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On de novo review of the USMJ's R&R, the affidavit for search warrant was devoid of probable cause, and no reasonable officer could rely upon it. United States v. Medina-Rodriquez, 2007 U.S. Dist. LEXIS 94196 (D. Minn. December 21, 2007):

Most importantly, there is no information in the affidavit that officers confirmed that the person seen leaving the Colfax residence actually resided at the residence. Nor is there any information included in the affidavit that officers conducted surveillance of the residence over a period of time to confirm that the residence was likely connected to illegal activity, or information from a reliable confidential informant that illegal activity took place at the residence.

In summary, the probable cause supporting the warrant for the Colfax Avenue North address is based solely on generalized information concerning "a group of Mexican nationals selling cocaine and Heroin in the Minneapolis/St. Paul area" and one controlled buy involving an individual that may or may not reside at the Colfax residence.

The good faith exception established in Leon should not be applied in certain circumstances. Id., 468 U.S. at 923. One such exception is where "an affidavit [is] 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). The Court finds that this exception applies in this case. Probable cause is not just lacking, it is practically nonexistent.

In a § 2255 case, the court finds that the search was valid, and the failure to deliver a copy of the warrant did not convert the search into a warrantless search nor did it prejudice the defendant. Garcia v. United States, 2007 U.S. Dist. LEXIS 94474 (W.D. Tex. November 28, 2007).*

Defendant's consent was valid. A part of the consideration was the fact that he had twice before refused consent. United States v. Kamil Madfoun Al-Esawi, 2007 U.S. Dist. LEXIS 94580 (D. Minn. October 31, 2007).*

Search of a church office computer of the pastor was unconstitutional. The operational realities of the workplace are to be considered. And, the defendant had a subjective expectation of privacy in his office computer. The fact that his superiors in the church could enter the office did not mean that the police could, too. State v. Young, 2007 Fla. App. LEXIS 20515 (Fla. App. 1DCA December 26, 2007):

Although the district superintendent had personal authority to enter Young's office, and to authorize others to do so, this authority did not displace the law enforcement officers' obligation to respect Young's independent constitutional rights and it did not rise to the level of "common authority" required for valid third party consent. Neither Moreland nor Neal had ever used Young's workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.

New Mexico holds that the exclusionary rule is inapplicable in civil abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep't. v. Michael T., 2007 NMCA 163, 143 N.M. 75, 172 P.3d 1287 (2007):

[*11] An abuse and neglect proceeding is not a criminal prosecution. See In re Pamela A.G., 2006 NMSC 19, P 12, 139 N.M. 459, 134 P.3d 746 (holding that the confrontation clause of the Sixth Amendment to the federal constitution does not apply because "neglect and abuse proceedings are civil proceedings"). Instead, abuse and neglect proceedings are brought on behalf of children by the state. NMSA 1978, § 32A-4-10 (2005). A stated purpose of the Children's Code is "to provide for the care, protection and wholesome mental and physical development of children ... and then to preserve the unity of the family whenever possible. The child's health and safety shall be the paramount concern." NMSA 1978, § 32A-1-3(A) (1999) (emphasis added). Under the Abuse and Neglect Act, "the paramount concern [in determining custody is] the child's health and safety." NMSA 1978, § 32A-4-7(D) (2005).

[*12] Father argues that abuse and neglect proceedings are quasi-criminal in nature and that extending the exclusionary rule is consistent with New Mexico's policy protecting Father's liberty interest in raising his children. Father's argument based on his rights as a parent ignores the underlying purpose of abuse and neglect proceedings and the Children's Code, which is to protect the rights of children. While this abuse and neglect proceeding may ultimately result in termination of Father's rights to parent his children, the purpose of the proceeding is to protect the children, not to punish Father. Because the nature of the proceeding is to protect the interests and well-being of the children, the purposes of the exclusionary rule-deterring unreasonable searches and seizures (under the United States Constitution) and preserving the status quo in order to protect a person's liberty interest (under the New Mexico Constitution)-would not be advanced if the evidence is suppressed.

[*13] We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule in the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State's interest in the protection of children.

911 dispatcher is included within the "collective knowledge" requirement. (See also People v. Ewing posted 12/23.) Government's argument defendant lacked standing to challenge his stop as a passenger is rejected (pre-Brendlin). United States v. Wehrle, 2007 U.S. Dist. LEXIS 94110 (S.D. Ga. January 29, 2007).*

Defendant failed to show standing in the truck he was driving, but, even if he did have it, he consented to the search of the truck. United States v. Figueroa-Espana, 511 F.3d 696 (7th Cir. 2007).*

Where plaintiff did not allege a § 1983 violation and proceeded directly under the Fourth and Sixth Amendment, the case could not be removed to federal court because there is no claim directly under the Fourth Amendment cognizable in federal court. Phillips v. Sacramento County, 2007 U.S. Dist. LEXIS 94489 (E.D. Cal. December 27, 2007).*

Informant was corroborated by officers before they sought a search warrant, so there was probable cause. United States v. Alford, 2007 U.S. Dist. LEXIS 93989 (E.D. Ky. December 20, 2007).*

NYC Taxi & Limousine Commission trip records are subject to seizure (by the City's admission), but it is reasonable. The court had already upheld the regulations in Alexandre v. New York City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007) (posted here). Buliga v. New York City Taxi Limousine Comm'n, 2007 U.S. Dist. LEXIS 94024 (S.D. N.Y. December 21, 2007):

With one possible exception, Buliga has not shown a reasonable expectation of privacy in any of the information that will be collected under the new rule. It is well established that there is no Fourth Amendment protection accorded information about the location and movement of cars on public thoroughfares. See United States v. Knotts, 460 U.S. 276, 281-82 (1982) (use of a beeper to signal location and movements of automobile); Morton v. Nassau Cty. Police Dep't, No. 05 Civ. 4000, 2007 WL 4264569, at *3 (E.D.N.Y. Nov. 27, 2007) (GPS device in car) (collecting cases); Alexandre, 2007 WL 2826952, at *9 (GPS system in taxicabs). Taxicabs in New York City have long been subject to regulation by the TLC, and those regulations have required cabdrivers to report not only the times and locations of trips but also the amount of fares. See 35 R.C.N.Y. § 2-28(a) (2003) (requiring drivers to report trip starting and ending times and locations and fare amounts, among other information).

After discussing the facts and contentions at length, defendant's consent to search his apartment of three weeks and a suitcase inside was consensual. United States v. Porras-Quintero, 2007 U.S. Dist. LEXIS 94047 (S.D. N.Y. December 21, 2007).*

Defendant had guest standing, but he loses on the merits of the search under a search warrant. United States v. Brooks, 2007 U.S. Dist. LEXIS 94173 (E.D. N.Y. December 21, 2007)*:

After reviewing the record, it appears to this court that at the very least, defendant was an overnight guest at the premises searched, and therefore has standing to challenge the legality of the search and seizure. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guests have a reasonable expectation of privacy in the home). Defendant has never disputed that the clothing seized, and now lost, was his. The presence of that clothing at the house when it was searched indicates his status, at a minimum as an overnight house guest, if not a resident, and this court therefore finds that he has standing to challenge the legality of the search.

Affidavit for a search warrant is different that an affidavit to show probable cause for an arrest. The former is to specifically identify property, things, or persons for which there is probable cause to seize. The latter requires probable cause to believe that the person committed a crime, so it may require a greater explanation of probable cause. (See Treatise § 3.2.) United States v. Abdallah, 2007 U.S. Dist. LEXIS 94089 (S.D. Tex. December 26, 2007):

Abdallah's argument that probable cause to support a warrantless arrest requires the same quantum of proof as probable cause to support a search warrant is not persuasive. "[W]hile it is true that there is ... common ground for discussing the quantum of evidence required under the Fourth Amendment's probable cause test, it does not follow that probable cause for arrest and probable cause to search are in all respects identical." 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.1(b) (4th ed. 2004). Probable cause to arrest exists "when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citing Spiller v. Texas City, 130 F.3d 162, 165 (5th Cir. 1997)). A probable-cause determination for the issuance of a search warrant is a "practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002) (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994)); see also Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006) ("Probable cause [to support a search warrant] exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of a crime.") (citing Gates, 462 U. S. at 238-39). "In the case of arrest, the conclusion [that probable cause exists] concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with the crime and to their present location." 2 LAFAVE, SEARCH AND SEIZURE § 3.1(b).

The Fifth Circuit has stated that an affidavit supporting a search warrant is sufficient to establish probable cause if the affidavit "make[s] it apparent ... that there is some nexus between the items to be seized and the criminal activity being investigated." Kohler, 470 F.3d at 1109 (citing Warden v. Hayden, 387 U.S. 294, 302, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)). In analyzing the sufficiency of an affidavit supporting a search warrant, a court "start[s] with the general proposition that a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that the fruits, instrumentalities, or evidence of criminal activity are located at the place to be searched." United States v. Webster, 750 F.2d 307, 318 (5th Cir. 1984) (citing 1 LAFAVE, SEARCH AND SEIZURE § 2.1(b) (1978)). It is not necessary for an affidavit accompanying a search warrant to allege specific intent on the part of an alleged perpetrator to establish probable cause to search the location identified in the affidavit.

Prisoner stated a § 1983 claim sufficient to survive Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A(b), screening. The allegation here was a baseless prison body cavity search conducted in the presence of other guards, including a female guard, without emergency. At the minimum, he can attempt to prove nominal and punitive damages. The district court erred in summary dismissal. Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007). (Comment: PRLA cases are not cited here because there are many that end up on Lexis, but seldom does one survive. This one did.)

In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), "Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest. Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible. As a result, Plaintiff's claims against Defendant Bell may proceed." The claim against the DMV is dismissed under the Eleventh Amendment.

Hawai'i decides a case on reasonable suspicion from where the officer had reason based on the timing of defendant's reappearence on the streets after a prior arrest for driving without a license. The court provides an insightful look into how the timing of the second sighting can provide reasonable suspicion. There was a dissenting opinion, too. State v. Spillner, 116 Haw. 351, 173 P.3d 498 (2007):

Spillner challenges this conclusion as applied to the instant matter. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer's prior knowledge of past violations, standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer's suspicion that a driver is committing the offenses of driving without a license or driving without adequate insurance.

This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving -- at a time during which the license-issuing authority has not yet reopened -- the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally observed by the officer, absent other observed violations of the traffic or safety codes.

Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior. To extend the hypothetical, if the second encounter occurs after the licensing authority has reopened, it would then be conceivable for the defendant to have renewed his or her license in the interim -- the realistic likelihood of the defendant doing so increasing with the passage of time -- but, depending on the particular facts informing the officer's decision, reasonable suspicion could still warrant effecting a traffic stop of the driver, despite the possibility of innocence, because "[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct," Arvizu, 534 U.S. at 277; see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007) ("Reasonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances before effecting a brief stop to investigate further.") (concluding that reliance on twenty-day old information that the driver did not have insurance did not render the investigatory stop unreasonable); Decoteau, 681 N.W.2d at 806 (explaining that "[t]he reasonable suspicion standard does not require an officer to rule out every possible innocent excuse ... before stopping a vehicle for investigation," and, insofar as "[p]robabilities, not hard certainties, are used in determining reasonable suspicion," concluding that "[t]he officer's suspicion is not rendered unreasonable merely because the driver's license may have been reinstated in the intervening week").

Owner of rental units' nephew had apparent authority to consent to entry of his uncle's cabin he was caring for that he thought had intruders in it. This right was superior to the person inside who had an oral sublease never conveyed to the landlord. People v. Dean, 2007 NY Slip Op 10417, 46 A.D.3d 1229, 848 N.Y.S.2d 736 (3d Dist. 2007):

Here, "based upon an objective view of the circumstances present" (People v Adams, supra), the trooper's belief that the nephew, as the caretaker of the property, had authority to consent to the search of a rental unit that was supposed to be vacant was reasonable (see id.; ...). Stated otherwise, it was reasonable to conclude that the nephew had authority to permit the trooper to enter a rental unit that he, as well as Rolleri, believed to be empty to investigate the complaint of intruders inside (see People v McMahon, supra). While defendant apparently believed he had a right to live in the cabin based on an alleged oral sublease with the departing tenant, this arrangement was never conveyed to Rolleri or the nephew; thus, their rights, as property owner and caretaker, respectively, to permit access inside the cabin remained intact (compare People v Ponto, 103 AD2d 573 [1984]).

