exception to the substantive rights found in the Fifth Amendment. The privilege against self-incrimination in the Fifth Amendment and the constitutionally mandated Miranda rights are implicated by a custodial interrogation, regardless of whether the accused has been made aware of them. See Miranda, 384 U.S. at 444, 86 S. Ct. at 1612; Edwards v. Arizona, 451 U.S. 477, 481-82, 101 S. Ct. 1880, 1883, 68 L. Ed. 2d 378 (1981). Thus, we conclude that the public safety exception simply allows police to forego the reading of Miranda warnings, but the situation, nonetheless, is a custodial interrogation implicating one's constitutional rights.
Less intrusive measures for inventory not required where the defendant was arrested from driving without a license and the vehicle would be left on the side of the road until the defendant could get out and reclaim it. Jones v. State, 856 N.E.2d 758 (Ind. App. November 15, 2006)*:
Regarding the first part of the community caretaking function test, the belief that the vehicle posed a threat or harm to the community, Jones argues that, as in Taylor, his car was not in an illegal location and did not pose a hazard to other drivers. He asserts that this is evidenced by the fact that it is common to see vehicles parked on the side of the road and that he was detained on the side of the road for over an hour. He contends that pursuant to Taylor, the proper procedure was for a police officer to move his car or allow him to contact a friend or relative to move the car.
We cannot agree with Jones's suggestion that Taylor requires police officers to move a dangerously parked car themselves or to allow the driver to contact a friend to move the car. Although our supreme court does reference these options, the context of these references involved cars safely parked in parking lots or on private property, not cars parked on the paved shoulder of a highway. See id. at 332, 333.
NJ applies New York v. Harris, 495 U.S. 14 (1990), and concludes that an arrest on an arrest warrant but not a search warrant for a third party's location was not grounds to suppress his statement. State v. Bell, 388 N.J. Super. 629, 909 A.2d 1179 (November 17, 2006):
Defendant contends that his arrest was unlawful because it was the product of an unlawful search, and hence his confession should be suppressed as the product of an unlawful arrest. We find no merit in this contention. Defendant's arrest was not unlawful, as it was authorized by an arrest warrant. Consequently, the cases on which defendant relies, concerning suppression of confessions that result from unlawful arrests, are not on point. See Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975); State v. Chippero, 164 N.J. 342, 753 A.2d 701 (2000); State v. Worlock, 117 N.J. 596, 569 A.2d 1314 (1990). As the Supreme Court observed in Payton, the fact that defendant's person was seized during an unlawful search does not preclude the State from prosecuting him. Payton, supra, 445 U.S. at 592, 100 S. Ct. at 1383, 68 L. Ed. at 654, n.34. Nor does it transform his eventual confession into the "fruit of the poisonous tree," subject to suppression under Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, 455 (1963). See also Brown, supra, 422 U.S. at 591-92, 95 S. Ct. at 2256, 45 L. Ed. 2d at 420.
In New York v. Harris, 495 U.S. 14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), the Supreme Court addressed a case in which the police illegally entered defendant's home in order to effect his arrest for which they had probable cause. Id. at 15, 110 S. Ct. at l642, 109 L. Ed. 2d at 19. Thus, as in this case, the arrest was otherwise legal, although the entry into the house without a search warrant violated Payton. Id. at 21, 110 S. Ct. at 1644-45, 109 L. Ed. 2d at 22. In Harris, the Court declined to suppress defendant's confession:
"[W]e decline to apply the exclusionary rule in this context because the rule in Payton was designed to protect the physical integrity of the home; it was not intended to grant criminal suspects, like Harris, protection for statements made outside their premises where the police have probable cause to arrest the suspect for committing a crime."
[Id. at 17, 110 S. Ct. at 1643, 109 L. Ed. 2d at 20.]
Administrative inspection for electrical code violations ("Be my guest.") was valid consent. Furgeson v. City of Tacoma, 2006 U.S. Dist. LEXIS 83277 (W.D. Wash. November 15, 2006).*
Officers received a report that several men were in a Boise park smoking marijuana, and a plainclothed officer responded and watched them, confirming the report. He approached the group and asked them to provide the joint and be cited or be subjected to a search and arrested if it was found. Defendant admitted to having brought the joint, and he then consented to a search of his car which produced more marijuana. The consent was not coerced or involuntary. State v. Garcia, 143 Idaho 774, 152 P.3d 645 (2006):
Initially, it should be noted that bowing to events, even if one is not happy about them, is not equivalent to being coerced. United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978). The voluntariness of consent is not impaired simply because one is faced with two unpleasant choices--which here, Garcia argues, was choosing between consenting to the search and allowing the marijuana in his truck to be discovered and not consenting and risking arrest of himself and his companions. In State v. Abeyta, 131 Idaho 704, 963 P.2d 387 (Ct. App. 1998), this Court addressed the voluntariness of consent to search in light of police threats to obtain a search warrant. Id. at 708-09, 963 P.2d at 391-92. There, the appellant's choice boiled down to consenting to a search or having his premises searched pursuant to a warrant--two unappealing options for one who knew incriminating evidence would be found. This Court found the threat of securing a search warrant "does not necessarily render consent involuntary, [although] it is clearly a significant factor in determining whether consent to search was freely and voluntarily given." Id. at 708-09, 963 P.2d at 391-92. In viewing the threat in light of all the circumstances, we concluded it was appropriate for officers to inform an individual of the police's ability and intent to seek a search warrant as long as they "did not falsely or erroneously state they had a legitimate right to search his residence." Id. at 709, 963 P.2d at 392. Accord Bumper v. North Carolina, 391 U.S. 543, 548 (1968) (holding consent is coerced where obtained after an officer asserts he has a warrant when, in fact, he does not). Accordingly, we concluded the officer's threat to seek a search warrant was legitimate because, under the totality of the circumstances, the evidence gathered by the officer prior to the threat being vocalized provided requisite probable cause to support the acquisition of a search warrant. Id. See also United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974) (statement of officer's intention to obtain search warrant if consent was not given did not render consent per se involuntary).
Similarly, an officer's implied or explicit offer not to arrest a suspect if he "turns over what he has" is not coercive if it merely informs the suspect of the officer's intention to do something that is within the officer's authority based on the circumstances. See State v. Medenbach, 48 Ore. App. 133, 616 P.2d 543, 545 (Or. App. 1980) ("[T]he action of the officer in advising defendant that he would be arrested unless he agreed to take some field sobriety tests was not constitutionally objectionable coercion because the trooper then had probable cause to arrest defendant for driving under the influence. Therefore, the officer threatened 'only to do what the law permitted him to do.'"). Again, the district court in this case found the statement was in effect "Turn over what you have, and we'll cite you" and "If you do not turn over what you have and if, in fact, you have drugs on you, then you're going to be subject to arrest." Thus, an initial inquiry here is whether the officers had probable cause to actually effectuate an arrest.
Police had a DV report by a wife that required an arrest under Wisconsin law. She also told the police that her husband had drugs and guns in the house. The victim consented to a search of the house and gave them a key to enter. Police went to the house and obtained entry by a ruse that the defendant's wife had been in a car wreck and the police wanted to talk to him. Once inside, defendant was arrested, and the consent was valid for the search that produced guns and drugs. United States v. DiModica, 468 F.3d 495 (7th Cir. November 16, 2006).*
Anonymous uncorroborated tip was insufficient for a stop. United States v. Melvin, 2006 U.S. Dist. LEXIS 83034 (M.D. Ala. November 14, 2006):
The court concludes that, in this case, the United States has failed to establish that officer Crooks had reasonable, articulable suspicion sufficient to justify stopping Melvin. "Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors -- quantity and quality -- are considered in the "totality of the circumstances -- the whole picture." Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). See also United States v. Heard, 367 F.3d 1275, 1278 (11th Cir. 2004). The undisputed evidence at the hearing demonstrated that Crooks stopped Melvin simply because Herring said "the guy you are looking for is in that car." (Evid. Hr'g Tr. at 10).
Q: What did you do when they pointed to that car and said the person that you are looking for was in that car?
A: I pulled out behind it, ma'am, and started following it.
(Evid. Hr'g Tr. at 12).
Without more, Herring's statement is simply insufficient to support the stop. The United States did not present any evidence that at the time Crooks stopped the car, he relied on any other information which he had or that he made any attempt to connect that information to the Herring's statement about the "guy" in the teal-colored car. Consequently, the court concludes that these facts are insufficient as a matter of law to give rise to a reasonable suspicion that criminal activity was afoot and the defendant was involved.
An officer was talking to two people in a breezeway, and defendant happened by. The officer asked him for his identification without justification and ran wants and warrants on him, finding a warrant. A search incident followed and drugs were found. The stop was illegal but not flagrantly illegal. Thus, the existence of the arrest warrant was an independent intervening circumstance that dissipates the taint of the initial illegal stop vis-a-vis the evidence discovered as a consequence of a search incident to the execution of the arrest warrant. Birch v. Commonwealth, 203 S.W.3d 156 (Ky. App. March 17, 2006). Comment: So, police can just stop people to check their IDs to see if there are warrants on them as long as they don't keep them too long? What is wrong with this picture?
Search of house for key to lock door after defendant was arrested for a DV complaint exceeded defendant's consent to search. He had a key on his person and he told the officers where to look for a key inside, but they searched drawers contrary to the consent and found guns, which he was charged with. They never bothered to take the key from his person to lock the door. The search was illegal. Commonwealth v. Thomas, 67 Mass. App. Ct. 738, 856 N.E.2d 892 (November 15, 2006).
Excessively tight handcuffing that injured plaintiff stated a claim against the officer that did it and the officers plaintiff complained to who did nothing. Pheneger v. City of Lima, 2006 U.S. Dist. LEXIS 82902 (N.D. Ohio November 14, 2006):
Plaintiff alleges the officers used excessive force when putting on the handcuffs. Plaintiff further alleges the officers failed to do anything after plaintiff told them that the handcuffs were causing severe pain and swelling to her wrists. Plaintiff states that on removal of the handcuffs her hands were swollen to twice their normal size and red marks and bruising were evident where the handcuffs had been. Plaintiff alleges that she later required surgery and other medical care as a result of the injuries inflicted on her by the excessively tight handcuffs.
