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

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

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

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

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

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

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

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

. . .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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