Defendant never specifically addressed the issue he appealed on in the motion or the hearing so he can't complain that the trial court did not rule on it. State v. Atchley, 2007 Ohio 7009, 2007 Ohio App. LEXIS 6141 (10th Dist. December 27, 2007).*

Inventory here was not shown by the state to be permitted by standard police policy. Recital of reasons for an inventory shows nothing of policy. State v. Fann, 2007 Ohio 6985, 2007 Ohio App. LEXIS 6115 (8th Dist. December 27, 2007):

[*P18] As an administrative function unrelated to a criminal investigation, an inventory search does not implicate the policies underlying the warrant requirement of the Fourth Amendment. Id. at 109. "In order for an inventory search to be constitutionally valid, it must be 'reasonable,' that is, it must be conducted in good faith, not as a pretext for an investigative search, and in accordance with standardized police procedures or established routine." State v. Wilcoxson (July 25, 1997), Montgomery App. No. 15928, 1997 Ohio App. LEXIS 3566. See, also, State v. Sarrocco (1997), 96 Ohio Misc.2d 1, 4, 707 N.E.2d 1219 ("Evidence of standardized criteria or established routine establishes that the claimed inventory search is not just a ruse for an otherwise illegal search."); State v. Corrado (Feb. 20, 1998), Lake App. No. 96-L-104, 1998 Ohio App. LEXIS 642 ("Without evidence of the policy as it relates to [containers found in a vehicle], an inventory search of such containers *** is constitutionally impermissible.").

[*P19] In analyzing the State's argument, we note a distinction between "policy" and "reasons." The portion of Mesa relied on by the State sets forth the "reasons" why police departments conduct inventory searches. Thus, the testimony of the detectives basically recited the Mesa reasons, but did not provide any insight into the Cleveland police department's policy, practice or procedure when conducting an inventory search. For example, the testimony did not state that the Cleveland police department's policy is to search areas where items are protruding from enclosed areas. To the contrary, Detective Spencer testified that he generally would not search an area covering a speaker, but his "curiosity" prompted him to do so in this case. Moreover, Detective O'Donnell testified that she did not know what the police department's policy was in regard to such a search.

The affidavit for the anticipatory search warrant validly described the triggering event for execution of the warrant. (All that really doesn't matter, however, because the court also finds probable cause to search the premise regardless of the triggering event.) State v. Blevins, 2007 Ohio 6972, 2007 Ohio App. LEXIS 6109 (3d Dist. December 26, 2007). Comment: The court discusses at length, for what it is worth, the "sure and irreversible course" for triggering events, which is at least worth the read.

Knock-and-talk by three officers who started off interrogating defendant about drugs was coercive, so the consent was invalid. State v. Frye, 2007 Ohio 6941, 2007 Ohio App. LEXIS 6088 (11th Dist. December 24, 2007):

[*P27] Obviously, there were no exigent circumstances pertaining to the search of Mr. Frye's RV: this was a pre-planned, warrantless search, relying for its validity solely on his consent. Under the totality of the circumstances, that consent cannot be deemed voluntary. Three police officers, without a warrant and without probable cause, showed up at Mr. Frye's door, seeking to search his home. This implies coercion. That invalidates his consent. Cf. Robinette at 242-243. While the United States Supreme Court has refused to adopt a "waiver statement" as a requirement for showing a search is voluntary, see, e.g., Robinette at 242, in this case, the police had already obtained a written consent from Mr. Perkins to search his grounds. They could have provided a similar document to Mr. Frye when seeking to search his RV.

Doctor-patient privilege did not protect blood sample drawn by search warrant with probable cause. People v. Elysee, 2007 NY Slip Op 10172, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007).

Search of juvenile's purse was unjustified. Police received a 911 call from her mother who claimed that she was suicidal, and the police found her walking down the street carrying a blue purse. Officers seized the purse and searched it finding only a marijuana pipe. They searched the house with the mother's consent finding nothing. In re Tiffany O., 217 Ariz. 370, 174 P.3d 282, 520 Ariz. Adv. Rep. 7 (2007):

P11 There is no evidence in the record that the 9-1-1 call mentioned that Appellant had or was threatening anyone with a weapon. There was no sign of a weapon when the officers arrived on the scene, and upon their arrival, they saw no domestic violence or suicide attempt taking place. Officer Stewart testified, however, that the seizure of the purse was justified because when Mother called 9-1-1 she indicated Appellant was suicidal and, therefore, he thought there might be a weapon in the purse with which Appellant might harm either herself or him. We assume, without deciding, that this justifies Officer Stewart's seizure of Appellant's purse.

Masschusetts has previously held that surreptitious recording by a snitch in a private home violated the state constitution. In this case, a visitor was involved, and the court held that probable cause and exigent circumstances justified it. Commonwealth v. Rodriguez, 450 Mass. 302, 877 N.E.2d 1274 (2007):

We assume, without deciding, that the defendant had a reasonable expectation of privacy in the private home in which Tirado was staying. See Commonwealth v. Blood, supra at 68. Thus, a "search" and "seizure" occurred in the constitutional sense when police secretly wiretapped the defendant's conversation in Tirado's wife's home. See id. at 77 ("As to each of [the] conversations [recorded in a private home], we hold that its warrantless electronic search by surreptitious transmission and its electronic seizure by surreptitious recording were in violation of art. 14"). Even given this assumption, the interception did not violate art. 14 because it was justified by probable cause and exigent circumstances. See id. at 70 n.10 ("We do not, of course, preclude the propriety of warrantless electronic surveillance conducted on probable cause in exigent circumstances").

The defendant contends that exigent circumstances did not exist because the police were in control of the timing of the defendant's arrival at Tirado's wife's apartment and could have obtained a warrant before asking Tirado to telephone the defendant. We conclude otherwise. The police here acted reasonably throughout. A large shipment of cocaine had been addressed to and signed for by a suspect who, in the face of this incriminating evidence, denied immediately that the package was his, claiming instead that it belonged to a "friend." The police cannot be faulted for asking Tirado to contact the defendant in an attempt to substantiate Tirado's story promptly.

Once Tirado placed the telephone call to the defendant and the defendant indicated that he would be arriving in a taxicab, both probable cause and exigent circumstances were present. Tirado's initially questionable story was quickly turning into reality, and there was no time to obtain a warrant. Officer Soto's observation that a man matching Tirado's description had entered a taxicab at the address Tirado had given, and was en route to 5 Ardmore Street, further confirmed Tirado's story. We reemphasize that the standards for an exigency are strict, Commonwealth v. Forde, 367 Mass. 798, 800, 329 N.E.2d 717 (1975), and police cannot intentionally create exigencies to evade the warrant requirement. In this case, however, we conclude that the police acted reasonably in the course of their investigation, and, given the unexpected turn of events, had no opportunity to obtain a warrant. See id. at 802-803 ("where the police are conducting an investigation of continuing criminal activities, the exigency of circumstances which develop unexpectedly is not diminished by the fact that in hindsight it appears that there would have been time to obtain a warrant").

There clearly was probable cause to search the defendant's car under the automobile exception (which will not be recounted here), and the car was sufficiently mobile to justify its search, despite the fact that the officers had two people in custody away from the cars and they had the keys so confederates could not get in the cars. United States v. Smith, 510 F.3d 641, 2007 FED App. 0500P (6th Cir. 2007):

Smith suggests that the automobile exception is not applicable in the present case because the Pontiac was not mobile: at the time of the search, the officers possessed the keys and had the only two users of the vehicle under their control. However, both this court and the Supreme Court have reiterated on numerous occasions that the automobile exception is justified not only by the exigency created by the "ready mobility" of vehicles, but also by the lesser expectation of privacy operators have in their vehicles. Carney, 471 U.S. at 391; Graham, 275 F.3d at 509. This court, moreover, has upheld warrantless automobile searches in which officers were in control of both the keys to the vehicle and the operator of the vehicle. See Graham, 275 F.3d at 507-11; see also Hofstatter, 8 F.3d at 322 ("Although the government might have had time to secure a warrant to search the automobile, there was no requirement that it do so.").

Plaintiff had no standing to challenge an alleged profile stop of another, and the stops of him were with probable cause, so his case is dismissed. McCann v. Winslow Twp., 2007 U.S. Dist. LEXIS 93594 (D. N.J. December 20, 2007).*

Trial testimony about search revealed nothing that would indicate defense counsel was ineffective for not filing a motion to suppress, and petitioner's moving papers add nothing to that. Lamb v. United States, 2007 U.S. Dist. LEXIS 93804 (M.D. Fla. December 21, 2007).*

Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007) (click on the title for free link). From the summary:

The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy “reasonable.” The Court’s refusal has disappointed scholars and frustrated students for four decades. This Article explains why the Supreme Court cannot provide an answer: no one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one approach, the Supreme Court has recognized four coexisting approaches. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. Using multiple models has a major advantage over using one model. It allows the courts to use different approaches in different contexts depending on which approach most accurately and consistently identifies practices that need Fourth Amendment regulation. Explicit recognition of the four models would advance this function, resulting in more accurate and consistent Fourth Amendment rules.

Kerr is a former clerk for Justice Kennedy, and he has joined the LaFave and Kamisar casebook and hornbook series.

The table of contents:

INTRODUCTION, 504
I. THE FOUR MODELS, 507
A. The Probabilistic Model, 508
B. The Private Facts Model, 512
C. The Positive Law Model, 516
D. The Policy Model, 519
E. The Relationship Among the Models, 522
II. THE CASE FOR MULTIPLE MODELS OF FOURTH AMENDMENT PROTECTION, 525
A. The Goals of the Reasonable Expectations of Privacy Test, 526
B. Why the Proxy Models Cannot Provide Exclusive Guides to Fourth
Amendment Protection, 531
1. The Probabilistic Model, 531
2. The Positive Law model, 532
3. The Private Facts Model, 534
C. Why the Policy Model Cannot Provide an Exclusive Guide to Fourth
Amendment Protection, 536
1. Lower Courts and the Reasonable Expectation of Privacy Test, 537
2. The Instability of the Policy Model in the Lower Courts, 539
D. The Case for Multiple Models, 542
1. Supreme Court Selection Among the Four Models, 543
2. Lower Court Use of the Four Models, 545
3. The Need for Recognition of the Four Models, 548
CONCLUSION, 549

"[T]here is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force." In an OSHA search case, the target of the administrative warrant argued that there should be an ability to litigate the warrant before the search and seizure, but the Fifth Circuit disagreed, in a case of first impression. Trinity Marine Prods. v. Chao, 512 F.3d 198 (5th Cir. 2007):

Trinity's so-called right finds no support in the Constitution's text or history and has never been blessed by the Supreme Court. In fact, the best reading of the leading Supreme Court case on point, Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), is decidedly against Trinity's claim. This is not surprising, because Trinity's argument makes no sense: Just as in the criminal context where a search by federal officers violates a suspect's constitutional rights but no charges are filed, a victim of an unconstitutional administrative search can affirmatively bring the grievance before a federal tribunal by means of a Bivens suit. There is no danger of an unremedied constitutional wrong.

. . .

At least in general practice, administrative warrants are different from criminal warrants also in how they are executed: If an employer refuses to allow OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA to bring an action for contempt against the employer. This differs from a criminal warrant; with "an honest-to-goodness criminal search warrant," the government will get "hold of a sledgehammer ... and [break] down [the] door." In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988). "Although moviegoers who remember the environmental police in the movie Ghostbusters will be surprised, the practice of allowing the target of an administrative warrant to forbid entry and thereby convert the warrant proceeding into a contempt proceeding is the standard method of enforcing such warrants." Id. Indeed, "[e]ven the compliance officers of the Drug Enforcement Agency [sic] are unarmed when executing administrative search warrants ...." Id.

. . .

Citing that footnote, the ALJ ruled that we have already countenanced the use of physical force in executing administrative warrants. Trinity, on the other hand, argues that the footnote is merely dictum, because the issue of "physical force" was not before this court, and that Judge Goldberg, the author of Shellcast, did not accord the footnote precedential value in subsequent cases.

Trinity, for instance, points to language in a number of cases, some written by Judge Goldberg, that it argues demonstrates that administrative warrants cannot be executed by force. First cited is Brock v. Gretna Machine & Ironworks, 769 F.2d 1110 (5th Cir. 1985). There, OSHA obtained an administrative warrant, but the employer "refused access." Id. at 1111. Civil contempt was sought, and "Gretna answered the complaint and counterclaimed, seeking a declaratory judgment that the inspection warrant was violative of its fourth amendment guarantees." Id. We vacated the district court's decision, holding that OSHA's warrant application was "fatally defective." Id. at 1113. Before addressing the flaws in the warrant application, however, we commented on the employer's refusal to allow OSHA access to inspect, stating that "Gretna had the option of seeking to quash the warrant before execution or, as it did, refuse entry and challenge the warrant in resulting civil contempt proceedings." Id. at 1111 n.3.

The ALJ rightly noted that "[t]he threat of physical force was never at issue" in Gretna, so the statement was dictum. Moreover, the footnote does not even necessarily support Trinity's position. Although it can be read to mean that it is impermissible to execute an administrative warrant by force, it can also be interpreted more narrowly to mean that an employer has "the option" to challenge a warrant in contempt proceedings only where OSHA has elected not to execute the warrant forcefully.