Plaintiff asserts a Fourth Amendment excessive force claim against the officer who applied the handcuffs and the other officers present. With regard to her claims against those other officers, the Sixth Circuit has held that a police officer who fails to act to prevent the use of excessive force may be held liable when "(1) the officer observed or had reason to know that excessive force would be or was being used, and (2) the officer had both the opportunity and the means to prevent the harm from occurring." Smoak v. Hall, 460 F.3d 768, 784 (6th Cir. 2006) (citing Turner v. Scott, 119 F.3d 425, 429 (6th Cir. 1977)); see also Barton v. Norrod, 106 F.3d 1289, 1299 (6th Cir. 1997) (holding that an officer present where other officers are violating a person's civil rights may have a duty to intervene).
Georgia v. Randolph applies to objecting resident and not one who consents. Defendant consented. United States v. Wilson, 2006 U.S. Dist. LEXIS 82737 (D. Neb. November 8, 2006).*
General motion to suppress that did not address the sworn affidavit already in the case file was insufficient to even warrant granting a hearing in N.Y. under CPL 710.60(1). People v Long, 2006 NY Slip Op 8198, 2006 N.Y. App. Div. LEXIS 13447 (2d Dept. November 14, 2006).*
The officer preparing a search warrant had a computer problem in trying to create a search warrant for defendant's premises. He took a previously issued warrant from another case and changed information in it, but he left the previous name in there. The court refused to suppress finding the mistake reasonable, and there was no problem of the wrong place being searched. United States v. Sirmans, 2006 U.S. Dist. LEXIS 82652 (D. Del. November 14, 2006):
The Fourth Amendment mandates that an issued warrant specifically describe the person or things to be searched and seized. United States v. Doe, 703 F.2d 745 (3d Cir. 1983). "Fed. R. Crim. P. 4(c)(1) provides that a warrant 'shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be described with reasonable certainty,' and this Rule has been read as a gloss on the fourth amendment." Id. at 747. (citation omitted). The warrant must contain either on its face or by attachment a particular description of what is to be seized. Bartholomew v. Pennsylvania, 221 F.3d 425, 429 (3d Cir. 2000). The "requirement of particularity has been described as a question of practical rather than technical accuracy." United States v. Dollson, 2004 U.S. Dist. LEXIS 22478, 2004 WL 2577551 at *3 (E.D. Pa. Oct. 24, 2004). To that end, clerical errors will not automatically render a warrant defective. United States v. Carter, 756 F.2d 310, 313 (3d Cir. 1995). The crucial issue is "whether there has been such a variance as to 'affect the substantial rights' of the accused." Id., citing Cromer v. United States, 78 U.S. App. D.C. 400, 142 F.2d 697 (D.C. Cir. 1944)).
The court finds Herron's uncontradicted testimony credible and his explanation for the mistake reasonable. Considering the affidavit in conjunction with the warrant, it is evident that Herron was referencing defendant and that the inclusion of Henderson's information was an inadvertent error that does not impinge defendant's substantive rights.
Alien detained in international waters far from the United States who was in possession of 9200 kgs of cocaine on a ship was not denied any Fourth Amendment rights by there being no prompt determination of probable cause before he was brought to the U.S. for trial. As an alien outside the U.S., the Fourth Amendment did not apply to him under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The search on the ship took five days. United States v. Zakharov, 468 F.3d 1171 (9th Cir. November 15, 2006) (this case was under submission for two years).
Reasonable suspicion of drug trafficking was clearly present for detaining defendant to bring in a drug dog. Also, officer was not obliged to seek a telephonic warrant for use of the dog and then search of the car. United States v. Mendoza, 468 F.3d 1256 (10th Cir. November 15, 2006).
Defendant was a mere visitor whose connection to the premises did not rise to the level of a guest under Olson. United States v. Wineinger, 208 Fed. Appx. 286 (5th Cir. 2006)* (unpublished).
The SWAT team was ordered to enter at 5:50 a.m., and the entry occurred before 6:00 a.m. "Thus, the execution must have occurred sometime after 5:50 a.m.--close enough to the 6:00 a.m. hour to make any deviation from the warrant de minimis. See United States v. Twenty-Two Thousand, Two Hundred Eighty Seven Dollars, 709 F.2d 442, 448-49 (6th Cir. 1983)." The court also notes that it was not nighttime since sunrise at that locality, according to the United States Naval Observatory's Sunrise Calculator, was at 5:49 a.m. Rodriguez v. Beninato, 469 F.3d 1 (1st Cir. November 14, 2006).
Ten seconds was a reasonable time between announcing and entry of a small motel room. State v. Johnson, 2006 NMSC 49, 146 P.3d 298 (October 17, 2006):
In the present case, the trial court found the following: (1) the size of the motel room was no larger than twelve feet by twelve feet; (2) the bed was within three or four feet of the door; (3) the officers knocked while announcing notice of presence, identification of authority, and statement of lawful purpose for at least ten seconds before using the battering ram; (4) Defendant must have been within twelve feet of the door at the time of the attempted entry; and (5) there was no response from inside the room during the entire time the officers were knocking and announcing. Based on these facts, the court found that there was constructive refusal to answer the door.
Note: 29 cases received today, 26 were updated citations.
Even if information illegally obtained from an illegal search was removed from the affidavit for the search warrant, there still would be probable cause for the warrant. United States v. Lawrence, 205 Fed. Appx. 786 (11th Cir. 2006)* (unpublished). The same result occured in Ohio on November 9th. State v. Newell, 2006 Ohio 5980, 2006 Ohio App. LEXIS 5903 (2d Dist. November 9, 2006) (emergency entry in response to a shooting in progress; police re-entered after situation was resolved, and that was purged from the affidavit still leaving PC).
On November 4th there is a post about Microsoft creating software that permits tracing back webcasts of child porn that was used in Ontario to rescue a child from a live production. Related to that, and just before that article was published, there was an opinion from the District of Idaho involving a live transmission of child porn from Edmonton to Idaho which the police became aware of, and they obtained a search warrant in Idaho. United States v. Banks, 2006 U.S. Dist. LEXIS 82368 (D. Idaho October 27, 2006). The issue here was particularity: When the affidavit for the search warrant states the crime under investigation, the fact parts of the material sought do not specify a crime within them does not matter because it relates back to the overall possible crime mentioned in the affidavit:
By contrast, in this case, it is quite clear from the face of the warrant that the search related to criminal possession, production and/or transportation of child pornography and the visual depiction of minors engaged in sexually explicit conduct. As defendant himself observes, the ten sections to which he does not object contain explicit and repeated mention of this specific criminal conduct. (Reply at 5.) Defendant's hyper-technical reading of the cases above runs afoul of Supreme Court authroity, which has stated clearly that courts are to read a "warrant in a common sense fashion." Cardwell, 680 F.2d at 77 (citing United States v. Ventresca, 380 U.S. 102 (1965)); Andresen v. Maryland, 427 U.S. 463, 479-482 (1976) (rejecting a particularity challenge because the relationship between the items to be seized and the alleged criminal conduct was "clear from the context"). In this instance, there is a clear, commonsense, logical nexus between the items described in those six categories and the crimes listed elsewhere throughout in the warrant. Indeed, many of the disputed categories authorize seizure of items which are directly necessary for adequately processing and searching items listed in the undisputed categories. Therefore, the May 21, 2005, warrant has given a more than adequate "indication of the alleged crime to which the seized [items] pertained." Kow, 58 F.3d at 427.
Voluntariness of Miranda warning and consent to search was supported by the record. People v Knudsen, 2006 NY Slip Op 8149, 2006 N.Y. App. Div. LEXIS 13361 (2d Dept. November 8, 2006).*
ICE officers may approach a person and ask his nationality without violating Terry. United States v. Torres-Lona, 2006 U.S. Dist. LEXIS 82365 (N.D. Iowa November 9, 2006):
When the ICE agents initially approached Defendant, they asked him where he was born and if he had immigration documents. These simple questions did not constitute a "seizure." See Florida v. Bostick, 501 U.S. 429, 434 (1991) ("Since Terry [v. Ohio, 392 U.S. 1 (1968)], we have held repeatedly that mere police questioning does not constitute a seizure."). Here, no Fourth Amendment seizure occurred because the ICE agents did not use "physical force" or a "show of authority." Id.
When Defendant told SA Cantrell and SA Spalding that he was from Mexico but had no immigration documents, they had probable cause to believe that Defendant was an illegal alien, and they had the authority to place him under arrest. See 8 U.S.C. § 1325 (prohibiting aliens from entering the United States, except under the approval of immigration officers). Cf. United States v. Flores-Sandoval, 422 F.3d 711, 713-14 (8th Cir. 2005) (concluding that the ICE agents' detention of the defendant was not justified because they had no admissible reason to believe the defendant was an illegal alien). Once he was arrested, the ICE agents could search Defendant and any items found on his body. United States v. Robinson, 414 U.S. 218, 235 (1973) ("A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.").
Removal of Fourth Amendment claim: A case filed in state court under the Fourth Amendment could be removed because 28 U.S.C. § 1331 provides for original jurisdiction for the claim. (But, the Fourth Amendment cannot be an independent basis for federal jurisdiction without a jurisdictional statute. Since plaintiff did not allege a violation of § 1983, he was granted leave to amend to add it.) Cerros v. North Las Vegas Police Dep't., 2006 U.S. Dist. LEXIS 82364 (D. Nev. November 9, 2006).
