Archives for: December 2006

12/31/06

Permalink 08:34:57 am, by fourth, 517 words, 520 views   English (US)
Categories: General

Defendant's children were the CIs for the search warrant, providing highly detailed information

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

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

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

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

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

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

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

12/30/06

Permalink 11:18:32 am, by fourth, 603 words, 881 views   English (US)
Categories: General

Invoking right to counsel and silence without being asked for consent did not imply a refusal of consent, so officer could ask cotenant for consent under Randolph

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

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

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

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

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

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

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

Permalink 10:10:43 am, by fourth, 1549 words, 1107 views   English (US)
Categories: General

City's destruction of property of homeless persons in trying to rid itself of them violates Fourth Amendment

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

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

C. Likelihood Of Success On The Merits Unlawful Seizure.

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

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

8. As the Ninth Circuit recently further explained:

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

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

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

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

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

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

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

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

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

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

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

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

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

12/29/06

Permalink 06:11:58 pm, by fourth, 1092 words, 2920 views   English (US)
Categories: General

Police detention of all underage persons at a frat house party with alcohol was unconstitutional

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

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

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

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

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

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

. . .

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

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

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

In a March 31 post appears this:

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

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

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

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

Permalink 09:22:52 am, by fourth, 1019 words, 671 views   English (US)
Categories: General

Partially sealed warrant application to protect name of informant could not be kept by police department because it was a judicial record

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

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

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

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

. . .

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

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

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

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

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

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

Permalink 08:37:45 am, by fourth, 2705 words, 717 views   English (US)
Categories: General

9th Cir. on the MLB steroid use investigation: Government could seek a search warrant to cut off a coming subpoena challenge; seizure of records beyond the scope of the warrant was not unreasonable here

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

The summary:

VII

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

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

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

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

REVERSED in part and REMANDED in part.

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

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

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

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

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

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

A

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

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

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

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

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

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

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

B

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

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

. . .

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

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

. . .

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

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

V.

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

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

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

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

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

Id. By comparison:

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

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

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

12/28/06

Permalink 03:33:57 pm, by fourth, 361 words, 761 views   English (US)
Categories: General

Warrantless vehicle "black box" seizure did not void warrant for it that was based on independent probable cause

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

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

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

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

Permalink 10:31:53 am, by fourth, 213 words, 640 views   English (US)
Categories: General

Md. officers could assist in executing a search warrant in W.Va.

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

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

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

Permalink 08:45:38 am, by fourth, 756 words, 646 views   English (US)
Categories: General

Snitch's self-interest required officers to check out potential exigency before just acting on it

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

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

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

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

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

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

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

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

12/27/06

Permalink 08:06:26 am, by fourth, 338 words, 669 views   English (US)
Categories: General

Show of force was "overkill for the stated purpose of a 'knock and talk'" and voided consent

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

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

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

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

Permalink 07:59:10 am, by fourth, 346 words, 516 views   English (US)
Categories: General

Terry stop justified in part because of issuance of search warrant and the facts in support of the warrant

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

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

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

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

12/26/06

Permalink 09:27:48 am, by fourth, 847 words, 456 views   English (US)
Categories: General

Pre-Miranda question "where's your gun" did not justify suppression under Quarles

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

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

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

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

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

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

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

12/25/06

Permalink 06:05:46 am, by fourth, 141 words, 413 views   English (US)
Categories: General

All California parolees are subject to a search provision by any officer

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

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

12/24/06

Permalink 01:56:53 pm, by fourth, 769 words, 1939 views   English (US)
Categories: General

Consent to look in a car in New York is not consent to search it

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

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

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

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

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

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

. . .

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

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

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

Permalink 01:56:27 pm, by fourth, 527 words, 746 views   English (US)
Categories: General

D.N.J.: School drug testing under individualized suspicion was constitutional

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

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

. . .