. . .

Undergirding Trinity's claims are a pair of flawed constitutional policy arguments. First, Trinity argues that, because after an administrative inspection takes place any challenge to the warrant is subject to the exhaustion of administrative remedies doctrine, it follows that if pre-enforcement civil contempt proceedings are not available to an employer, OSHA can unconstitutionally inspect a facility and, if it declines to issue citations, the unconstitutional inspection will go unremedied, because there will be no administrative forum to hear the matter. But, according to Trinity, if pre-enforcement contempt proceedings are an option, the employer can protect itself against the constitutional violation by risking contempt to challenge the warrant's validity before it is executed, thus avoiding the constitutional violation before it occurs. Second, Trinity contends that because the probable cause standard in administrative warrants is lower than for criminal warrants, employers should be able to challenge an administrative warrant before it is executed.

Trinity's first purported policy justification, raised at times in a number of cases, is not convincing. There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action. Though from an employer's perspective, Bivens may not be a perfect remedy, it is at least as attractive as requiring an employer to risk contempt to get pre-enforcement review of an administrative warrant. But at the same time, Bivens has an advantage that Trinity's proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant.

. . .

Trinity also briefly offers a second policy justification for its argument: "One reason a criminal warrant may be enforced by force is because of the more stringent showing of probable cause required ...." But though it is hornbook law that in the wake of Barlow's there is a lower standard of probable cause for administrative warrants, it does not follow that the due process requirements for executing administrative warrants are ratcheted up as an offset.

Because the natures of the possible punishment in administrative and criminal contexts differ, with criminal punishment greatly exceeding administrative citation, and because traditionally regulatory inspections required no warrant at all, it is unremarkable that the standard for obtaining an administrative warrant is considerably less stringent than that for criminal warrants. In fact, given the heightened constitutional concern for individuals enmeshed in criminal investigations, one would expect that it would be a criminal warrant--or none at all--that the government constitutionally cannot execute by force.

Barlow's also supports the view that there is no constitutional right to pre-enforcement review of administrative warrants. There the Court for the first time required OSHA inspectors to have a warrant. This was a dramatic change in the law. The Court recognized as much and so explicitly cut back the reach of its opinion by holding that the probable cause standard ordinarily associated with warrants does not apply to administrative warrants. Barlow's, 436 U.S. at 320-21.

Comment: This, of course, only makes sense because delay in executing the warrant allows for the condition of the scene to be changed, which defeats the entire warrant process. Even a search implicating the First Amendment at best provides only a limited pre-seizure hearing because of the implication of free speech rights.

District court denied a two level enhancement under U.S.S.G. § 3C1.1 for defendant's testimony at suppression hearing that contradicted three officers' testimony. United States v. Fleming, 2007 U.S. Dist. LEXIS 93680 (N.D. Ind. December 19, 2007) (free on Pacer):

In this case, the court found that the testimony of the Government witnesses at the suppression hearing was more worthy of credence than Fleming's testimony. Despite the court's ruling, it does not automatically follow that Fleming intentionally and knowingly gave false testimony. The court's ruling at the suppression hearing was that the resolution of a credibility issue between the Defendant and the Government supported the Government's position. The court did not find that Fleming obstructed justice by knowingly presenting false testimony. While the issue concerning the existence or nonexistence of a search warrant was clearly material, it is possible that Fleming was confused and/or mistaken at the time of the search of his residence. Whether his testimony was knowingly false, or whether he was simply confused, frightened, and/or mistaken at the time the officers appeared at his residence, is not an issue on which the court made a finding during the suppression hearing. Based on the court's recollection of the testimony and Fleming's demeanor, as well as the court's review of the transcript from that hearing, the court finds that the elements of perjury were not established by a preponderance of the evidence. Put another way, the evidence and testimony presented at the suppression hearing was insufficient to establish that Fleming's recitation of the events on the day of the search was knowingly false or intentionally calculated to mislead the court. Therefore, the court concludes that a two-level enhancement pursuant to U.S.S.G. § 3C1.1 is not warranted in this case.

Trial court's credibility determination on consent was based on the fact that defendant testified to the grand jury the search was consensual, contrary to at the hearing. United States v. Billman, 257 Fed. Appx. 904, 2007 FED App. 0851N (6th Cir. 2007)* (unpublished).

Petitioner's IAC claim fails. Defense counsel did not challenge the alleged warrantless search because there was a warrant. Winston v. United States, 2007 U.S. Dist. LEXIS 93503 (W.D. Mo. December 20, 2007)* (apparently the product of a jail house lawyer; I had a CJA appeal once where the jailhouse lawyer slipped an issue by the district court that was not even litigated).

A random license check on a vehicle that showed that defendant's vehicle was uninsured justified his stop. Snedeker v. Rolfe, 2007 UT App 395, 176 P.3d 444, 593 Utah Adv. Rep. 31 (2007).

Delay of nearly 30 minutes while officer awaited arrival of a back up officer for investigation of defendant's DWI stop was not unreasonable. Belcher v. State, 244 S.W.3d 531 (Tex. App. — Ft. Worth 2007):

Balancing the public interest served with Belcher's Fourth Amendment right to be free from arbitrary detentions and intrusions, as we must, and giving almost total deference to the trial court's historical fact findings, as we must, and viewing all of the evidence in the light most favorable to the trial court's ruling, as we must, we cannot conclude as a matter of Fourth Amendment law that, given the totality of the circumstances--including Officer Willenbrock's close monitoring of Officer Martin's whereabouts and estimated time of arrival at the scene and the legitimate law enforcement purposes served by waiting for Officer Martin--the continued detention of Belcher, while awaiting Officer Martin's arrival, was unreasonable. See Sharpe, 470 U.S. at 679, 105 S. Ct. at 1575; ... see also Hartman, 144 S.W.3d at 570 (five-to fifteen-minute delay to await arrival of video camera); Smith, 2007 WL 700834, at *4 (twenty-six minute delay to await arrival of rookie officer); Dickson, 2006 WL 3523789, at *4 (twenty-minute delay to await arrival of DWI enforcement officer).

Habeas petitioner used § 2241 v. § 2254, but he did not exhaust before the state courts, and the rules are no different under the former. No COA would issue. Corbin v. Attorney General of N.J., 2007 U.S. Dist. LEXIS 93574 (D. N.J. December 19, 2007).*

When the officer determined that the man he just handcuffed was not the suspect he was looking for, the continuation of the stop became unlawful. State v. Gunn, 2007 Ohio 6874, 2007 Ohio App. LEXIS 6035 (1st Dist. December 21, 2007):

Regardless of whether Gunn had been properly stopped based on the confidential informant's tip, the moment that Officer Hennie learned that Gunn was not the suspect, the reason for detaining Gunn dissipated, and Gunn should have been free to leave unless there were some reasonable, articulable facts giving rise to a suspicion of illegal activity. Here, there were no such facts presented by the state. Officer Hennie testified that he had initially stopped Gunn because he matched the description of the suspect and because Gunn was in the area where the drug purchase had allegedly occurred. He did not testify to any other behavior that would have led him to suspect that Gunn had been involved in illegal activity. Thus, Gunn's detention became illegal when he was kept handcuffed and on his knees, after the police had learned that Gunn was not the suspect.

Probable cause to search defendant's car permitted police to seize a pair of shoes to match them to footprints at the scene of the crime. The fact the car was parked on private property was of no moment when it was found. It had just been driven and was mobile, and potentially mobile is the question. State v. Miller, 2007 Ohio 6909, 2007 Ohio App. LEXIS 6045 (4th Dist. December 12, 2007).*

Seatbelt stop led to officer seeing an empty holster in the back seat, and that justified a patdown. As defendant stepped out, the officer smelled marijuana on his person, and the feel of a baggie made it immediately apparent he was in possession of marijuana. State v. Odom, 656 S.E.2d 748, 376 S.E.2d 330 (2007).*

Officer lacked a reasonable suspicion that defendant's temporary vehicle registration was expired when he made and continued the stop, but the court stresses that its holding is limited. People v. Dean, 158 Cal. App. 4th 377 (1st Dist. 2007)* (considering California's penchant for unpublished opinions, this one seems like it should have been too).

Highway patrol officer had authority to arrest petitioner for DWI on private property in construing state statute. Brewer v. Ziegler, 2007 ND 207, 743 N.W.2d 391 (2007).*

Contents of defendant's camcorder were properly viewed by Customs when defendant returned to the U.S. after having fled when others in his conspiracy had been previously arrested. It gave further information justifying indictment. United States v. Linarez-Delgado, 259 Fed. Appx. 506 (3d Cir. 2007) (unpublished).

Information that defendant had a paid subscription to a child porn site was probable cause to search his computer. Unpaid visits not necessarily so. United States v. Diaz, 529 F. Supp. 2d 792 (S.D. Tex. 2007).*

Defense counsel was not ineffective for not moving to suppress a shirt found during a search for the weapon used in a robbery where the shirt was lawfully seized. Landry v. Cain, 2007 U.S. Dist. LEXIS 93276 (E.D. La. October 23, 2007).*

Use of a flashlight to illuminuate defendant's pocket to make what was not visible at night visible was not an unreasonable search. Gibson v. Commonwealth, 2007 Va. App. LEXIS 446 (December 18, 2007).*

Car theft is an offense that carries with it enough risk of use of weapons to justify a frisk. Independently, there were facts justifying a frisk on reasonable suspicion. United States v. Bullock, 379 U.S. App. D.C. 114, 510 F.3d 342 (2007):

In this case, once Bullock could not produce the registration information and could not identify the owner of the car, Officer Jackson possessed reasonable suspicion that Bullock had stolen the car. Like burglary, car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize police officer safety, and thus justifies a protective frisk under Terry to ensure officer safety. As the Eighth Circuit has held, "when officers encounter suspected car thieves, they also may reasonably suspect that such individuals might possess weapons." United States v. Hanlon, 401 F.3d 926, 929 (8th Cir. 2005) (internal quotation marks omitted); see also United States v. Williams, 7 F. App'x 876, 885 (10th Cir. 2001) (permissible to frisk driver prior to consensual search of potentially stolen van); United States v. Bradley, 1990 WL 124205, at *2 (6th Cir. 1990) (officers were "justified in frisking both the driver and passenger of the car that they believed to have been recently stolen" because it was reasonable to believe that a person "suspected of having recently been involved in a car theft[] might have been armed and dangerous").

. . .

Statistics show that traffic stops continue to be extraordinarily dangerous to the police officers who risk their lives to protect the public. Every year in traffic stops and pursuits in the United States, about 6,000 police officers are assaulted-and about 10 officers are killed. U.S. DEP'T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED (2006), at http://www.fbi.gov/ucr/killed/2006/index.html. By ordering Bullock out of the car and frisking him for purposes of officer safety, Officer Jackson did not take "any unreasonable steps in attempting to ensure that he would not become one of these statistics." Holmes, 385 F.3d at 791.

Qualified immunity was improperly granted to an officer for a three hour detention of a Haitian-American who was driving a cargo van with ten cardboard barrels inside on the Taconic State Parkway in Westchester County. The officer suspected an IED, but neither a bombsniffing or a drug dog alerted. The officer had her unhandcuffed and required her to come to the stationhouse to clear it up. After a few telephone calls, the plaintiff's story checked out that she was merely driving the barrels to a shipping company that contained things the Haitian community in Westchester County was shipping home, and she was released. Gilles v. Repicky, 511 F.3d 239 (2d Cir. 2007).*

In yesterday's Washington Post is this: FBI Prepares Vast Database Of Biometrics:

CLARKSBURG, W. Va. -- The FBI is embarking on a $1 billion effort to build the world's largest computer database of people's physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are already flowing into FBI systems in a climate-controlled, secure basement here. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives. And in the coming years, law enforcement authorities around the world will be able to rely on iris patterns, face-shape data, scars and perhaps even the unique ways people walk and talk, to solve crimes and identify criminals and terrorists. The FBI will also retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

"Bigger. Faster. Better. That's the bottom line," said Thomas E. Bush III, assistant director of the FBI's Criminal Justice Information Services Division, which operates the database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It is drawing criticism from those who worry that people's bodies will become de facto national identification cards. Critics say that such government initiatives should not proceed without proof that the technology really can pick a criminal out of a crowd.

Aside from WaPo, it appeared on FreeInternetPress.

This isn't a hidden issue: A web search also produced the budget justification from the FBI, and websites that appear to be the FBI's and other government biometric specifications website.