A prior drug arrest is not sufficient reason to patdown a motorist ordered from his vehicle during a traffic stop. The patdown revealed a rock of crack. State v. Stewart, 2006 Ohio 5934, 2006 Ohio App. LEXIS 5897 (8th Dist. November 9, 2006):
[*P13] The issue in this case is not whether the officer could order Stewart out of the car, but whether he could search Stewart upon his exit from the vehicle. When the suspect exits the vehicle, the officer must have an articulable particularized suspicion that the suspect is dangerous or concealing contraband in order to conduct a pat-down search. The officer is not allowed to search for evidence merely because the person has a prior arrest record.
Generalized consent to search a car in Texas apparently includes having to endure the officer chosing to move it to a different location to remove the gas tank. Montanez v. State, 211 S.W.3d 412 (Tex. App.–Waco November 8, 2006), on remand from Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (decision on other grounds: standard of review). Comment: If the vehicle had to be moved, the driver could object and limit the search. The problem with that is, however, if the officer develops a real reason to check the gas tank (by tapping on it or scoping it), the officer has greater cause to remove the gas tank.
Nebraska holds that the State Court of Appeals cannot raise the good faith exception where the state did not do it on its own. "While a defendant has the burden of showing that there was not probable cause to support the issuance of a search warrant, the State has the burden to show that the good faith exception applies." State v. Tompkins, 272 Neb. 547, 723 N.W.2d 344 (November 9, 2006).
Kansas holds that a forfeiture claimant who prevailed in a criminal suppression motion and suppressed the search of his vehicle, but the state dismissed the criminal case, was not able to invoke collateral estoppel or res judicata against a forfeiture action because there was no final judgment in the criminal case. State I-135/I-70 Drug Task Force v. 1990 Lincoln Town Car, 145 P.3d 921 (Kan. App. November 9, 2006).
Informant was corroborated by surveillance, including a large number of persons on cellphones who appeared to be lookouts. United States v. Thompson, 2006 U.S. Dist. LEXIS 82163 (E.D. Mich. October 31, 2006).*
All brake lights are required to work, including the one in the rear window (state statute incorporates the federal regulation on third brake light). That equipment violation is enough for a stop. United States v. Brewer, 2006 U.S. Dist. LEXIS 81984 (D. Utah October 26, 2006).*
Threats to others about shooting the police if they came to defendant's house justified no knock. "McClendon testified that Johnson and Lebo stated that Medley had made threats about 'killing the cops if they came out there, and that kind of thing, that they knew that he had guns out there, and to be careful.' (Tr. 54)." United States v. Medley, 2006 U.S. Dist. LEXIS 81747 (E.D. Mo. November 8, 2006).*
A prisoner lawsuit was dismissed on filing as frivolous. Plaintiff attempted suicide by overdose in hoarding lithium pills. He claimed that his suicidal intentions were laughed off by the guards. He sued alleging various constitutional violations, including a Fourth Amendment claim that he should have been searched more often. Anderson v. Pollard, 2006 U.S. Dist. LEXIS 81960 (E.D. Wis. November 7, 2006)*:
In this case, the plaintiff does not contend that his cell was illegally searched. Rather, he claims that it was not searched frequently enough (on a twice weekly basis). Based on the foregoing, the plaintiff has failed to state a claim under the Fourth Amendment.
Comment: I cannot even fathom how a reverse Fourth Amendment claim would even exist. Maybe as a due process violation or a reckless disregard of a known risk, but that is about it. The "right to be free from unreasonable searches and seizures" cannot really include a right to be continually subjected to searches and seizures. It just does not follow. This isn't even a remotely creative argument--it is just typical jail house lawyer thinking.
A similarly strange prisoner case was a claim rejected in the District of Nevada in an internet child solicitation case that the e-mail sent to the plaintiff's computer was an unlawful entry. Cherer v. Flaherty, 2006 U.S. Dist. LEXIS 81920 (D. Nev. November 1, 2006)*:
Entry into a person's home to obtain evidence is a search that should bring into play all the protections of the Fourth Amendment. Osborne v. U.S., 385 U.S. 323, 345 (1966). However, the submission of an email to an individual's personal computer, which may or may not be opened and read, does not constitute entry. Plaintiff admits that he could have ignored the email or "deleted it as junk mail." Complaint, p. 5. In fact, he states that is what he did, although the complaint is inconsistent on this point. Thus, either no actual entry was made or the entry requested by the email was granted. In either case, no invasion of his right to privacy occurred.
The defendant did not have to be told he was free to leave to make a stop consensual. United States v. Chavira, 467 F.3d 1286 (10th Cir. November 9, 2006):
Considering the totality of the circumstances, the district court's factual findings do not suggest a coercive show of authority. It is true that more than one officer was present and that Mr. Chavira was not told that he was free to leave. However, the other officer stayed in his patrol car until after the trooper obtained consent to search and the other officer's presence alone would not indicate to a reasonable person that he was not free to leave. Advising a defendant that he is free to leave is not an essential prerequisite for a consensual encounter, let alone a voluntary consent to search. See, e.g., Ohio v. Robinette, 519 U.S. 33, 39-40, 117 S. Ct. 417, 136 L. Ed. 2d 347 (1996); United States v. Bradford, 423 F.3d 1149, 1158 (10th Cir. 2005); United States v. Elliott, 107 F.3d 810, 814 (10th Cir. 1997). Significantly, from the time the trooper resumed questioning Mr. Chavira about his travel plans until the time he obtained consent to search, Mr. Chavira's path to his vehicle was unobstructed and the trooper was separated from him by the open patrol car door. On this record, we must hold that Mr. Chavira had no objectively reasonable belief that he was not free to leave, and thus his subsequent consent to search was not the product of an unlawful detention.
Comment: Two police cars have the defendant pulled over and he is objectively "free to leave"? This is intellectual dishonesty of the worst sort. What person in his right mind would think he actually was free to leave? None. Perhaps if federal appellate judges spent a while detained on the side of the highway, they might come to appreciate that this argument is pure fiction.
Civilly detained plaintiff could be strip searched when he returned from a ceramics class out of the secure area of the institution. Ratzel v. Ziegler, 2006 U.S. Dist. LEXIS 81602 (E.D. Wis. November 3, 2006).
Officers had probable cause to arrest defendant after having observed multiple hand to hand drug sales. The defendant got into a taxi, and the officers stopped the cab and found a gun between his feet and drugs in the backseat. United States v. Scott, 2006 U.S. Dist. LEXIS 81719 (E.D. Pa. October 13, 2006).
It did not matter whether officers who stopped defendant's car thought that the odor of marijuana coming from it was from the defendant's being around smokers or from marijuana in the car. They asked for consent and got it. State v. Donald, 2006 Tenn. Crim. App. LEXIS 870 (November 7, 2006).*
After plaintiff had been arrested, he was in custody and he asked to call his lawyer. The officers recorded the conversation, and it became a part of suit over his arrest. Plaintiff was granted summary judgment on his claim that his Fourth Amendment rights were violated by their recording a conversation between him and his lawyer. Sherbrooke v. City of Pelican Rapids, 2006 U.S. Dist. LEXIS 81730 (D. Minn. November 6, 2006):
Summary judgment is granted in Sherbrooke's favor as to this claim. He had a clearly established right of privacy in his conversation with his attorney. This right was violated by the unconsented search performed by the officers, who should have known that their conduct violated Sherbrooke's Fourth Amendment rights. As to Defendants' argument that Sherbrooke failed to make efforts to protect the privacy of his call, there was nothing he could do while in a situation controlled by the officers. As in Jaras, consent cannot be reasonably implied from Sherbrooke's failure to object where Sachs did not ask for his consent to execute the search. Accordingly, Sherbrooke is entitled to summary judgment as to his claim that the Individual Defendants violated his Fourth Amendment right by recording his conversation with his attorney.
Two trucks were driving apparently in tandem too closely in Kentucky. One truck was suspicious because the fifth wheel was rusty and the sign on the side appeared hastily affixed. A full truck safety inspection was conducted, and the paperwork seemed odd. Finally, consent was sought and granted, and heroin was found by a drug dog. United States v. Garrido, 467 F.3d 971 (6th Cir. November 9, 2006).
Officer concerned by furtive movements in vehicle during traffic stop justified ordering defendant out of the car under Mimms. United States v. Steplight, 2006 U.S. Dist. LEXIS 81712 (E.D. Pa. November 8, 2006).*
During a protective sweep, officers saw the barrel of a shotgun sticking out from under a futon. While the officer did not see the entire gun, it was apparent there was a shotgun. When fully revealed, it was sawed off. United States v. Weymouth, 2006 U.S. Dist. LEXIS 81282 (D. Me. November 6, 2006).
9/11 related investigation led to defendant being handcuffed. He was able to consent to a search because the situation was not otherwise coercive. United States v. Awan, 2006 U.S. Dist. LEXIS 81289 (E.D. N.Y. November 6, 2006).*
Basis of knowledge of informant was shown by his first hand knowledge. United States v. Williams, 2006 U.S. Dist. LEXIS 81010 (W.D. Pa. October 23, 2006).*
Smashed computer equipment left in a state park was abandoned. United States v. Kiderlen, 2006 U.S. Dist. LEXIS 81405 (E.D. Mo. August 1, 2006) (also, PC was shown for search warrant for computers in home).*
Finding a small quantity of marijuana in the passenger compartment permits the officer to search the trunk for more. State v. Irvin, 210 S.W.3d 360 (Mo. App. W.D. November 7, 2006).
Knock and talk of non-English speaking defendant's home was valid. Officer just took a Spanish course and read the request to the defendant who said "si" and backed away from the door. That was consent. State v. Penalosa, 2006 N.C. App. LEXIS 2223 (November 7, 2006).