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

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

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

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

12/23/06

Permalink 04:05:02 pm, by fourth, 696 words, 418 views   English (US)
Categories: General

Consent to give DNA sample in an assault case was not improperly obtained when the police intended to use it in a murder case which defendant had already been interviewed about

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

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

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

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

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

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

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

Permalink 03:41:59 pm, by fourth, 1094 words, 502 views   English (US)
Categories: General

E.D. Wisc.: State gaming officials had access to racing dog kennels but could not install video surveillance to look for steroid use on racing dogs

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

2. Necessity of Warrantless Video Surveillance

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

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

3. Adequate Substitute for a Warrant

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

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

As to qualified immunity:

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

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

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

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

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

12/22/06

Permalink 08:07:46 pm, by fourth, 91 words, 2106 views   English (US)
Categories: General

Updated post: Ruttenberg v. Jones

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

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

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

Permalink 09:01:21 am, by fourth, 187 words, 2051 views   English (US)
Categories: General

AP: "Ex-cop plans 'don't get busted' video"

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

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

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

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

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

. . .

Permalink 08:58:04 am, by fourth, 385 words, 404 views   English (US)
Categories: General

Defendant's eviction from grandmother's house led to officer coming to aid in removing him, and a crack pipe was seen in plain view

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

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

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

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

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

Permalink 08:11:22 am, by fourth, 405 words, 407 views   English (US)
Categories: General

E.D. Wash: Day care centers are pervasively regulated businesses

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

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

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

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

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

Permalink 05:26:45 am, by fourth, 1065 words, 798 views   English (US)
Categories: General

Hot pursuit of suspect running to apartment shouting that the police were there justified warrantless entry to prevent destruction of evidence

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

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

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

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

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

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

12/21/06

Permalink 10:39:33 pm, by fourth, 524 words, 2817 views   English (US)
Categories: General

CNN.com: "Police want bullet in teen's forehead"

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

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

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

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

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

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

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

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

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

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

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

Permalink 08:50:57 am, by fourth, 623 words, 510 views   English (US)
Categories: General

Randolph does not require the police to seek out every potential objector to a search before seeking consent

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

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

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

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

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

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

12/20/06

Permalink 06:25:16 pm, by fourth, 786 words, 409 views   English (US)
Categories: General

Suppressed search not collateral estoppel in § 1983 case against officer

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

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

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

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

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

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

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

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

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

Permalink 07:49:45 am, by fourth, 135 words, 396 views   English (US)
Categories: General

Open container violation supports stop

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

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

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

(More later.)

12/19/06

Permalink 08:48:09 am, by fourth, 169 words, 417 views   English (US)
Categories: General

NYC federal jury: NYPD policy of detaining protestors overnight instead of being given a desk ticket appearance agreement unconstitutional

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

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

Permalink 07:38:17 am, by fourth, 390 words, 530 views   English (US)
Categories: General

Defendant in handcuffs for officer's safety would not feel free to leave

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

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

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

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

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

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

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

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

Permalink 06:58:40 am, by fourth, 640 words, 364 views   English (US)
Categories: General

Order during stop to place hands on top of the car is a show of authority

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

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

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

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

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

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

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

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

12/18/06

Permalink 07:05:04 am, by fourth, 6 words, 1463 views   English (US)
Categories: General

No cases of any significance today.

12/17/06

Permalink 02:21:36 pm, by fourth, 417 words, 415 views   English (US)
Categories: General

During what appeared to be a consensual encounter with three people, defendant tried to leave and the officer said "Ms. Botto, can you come back here please?", and this was a seizure.

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

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

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

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

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

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

Permalink 11:07:00 am, by fourth, 954 words, 491 views   English (US)
Categories: General

Notice to appear in court is not a Fourth Amendment seizure

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

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

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

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

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

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

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

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

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

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

12/16/06

Permalink 11:33:32 am, by fourth, 292 words, 427 views   English (US)
Categories: General

Stop on hunch and asking for driver's license was invalid

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

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

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

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

Permalink 11:19:10 am, by fourth, 1604 words, 8554 views   English (US)
Categories: General

Younger abstention did not bar suit where administrative agency could not resolve claim, but plaintiff loses on the merits of the Fourth Amendment claim where the court found it reasonable, despite the fact the administrative search was clearly a criminal search

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

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

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

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

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

More from the case:

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

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

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

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

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

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

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

Permalink 10:44:23 am, by fourth, 432 words, 559 views   English (US)
Categories: General

Illegal entry into open garage which resulted in no seizure and happened without defendant's knowledge did not void his consent