The collective knowledge doctrine should be extended to include 911 operators. Surveying the case law, this view seems better to the court, but the officers had reasonable suspicion in any event. People v. Ewing, 377 Ill. App. 3d 585, 880 N.E.2d 587 (4th Dist. 2007):

The Illinois courts have yet to address whether information known to a civilian 9-1-1 dispatcher may be imputed to the police officers. Several federal circuits have extended the collective-knowledge doctrine to situations involving a dispatch by a civilian 9-1-1 operator as opposed to another police officer. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994); United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C. Cir. 1992).

The Second Circuit, however, has disagreed, finding that whether the knowledge may be imputed depends upon whether the 9-1-1 operator had sufficient training to assess the information in terms of reasonable suspicion. See United States v. Colon, 250 F.3d 130, 138 (2d Cir. 2001) (holding that the police officer had insufficient information from which to conclude that a stop and frisk was appropriate wherein the civilian 9-1-1 operator lacked the training to assess the information in terms of reasonable suspicion and failed to convey sufficient information to the police officer); see also United States v. Wehrle, No. CR406-333, slip op. at 4 (February 14, 2007), ___ F.3d ____, ____, 2007 WL 521882 (S.D. Ga. 2007) (holding that information known to the civilian 9-1-1 dispatcher could be imputed to the police officer where the dispatcher had specialized law-enforcement training).

We conclude that the cases that hold the imputed-knowledge doctrine includes information contained in calls to 9-1-1 operators are more persuasive than those holding to the contrary. However, even if we were not so persuaded, we would still conclude that the information communicated to the police officers provided them with sufficient information to form reasonable suspicion. ...

Officer candidly did not know what was in defendant's pocket; he knew it was not a weapon, and he had a hunch it was a crack pipe. That was not plain feel. State v. Daugherty, 2007 Ohio 6822, 2007 Ohio App. LEXIS 5961 (8th Dist. December 20, 2007):

[*P19] In the present case, because Detective Vanverty did not immediately identify the object as contraband, we therefore conclude that his seizure of the contraband went beyond the limits of Terry as propounded in Dickerson, supra, and Evans, supra.

[*P20] Detective Vanverth clearly stated in his testimony at the suppression hearing that the object he felt in Daugherty's pocket was "small *** probably the size of a pen, or maybe a pencil." The trial court later confirmed from the parties that the object was approximately two inches long with the diameter of a pen or a pencil. While the detective stated that he had a hunch that the object was a crack cocaine pipe, he testified numerous times that he was not sure what the object was. The limits of Evans, supra, and Dickerson, supra were clearly exceeded by Detective Vanverth's search and seizure.

A private search of a videotape that showed the defendant engaged in sexual conduct with two young girls led to the police being given the videotape, and they could view it without a warrant. State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (December 18, 2007):

While there appears to be no settled case law in North Carolina directly on point regarding the scope of a search involving the viewing of a videotape, we agree with the positions of the Fifth and Eleventh Circuits of the United States Court of Appeals, that "the police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties." United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) (finding no constitutional violation where the police viewed more images stored on a computer disc than did the private searcher); United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (holding the search of a box and viewing of videotapes by federal law enforcement agents "did not exceed the scope of the prior private searches for Fourth Amendment purposes simply because they took more time and were more thorough than the Federal Express agents"). Here, Mr. Young's viewing of the videotape did not violate the Fourth Amendment because he was a private party not acting under the authority of the State. Mr. Young's viewing of the videotape effectively frustrated defendant's expectation of privacy as to the contents of the videotape, and thus the subsequent viewing of the videotape by Detective Thompson did not violate defendant's rights under the Fourth Amendment. While Mr. Young stated that he had only viewed "portions" of the videotape, his viewing "opened the container" of the videotape and the subsequent viewing of the entire videotape was not outside the scope of Mr. Young's initial "search." Runyan, 275 F.3d at 465.

Defendant was a passenger with a person officers knew there was a warrant for, so they stopped the car. After the driver was arrested, the officers got the defendant out of the car and questioned him because they knew he had priors for drugs. He consented to a search of his apartment, and that led to finding identity theft paraphernalia. After his suppression hearing [apparently Brendlin was decided] on appeal, the state conceded he had standing because of his own stop and questioning after the purpose of the stop was complete with the arrest of the driver on old warrants. State v. Parra, 941 A.2d 799 (R.I. 2007).*

In a classic example of a scope of search being limited to that which is being sought, an officer who was permitted to enter to search for a person for whom he had an arrest warrant looked under a bed and pulled out a case and looked inside. That exceeded the scope of search. Looking in the closet was permissible, and the officer found guns. When defendant came home, the officer determined that defendant was a felon, so the seizure of the guns from the closet was valid. He pulled them out for his own safety until the search for the warranted person was complete. State v. Giamarco, 2007 Ohio 6794, 2007 Ohio App. LEXIS 5950 (5th Dist. December 3, 2007).*

Defendant's mere denial he was in possession of drugs found in his car was not "opening the door" to the state's offering evidence of his refusal of consent. He had a right to refuse consent, and this was not "opening the door" to anything. And, the state is caught parsing a quotation in its brief to leave out the part that benefits the defendant. State v. Moller, 217 Ore. App. 49, 174 P.3d 1063 (2007):

In this case, defendant exercised his constitutional right to refuse consent to a warrantless search of his car. And, the admission of evidence of that refusal invited inferences prejudicial to his defense. It would seem necessarily to follow that the trial court erred in admitting the evidence of defendant's refusal. As we have noted, the state concedes that ordinarily it is erroneous to admit evidence of a defendant's refusal to consent to a search. The state nevertheless insists that no reversible error occurred in this case because defendant, by insisting that he knew nothing of the contents of the car, invited the state to disprove the assertion with evidence of his refusal. Quoting Green, the state contends that evidence of defendant's refusal to consent to the search "is relevant in that it shows that he believed that the results [of a search] would tend to incriminate him and thus shows that he believed that he was guilty." 68 Ore. App. at 522.

The state does not explain, however, and we do not understand, how a defendant "opens the door" to testimony about a decision to invoke his constitutional rights merely by denying that he committed the crime charged. The state's reliance on Green certainly does not provide the answer to that question. The portion of the decision that it quotes is taken from this court's explanation of why evidence of a defendant's exercise of constitutional rights cannot be admitted, i.e., precisely because it may give rise to an inference that the defendant believes that he or she had something to hide. It is, we explained in the balance of the paragraph from which the state derives its quotation,

"testimony concerning the defendant's belief in the central issue of the case. For him to reveal his inner thoughts [by electing, in that case, to refuse to take a field sobriety test] is necessarily to make a communication, whether by words or by actions. For the state to compel a defendant to reveal those thoughts is to require him to testify against himself and thus to violate Article I, section 12, of the Oregon Constitution."

Id. at 522-23.

Changing the argument on appeal from the one presented to the trial court is a waiver of the argument not presented to the trial court. State v. Jones, 217 Ore. App. 110, 174 P.3d 1037 (2007).*

A Chicago federal jury awarded $15M to a man arrested in the murder and rape of his daughter and held for eight months until the DNA sample from the rape kit exonerated him. Later, other DNA evidence exonerated him, too. Fox gets $15.5 million, from the Chicago Tribune. The defense vows an appeal contending the trial judge refused to admit evidence of probable cause. The defendants were found liable for false arrest but not false imprisonment or conspiracy.

In what is believed to be the largest award of its kind in Illinois history, a federal jury Thursday awarded $15.5 million to Kevin Fox and his wife, after deciding Will County sheriff's detectives falsely arrested Fox in the sexual assault and murder of his 3-year-old daughter, Riley.

The five-man, five-woman jury held Sgt. Edward Hayes, three sheriff's deputies who worked as detectives under him and the estate of a fourth deputy liable for false arrest, violation of Fox's due-process rights, malicious prosecution and infliction of severe emotional distress to Fox and his wife. They also held the men liable for loss of consortium, a count brought by Fox's wife, Melissa.

. . .

The jury deliberated for more than 16 hours over three days at the end of the seven-week trial.

Some opinions are: Fox v. Office of the Sheriff of Will County, 2005 U.S. Dist. LEXIS 11720 (N.D. Ill. May 26, 2005), motion granted in part, denied in part, Fox v. Tomczak, 2006 U.S. Dist. LEXIS 27654 (N.D. Ill. Apr. 26, 2006).

False assertion that search warrant was coming tainted consent. State v. Tietsort, 145 Idaho 112, 175 P.3d 801 (App. 2007):

In the case before us, the district court made a factual finding, which is supported by the evidence, that before Tietsort consented to a search of outbuildings and vehicles, the officers told him that they were waiting for a search warrant to arrive. The district court also found that Tietsort's consent to a search of his outbuildings and vehicles was voluntary. In making this finding of voluntariness, however, the court did not consider whether the officers' assertions to Tietsort that they had discovered stolen items and could obtain a search warrant constituted an exploitation of any illegality in the prior search that tainted the consent and rendered it involuntary.

A consent is not rendered invalid merely because an officer has said that a warrant will be sought if consent is refused, ... but a false representation that the officer possesses a warrant amounts to coercion. Bumper v. North Carolina, 391 U.S. 543, 548-50 (1968). The State's burden to show that consent was freely and voluntarily given cannot be met by "showing no more than acquiescence to a claim of lawful authority." Id. at 548-49. The Bumper opinion explains: "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id. at 550. Here, officers did not falsely represent that they possessed a warrant, but they did assert the ability and intent to obtain one. An officer's false, erroneous or baseless representation of the ability to obtain a warrant weighs against a finding of voluntariness, .... (citations omitted)

Officers had probable cause based on defendant's meeting up with CI and what they heard on the wire about drugs and counting of money. United States v. Easter, 2007 U.S. Dist. LEXIS 93235 (M.D. Pa. December 18, 2007).*

Defense counsel was not ineffective for not filing a suppression motion because it would not prevail on the merits, which the court determines under the IAC claim. There was cause for the defendant's stop and the gun was seen in plain view. State v. Altman, 2007 Ohio 6761, 2007 Ohio App. LEXIS 5935 (5th Dist. December 14, 2007).*

A school search was reasonable when it was based on a note passed that was only reasonably interpreted as a threat to kill another student. In re Garn, 2007 Ohio 6765, 2007 Ohio App. LEXIS 5941 (5th Dist. December 13, 2007).* (Comment: A threat of violence in school always leads to a search being sustained.)

Officer telling defendant that if he turned over the gun he would not be charged with it amounted to coercion for consent when defendant ended up charged in federal court. United States v. Pantoja-Ramirez, 2007 U.S. Dist. LEXIS 92835 (D. Ida. December 17, 2007):

Still later, however, Officer Hemmert states that he is going to seize the shotgun, write a ticket for drug paraphernalia, "and then I'll talk to the corporal and see what he wants to do about everything else." See Transcript at p. 5. This is as close as Officer Hemmert gets to saying that he is not offering immunity for the shotgun and that the ultimate charging decision will be made elsewhere.

The bottom line is that Officer Hemmert's attempt to procure the consent of Pantoja-Ramirez is confusing. Listening to the entire exchange, a reasonable person could conclude either that Officer Hemmert (1) offered immunity for the shotgun, or (2) offered only to defer charges now, and let someone else make the ultimate charging decision.

Such a "contradictory alternative message" has been held by this Circuit in the Miranda context to be "at best misleading and confusing, and, at worst, ... a subtle temptation to the unsophisticated" defendant to waive a right. See United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989). The police cannot "appear to take away with one hand what they were offering with the other." Id. at 1353 (quoting Emler v. Duckworth, 549 F.Supp. 379, 381 (N.D.Ind.1982)).

These principles apply with equal strength here. Officer Hemmert cannot appear to offer immunity, and then rely on other statements that contradict that offer. A reasonable person in Pantoja-Rameriz's position could have concluded that Officer Hammert offered immunity for the shotgun. The Court must assume that Pantoja-Rameriez's consent was based on that reasonable interpretation. When that promise was broken, the scope of the search exceeded the scope of the consent. Consequently, the Government has not carried its burden of showing that the search did not exceed the scope of the consent, and the motion to suppress must be granted.

Officer's testimony that he smelled burnt marijuana when he stopped defendants and could read the label of a prescription bottle from outside the car was found just not credible. Nothing corroborated it at all. United States v. Shields, 2007 U.S. Dist. LEXIS 92929 (W.D. Tenn. December 18, 2007):

The Government asserts that probable cause to arrest the Defendants and, therefore, to search their persons, existed at the time Carter detected the marijuana smell coming out of the window and when he observed the prescription bottle bearing the name of another. However, the Court finds that Carter's testimony with respect to the marijuana smell and the identification on the prescription bottle in Shields' lap is not credible. It is uncontroverted that there was no objective evidence, such as rolling papers, roach clips or blunts, to indicate that Defendants had been smoking marijuana in the vehicle. Nor was there any evidence presented at the hearing to suggest that a small amount of marijuana in a sandwich bag hidden in a pants pocket, or a few small stems and seeds, would exude sufficient odor to cause the "quick gush" of the smell described by the officer to emanate from the two-inch crack in the window. See United States v. Mercadel, 75 F.App'x 983 at *5 (5th Cir. 2003) (failure of police to find any evidence of recently smoked marijuana supported court's conclusion that officer's testimony that he smelled marijuana was not credible).