Officers are justified in running wants or warrants on any traffic stop to know who they are dealing with for officer safety. United States v. Villagrana-Flores, 467 F.3d 1269 (10th Cir. November 7, 2006):
The next question then is whether the officer was justified in using Mr. Villagrana-Flores's identity to run a warrants check during the course of the Terry stop. In other words, we must determine whether running the warrants check was "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20-21. We have previously held, in the context of traffic stops based on reasonable suspicion alone, that a "motorist may be detained for a short period while the officer runs a background check to see if there are any outstanding warrants or criminal history pertaining to the motorist even though the purpose of the stop had nothing to do with such prior criminal history." United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001) (en banc). Several of our sister circuits have similarly held. See United States v. Brigham, 382 F.3d 500, 507-08, 507-08 n.5 (5th Cir. 2004) (en banc) (holding similarly and collecting cases). We explained in Holt that "[t]he justification for detaining a motorist to obtain a criminal history check is, in part, officer safety" because "[b]y determining whether a detained motorist has a criminal record or outstanding warrants, an officer will be better apprized of whether the detained motorist might engage in violent activity during the stop." 264 F.3d at 1221-22. As long as the detention is for a short period, "the government's strong interest in officer safety outweighs the motorist's interests." Id. at 1221.
Officer safety, however, is just as strongly implicated where the individual being detained for a short period of time is on foot, rather than in an automobile. An officer detaining a pedestrian has an equally strong interest in knowing whether that individual has a violent past or is currently wanted on outstanding warrants. The citizen's interest, on the other hand, is no more robust merely because a short detention occurs while traversing on foot. Moreover, permitting a warrants check during a Terry stop on the street also "promotes the strong government interest in solving crimes and bringing offenders to justice." See United States v. Hensley, 469 U.S. 221, 229, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985). Indeed, an identity's utility in "inform[ing] an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder," Hiibel, 542 U.S. at 186, would be non-existent without the ability to use the identity to run a criminal background check. Thus, we hold that Mr. Villagrana-Flores's Fourth Amendment rights were neither violated when his identity was obtained during a valid Terry stop nor when his identity was shortly thereafter used to run a warrants check.
Stop lacked reasonable suspicion. Defendant was merely sitting in a car idling on the street. United States v. Duty, 204 Fed. Appx. 236 (4th Cir. 2006) (unpublished):
We find that Winston lacked the reasonable suspicion necessary to seize Duty. The only evidence presented was that Duty was sitting in an idle car on a private street, and looked at Winston when she drove by. Such evidence plainly does not provide a basis for reasonable suspicion.
Accordingly, the seizure was invalid because Winston did not possess articulable, reasonable suspicion that criminal activity was afoot when she pulled behind Duty with the emergency lights activated. Because the seizure was illegal, the district court erred in denying Duty's motion to suppress evidence.
911 call of a domestic disturbance and a man with a gun justified a stop of a man that matched the description. United States v. Hicks, 2006 U.S. Dist. LEXIS 81154 (N.D. Ind. November 6, 2006):
Here, the 911 caller was reporting an ongoing emergency - a domestic dispute in which the perpetrator was armed with a gun - and therefore Officer Tinsley was entitled to presume that the caller's information was reliable without further corroboration. Furthermore, there is no indication that Officer Tinsley was aware of the caller's inconsistent information, particularly since there was no mention of the caller in the dispatch. See Lenoir, 318 F.3d at 729. Accordingly, Officer Tinsley was entitled to rely on the dispatch report as reliable information that an ongoing emergency was occurring at 4033 Buell.
The state carries the burden of proof of exigency for dispensing with announcement. Mere possibility of exigency is not enough. Commonwealth v. Wagstaff, 2006 PA Super 312, 911 A.2d 533 (November 6, 2006):
[*P10] Stated otherwise, while the Commonwealth makes an argument premised upon exigent circumstances, there was no evidence presented at the suppression hearing of the existence of any exigencies at the time of the execution of the warrant. Cf. Grubb, 595 A.2d at 135 ("The right, on the scene, under exigent circumstances, to break in unannounced recognizes that the peril to an officer serving a warrant is ever present and he must be able to protect himself. This usually can be done only at the time the warrant is being executed.").
[*P11] Herein, the lack of evidence supportive of the Commonwealth's destruction of evidence argument is inimical to its position excusing the manner and method by which the police executed the search warrant. Similarly, in Commonwealth v. Carlton, 549 Pa. 174, 701 A.2d 143 (1997), the police announced their presence but did not announce their purpose and forced the door after twenty to thirty seconds. The Supreme Court noted that the police failed to state their purpose prior to entering the dwelling and that there were no exigent circumstances that would have excused the police from announcing their purpose. ...
[*P12] Sub judice, the police identified themselves, but they failed to state their purpose.
Store clerk's call that a man called another man from the store and requested that he bring him a gun gave reasonable suspicion for a stop. State v. Taylor, 2006 Ohio 5866, 2006 Ohio App. LEXIS 5807 (10th Dist. November 7, 2006).*
Plain feel of a bullet during a patdown justified a greater search. State v. Clay, 2006 Ohio 5864, 2006 Ohio App. LEXIS 5816 (5th Dist. November 7, 2006).*
Small lane crossings are not enough for a field sobriety test, but this was more. State v. Hunter, 2006 Ohio 5810, 2006 Ohio App. LEXIS 5785 (9th Dist. November 6, 2006):
Generally, de minimis lane violations and small marked lane errors alone are not sufficient to justify the administration of field sobriety tests. State v. Spillers (Mar. 24, 2000), 2nd Dist. No. 1504, 2000 Ohio App. LEXIS 1151, at *6; United States v. Frantz (2001), 177 F.Supp.2d 760. However, in this case, Officer Greiner personally observed Defendant crossing outside the lane three times and he had a tip from the Task Force officer that Defendant was driving erratically and was a vehicle of interest. This properly constitutes a reasonable and articulable suspicion that Defendant was drinking, thus properly enabling Officer Greiner to conduct field sobriety tests.
Washington's sexually violent predator law was narrowly drawn to allow the state access to a convicted SVP's computer to determine whether he was complying with the law. State v. Williams, 135 Wn. App. 915, 146 P.3d 481 (November 7, 2006):
Contrary to Williams' assertions, the SCC's search of his room and computer hard drives was reasonable and in accord with Hydrick. Internal SCC policies authorize the searches and seizures to, in part, enforce the SCC prohibition on the residents' possession of sexually explicit material. These policies are necessary to both treat and protect the resident and to protect others. They balance the rights of SCC residents with the State's interest in treatment and protection and do not violate Williams' privacy rights. See Campbell, 139 Wn.2d at 355-56.
Eleventh Circuit essentially holds that the fact a person is driving a vehicle not registered to him is reason enough to stop him, particularly when the vehicle is a Bentley and the defendant is a suspected drug dealer and money launderer. He admitted he had a gun in the car, and the officers knew he was a felon. United States v. Bivens, 204 Fed. Appx. 835 (11th Cir. November 6, 2006) (unpublished).
When beeper in package went off inside a building, officers had probable cause and exigent circumstances. United States v. Chiem Euy Saechao, 204 Fed. Appx. 612 (9th Cir. November 6, 2006) (unpublished):
The officers had probable cause to search the trailer as soon as Saechao brought the package of drugs inside. Furthermore, once the alarm went off, indicating that the package had been opened, the agents were confronted with exigent circumstances. Saechao hurried his girlfriend and children away from the trailer immediately after opening the package, and then peered suspiciously through the window. And when the agents stopped his girlfriend, she indicated that there was something wrong with the package. Even though the agents were able to detain Saechao in the front yard, the agents could not rule out the possibility that someone else was in the trailer who could destroy the package and its contents. Indeed, Saechao's mother was found during the subsequent search. Thus, a reasonable person would believe it necessary to enter the trailer in order to prevent destruction of relevant evidence. See United States v. Hackett, 638 F.2d 1179, 1182 (9th Cir. 1980).
Consent after a knock and talk was voluntary. United States v. Childs, 2006 U.S. Dist. LEXIS 80824 (E.D. Mich. October 25, 2006):
Although Defendant could have refused by "simply standing pat, saying 'no', or closing the door," Carter, 378 F.3d at 588, the Court finds that during this brief conversation, Defendant freely and voluntarily, without coercion or a threat of force, gave police permission to come inside and search the residence. See Rodriguez, 497 U.S. at 181; Schneckloth, 412 U.S. 218. After Defendant told the officers that drugs and a gun were present, he instructed the officers where those items could be found. Consequently, Sergeant Sorensen found, and legally seized, a loaded handgun and eighteen baggies of marijuana.
In the case where two brothers, one of whom was a police officer, read about bank robberies in Illinois and determined that their father was the robber, the brothers conducted a search of their father's house for evidence of the bank robberies. They were determined to be acting as private citizens for the purpose of the search, even though the officer brother came with a bulletproof vest and badge. United States v. Ginglen, 467 F.3d 1071 (7th Cir. November 6, 2006).
Reasonable suspicion not required for a knock and talk. Consent was not coerced. Officers asked for ID and returned it before asking for consent. United States v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. November 6, 2006).
Having been told he was free to leave, the defendant voluntarily consented to further discussion with the officer that [apparently was a stall to keep them there long enough and] led to a dog sniff. United States v. Farrior, 2006 U.S. Dist. LEXIS 80560 (W.D. Va. November 3, 2006)* (it's a close question):
The court finds that the defendant's initial consent to search the vehicle was voluntarily given. The fact that Officer Morris returned Farrior's license and explicitly told Farrior that he was free to go before asking the defendant to consent to a search of his vehicle strongly indicates that no seizure occurred at that point within the meaning of the Fourth Amendment. United States v. Weaver, 282 F.3d 302, 311 (4th Cir. 2002). That fact alone, however, is not dispositive. The voluntariness of Farrior's consent is also supported by the circumstances surrounding Officer Morris' request and Farrior's response. Officer Morris testified that after telling the defendant that he was free to go, he asked Farrior if he would step out of the car. Farrior responded that he could talk from inside the car. Officer Morris proceeded to do so. Officer Morris testified that he explained to Farrior that the Town of Pulaski was having a lot of drug problems in that area. Officer Morris next asked Farrior if he had any drugs or guns, to which Farrior replied in the negative. Officer Morris then asked Farrior if he could search his car. Farrior consented and stepped out of the car. The court believes that these circumstances indicate that Farrior was not intimidated and that a reasonable person in his position would believe that he had a choice to exercise. Therefore, the court finds and concludes that a reasonable person in Farrior's position would have felt free to decline Officer Morris' request.