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

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

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

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

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

12/15/06

Permalink 07:57:34 pm, by fourth, 323 words, 544 views   English (US)
Categories: General

NY: Search warrant for persons associated with a car containing drugs permitted a strip search of the occupants

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

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

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

Permalink 07:51:07 pm, by fourth, 809 words, 625 views   English (US)
Categories: General

Lost warrant was held recreateable despite possible tampering allegation

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

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

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

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

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

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

Permalink 07:43:39 pm, by fourth, 235 words, 411 views   English (US)
Categories: General

Illinois court questions pre-Thornton contemporaneity case law

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

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

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

Permalink 08:06:14 am, by fourth, 223 words, 438 views   English (US)
Categories: General

Florida wrongly holds that holding a driver's license of a pedestrian does not equate to a seizure

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

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

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

Permalink 08:03:27 am, by fourth, 474 words, 544 views   English (US)
Categories: General

Patdown for identification unlawful; to hold otherwise rewrites Terry

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

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

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

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

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

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

Permalink 07:11:37 am, by fourth, 375 words, 578 views   English (US)
Categories: General

Parole search incident also need not follow actual arrest

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

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

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

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

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

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

12/14/06

Permalink 09:32:20 am, by fourth, 356 words, 2112 views   English (US)
Categories: General

Home Depot's ad on "pulled over Santa" too close for comfort

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

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

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

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

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

Permalink 08:55:20 am, by fourth, 406 words, 496 views   English (US)
Categories: General

PLRA required setting aside 1982 strip search decree because defendants were generally in compliance

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

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

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

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

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

Permalink 08:48:47 am, by fourth, 835 words, 1186 views   English (US)
Categories: General

Impounding car from street lawfully parked in front of defendant's house was unjustified under community caretaking function

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

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

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

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

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

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

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

12/13/06

Permalink 11:30:36 am, by fourth, 1074 words, 3808 views   English (US)
Categories: General

Search warrant records generally ordered unsealed on defendant's motion

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

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

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

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

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

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

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

III. Conclusion

For the reasons stated above, it is hereby

ORDERED that:

. . .

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

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

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

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

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

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

Permalink 09:25:44 am, by fourth, 367 words, 511 views   English (US)
Categories: General

9th Cir.: Probation search extends to probationer's business

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

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

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

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

12/12/06

Permalink 03:02:13 pm, by fourth, 81 words, 379 views   English (US)
Categories: General

Younger abstention bars federal action over state subpoenas and search warrants that can be litigated in state court

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

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

12/11/06

Permalink 11:00:59 am, by fourth, 15 words, 388 views   English (US)
Categories: General

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

12/10/06

Permalink 10:50:35 am, by fourth, 583 words, 454 views   English (US)
Categories: General

Smell of ether alone is not enough to justify search of a car; more is required

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

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

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

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

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

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

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

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

12/09/06

Permalink 07:16:26 pm, by fourth, 162 words, 384 views   English (US)
Categories: General

Search incident does not require independent exigent circumstances

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

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

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

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

Permalink 06:59:37 pm, by fourth, 551 words, 1330 views   English (US)
Categories: General

Officer's training in interpreting body language ("kinesics") supports reasonable suspicion

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

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

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

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

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

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

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

12/08/06

Permalink 07:39:14 am, by fourth, 227 words, 550 views   English (US)
Categories: General

Reasonable suspicion of drug possession in high crime area = likely possession of weapon for patdown

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

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

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

Permalink 07:17:05 am, by fourth, 368 words, 730 views   English (US)
Categories: General

FL 2DCA: Operating meth lab inherently dangerous and exigent circumstances for warrantless entry

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

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

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

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

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

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

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

Permalink 06:49:44 am, by fourth, 621 words, 350 views   English (US)
Categories: General

Utah: Local practice of court destroying warrant papers and letting police be the repository of search warrant records violates statute and Fourth Amendment

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

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

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

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

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

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

Permalink 05:51:16 am, by fourth, 258 words, 385 views   English (US)
Categories: General

Reasonable suspicion for a roadside stop existed, so refusal of consent led to use of a drug dog, but refusal of consent was not a factor in reasonable suspicion