School district's plan to record audio in certain classrooms during the day did not raise a Fourth Amendment claim. There is no expectation of privacy as to what is said in a classroom. Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755 (N.D. Ill. 2007):

What is said and done in a public classroom is not merely liable to being overheard and repeated, but is likely to be overheard and repeated. See, e.g., Evens v. The Superior Court of Los Angeles County, 77 Cal.App.4th 320, 325 (2d Dist 1999) (finding teacher's expectations that her communications would be confined to the classroom unreasonable, that such communications "will virtually never be confined to the classroom," and that students "will, and usually do, discuss a teacher's communications and activities with their parents, other students, other teachers, and administrators."). A classroom in a public school is not the private property of any teacher. A classroom is a public space in which government employees communicate with members of the public. There is nothing private about communications which take place in such a setting. Any expectations of privacy concerning communications taking place in special education classrooms such as those subject to the proposed audio monitoring in this case are inherently unreasonable and beyond the protection of the Fourth Amendment.

Plaintiff's cause of action for false arrest would have arisen on their arrest and not later production of a false consent form that they didn't even rely on. Dean v. Behrend, 2007 U.S. Dist. LEXIS 93148 (N.D. Ill. December 19, 2007).*

Searches of police officer's office telephone records was permitted under Smith v. Maryland. Searches of his office computer hard drive and his departmentally issued equipment was within the operational realities of the workplace under O'Connor v. Ortega. Ober v. Miller, 2007 U.S. Dist. LEXIS 93236 (M.D. Pa. December 18, 2007).

Nighttime knock-and-talk was coercive, particularly when the officers were inside the house asking for consent. The defendant did not have to be handcuffed to feel coerced. United States v. Reynolds, 526 F. Supp. 2d 1330 (N.D. Ga. 2007):

Once in the living room, Mr. McCord and Mr. Reynolds were not free to leave. (Henry Tr. 76-77.) Though they were not in handcuffs, the court finds that there was coercive police presence at that point. The encounter took place at night, when the appearance of police officers on one's doorstep tends to be more coercive than during the day. Ramirez-Chilel, 289 F.3d at 751 n.8. In contrast to Deputy Henry's earlier request to move to the living room, Deputy Henry simply told Mr. McCord and Mr. Reynolds that he was going to look through the house for Mr. Miles. (Henry Tr. 18, 53.) That the officers did not attempt to seek permission from either occupant to search the house indicates that the defendants were not able to refuse consent. Without specifically addressing the rest of the Ramirez-Chilel factors, the totality of the circumstances indicates that Deputy Henry's first sweep was not a consensual search, based on Deputy Henry's acknowledgment that the men were not free to leave and the coercive way in which he informed them of, rather than requested, the search. By the time of Deputy Brown's second sweep, both Mr. McCord and Mr. Reynolds were in handcuffs. (Id. at 22.) The court finds that the second sweep was likewise not consensual.

A refusal (here asking for an attorney which was held not to be a refusal) is not required for issuance of a search warrant for blood under the Arizona implied consent statute. State v. Stanley, 217 Ariz. 253, 172 P.3d 848 (2007):

P22 Search warrants may be authorized "[w]hen property or things to be seized ... constitute any evidence which tends to show that a particular public offense has been committed, or tends to show that a particular person has committed the public offense." A.R.S. § 13-3912(4) (2001). The blood identified by the affidavit clearly meets that standard. Additionally, the statute requires that "[n]o search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched." A.R.S. § 13-3913 (2001). The affidavit here likewise meets that requirement. A refusal to take a test, though required to administratively revoke one's driver's license pursuant to A.R.S. § 28-1321, is not a requirement to the issuance of a search warrant in support of aggravated DUI.

The LAPD's May Day 2007 clash with Hispanics where "less than lethal force" was used was granted class certification status, including on excessive force grounds. The LAPD's own continuing investigation (Report on Mac Arthur Park Incident) was not reason for the court to defer. Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007):

(b) Third, Fifth, Sixth and Seventh Claims for Relief: Fourth Amendment and related state claims for excessive force.

The Fourth Amendment prohibits the use of unreasonable force in effecting a search or seizure of a suspect. The LAPD use or threat of force against the assembled crowd may constitute a seizure, although there are individual factual questions as to whether a given officer caused a particular individual to be displaced by the use or threat of force. The parties focus their arguments not on whether there was a seizure, but on whether the actions of the police officers were reasonable. Thus, Plaintiffs focus on the LAPD commanders' authorization of "less lethal" force (as distinct from the application of such force).

At the hearing on this motion, Defendants opposed certification because the LAPD is in the process of investigating which individual officers may be subject to discipline or liability. However, the scope of the Department's investigation is necessarily limited. It is difficult to determine the identity of the officers responsible for any particular injuries, because the officers wore riot gear that obscured their name tags and they fired munitions from various skirmish lines. Despite the extensive video coverage of the event, thus far the LAPD has identified only twenty-six officers for individual investigations. Hence, individualized assessments of whether an officer's use of force was reasonable will not be possible for the majority of putative class members. The LAPD's internal investigation is not a reason to defer certification.

The Court recognizes that the conduct of individual officers in the field may present individual issues of reasonableness, namely whether it was reasonable under the circumstances for a particular officer to fire less-lethal munitions, use his baton to strike people, or use other forms of force, such as pushing and shoving.

Nonetheless, the individual issues share a common source: the command decisions to disperse the crowd and to authorize the use of less-lethal munitions if the crowd's behavior warranted it. LAPD Report at 8, 34-35. Because the legality of these command decisions is the overriding common question, the predominance requirement is met as to the Fourth Amendment claim.

Defendant's consent to "look in the back" included tapping on the spare tire to listen to it. But, in this case, the spare tire was hanging under and outside the vehicle, so looking in the back had nothing to do with it. The officer's interest was piqued because it was a rental vehicle with four "fix a flat" containers, which the officer had never seen before. By the time the officer cut open the spare, there was already probable cause. United States v. Lyons, 510 F.3d 1225 (10th Cir. 2007).*

Reasonable suspicion existed after two vehicles were seen together on a road for alien smuggling after triggering a seismic device that brought attention to them. United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007).*

Search issue failed on plain error review. It involved one gun of three, and the defendant admitted his ownership of the gun to the police three months later, and it was not clear that the gun was illegally seized anyway. Finally, it was harmless. United States v. Carmelo, 257 Fed. Appx. 699 (4th Cir. 2007)* (unpublished).

Trial counsel was not ineffective for not moving to suppress the gun in the case because the gun was lawfully found under third party consent. Hendricks v. United States, 2007 U.S. Dist. LEXIS 92748 (N.D. Ohio December 18, 2007).*

Defendant had standing as an invited guest, but the inviter consented to a search of the premises. United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763 (D. S.D. December 17, 2007).*

The Federal Rules Committee has proposed a new F. R. Crim. P. 41(e)(2)(B) on search warrants for electronically stored evidence, here, page 24. The comment period closes February 15, 2008, and the new rule would not be effective until December 1, 2008, at the earliest. The new rule will read as follows:

Warrant to Search for Electronically Stored Information. A warrant may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes later review of the storage media or electronically stored information consistent with the warrant. The time for the executing of the warrant in Rule 41(e) and (f) refers to the seizing or onsite copying of the storage media or electronically stored information, and not to any later review.

Comment: This is a sensible amendment that adopts the prevailing practice and case law and it removes ambiguities in warrants often litigated later, but without success. Numerous cases have challenged the later review of evidence already seized under a warrant and seldom has a court held that it could not be done under the original warrant. Also, copying of electronic information can be less intrusive than seizing the computers because the information can be copied and taken without putting the person whose records were seized out of business. Also, overbreadth issues are not lost for later litigation.

AP has this story from yesterday: Botched Raid Terrorizes Minn. Family:

With her six kids and husband tucked into bed, Yee Moua was watching TV in her living room just after midnight when she heard voices--faint at first, then louder. Then came the sound of a window shattering.

Moua bolted upstairs, where her husband, Vang Khang, grabbed his shotgun from a closet, knelt and fired a warning shot through his doorway as he heard footsteps coming up the stairs. He let loose with two more blasts. Twenty-two bullets were fired back at him, by the family's count.

Then things suddenly became clear.

"It's the police! Police!" his sons yelled.

Khang, a Hmong immigrant with shaky command of English, set down his gun, raised his hands and was soon on the ground, an officer's boot on his neck.

The gunmen, it turned out, were members of a police SWAT team that had raided the wrong address because of bad information from an informant - a mistake that some critics say happens all too frequently around the country and gets innocent people killed.

"I have six kids, and only one mistake almost took my kids' life," said Moua, 29. "We will never forget this."

No one was hurt in the raid Sunday, conducted by a task force that fights drugs and gangs, though two police officers were hit by the shotgun blasts and narrowly escaped injury because they were wearing bulletproof vests.

Police apologized to the family and placed the seven officers on leave while it investigates what went wrong.

Such mistakes are a fact of police work, some experts said.

"Does going to the wrong address happen from time to time? Yes," said John Gnagey, executive director of the National Tactical Officers Association in Doylestown, Pa. "Do you corroborate as best you can the information the informant gives you? Absolutely. But still from time to time mistakes are made."

True exigency for a meth lab search without a warrant must be more than just concern for the officer's safety, which is all they showed here. State v. Leffler, 142 Wn. App. 175, 173 P.3d 293 (2007):

In sum, the emergency exception only applies where there is an imminent threat of substantial injury to persons or property. The evidence demonstrates no such threat here. The initial response team was clearly concerned for their own safety, but that is insufficient to justify a warrantless search under the emergency exception.

Deputy Greger testified that none of the officers entered any of the buildings on the premises before the Team wearing protective gear. Additionally, Deputy Clark testified that had there been an ongoing chemical reaction, he believed that the resulting fumes would have been a danger to the surrounding area. He also pointed out that he had seen such reactions explode, but he did not testify as to the imminence of this danger.

Indiana officers had reasonable suspicion of drug trafficking for trash pulls occurring before Litchfield's new trash pull standard was decided, and they were not required to exhaust innocent explanations as a part of reasonable suspicion. Turner v. State, 878 N.E.2d 286 (Ind. App. 2007).*

Defendant's traffic stop was valid and the lack of driver's license and other factors indicated reasonable suspicion. State v. Ramsey, 2007 Ohio 6687, 2007 Ohio App. LEXIS 5863 (9th Dist. December 17, 2007).*

Glove compartment was validly searched under search incident. (Defendant also did not provide a transcript of the suppression hearing for appeal, so this was based on the trial record.) State v. Pirpich, 2007 Ohio 6745, 2007 Ohio App. LEXIS 5907 (12th Dist. December 17, 2007).*

Plain feel told officer that a baggie of crack was in defendant's pocket, and that justified a seizure. State v. Dunson, 2007 Ohio 6681, 2007 Ohio App. LEXIS 5851 (2d Dist. December 14, 2007).*

The question is close, but the court finds that the officer did not unduly extend the stop. This led to a warning from the appellate court. State v. Henry, 2007 Ohio 6732, 2007 Ohio App. LEXIS 5904 (11th Dist. December 14, 2007):

[*P44] Nevertheless, we would be remiss if we did not take this opportunity to remind law enforcement officers of the dangers of engaging in a pretextual stop in which a traffic citation is issued in a dilatory manner. The circumstances of this case present a perilously close set of facts, and we must always be mindful that "[t]he liberties of the American citizen depend upon the existence of established and known rules of law limiting the authority and discretion of men wielding the power of government." Perry & Cooper, Sources of Our Liberties, (Chicago: American Bar Association, 1959), at 1.

The defendant had no expectation of privacy to challenge a police officer's standing on property of another when the officer knocked on defendant's door. A knock on the door and a request to open it is not a seizure. People v. Terrazas-Urquidi, 172 P.3d 453 (Colo. 2007):

Terrazas-Urquidi contends that the police knocked and spoke in such a manner that a reasonable person would not have believed he was free to leave the premises or to disregard their demands to open the door. However, the trial court found that the officers had acted reasonably, stating, "[I]n plain language, if the officers had been there legally, meaning at the front door of the shed, I find that their actions thereafter were reasonable and therefore legal given the circumstances they faced." In so finding, the trial court implicitly determined that a reasonable person would not have believed that he must open the door because otherwise the court would have been compelled to hold that the police actions were unreasonable. See Mendenhall, 446 U.S. at 554 (setting forth the standard that a person is seized if a reasonable person in the same circumstances would believe that he was not free to leave).