Apparent overseizure of computer equipment was reasonable. Warrant specified one document, in paper or electronic form, and the police seized 16 computers for off-site analysis. United States v. Cook, 2006 U.S. Dist. LEXIS 80557 (W.D. Wash. November 3, 2006):
The object of the search was a document titled "Secured Promissory Note," and all copies of the document, whether in hard-copy or electronic form. Id. at 23. The warrant authorized the seizure and removal of computer systems and components for off-site forensic analysis. Id. at 24. The search took place on June 29, 2005, and included both a hand search for documents and the removal of sixteen computer systems with seventeen hard drives and various removable storage media. See Johnson Decl., docket no. 126, P 3. Special Agent Kim Young, a computer forensic examiner, took control of the sixteen computers and spent approximately 21 hours imaging their seventeen hard drives. Id. P 4. Agent Young completed her imaging on June 30, 2005. Id. Twelve computers were returned to the Cooks on July 5, 2005, and the remaining four computers were returned on August 22, 2005. Id.
While standing may be asserted on appeal by the state for the first time, it must not be inconsistent with the position taken in the trial court. Thus, where the state argued only consent in the trial court, it could not argue lack of standing on appeal. "When the deputy told Cardenas 'he needed to come speak to [the deputy],' under the circumstances, Cardenas was seized. As in Zubizareta and McAfee, the officer's language was inherently coercive such that reasonable people would not believe they were free to go about their business." This was not consent. State v. Cardenas, 143 Idaho 903, 155 P.3d 704 (2006).
Police responding to a domestic disturbance call were told by defendant's girlfriend that he pointed a gun at her when he came to the house. He came to the door and they handcuffed him and emptied his pockets. No gun was found on him, and she directed the police to the back yard, but no gun was found there. He consented to a search of his car, but he denied knowing where the keys were. The officer got his keys and looked in the car, and two handguns were found in a briefcase, and he was a convicted felon. He voluntarily consented to the search although he was handcuffed. United States v. Flowers, 203 Fed. Appx. 221 (10th Cir. November 2, 2006)* (unpublished).
Co-defendant who tried to hide from police in motel parking lot professed to be staying in room 32. Officers approached the door, and they could smell marijuana, so they asked her for consent. Based on the totality, she had sufficient apparent authority to consent to an entry into the room. State v. Wallace, 2006 Tenn. Crim. App. LEXIS 858 (November 1, 2006):
Applying these principles to the facts of this case, we conclude that the officers had valid consent to enter and search the motel room. The facts show that Ms. Arnold was standing in the parking lot of the Savannah Motel and attempted to hide from Officer Rich when he drove by the motel on patrol. Officer Rich found her behavior suspicious and approached her to ascertain her identity and her reason for being at the motel. She gave her name and told Officer Rich that she was staying in room thirty-two at the motel. When Officer White arrived as back-up, Ms. Arnold agreed to accompany the officers to room thirty-two so that they could verify her identity and whether she was staying at the motel. As the officers approached the motel room, the door to the room opened and the officers immediately smelled marijuana. The occupants in the room verified Ms. Arnold's identity and the fact that she was staying in the room. The officers then asked Ms. Arnold, "Do you care if we search the apartment? Because we do smell marijuana coming [from the room]." Ms. Arnold subsequently consented to a search of the room. Under the circumstances, it was reasonable for the officers to believe that Ms. Arnold had the authority to consent to a search of the motel room. Consequently, the search was a valid, legal search and was not in violation of Defendant's Fourth Amendment rights. Defendant is not entitled to relief on this issue.
The Supreme Court hears oral argument today in Wallace v. City of Chicago, 04-1240 (docket), decision below: Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006), cert. granted June 19, 2006 as Wallace v. Kato. The question presented: "When does a claim for damages arising out of a false arrest or other search or seizure forbidden by the Fourth Amendment accrue when the fruits of the search were introduced in the claimant's criminal trial and he was convicted?" The petitioner's brief here, and respondent's brief here.
From Willamette University College of Law summary delivered by list serv:
The issue in this case is whether damages arising under a claim for false arrest, brought under 42 U.S.C. § 1983, arise at the time a false arrest occurs, or upon a claimant’s criminal conviction.
The present civil case arises out of a criminal case. Andre Wallace (Petitioner) was arrested, charged, and found guilty of murder. On January 17, 1994, a construction worker was shot and killed. The police brought Petitioner in for questioning two days later. Officers Roy and Kato (“Officers”) tricked the Petitioner into making a false confession by using various interrogation techniques. During his trial, Petitioner filed several motions to suppress his statements, all of which were denied. He was subsequently found guilty and served 8 years in prison. After several years of appeals, his conviction was reversed. The Illinois Appellate Court held that his arrest had not been based upon probable cause and the court remanded for a new trial. The Illinois Supreme Court denied review and the prosecutor eventually dropped all charges against the Petitioner.
In 2003, Petitioner filed the § 1983 action asserting violation of his Fourth Amendment right by the Officers as well as state claims for malicious prosecution and false arrest. The United States District Court for the Northern District of Illinois granted summary judgment for the Officers. On appeal, the Seventh Circuit held that the § 1983 claim accrued at the time of the arrest, rather than when the Petitioner’s criminal conviction was overturned, thus the claim was time barred. Judge Posner wrote a lengthy dissent in the denial for rehearing en banc, upon which the Petitioner bases his arguments.
On cert. to the United States Supreme Court, Petitioner will argue the Seventh Circuit rule is an unwarranted extension of the rule in Heck v. Humphrey, 512 U.S. 477(1994), which held that damages for an allegedly unconstitutional conviction are the conviction and sentence, and do not accrue until the direct reversal of the conviction. Petitioner will further argue that the Seventh Circuit's rule does not remedy the “injury” of being falsely convicted and imprisoned—-this is in direct conflict with the Court holding that the “injury is the false arrest. [Summarized by Loren Cohen.]
Yesterday's Examiner: Three Santa Barbara elementary schools to fingerprint students. The purpose: use of the cafeteria.
A plan to fingerprint elementary school students when they buy lunch has some parents worrying that Big Brother has come to the cafeteria.
The Hope Elementary School District has notified parents that beginning this month, students at Monte Vista, Vieja Valley and Hope elementary schools will press an index finger to a scanner before buying cafeteria food.
The scan will call up the student's name and student ID, teacher's name and how much the student owes, since some receive government assistance for food.
"It raises sanitary issues, privacy issues -- it is kind of Orwellian," said Tina Dabby, a parent of two at Monte Vista Elementary. "It just sounds kind of creepy."
School administrators said the idea is to speed up the cafeteria line. The same information is currently handled with old-fashioned paper and then transferred to computer so that reports can be compiled.
Invasion of privacy? Yes. Violation of the Fourth Amendment? Not necessarily, I regret to say.
What are the competing interests? The school already gathers this information, just without a fingerprint. Parents voluntarily fingerprint their children in case of abduction. Kids in elementary school don't have a choice because of their age, and parents are not being asked for consent. Here, the school will likely use a single finger or thumb, like used at customs for visitors coming into the U.S., or the use of a finger to access a secure computer. Can the fingerprint stored in the school computer be used to investigate a crime? What are the internal restrictions on the use of the fingerprint? If none, the fingerprint may not be able to be used to investigate a crime later, even years later after the elementary school student has come of age to commit an offense for which he or she can be arrested.
Compare an employee of an airport working in a "sterile area" who has to use a fingerprint scan to open a door. The prison system in my home state has been using retina scans at some prisons to identify employees on entering and leaving the prison. With adults, they choose their jobs and thereby consent to the process. But, both of these examples involve adult employees who may have had to submit to a fingerprinting to get their job, so these may not be the best examples.
Virginia holds that physical arrest for a low level offense that was statutorily subject only to a summons was invalid under the Fourth Amendment under Knowles. Atwater is distinguishable because the statute there gave the officer discretion to arrest or issue a summons. Defendant was subjected to a search incident at his house after he consented while in custody. The search incident produced drugs on him. Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395 (November 3, 2006), rev'g 47 Va. App. 55, 64, 622 S.E.2d 253, 258 (2005) (en banc). Comment: Atwater was one of the worst decisions of last decade because it permitted a physical arrest of a mother in front of her children for not wearing a seatbelt. The Supreme Court essentially left it to the discretion of the officer how to proceed, no matter how badly that discretion was exercised. Virginia, at least, takes discretion away in some minor offenses.
Consent to taking a blood sample in a hospital ER was not coerced. The defendant was free to leave afterward and did. Bristol v. Commonwealth, 272 Va. 568, 636 S.E.2d 460 (November 3, 2006):
In the present case, it is undisputed that neither Officer Doyle nor Officer Eberts physically restrained Bristol at the hospital after Officer Doyle told Bristol that he was "under arrest." Therefore, Bristol was arrested at the hospital only if his consent to the blood test constituted a complete surrender of his personal liberty in submission to Officer Doyle's assertion of authority. We conclude that Bristol's consent to the blood test was not such a surrender of his personal liberty.
Bristol merely agreed to submit to a blood test. He did not make any statement nor did he act in a manner demonstrating a complete surrender of his personal liberty to Officer Doyle's control.
The events that occurred at the hospital confirm the limited nature of Bristol's acquiescence. After Officer Doyle informed Bristol of the implied consent provisions of Code § 18.2-268.2 and Bristol agreed to have the blood sample drawn, Doyle did not restrict Bristol's movements in any manner. Officer Doyle merely accompanied Bristol to the emergency room where Bristol's blood was drawn. Officer Doyle then left the hospital, taking no action to constrain Bristol's personal liberty. Likewise, Officer Eberts did not act in a manner that could be construed as constraining Bristol's personal liberty. Bristol left the hospital on his own, and the police did not take any immediate action to restrain him. Thus, Bristol's consent to the blood test did not constitute a submission to police authority resulting in an arrest.