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

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

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

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

12/07/06

Permalink 01:04:30 pm, by fourth, 166 words, 402 views   English (US)
Categories: General

CA: Verdict for officers in § 1983 excessive force case is not res judicata for state action for negligence

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

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

Permalink 12:56:39 pm, by fourth, 818 words, 556 views   English (US)
Categories: General

Knock and talk which led to officers seeing surveillance monitor through window, coupled with knowledge of weapons inside, created exigent circumstances to enter

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

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

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

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

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

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

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

12/06/06

Permalink 09:36:55 pm, by fourth, 535 words, 483 views   English (US)
Categories: General

Md. follows Belton and Thornton and whole of passenger compartment is subject to search incident

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

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

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

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

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

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

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

Permalink 06:10:20 am, by fourth, 247 words, 339 views   English (US)
Categories: General

IL: Prior litigation of motion to suppress that was not appealed could not be reopened in new trial 16 years later

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

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

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

(Trial today. More later.)

12/05/06

Permalink 07:11:31 am, by fourth, 763 words, 413 views   English (US)
Categories: General

"Get the fuck out of my house" is denial of consent; removing defendant and seeking consent from his wife violates Randolph

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

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

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

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

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

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

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

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

Permalink 06:38:53 am, by fourth, 953 words, 375 views   English (US)
Categories: General

Franks claim fails because of probable cause on the totality; even if omitted information had been included the warrant would have issued

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

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

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

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

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

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

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

12/04/06

Permalink 07:07:31 am, by fourth, 1047 words, 670 views   English (US)
Categories: General

2d Cir. affirms former cops' civil rights convictions for falsifying search warrants

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

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

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

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

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

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

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

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

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

12/03/06

Permalink 10:59:46 pm, by fourth, 207 words, 362 views   English (US)
Categories: General

In Atlanta shooting case, the police called for help for themselves and not their shooting victim

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

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

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

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

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

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

Permalink 10:53:38 pm, by fourth, 320 words, 465 views   English (US)
Categories: General

W.Va.: Question of exigent circumstances or hot pursuit for jury

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

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

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

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

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

12/02/06

Permalink 11:14:03 am, by fourth, 425 words, 1738 views   English (US)
Categories: General

FBI surreptitiously activating cellphone microphones as a "roving wiretap"

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

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

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

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

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

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

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

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

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

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

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

Permalink 09:50:06 am, by fourth, 269 words, 592 views   English (US)
Categories: General

MT: Probation "home visit" separate from a search

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

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

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

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

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

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

Permalink 08:43:40 am, by fourth, 867 words, 959 views   English (US)
Categories: General

Personal computer connected to Air Force base network on Prince Sultan Air Base in Saudi Arabia could be searched; connecting to system showed reduced expectation of privacy

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

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

. . .

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

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

As to the workplace search:

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

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

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

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

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

12/01/06

Permalink 11:26:19 pm, by fourth, 720 words, 1444 views   English (US)
Categories: General

TSA to have revealing backscatter body scanner running at Phoenix's Sky Harbor Airport by Christmas; Virtual voyeurism?

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

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

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

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

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

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

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

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

From the Electronic Privacy Information Center website:

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

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

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

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

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

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

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

Permalink 10:54:37 pm, by fourth, 758 words, 401 views   English (US)
Categories: General

Atlanta no-knocks produce little results?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They do not have a clue.

Permalink 12:11:53 pm, by fourth, 488 words, 388 views   English (US)
Categories: General

Search warrant and affidavit in the Atlanta SWAT shooting case is available online

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

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

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

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

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

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

Permalink 11:44:52 am, by fourth, 206 words, 641 views   English (US)
Categories: General

TX: Civil standby in domestic case could constitute a search and seizure

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

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

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

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

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

Permalink 10:37:00 am, by fourth, 433 words, 699 views   English (US)
Categories: General

CA overrules Tyrell J.; knowledge of probationary status required for probation search

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

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

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

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

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

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

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

Permalink 09:38:37 am, by fourth, 1235 words, 787 views   English (US)
Categories: General

2d Cir.: Ferry company's search of car trunk under Homeland Security directive was not unreasonable under special needs doctrine

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

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

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

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

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

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

. . .

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

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

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

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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