Therefore, Terrazas-Urquidi's argument that he was illegally seized cannot prevail unless the trial court's findings are unsupported by the record. ... The record in this case includes testimony by officers who were present at the scene, and that testimony indicates that the officers knocked on the shed door, identified themselves as police, and stated that the occupant should open the door. The record does not suggest that the officers made any threats or other statements that would cause a reasonable person to believe he must open the door. Therefore, the record supports the trial court's finding that the officers acted reasonably by knocking on the door, announcing their presence, and telling the occupant to open the door.

Defendant was observed following and photographing small boys, and he was asked about it by an officer who was watching him. The defendant showed his camera and cycled through the pictures, and the officer let him keep the camera. Defendant voluntarily produced his driver's license, and the officer determined that he was a level one sex offender. The officer asked for consent to search defendant's computer at home, and the defendant was concerned that he would not get the computer back after the search. The officer explained that he would if there was nothing on the computer that was illegal. A consent form had to be signed, and it was decided that the defendant would come with the officer to the station house. He rode in the front seat, was allowed freedom of movement at the stationhouse, and then signed the consent. It was all voluntary. United States v. Randall, 2007 U.S. Dist. LEXIS 92361 (N.D. N.Y. December 14, 2007).*

Officer's questions can be unrelated to the purpose of the stop, as long as it was justified at its inception. United States v. Swan, 259 Fed. Appx. 656 (5th Cir. 2007) (unpublished):

The second prong of the Terry test is satisfied if the officer's actions after making a legitimate traffic stop were reasonably related to either the circumstances that justified the stop or to dispelling reasonable suspicion developed during the stop. A Terry "'detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop,'" but if further reasonable suspicion emerges during the stop and is supported by articulable facts, detention may continue until the new reasonable suspicion has been dispelled or confirmed. During this brief period of detention, the officer may examine the driver's license and vehicle registration, run a computer check on the driver and the vehicle, and question the driver about a wide range of matters, including those unrelated to the purpose of the traffic stop. There is no specific prohibition on the scope of permissible questioning "so long as the overall detention is justified by reasonable suspicion." Moreover, this court has eschewed any particularized limitations on the permissible investigative tools that may be utilized in connection with a Terry stop, holding that the relevant inquiry is "'whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.'"

Stop became consensual after the defendant's papers were returned, and she validly consented after that. United States v. Cardwell, 2007 U.S. Dist. LEXIS 92130 (D. Utah December 14, 2007).* (Comment: Consent on the side of the highway with two armed officers is a fiction.)

The affidavit for search warrant was 22 pages long, and it incorporated by reference a 121 page wiretap affidavit, and it provided a substantial basis for probable cause for the search of defendant's property. United States v. Morris, 2007 U.S. Dist. LEXIS 92162 (E.D. Pa. December 14, 2007).* (Comment: Picking apart that much information for a probable cause challenge seems virtually pointless. It may be good for an overview of the case, but a PC challenge is just not going to win under the "soft standard" of Gates.) In the co-defendant's case, United States v. Thompson, 2007 U.S. Dist. LEXIS 92163 (E.D. Pa. December 14, 2007), adopting the other order by reference, the court also held that the issuance of a no-knock warrant was of no consequence since the officers knocked. The co-defendant lacked standing to challenge the search of the car in the case since it was not his.

Passenger in a truck lawfully stopped was legitimately asked for his identification. Unlawful re-entry conviction was affirmed. United States v. Linares, 258 Fed. Appx. 989 (9th Cir. 2007)* (unpublished).

The district court properly granted summary judgment because there was probable cause for plaintiff's arrest and no Franks violation. Browne v. Gossett, 259 Fed. Appx. 928 (9th Cir. 2007)* (unpublished).

An Illinois judge today denied murder "person of interest" Drew Peterson's request for return of property seized under a search warrant after just a five minute hearing, as reported on CNN.com:

Attorneys for Drew Peterson have stated that authorities had ample time to examine items seized since Stacy Peterson went missing in late October.

But on Monday they said that Will County Judge Daniel Rozek's ruling was reasonable.

Attorney Joel Brodsky said the judge plans to reconsider the issue next month.

"Forensics are very intricate, detailed," Brodsky said after a five-minute hearing. "It's only been seven weeks and we're happy the judge is going to keep a leash on them."

Computers and cars were seized, and Peterson claims he wants only one of each back. I would not have even filed such a motion because it inevitably would have been denied, and the court denying the motion only adds to the negative publicity.

Update: Peterson's counsel was on Dan Abrams on MSNBC last night, and it was not pretty. He should have just stayed home because it did not serve Peterson's interest.

Consent was granted to search for guns in a house, and on seeing a gun case on the floor, the officer had everybody in one room, secured it, and then "the deputy conducted a cursory search of the remaining rooms in the house, akin to a protective sweep," and marijuana was seen in plain view in a backpack. The search did not exceed its authorized scope. United States v. Simpson, 259 Fed. Appx. 164 (11th Cir. 2007)* (unpublished). Comment: A cursory search for weapons seems like an oxymoron to me.

Officer had a tip that the defendant had been driving down the highway smoking dope, and he found the car, smelled burnt marijuana around it, and followed tracks in the snow to an apartment. At the apartment, he asked the occupants to step outside to talk rather than going in. He had justification for a patdown, and found a knife on one, and the other consented to a frisk and the officer felt something soft and removed it, producing a baggie of marijuana. The stop and frisk were otherwise reasonable, but the case was remanded for better fact finding on the plain feel doctrine of Dickerson, an issue of first impression in Vermont. State v. Ford, 2007 VT 107, 182 Vt. 421, 940 A.2d 687 (2007).*

Officer lied to the defendant and told him that he was having difficulty getting clearance of defendant's license after the officer had already been told it was clear. The additional minute and eighteen seconds of the stop [and the lie] did not make the stop unreasonable when the officer asked for and got consent when the continuation was actually based on reasonable suspicion. United States v. Walton, 258 Fed. Appx. 753, 2007 FED App. 0841N (6th Cir. 2007)* (unpublished). Comment: The dissent blisters the officer for lying to the defendant to get consent.

Seizure of plaintiff's business computer, allegedly by consent, was not resolved by the district court, so the case was remanded for a determination of that issue. Blake v. County of Livingston, 257 Fed. Appx. 848, 2007 FED App. 0835N (6th Cir. 2007)* (unpublished).

A probationer's roommate has a reduced expectation of privacy in his own premises because the roommate is subject to probation searches. Here, the probation search of defendant's roommate led to evidence against defendant, and the judgment was affirmed. State v. Hurt, 2007 ND 192, 743 N.W.2d 102 (2007):

[*P19] We find no authority that would create an exception for third-party co-occupant consent derived from probation clauses. See State v. Yule, 905 So. 2d 251, 264 (Fla. App. 2d 2005) (Canady, J., concurring) ("The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer's shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy."); People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (Cal. App. 4th 2004) ("Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers. ... Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within 'common authority'[] of the probationer and fellow occupants and areas which she 'normally had access.'"); United States v. Crew, 345 F. Supp. 2d 1264, 1266 (D. Utah 2004) ("When the parolee, as a cohabitant of premises, gives consent to enter and to search, that consent is valid as to his personal space and all common space."); State v. West, 517 N.W.2d 482, 491 (Wis. 1994) (stating that a "parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search"); State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) ("A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee."). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights. See, e.g., Randolph, 547 U.S. at 110 (quoting Matlock, 415 at 171, n.7) ("[T]hird-party consent ... rests [] on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."); Yule, 905 So. 2d at 264 (Canady, J., concurring) ("A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.").

[*P20] Hurt voluntarily chose to live with Bickler. We see no reason to treat Bickler's consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant. The co-occupant consent-to-search exception to the warrant requirement applies in this case, and as such, the district court properly found the search of the common areas of Hurt's apartment was not unconstitutional.

Volume 39, number 4, of the Texas Tech Law Review has a series of articles about consent searches from the Texas Tech Symposium on Citizen Ignorance, Police Deception, and the Constitution:

Essay:

--Arnold H. Loewy, Police, Citizens, the Constitution, and Ignorance: The Systemic Value of Citizen Ignorance in Solving Crime, 39 Tex. Tech. L. Rev. 1077 (2007)

Consent Searches by Ignorant Citizens:

--John M. Burkoff, Search Me?, 39 Tex. Tech. L. Rev. 1109 (2007)

--Morgan Cloud, Ignorance and Democracy, 39 Tex. Tech. L. Rev. 1143 (2007)

--Christo Lassiter, Consent to Search by Ignorant People, 39 Tex. Tech. L. Rev. 1171 (2007)

--Russell L. Weaver, The Myth of “Consent”, 39 Tex. Tech. L. Rev. 1195 (2007)

There are other articles about police lying and confessions:

Do We Want Citizens to Know Their Rights, and If So, How Do We Tell Them?

--Susan R. Klein, Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code, 39 Tex. Tech. L. Rev. 1321 (2007)

--Alan C. Michaels, Rights Knowledge: Values and Tradeoffs, 39 Tex. Tech. L. Rev. 1355 (2007)

--Andrew E. Taslitz, Bullshitting the People: The Criminal Procedure Implications of a Scatalogical Term, 39 Tex. Tech. L. Rev. 1383 (2007).

Id. at 1421-23:

There is far less data on consent searches and warnings. Yet the available data similarly supports the conclusion that rights warnings do not increase noncooperation with the police. Sociologist Illya Lichtenberg, for example, in a study of the Maryland State Police and the Ohio State Highway Patrol, found that 88.5% to 96.5% of those asked to consent to automobile searches by police officers did so when no warnings were given. When the police gave warnings, however, there was no substantial decrease in the percentage of instances in which police consent-to-search requests were granted. These statistics held across race, sex, and age. Lichtenberg concluded from this data that "verbal warnings are an ineffective means of encouraging citizens to exercise freely their constitutional rights." 293 On the other hand, combining both the confessions data and the consent-to-search data, Lichtenberg explains:

Finally, for those who still fear that verbal warnings will render our criminal justice system ineffective and lead to marauding criminals on the street with no means to control them, these findings suggest that such fears are unfounded. The criminal justice system appears to operate quite effectively with verbal warnings in place. Research suggests that verbal warnings do not have any substantial impact on consent or confessions.

Indeed, Lichtenberg found that 12.9% of those consenting to searches were found to be in possession of illegal narcotics. They consented anyway.

What explains compliance in the face of warnings? One possible explanation is simple fear of the police. Lichtenberg found in a survey of some of those consenting to searches in Ohio (an admittedly small sample), use that they "consented to search for one primary reason: fear of reprisal if they refused." Other scholars have relied on older research on compliance to conclude that, at a minimum, suspects are likely to blindly obey authority, especially uniformed authority. Thus, in the well-known experiments of Professor Stanley Milgram, subjects purportedly involved in a study about learning patterns' relationship to negative reinforcement were willing to give increasingly higher voltage shocks to a "learner" when he made mistakes. This escalation in voltage continued upon the experimenter's command, despite the learner's at first modest, then vigorous, and finally painfully screaming, protests. As Professor Ric Simmons has pointed out, however, Milgram's experiments involved obedience to orders, not requests, and did not turn on subjects' ignorance about their legal rights or the authority figure's intentions.

Scholars challenging the voluntariness of consent to search as illusory have also relied on Professor Leonard Bickman's experiments involving authority figures wearing uniforms. The experimenter dressed as a civilian, then a milkman, then a guard (police-type uniform but with no gun). In each pose, the experimenter ordered passersby to do one of three things: pick up a bag, give a dime to a person near a parking meter, or change locations. Compliance rates were much higher in the two uniformed than the one civilian situation and were particularly high-89%-when the guard uniform was worn. Again, as with Milgram's experiments, orders, rather than requests, were involved, and rights awareness versus rights ignorance was not tested, making the experimental circumstances very different from those involved in consent searches or in interrogations. Nevertheless, these studies suggest that the reasons for citizen obedience to the police are far more complex than fear or a knee-jerk obedience to authority, even if those forces do play some role and perhaps under certain circumstances an important role.