The arrest of the defendant for a murder, that it turned out he did not commit, but for which there was probable cause, was still valid under Hill v. California. Two witnesses mistakenly identified him as involved in the murder, and he was identified as having the tattoo "Outlaw" on his neck. The fact that defendant did not have such a tattoo did not dissipate PC on the spot because of the possibility the tattoo was not permanent. Guns and drugs were found after the arrest, and the arrest was objectively reasonable, despite the fact defendant was not the right man. United States v. Sykes, 2006 U.S. Dist. LEXIS 80322 (E.D. La. November 2, 2006).
Arrest warrant for defendant authorized officers to enter his house and look in closets for him. United States v. Itayem, 2006 U.S. Dist. LEXIS 80323 (N.D. Ohio November 2, 2006).
While the question was close, the District Court finds that consent was valid and not coerced. The police told defendant's cotenant that they had to enter to check the premises, and she offered the keys. United States v. Williams, 2006 U.S. Dist. LEXIS 80244 (W.D. Tenn. November 1, 2006).*
The defendant was arrested for drug sales, and a drug dog positively alerted on his car, but no drugs were found. A strip search was justified at the jail. As to the merits of the original arrest, "'Sixth Circuit precedent clearly establishes that the affiant need only specify that the confidential informant has given accurate information in the past to qualify as reliable.' United States v. Greene, 250 F.3d 471, 480 (6th Cir.2001)." Here, there were two prior buys from the defendant at the place previously specified, so that takes care of it. United States v. Warfield, 2006 U.S. Dist. LEXIS 80334 (W.D. Ky. November 2, 2006).
Without findings of fact, unless these are it, the S.D. Miss. sustains a third-party consent. United States v. Perez-Vera, 2006 U.S. Dist. LEXIS 80342 (S.D. Miss. October 31, 2006):
The Court, having considered the testimony of the witnesses and arguments of counsel, credits the testimony of the government's witnesses, and finds by the requisite standard of proof the following: (1) that the defendant's consent to search was not sought by the state officers, nor (2) was he sequestered in such a way that his refusal to consent could not be heard. The Court further finds that (3) the wife, who was shown by proof to be the lease-holder of the residence, had the apparent authority to consent, and (4) that she did consent to the search of the residence wherein she had standing to consent or refuse. Such consent as was obtained of her is consonant with the Court's holdings in United States v. Matlock, 415 U.S. 164 (1974), and in Illinois v. Rodriguez, 497 U.S. 177 (1990), and does not offend the Fourth Amendment of the Constitution of the United States. Matlock, supra, at 170-171.
Using a program developed by Microsoft, the Toronto police child exploitation unit was able to trace the internet source of a live sexual assault of a child and apparently raid the house where it originated. See the AP's Canadian Nabbed in Live Web Sex Assault.
[Officer] Krawczyk, who was posing as an online pedophile, said he established a relationship with the man in an Internet chat room for pedophiles in January.
After the detective gained his trust, the suspect on Sunday sent still images recorded on a Web cam, which were transmitted in "real time" to a private site, which Krawczyk declined to disclose.
"I can't get into exactly what the program is," Krawczyk told The Associated Press. "But you see the images immediately. I was talking with him and, I can't get into the details of what were in the pictures, but I knew that it was happening live."
The article does not mention a warrant, and the images were not transmitted into the U.S., but this would be a classic case of exigent circumstances. Also, the police are reluctant to talk about the program other than to say that it exists, as though providing details would somehow defeat it.
We should expect similar occurrences here, if they haven't happened already.
Tennessee DUI roadblock satisfied its tough constitutional standards of State v. Downey, 945 S.W.2d 102 (Tenn. 1997). State v. Clark, 2006 Tenn. Crim. App. LEXIS 849 (October 20, 2006):
We note that the ultimate question in this case is whether the third prong of the Downey test weighs in favor of the checkpoint's reasonableness. The witnesses' testimony established that the MCSD announced the checkpoint in the local newspaper prior to March 12 and that all vehicles traveling in both directions were stopped at the checkpoint. When traffic became congested, Sergeant Tucker temporarily suspended the checkpoint until traffic cleared and the checkpoint could resume. The MCSD set up signs at each end of the checkpoint to warn approaching motorists; the MCSD used safety cones and marked patrol cars with emergency lights; and officers wore safety vests and carried flashlights, demonstrating that the checkpoint was conducted in a safe manner. All of these factors were enumerated in Downey and weigh in favor of finding that the checkpoint did not violate constitutional requirements. Moreover, Sheriff Lewis' selecting the location for the checkpoint and the MCSD's setting up and operating the checkpoint in accordance with predetermined guidelines weigh particularly heavily in the State's favor. See Hicks, 55 S.W.3d at 533 (stating that "the most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field"); Downey, 945 S.W.2d at 110-11 (stating that "[v]irtually every court has emphasized the importance of limiting the discretion of police officers at the scene").
According to the predetermined guidelines in this case, officers were to approach stopped motorists, identify themselves, and announce the purpose of the checkpoint. Officers then were required to "release the vehicle without further delay" if they saw no signs of intoxication or to detain any driver suspected of impaired driving. The appellant has made no claim that the checkpoint officers failed to follow these procedures. Therefore, we conclude that the level of intrusion to motorists was minimal in this case and that the stopping of motorists at the checkpoint was reasonable. The trial court properly denied the appellant's motion to suppress the evidence against her.
Private search of former boyfriend's place did not involve the Fourth Amendment. The police got into it after it happened. State v. Willis, 169 Ohio App. 3d 364, 2006 Ohio 5754, 862 N.E.2d 906 (2d Dist. 2006).*
Defense counsel was not ineffective for not filing a suppression motion after he determined that it would not be successful, which it would not have been. Ex parte Jones, 2006 Tex. App. LEXIS 9563 (Tex. App. – Dallas November 3, 2006).*
Arrest for disorderly conduct was unjustified, and the defendant consented to a frisk for weapons. In the watch pocket of his jeans, the officer felt what he thought was a joint, but it turned out to be a dollar bill. Opening the dollar bill exceeded the consent, even though the officer had reason to believe that the dollar bill contained crack, which it did. State v. Chauvin, 945 So. 2d 752 (La. App. 5th Cir. October 31, 2006).
Defendant had no standing to contest the search of a garbage bag of marijuana that he placed in the trunk of a friend's car before he got in it. He had standing to challenge the stop but not the search of the bag. Valle v. State, 2006 Ga. App. LEXIS 1361 (November 2, 2006).
Officers had PC for defendant's arrest when he called informant back and arranged a meet for a drug sale and then showed up. State v. Guillory, 945 So. 2d 798 (La. App. 3d Cir. November 2, 2006).*
Traffic stop at night led officer to window of car, and he shined his flashlight in and saw drugs in plain view. State v. Gray, 2006 La. App. LEXIS 2388 (5th Cir. October 31, 2006, released for publication January 19, 2007).*
Stop for riding bicycle at night without a headlight was justified, and defendant abandoned drugs when he was stopped. Because there was a factual basis for the stop, pretext could not be shown[, no matter how much it looked like it]. State v. Leonard, 945 So. 2d 764 (La. App. 5th Cir. October 31, 2006, released for publication January 19, 2007).
ICE officers had reason to believe that aliens were in a house in Puerto Rico, but they were waiting for confirmation, and they kept the house under surveilllance. When a car leaving it was stopped, officers got confirmation of the illegals inside. That gave PC, but the officers were also told that the illegals would move shortly, so they could not leave to get a warrant. The move did not occur at the time described by the persons stopped, so the officers waited a little longer, then approached the house for a knock and talk, and everybody bailed from the house. District court goes so far as to find exigent circumstances for an entry. United States v. Perez-Quirzola, 2006 U.S. Dist. LEXIS 80032 (D. P.R. October 5, 2006).
"Defendant's consent for the law enforcement agents to search his home was obtained in writing at his office prior to any interrogation. The audio recording of his interrogation further confirms that the search was made with the voluntary consent of the Defendant. In the absence of any factual allegations of coercive conduct, the Court finds that Defendant's consent was given voluntarily and his motion to suppress the fruits of the search is denied." United States v. Conteh, 2006 U.S. Dist. LEXIS 80063 (S.D. N.Y. November 1, 2006).*
"The distinct odor of burnt marijuana, by itself, coming from the window of a stopped vehicle will provide probable cause to search a vehicle. United States v. Nielsen, 9 F.3d 1487, 1491 (10th Cir. 1993). The detection of the odor of marijuana justifies a search of the entire passenger compartment, including locked compartments where contraband is likely to be concealed. Id. at 1489." United States v. Baylor, 2006 U.S. Dist. LEXIS 80042 (D. Kan. October 31, 2006).
Crime victim was not an informant. The information from the victim was also corroborated and not stale, albeit three weeks lapsed between the information about a gun and drugs and the issuance of the warrant. United States v. Johnson, 2006 U.S. Dist. LEXIS 79988 (D. Ore. October 26, 2006).*
Unjustified entry with guns drawn, ordering elderly man out of house first, was obviously not consensual. Later attempted consent was invalid because it was tainted by the original entry. United States v. Minnis, 2006 U.S. Dist. LEXIS 79920 (S.D. Fla. November 1, 2006):
Accordingly, not having obtained valid consent to enter the residence, officers needed either a search warrant--which they did not have--or probable cause and exigent circumstances before it was legally permissible for them to enter that home. Steagald, 451 U.S. at 205; United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000) (citing United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir. 1991) (en banc)). As explained in the August 28, 2006 R&R, there were neither in this case. Because none of the constitutional prerequisites for a warrantless entry without consent were present, and because the law deems this entry presumptively unconstitutional, the undersigned recommends that Defendant's motion to suppress be granted, and that the evidence seized from Defendant's residence and the statements Defendant made on April 25, 2006, be suppressed.n6
n6 We have, however, drawn a distinction between the initial entry - that lacked legal consent - with the consent that was later obtained, after the passage of time and after additional steps were taken by law enforcement to establish voluntariness. As explained in footnote 15 of the R&R, if a legal initial entry occurred contrary to the R&R's conclusion, the passage of time, the use of a consent form that was later read to Ferguson and the Defendant, and their express consent at that point without any threat or show of force, all made it possible for Ferguson and Defendant to consent to a search after the protective sweep was conducted. Officers in fact obtained that consent. But for the other reasons argued in the R&R, that later consent to search (not enter) cannot save the government's unlawful and warrantless entry into the apartment. See, e.g., Santa, 236 F.3d at 676-79 (illegal warrantless entry tainted consent to search provided immediately after illegal entry and all evidence seized thereunder).