Research psychologist Tom Tyler recently conducted a series of studies and a literature review of when and why Americans obey government agents, including the police and the courts. Tyler found at least two important psychological processes to be at work: a sense of personal responsibility to defer to legitimate government authorities and a desire to empower government to solve social problems, particularly in the face of a perceived crisis. (footnotes omitted)

On the defendants' omnibus suppression motion (this does not cover all issues, there are too many):

Government did not violate the Stored Communications Act in how it handled e-mails after acquiring them, and, even if it did, that would not be a valid ground for suppression of evidence under Hudson because it had nothing to do with the seizure. Also, there was no Franks violation. This was a mail and credit card fraud scheme involving continuing charges to accounts, and the defense presented a list of perceived defects with the affidavit for the search warrant that probable cause would not exist if the defects were cured. None of them required further elaboration because, on the totality, there was still probable cause on the totality under Gates to show that defendant was on notice that there was great consumer dissatisfaction with his business practices that were of really doubtful validity. Finally, the use of 50 agents to seize the premises and seven tons of documents, including whole file cabinets and personal papers of employees, including a Snickers bar, was not considered unreasonable. The court considered the government's representation that the employees would testify to the need for a swift securing of the evidence at a large property to prevent destruction of evidence. United States v. Warshak, 2007 U.S. Dist. LEXIS 91741 (S.D. Ohio December 13, 2007) (the court uses "well-taken" so many times referring to the "government's position" or "not well-taken" as to the defendants' that it ended up as a "core term" on Lexis):

Having reviewed this matter, the Court does not find Defendants' position well-taken. Even assuming Defendants' allegations are true, the fact is that when the agents executed the warrant on March 16, 2005, time was of the essence. The Berkeley facilities are immense, and the agents were justified in quickly securing each location so as to prevent the destruction of any evidence. The fact that some employees may have been rattled by the swift, no-nonsense entry of fifty agents does not justify the suppression of evidence. Berkeley may have not been the lair of a drug kingpin, but the warrants were supported by probable cause for massive consumer fraud.

As such, the Court takes the government's representation in good faith that its agents would testify as to the propriety of their conduct in executing the warrants. Such representation is more than conclusory, as the government does more than say "the searches were reasonably executed," but indicates it has agents who will testify as much. The Court finds no hearing necessary on this question. Finally, the fact that irrelevant information and materials were swept up in the large-scale seizure here is a mere by-product of the practical reality faced by the agents who acted quickly as required so as to keep the search and seizure within the bounds of reasonableness. Surely, had the agents camped out at Berkeley and closed the operation for weeks on end, so as to sift out irrelevant information, Defendants very well may have had a basis to argue the search was conducted in an oppressive manner.

Employees who had decided to cooperate and turned over their company laptops to the government did so as individuals. Confidentiality agreements did not create any separate expectation of privacy when probable cause already exists:

The Court finds itself again on the side of the government. The Court sees no convincing evidence the cooperating witnesses were acting as anything more than private individuals in turning over evidence to the government. Even should the cooperating witnesses qualify as "agents," such that the Fourth Amendment applies, the Court finds no real question that they voluntarily consented to the searches of their laptops. The Court further finds unavailing Defendants' arguments that the witnesses lacked the authority to do so. The witnesses had common authority over their laptops, as evidenced by their possession and password access. United States v. Matlock, 415 U.S. 164, 171-72 (1974). Defendants' heavy reliance on the fact they had confidentiality agreements with their employees is misplaced. A company cannot use such a confidentiality agreement to shield itself from government inquiry into evidence of potential illegal behavior, when the government has probable cause based on witness statements that such evidence exists, and the witnesses consent to the search. Defendants' position simply conflicts with public policy. McGrane v. The Reader's Digest Association, Inc., 822 F.Supp. 1044, 1046 (S.D. N.Y. 1993)("Courts are increasingly reluctant to enforce secrecy arrangements where matters of substantial concern to the public-as distinct from trade secrets or other legitimately confidential information may be involved"), Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 444 (S.D. N.Y. 1995)("agreements obtained by employers requiring former employees to remain silent ... concerning potentially illegal practices ... can be harmful to the public's ability to rein in potentially harmful behavior"), Ventura v. Cincinnati Enquirer, 396 F.3d 784, 791 (S.D. Ohio, 2005) (J. Weber) (rejecting efforts to enforce an agreement to withhold evidence of crimes, because "reporting criminal activity to a prosecutor is not actionable"). For all of these reasons, the Court rejects Defendants' Motion to Suppress the evidence derived from the laptops turned over to the government by cooperating witnesses.

Defendant had no reasonable expectation of privacy on his computer attached to a military base network in Saudi Arabia. He thought his files were password protected, but they were not, and his personal files were accidentally accessed by somebody finding child porn on his personal computer when it was attached to the network. Therefore, he had no reasonable expectation of privacy in the network. The court analogized it to a person having attempted to protect against others seeing the information but failing in the attempt. United States v. King, 509 F.3d 1338 (11th Cir. 2007):

We have held that tenants of a multi-unit apartment building do not have a reasonable expectation of privacy in the common areas of the building, where the lock on the front door is "undependable" and "inoperable." United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir. 2002). We have also held that even though a company has a subjective expectation of privacy in documents that are shredded and disposed of in a garbage bag that is placed within a private dumpster, the company's "subjective expectation of privacy is not one that society is prepared to accept as objectively reasonable" when the company fails to "take sufficient steps to restrict the public's access to its discarded garbage." United States v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995).

King has not shown a legitimate expectation of privacy in his computer files. His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files, so the question becomes "whether society is prepared to accept [King's] subjective expectation of privacy as objectively reasonable." See id. at 1094.

It is undisputed that King's files were "shared" over the entire base network, and that everyone on the network had access to all of his files and could observe them in exactly the same manner as the computer specialist did. As the district court observed, rather than analyzing the military official's actions as a search of King's personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King's computer files were a part of that network. King's files were exposed to thousands of individuals with network access, and the military authorities encountered the files without employing any special means or intruding into any area which King could reasonably expect would remain private. The contents of his computer's hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public.

Because his expectation of privacy was unreasonable King suffered no violation of his Fourth Amendment rights when his computer files were searched through the computer's connection to the base network. It follows that his additional claim that the later search warrant was invalid because it incorporated information obtained from the search of his computer files also lacks merit.

Intrusive search condition for defendant who pled to a financial crime was not an abuse of discretion. In fact, it almost cannot be an abuse of discretion under Samson. The district court could justifiably be concerned that defendant's conduct was not aberrational, despite his claims to the contrary. United States v. Betts, 511 F.3d 872 (9th Cir. 2007):

Betts argues that the court abused its discretion because he had no prior convictions and had fully accepted responsibility for his crime. We cannot characterize the judge's exercise of discretion as an abuse, even though it is very intrusive. First, the public is entitled to protection against the possibility that Betts's conduct may not have been so aberrational as he contends, and considering his skill and success in committing this subtle fraud, protection will not be easy.

Second, the Supreme Court recently held in Samson v. California, that a similarly worded condition imposed by statute on all California parolees did not violate the Fourth Amendment, even though the condition did not require reasonable suspicion. The Court considered the high risk of recidivism for people convicted of crimes, and the problem that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality." Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori the individualized requirement imposed in this case on supervised release does not. There is no sound reason for distinguishing parole from supervised release with respect to this condition. The federal system has abolished parole, and uses supervised release to supervise felons after they get out of prison. People on supervised release have not completed their sentences, they are serving them. The Court in Samson itself drew the analogy to supervised release. After Samson, there is no room for treating the search condition in this case as an abuse of discretion.

Defendant was stopped and the officer smelled alcohol. The officer's patrol car video was not admitted at the hearing, but the trial court saw it. In the first appeal, the videotape was not in the record, and the court affirmed, Amador v. State, 187 S.W.3d 543, 545 (Tex. App.-Beaumont 2006), but the Court of Criminal Appeals reversed because of the lack of the video in the record. Amador v. State, 221 S.W.3d 666, 667-68 (Tex. Crim. App. 2007). A five minute portion was certified by the trial court as what it saw, and it did not include the field sobriety test that defendant allegedly failed. The video thus did not support probable cause. Reversed. Amador v. State, 242 S.W.3d 95 (Tex. App. — Beaumont 2007).

Even if first search was invalid, defendant's shooting of a police officer during it was an independent basis for a second search untainted by the first. United States v. Tab, 259 Fed. Appx. 684, 2007 FED App. 0827N (6th Cir. 2007) (unpublished).*

City lawfully obtained a warrant for defendant's property because of the unsightly junk he collected there for his various engineering projects. Carpiaux v. City of Emeryville, 2007 U.S. Dist. LEXIS 91574 (N.D. Cal. December 13, 2007).*

Inmate's § 1983 case directly attacked his conviction, so it was Heck barred, and he is directed to show cause why it should not be dismissed, without the defendants even being required to answer. Heath v. Gurski, 2007 U.S. Dist. LEXIS 91342 (D. Or. December 6, 2007).*

Defendant lived with his mother and locked her out of the house. She called the police, and she was shaking and upset when they arrived. One of the officers went through a window to get in and offered to do a search of the premises to make sure she was safe, which she agreed to. This was a valid third party consent. The mother told the officers that she was told by her son that she could not go upstairs, which was locked, and the officers even removed the door from the hinges to get upstairs. State v. Wurm, 2007 Wisc. App. LEXIS 1086 (December 11, 2007):*

The room searched was the upstairs of the home in which Evelyn lived, and not a detached apartment [thereby distinguishing defendant's authority]. While Evelyn stated that Wurm did not like her to go upstairs, she also testified that she stored pictures there. Further, Wurm did not pay rent but paid some of the bills. Based on these facts, we conclude that the circuit court properly found that Evelyn had the authority to consent to the search of the upstairs of her home. The circuit court correctly denied Wurm's motion to suppress ...

A stop of three men in a pickup truck for a seatbelt violation at 2 a.m., without more, is not cause for a patdown of anybody. When defendant, however, resisted his patdown (not just objecting to it), the officer had cause for a patdown. State v. Anderson, 2007 Iowa App. LEXIS 1312 (December 12, 2007).* Comment: So, the officer was not legally authorized to pat down any of these three men, but he can get away with it if one resists or nothing is found. If a weapon is found, the officer is safer; if drugs are found, the defendant is charged. The bottom line here is that this opinion will do little or nothing to change police procedure in Iowa.

DUI roadblock was validly approved and established [even under Tennessee's more rigorous procedures]. State v. Boddie, 2007 Tenn. Crim. App. LEXIS 935 ( December 11, 2007).*

While flight alone under Wardlow is not reasonable suspicion, it is when the flight occurs from the scene of a crime. The police arrived at the scene of a call about a bar fight, and defendant was the only person in a group to flee from the police. State v. Easley, 2007 Iowa App. LEXIS 1288 (December 12, 2007):

A suspect's flight, in addition to his presence at the scene of a recently committed crime, provides the type of specific, articulable facts allowed under Terry to justify a brief detention by officers to resolve any ambiguity. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; see also Wardlow, 528 U.S. at 125, 120 S. Ct. at 677, 145 L. Ed. 2d at 577 (noting how Terry recognized that officers could detain individuals to resolve the ambiguity between acts that may either be innocent or criminal). Based on Easley's behavior after seeing the officer arrive, we conclude Wertz had the reasonable suspicion necessary to justify the detention of Easley. Accordingly, we find the district court did not err in denying Easley's motion to suppress because his constitutional rights under the Fourth Amendment were not violated.

Heck bar did not apply to an administrative search determination that favored the plaintiff and was not even attacking a conviction. Elkins v. District of Columbia, 527 F. Supp. 2d 36 (D. D.C. 2007).*

Defendant drove through headlights of patrol car parked perpendicular to road, and it was obvious that the window tint was too dark. This was cause for a stop, and the officer smelled marijuana when the window was rolled down, and that was probable cause. United States v. Ushery, 526 F. Supp. 2d 497 (M.D. Pa. 2007).*

Defendant argued that her cellphone text messages were seized without a search warrant, but the court finds consent to the seizure. United States v. Jones, 2007 U.S. Dist. LEXIS 91187 (M.D. Pa. December 12, 2007).*

Stop was based on the defendant's car being unsafe, and the officer quickly developed probable cause, and a search incident was proper. United States v. Tolle, 2007 U.S. Dist. LEXIS 91308 (D. Or. December 6, 2007).*

State satisfied burden of proving consent in a knock and talk of a motel room. Bryant v. State, 288 Ga. App. 863, 655 S.E.2d 707 (2007).*

Warrant for a particular address looking for defendant's apartment was sufficiently particular to include his basement apartment. The police investigated and were not able to determine that this was a multiunit dwelling. When arrived, they found out that there was a back door entrance to the apartment, and they entered it. There was no misconduct on the police and they acted reasonably. The court analogized a case permitting a search of an attic apartment that was not known to exist until they were inside. United States v. Mousli, 511 F.3d 7 (1st Cir. 2007):

Mousli argues that the search warrant obtained by the Somerville police lacked sufficient specificity because it did not identify his particular basement unit, but only listed 19 Orvis Road. Mousli relies on Ferreras in arguing that the authority granted by any warrant is limited to the specific places described in it, and thus, does not extend to additional or different places. See Ferreras, 192 F.3d at 11. Mousli's reliance is misplaced.

In Ferreras, we found that an attic was, in effect, included in a search warrant for the second floor of that same building because it was connected to the second floor apartment, lacked an exit to the street, and was not equipped for "independent living." Id. Mousli concludes from Ferreras's holding that because his basement apartment existed independently from the rest of the house, had an exit to the street, and was equipped for "independent living," it could not have been included in the warrant that sought to search only "19 Orvis Road." We disagree with Mousli and find the facts in Ferreras distinguishable here.