Plaintiff's actions gave officers reasonable suspicion to detain him. He was disheveled, smelled bad, and pacing around the front of the Cook County courthouse at 6:30 a.m. They decided to ask him for identification, and he claimed to be a "federal process server," but he refused to identify himself. He was attempting to serve the sheriff with process at a shift change. Plaintiff's conduct and words made them have reasonable suspicion that he was potentially dangerous, and summary judgment was properly granted. Cady v. Sheahan, 467 F.3d 1057 (7th Cir. November 3, 2006).*
Plaintiff was at a Breeder's Cup event in Texas, and he was drawing the structure of the building with pictures of pigs in military uniforms and other references to possible religious beliefs. Security guards were notified by a patron, and they came and looked. After detaining him, they called the ATF which sniffed his van, and they looked in it in the parking lot. ["Paranoia strikes deep. Into your life it will creep." --Stephen Stills] The detention and search were reasonable enough to qualify for qualified immunity. Govea v. ATF, 2006 U.S. App. LEXIS 27216 (5th Cir. November 2, 2006)* (unpublished).
Defendant was driving his girlfriend's car with her permission, so he had standing to challenge its search. Search of the car was based on PC, and it was valid. United States v. Brown, 203 Fed. Appx. 997 (11th Cir. November 2, 2006).
The Eleventh Circuit rejected an IAC claim on grounds not related to the Fourth Amendment, but it mentioned that two defendants removed from a car with two "cookies" of crack were put in a police car and recorded where they made admissions of knowledge of the drugs in the car. United States v. Downs, 217 Fed. Appx. 841 (11th Cir. 2006)* (unpublished).
A guest of a motel guest had standing to challenge the search of the room. While he might have somehow violated hotel policy [something not really realistic], he had a reasonable expectation of privacy in the room, one that society would recognize as reasonable. United States v. Rollins, 2005 U.S. Dist. LEXIS 43849 (D. Utah July 18, 2005).
Assuming, without deciding, that a cotenant could not consent to a search that produced clothing identifiable by a robbery victim, it was harmless beyond a reasonable doubt when the cotenant also testified to defendant's appearance that day. People v. Bass, 155 P.3d 547 (Colo. App. 2006):
Here, the victim described her attacker as having bushy hair and a scraggly beard, and she stated that he was wearing "dark clothing and dark blue jeans" and "[h]e had a black shirt on, that ... had some sort of writing on it or picture." Likewise, the tenant testified that, on the early morning of July 10, Bass appeared "scruffily and scraggly . . . his hair was all out of place," he had several days growth of beard, and he was wearing a "black shirt, a camel T-shirt" and dark blue jeans.
Bass argues that the admission of the seized clothing was not harmless because it helped bridge a gap between the victim's description of her attacker and Bass's physical appearance. However, the tenant testified in detail regarding Bass's appearance, and the seized clothing merely served to corroborate that description. Accordingly, we conclude the guilty verdict rendered in this case was surely unattributable to the error, see Bernal, supra, and, therefore, was harmless beyond a reasonable doubt.
The community caretaking function could not be applied to seizure of a defendant who fled from officers. Commonwealth v. Quezada, 67 Mass. App. Ct. 693, 856 N.E.2d 189 (November 2, 2006), aff'd 450 Mass. 1030, 879 N.E.2d 1242 (2008):
The motion judge concluded that the flight of the defendant was a nonverbal response to the officer that the defendant was not in need of assistance and that the action of the police did not come within the community caretaking function. We agree.
The community caretaking function "applies when the purpose of the police [intrusion] is not to gather evidence of criminal activity but rather, because of an emergency, to respond to an immediate need for assistance for the protection of life or property." Commonwealth v. Bates, 28 Mass. App. Ct. 217, 219 & n.2 (1990). Even though the defendant appeared impaired and possibly injured, he was being assisted by another person. Certainly the police would have been warranted in offering aid, but in these circumstances, chasing the defendant and ordering him to stop went beyond the scope of the community caretaking function. Contrast Commonwealth v. Murdough, 428 Mass. 760, 762 (1999) (police officers acted reasonably in asking defendant to get out of vehicle because they were "concerned about his condition" and they "thought that the defendant might have been on a narcotics bender and fresh air might do him good", quoting from Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 738 ). Here, the defendant was not operating a motor vehicle, which could, in his condition, have posed a potential danger to the public. Contrast Commonwealth v. Evans, 436 Mass. 369, 372-373 (2002) (police may ask whether driver of automobile parked in breakdown lane with blinker flashing needs assistance). See generally Commonwealth v. Brinson, 440 Mass. 609, 615 (2003).
Nor was this a proper exercise of police power, as the Commonwealth argues, under the protective custody statute, G. L. c. 111B, § 8, which provides, among other provisions, that the police may temporarily detain people and determine whether they are intoxicated. The authority of the police to act under c. 111B, § 8, is limited to persons incapacitated by alcohol who are "(1) unconscious, (2) in need of medical attention, (3) likely to suffer or cause physical harm or damage property, or (4) disorderly." G. L. c. 111B, § 3, as inserted by St. 1971, c. 1076, § 2. "The reasonable suspicion standard is ... appropriate to G. L. c. 111B, § 8, the protective custody statute." Commonwealth v. McCaffery, 49 Mass. App. Ct. 713, 716 (2000). There is nothing in the record to indicate that Horan was aware of sufficient facts to support a belief that the defendant was incapacitated due to alcohol within the meaning of the statute. To the extent there may be a gap in the statute because it only pertains to incapacity due to alcohol consumption, it is for the Legislature to enact a statute that provides for protective custody of persons incapacitated from the ingestion of drugs or for other reasons.
Defendant's overbreath challenge to a drug premises statute was rejected. On the search and seizure claim, there was nothing in the statute that mandated a search, so that challenge is rejected as well. State v. Macelman, 154 N.H. 304, 910 A.2d 1267 (2006).*
Defendants' conduct of one hiding face behind a map during traffic stop and then both coming out of the car and walking back to the patrol car, to the officer's great alarm, while the officer was on the radio was reasonable suspicion. People v. Leiva, 33 A.D.3d 1021, 823 N.Y.S.2d 494 (2d Dept. October 31, 2006):
In light of the suspicious conduct of the defendant's passenger in attempting to cover his face with a map, in light of the "very very rare" conduct of the two men in later approaching the officer while she was speaking over the police radio, the defendant having given contradictory responses when asked about his destination, together with the various other circumstances revealed at the pretrial hearing, the officer at the very least had a founded suspicion that criminal activity was afoot so as to authorize her and the other officers to request the defendant's consent to a search of the minivan.
A bottle cap folded around a plastic bag is commonly associated with containing drugs, and that is PC to believe drugs are inside when it is seen in a vehicle. State v. Stock, 209 Ore. App. 7, 146 P.3d 393 (November 1, 2006).
Defendant as a passenger in a vehicle did not prove standing to contest the opening of a cooler in the back seat. United States v. Parada, 2006 U.S. Dist. LEXIS 79639 (D. Kan. October 23, 2006):
In this case, defendant does not challenge the search of luggage, but a cooler designed to store food and beverages. The cooler was not stored in the trunk of the vehicle, but was in the back section of the van. The cooler was not being used to transport defendant's personal belongings while traveling, and contained only the two apple juice jugs of PCP seized by the police. Moreover, defendant never asserted ownership over the cooler, either at the time of the stop or at the suppression hearing. Instead, his ownership assertion is based on Kelley Bradley's testimony, a witness whose veracity defendant consistently disputed at trial. Based on these facts, the Court cannot find that defendant clearly manifested a subjective expectation of privacy in the cooler and that his expectation was one that society has recognized as reasonable. The Court therefore finds that defendant lacks standing to challenge the search of the cooler found in the van.
Defendant approached police car that came onto a convenience store parking lot. That conversation was not a seizure. The bulge in defendant's pocket, his reaching toward his pocket, and a gang bandana sticking out of his pocket gave reasonable suspicion. The defendant offered to be searched. United States v. Kindelay, 2006 U.S. Dist. LEXIS 79600 (D. Ariz. October 31, 2006).*
While the question was close, the defendant handcuffed during a Terry stop was not "in custody" for Miranda purposes when he was asked about the location of a gun that the officers had previously seen. United States v. Denson, 2006 U.S. Dist. LEXIS 79430 (W.D. Pa. October 31, 2006):
The court of appeals [in another case], noted that when reaching the question with respect to whether a Terry stop has risen to the level of a custodial interrogation, a district court should consider (1) the purpose of the question; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police or acquiesced to their requests to answer some questions. Id. at 529 (cited in United States v. Thomas, 142 Fed. Appx. 896 (6th Cir. 2005), which found that where police asked a suspect, who was sitting in the police car and had been seen throwing an object believed to be a gun, whether he had a license to carry a firearm, the question was "benign and unintrusive" and did not cause the Terry stop to rise to the level of a custodial interrogation).
Respondents against a Dept. of Labor subpoena failed in their burden to show that the subpoena was unreasonable. The agency made a prima facie showing the subpoena was valid, and the respondents did not overcome it. Chao v. Potter, 2005 U.S. Dist. LEXIS 43850 (W.D. Mich. August 10, 2005).
The defendant having a choice between blood test or urine test did not make consent involuntary. Harrison v. State, 205 S.W.3d 549 (Tex. Crim. App. November 1, 2006), rev'g Harrison v. State, 144 S.W.3d 82 (Tex. App. - Fort Worth 2004):
The Court of Appeals found that "[t]he fact that Harrison's consent was given to avoid painful physical pressures--more needle sticks, probably in her feet--weighs against voluntariness." But the court failed to take into account the fact that Harrison did not withdraw her consent to provide a blood specimen before she consented to provide a urine specimen, a less-invasive alternative. So unlike cases where the person's consent is the result of physical or psychological pressure from law enforcement officials, Harrison willingly chose to give her consent to a painless alternative.
Furtive movements of a traffic detainee who had a prior record for pointing guns gave the officer reason for a vehicle frisk under Long. United States v. Bynum, 2006 U.S. Dist. LEXIS 79289 (D. Minn. August 16, 2006):
This behavior, coupled with Officer Burns's knowledge that Bynum was driving with a suspended license and had been a suspect in at least two gun pointing incidents, gave Officer Burns sufficient reason to return to the Bronco to perform an inventory search in the event he was going to impound the vehicle and to perform a protective sweep of the Bronco for officer safety.
Comment: The court reached the right result, but phrased everything wrong.
Stop was based on first time confidential informant's accurate predictive information. The officer walked up to the car and saw meth in plain view on the passenger seat. Cole v. State, 282 Ga. App. 211, 638 S.E.2d 363 (November 1, 2006).*
In another case yesterday, the same court held that a stop based on an informant's information was valid. The defendant was asked about consent, but he neither agreed nor objected. Another officer asked if he was on parole, and he admitted that he was. His PO was called, and the car was searched on his parole condition and the search was valid. Police were not "stalking horses" for PO, and Knights' rejection of that rationale is recognized. State v. Cauley, 282 Ga. App. 191, 638 S.E.2d 351 (November 1, 2006).*
911 call that child had OD'ed on methadone justified warrantless entry. Plain view and search warrant followed. State v. Chatterson, 942 So. 2d 646 (La. App. 2d Cir. November 1, 2006).*
Robbery victims' detailed description of car gave PC to stop it and conduct a search incident when it drove by a police car in the place it was expected to be found. State v. Talley, 2006 Tenn. Crim. App. LEXIS 802 (October 16, 2006).*
Defendant, when confronted by police, put a baggie of cocaine in his mouth in an attempt to swallow it, and he began to choke on it. The officer acted reasonably in applying pressure to the back of his neck to get it out, considering that defendant could have OD'ed on the cocaine. Grier v. State, 855 N.E.2d 1043 (Ind. App. October 31, 2006):
The circumstances were much different in the instant case. Here, Officer Moncrief applied pressure to Grier's neck for approximately fifteen seconds, a much shorter amount of time than in Conwell. Furthermore, the officers did not mace Grier. Officer Moncrief testified that he applied pressure to Grier's neck to prevent him from swallowing the baggie, but there was no evidence that Grier's airway was blocked or that he was being choked by Officer Moncrief. In fact, Grier was already choking and gagging on the baggie when Officer Moncrief began to apply pressure. Therefore, we conclude that there was an insignificant threat--and perhaps even a benefit, when one considers the potential risk of ingesting cocaine--to Grier's health and safety and that the intrusion upon his dignitary interests and bodily integrity was minimal. Also, Officer Moncrief acted in the community's interest to preserve evidence that is necessary to determine Grier's guilt or innocence. In sum, there is sufficient evidence to support the trial court's finding that Officer Moncrief's search of Grier's person was reasonable. The trial court did not abuse its discretion in concluding that no Fourth Amendment violation occurred.
The search warrant did not give a postal address of the place to be searched, but, at the scene, there were four trailers out of order by number and one without a number. The officers at the scene were still able to determine the correct place because one of the officers had been there before to serve papers. People v. McCarty, 223 Ill. 2d 109, 306 Ill. Dec. 570, 858 N.E.2d 15 (October 19, 2006):
In this case, the warrant did not list the specific postal address of the premises to be searched. Therefore, the confusion that occurred regarding the addresses of the various trailers subsequent to the execution of the warrant is inapposite. Instead, the warrant described the location to be searched with respect to three factors: (1) the identity of an individual, (2) the approximate mileage between an intersection and the property on which the trailer to be searched was located, and (3) the position of that trailer in relation to other trailers.
The description was accurate with regard to the first factor, as it is undisputed that McCarty stayed regularly at the trailer that was searched, kept personal belongings there, and came and went from it as he pleased. Furthermore, McCarty's son lived there. Thus, while McCarty did not hold title to the trailer, he did exhibit numerous indicia of permanent occupancy.
The description's reference to the second factor was similarly accurate. As the warrant noted, the three-quarters of a mile distance measurement was an approximation. This approximation was sufficiently specific to direct the officers executing the search warrant to the property on which the particular trailer to be searched was located, as it is undisputed that driving three-quarters of a mile south from the Kinlou Road-O'Leary Road intersection would, at a minimum, place an individual at the beginning of the private drive and, at a maximum, place him at the doorstep of the trailer that was searched.
Finally, the description's reference to the third factor, the position of the trailer searched in relation to the other trailers, was also accurate. There unquestionably were four trailers located alongside the private drive. However, only three of those trailers were inhabited, and the appearance of the trailer that was not stood in marked distinction to the appearances of those that were. The uninhabited trailer still had wheels and a hitch, and it lacked underpinning. It was also positioned on a slight incline adjacent to a farm building. Furthermore, the testimony at the suppression hearing indicated that all of the other trailers were visible prior to the uninhabited trailer upon approaching the property from the Kinlou Road-O'Leary Road intersection.
In cases such as this one, where the particularity of a warrant is called into question only upon its execution, and where the extent of the warrant description's inaccuracy is minimal, courts generally are "receptive to a showing that the executing officer had some other information ***, via the warrant affidavit or otherwise, which made it apparent which place was intended." 2 W. LaFave, Search & Seizure § 4.5(a), at 570 (4th ed. 2004). We believe this to be a sensible approach and therefore make note in this case of the fact that Deputy Rose, the officer in charge of executing the warrant, had served papers at the trailer that was searched on a previous occasion and was therefore familiar with its location. See also People v. Burmeister, 313 Ill. App. 3d 152, 158, 728 N.E.2d 1260, 245 Ill. Dec. 903 (2000) ("Inaccuracies will not necessarily invalidate a warrant if the officer applying for the warrant also executed the warrant"). This factor, coupled with those discussed above, persuades us to conclude that the warrant's description of the premises to be searched was sufficiently particular.
Defendant was found to be illegally detained when he fled. If he were searched when first detained, it would have been unlawful. He fled, however, and the officer tackled him. When he pulled the defendant up, there was meth under him, and it was not suppressed under Hodari D. State v. Zuniga, 143 Idaho 431, 146 P.3d 697 (2006).*
Defendant was stopped in Arizona for no vehicle license, which turned out to be mistaken. In the vehicle was the defendant and three small children. Defendant was ordered out of the vehicle, and the officer noticed likely gang tat on defendant's hand. He ordered the defendant to interlock his fingers behind his head and sit on the curb while the DL was run. He asked about the gang tat and was told it was from the Latin Kings in Chicago. The records check came back clean. In the meantime, another officer had arrived and was questioning the defendant. "At that time, [the officer] overheard Mendez telling Det. Jaensson, in response to the detective's questioning, that he had come to Arizona 'trying to get away from the gang life.' Det. Bracke also overhead him answer that he had spent time in prison in Illinois. Det. Bracke then questioned Mendez as to why he had been imprisoned. Mendez replied that he had been convicted of a weapons violation. Det. Bracke then asked him if he had any weapons in the car. According to Det. Jaensson and Det. Bracke's testimony, Mendez became agitated, told them that he was a good father and was trying to make a good life for himself in Arizona, and then said that there was a firearm in the driver's door handle. At this point, the officers arrested him. Det. Bracke then searched the vehicle and found a loaded, small caliber, semi-automatic pistol in the driver's side armrest." The continuation of the stop was unreasonable, and the gun should have been suppressed. United States v. Mendez, 467 F.3d 1162 (9th Cir. October 30, 2006).
Inmate's claim that there was a difference in Hudson v. Palmer between having a greater privacy right interest outside one's cell rather than in it is just wrong. [It also makes no sense.] Essentially, there is no general privacy interest of inmates anywhere in a prison. Wappler v. Brevard, 2006 U.S. Dist. LEXIS 78793 (W.D. Mich. October 30, 2006).*
Officers were sued for entering property for investigation of mistreatment of horses, for which the plaintiff was convicted. "The dispositive factor in the Heck inquiry is whether judgment in favor of the [plaintiff] would 'necessarily imply' the invalidity of the conviction or sentence." This one does, so case dismissed. Shaughnessy v. Garrett, 2006 U.S. Dist. LEXIS 78921 (N.D. N.Y. October 30, 2006).*
Just because officers are congregating in your apartment does not mean that you are not free to walk away and not talk with them. United States v. McGraw, 2006 U.S. Dist. LEXIS 78740 (E.D. Tenn. October 27, 2006). (Comment: This is ridiculous; yet another example of a judicial lack of common sense or knowledge of human nature.)
Defendant cannot change his testimony before the MJ by filing an affidavit in the objections to the R&R. Id.
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Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26 (ScotusBlog)
Missouri v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19) (ScotusBlog)
Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23, 2012) (other blog)
Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2, 2012) (ScotusBlog)
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per curiam) (ScotusBlog)
City of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13, 2009) (ScotusBlog)
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009) (ScotusBlog)
Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009) (ScotusBlog)
Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009) (ScotusBlog)
Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
—Katz v. United States, 389 U.S. 347, 351 (1967)
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration camp]
—Pepé Le Pew
"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)
General (many free):
Congressional Research Service:
"If it was easy, everybody would be doing it. It isn't, and they don't."
"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."
"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."
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
"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."
"The great end, for which men entered into society, was to secure their
"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
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
"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."
“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.”
“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.”
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
"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."
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."