In the present case, the police used all of the information reasonably available to them to secure as particularized a warrant as possible. The police made considerable efforts to gather as much information as possible to include in their affidavits and application for the warrant. The police drove by Mousli's residence before securing the warrant. They did not know that 19 Orvis Road was a multi-unit dwelling. Townsend noted Mousli's address on a package in his car as 19 Orvis Road, and police records indicated that Mousli's address was 19 Orvis Road. Mousli had given 19 Orvis Road as his home address when he was arrested on a previous occasion. The Registry of Motor Vehicles listed 19 Orvis Road as Mousli's address. While Mousli's apartment did exist independently from the main residence at 19 Orvis Road, "[s]earch warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided." ... Just as in United States v. Gilman, 684 F.2d 616 (1st Cir. 1982), "[t]he testimony and affidavits of the officers demonstrate no misconduct on their part. Their surveillance of the premises ... did not alert them to the multiunit character of the building. The officers were not aware that the building contained separate living quarters or that it housed unrelated persons." Id. at 618. We find that the police had a valid search warrant, supported by reasonable information, and that the valid search warrant gave the police the authority to search Mousli's apartment. We conclude that the district court did not err when it denied Mousli's motion to suppress.

The Minnesota implied consent law does not violate the Fourth Amendment because it is based on probable cause and exigent circumstances. State v. Netland, 742 N.W.2d 207 (Minn. App. 2007). The court's free link is not up at the time of this posting, but LexisOne has it. This is the concluding paragraph, and how the court gets to this point is interesting and completely noncontroversial:

Thus, contrary to Netland's argument, the State of Minnesota does not condition a person's driving privileges on surrendering a constitutional right. Before "the [chemical] test may be required of a person," the implied-consent law requires the requesting officer to have probable cause to believe a person is driving while impaired. Minn. Stat. § 169A.51, subd. 1(b). And if, as it often will be, a warrantless search is necessary to prevent evidence of the driver's intoxication from imminent destruction by physiological processes, the exigent-circumstances exception authorizes the search. See Shriner, 739 N.W.2d at 439 (emphasizing that "the exigent-circumstances requirement is not a high threshold"). Since the Fourth Amendment does not grant the right to refuse a search supported by probable cause and authorized by exigent circumstances, the implied-consent law does not require a driver to surrender the right to be free from unreasonable searches.

Defendant's wife let in an officer with an arrest warrant for defendant in hand so he could see for himself that the defendant was not there. In plain view, there was paraphernalia for meth manufacturing, which the officer seized. The seizure was valid, and consent to enter with an arrest warrant was not coerced. Pate v. Commonwealth, 243 S.W.3d 327 (Ky. 2007), released for publication November 1, 2007.

There was an objective basis for defendant's stop from the only evidence, so it was valid. United States v. Tejeda-Ramirez, 259 Fed. Appx. 535 (4th Cir. 2007)* (unpublished).

The CI was of unknown reliability, but it was based on personal observations occurring within the previous 24 hours, and the officer was able to corroborate psuedophedrine purchases from records of sales to the defendant. "Under a totality of the circumstances test, the state court judge had sufficient information to make a finding that there was a fair probability that evidence of a crime would be found in Nickels's residence and garage. Therefore, Wilkerson has not rebutted the presumption that the search was legal." The good faith exception also applied. United States v. Wilkerson, 2007 U.S. Dist. LEXIS 90852 (S.D. Ill. December 11, 2007).*

Officer who did not conduct defendant's patdown did not testify at the suppression hearing, so the state failed in its burden of proof in showing it was justified. Commonwealth v. Thompson, 2007 PA Super 372, 939 A.2d 371 (2007).

Defendant was stopped for a traffic offense, and he put his car in reverse to try to get away. That, coupled with furtive movements, was reasonable suspicion for more. United States v. Thornton, 2007 U.S. Dist. LEXIS 90327 (D. Conn. December 10, 2007).*

Arizona Contractors Assn. might have standing to sue on behalf of its membership for being forced to comply with verifying the alienage of workers the members employ, although they sued the wrong defendant, but not as to all elements of the statute, so the action is dismissed. They proved they were subject to prosecution, but an Art. III "case or controversy" was lacking. Arizona Contractors Ass'n v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007).*

Grand jury subpoenas were not used for mere fishing expeditions, and the defense was free to re-raise the issue at trial and did not. Subpoena power was not abused. United States v. Edelmann, 2007 U.S. Dist. LEXIS 90355 (E.D. Ark. December 6, 2007).*

Plaintiff is incorrect that the officer who stopped her needed probable cause; it was only reasonable suspicion. The contradictory allegations of the complaint need to be corrected, if plaintiff can, by amendment. Harrell v. Cal. Highway Patrol, 2007 U.S. Dist. LEXIS 90436 (E.D. Cal. November 29, 2007).*

Defendant had no standing of a search of his co-defendant brother's home. Defendant's Franks challenge fails: "The Abdallahs have not made a substantial showing that allegations in the supporting affidavit were deliberate falsehoods or made with a reckless disregard for the truth." The good faith exception also applies. Medicaid fraud "all records" warrant was valid because of the nature of the claimed crime. United States v. Abdallah, 2007 U.S. Dist. LEXIS 90196 (S.D. Tex. December 7, 2007).*

Observations from a citizen informant and an off-duty officer were sufficient to show reasonable suspicion. State v. Haynie, 2007 Tenn. Crim. App. LEXIS 931 (December 7, 2007):

Consequently, we conclude that Investigator Land acted with reasonable suspicion supported by specific and articulable facts supplied by his dispatcher, a known citizen informant, and an off-duty law enforcement officer that at least one of the occupants of the suspect vehicle was engaged in illegal activity when he activated his cruiser's blue lights and stopped Defendant Ouzts's vehicle. The Defendants do not challenge the validity of Defendant Ouzts's consent to the ensuing search. Therefore, the trial court did not err by admitting the evidence recovered.

Six month delay in obtaining child porn warrant was not stale because of the nature of child porn possession. Under the First Circuit's standards, all standards favor a lack of staleness. United States v. Hanson, 2007 U.S. Dist. LEXIS 90052 (D. Maine December 5, 2007):

There is no one-size-fits-all rule for determining staleness: "Factors to be considered in determining whether an affidavit is stale include the nature of the criminal activity under investigation and the nature of what is being sought." United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (citation and internal quotation marks omitted); see also Dauphinee, 538 F.2d at 5 ("[N]o hard and fast rule can be formulated as to what constitutes excessive remoteness, because each case must be judged in its circumstantial context."). The First Circuit has further elaborated:

Staleness is not measured merely on the basis of the maturity of the information but in relation to (1) the nature of the suspected criminal activity (discrete crime or regenerating conspiracy), (2) the habits of the suspected criminal (nomadic or entrenched), (3) the character of the items to be seized (perishable or of enduring utility), and (4) the nature and function of the premises to be searched (mere criminal forum or secure operational base).

United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) (citations and internal quotation marks omitted), abrogated on other grounds by Cleveland v. United States, 531 U.S. 12 (2000).

Comment: This is the typical result. Child porn can easily be found up to one year or far more after alleged receipt, so this case is not at all unusual.

Totality of circumstances supported the conclusion that there was reasonable suspicion for continuing defendant's stop. Garvin v. State, 2007 WY 190, 172 P.3d 725 (2007).*

Plaintiff's motion to reconsider that his claim was not Heck barred was based on the illegality of his arrest, not his conviction, but that did not work either. Just to insure "there is no stone left unturned, however, the court shall further consider the merits of Plaintiff's claim as though it could survive Heck," and it does not. Whitlock v. Smith, 2007 U.S. Dist. LEXIS 90032 (N.D. Miss. December 6, 2007).*

Defendant's general consent to search did not include shining a flashlight into his underwear, a place where the officer admittedly did not expect to find any contraband. State v. Stone, 362 N.C. 50, 653 S.E.2d 414 (2007):

We conclude here that a reasonable person in defendant's circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Although these events occurred at 3:30 a.m., the search occurred in the parking lot of an apartment complex, as opposed to a secluded area or police station. Both Officers Correa and Herrera were present during the search. The record does not indicate that the officers asked defendant to step behind a car door, used their bodies to screen defendant from public view, or took other action to shield defendant during the search, as the officers did in Smith. 118 N.C. App. at 109, 454 S.E.2d at 682. Nor did they ask defendant to clarify the scope of his consent. Officer Correa testified that he was "not really expecting to find anything, honestly" during his search of defendant, unlike in Smith where the officers had specific information that cocaine was hidden in the defendant's crotch. Id. at 112-13, 454 S.E.2d at 684.

We conclude defendant's general consent to search did not authorize the officer to employ the very intrusive measures undertaken here. In concluding otherwise and denying defendant's motion to suppress, the trial court focused on reasonableness from the officer's perspective, rather than on the reasonable expectations of the person in defendant's circumstances. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302 ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?").

Bail bond agent's information about defendant's status as a fugitive could be relied upon by the police as reasonable suspicion. United States v. Bourrage, 2007 U.S. Dist. LEXIS 89926 (S.D. Iowa December 5, 2007).

Defendant was being watched as an expected drug deal went down, and he entered the drop point with a weighted bag and left with a lighter one. He showed up at the appointed time, and the police looked in his car window and saw what would have been packaging for cocaine in larger quantities. That was probable cause. United States v. Gonzalez-Calderon, 2007 U.S. Dist. LEXIS 89983 (D. Mass. December 3, 2007).*

Defendant City and officers were entitled to summary judgment for shooting plaintiff during a SWAT entry where he could not be subdued by bean bag shots or pepper spray, and he stabbed the police dog and then attacked the canine officer with a knife. Finally, he was shot. Haugh v. City of Louisville, 242 S.W.3d 683 (Ky. App. 2007).*

The entry by deputy sheriffs into defendant's occupied home on December 11 at approximately 6 a.m., when it was still dark, to execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant or his house guests were not still in a period of nighttime repose that Minn. Stat. § 626.14 protects, subverts the purpose of the statute and requires suppression of the evidence seized during the search even though the defendant was not personally present. It also violates the Fourth Amendment. State v. Jordan, 742 N.W.2d 149 (Minn. 2007):

To the degree that a nighttime search under a warrant with an invalid nighttime clause can be compared to a warrantless search or the seizure of an item not adequately described in a warrant, these cases support the conclusion that the search of Jordan's home violated his reasonable expectation of privacy. At the very least, these cases presume that the scope of the defendant's expectation of privacy is broader than merely the risk of the intrusion on his person.

Comment: This case is important because it applies the Fourth Amendment to an invalid nighttime search, finding that a person has a reasonable expectation of privacy against unwarranted nighttime searches.

The 41 page affidavit for the search warrant in this case was sufficient to show probable cause for issuance of the warrant, and it was summarized ad nauseum in the opinion. Under Gates, de novo review of the affidavit is not permitted. United States v. Redzic, 2007 U.S. Dist. LEXIS 89961 (E.D. Mo. December 6, 2007):

The court could continue reviewing the affidavit, which is replete with information supporting probable cause, but this section of this Report and Recommendation is already too long, the parties have the affidavit and information already provided in this section of this report show probable cause for the issuance of the search warrants.

This court finds that the information supplied in the affidavit to Judge David D. Noce provided "a fair probability that contraband or evidence of crime [would] be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Consequently, this court finds that the search warrants in question were issued based on probable cause.

Maryland apparently declines to follow Hudson by following state statute and Maryland's common law. It reiterates prior holdings that the exclusionary rule applies, and the state conceded that the intermediate court's decision was correct, did not file a cross-petition for certiorari, and then argued that Hudson should be followed under Maryland law, a proposition that the court rejected. The court seems to indicate that it would reject Hudson, but it technically left the question for another day. Parker v. State, 936 A.2d 862 (Md. 2007):

Nevertheless, we shall assume arguendo that, under federal law, Hudson v. Michigan controls the Fourth Amendment issue in this case, and that the Fourth Amendment's exclusionary rule is inapplicable to any violations of the "knock and announce" principle that may have occurred in the case at bar. We shall decide, however, that, under the peculiar circumstances of this case, the evidence is excludable if there is a violation of Maryland's "knock and announce" principle. This is a very limited decision based exclusively upon Maryland non-constitutional law and procedure.

. . .

Consequently, simply because Article 26 of the Maryland Declaration of Rights and the Maryland common law "knock and announce" principle may generally be in pari materia with the Fourth Amendment, does not require that, in the case at bar, we reconsider the state law holdings of Davis and Adams v. State, supra, and other cases.

There is a compelling reason why the present case is a particularly inappropriate vehicle for such reconsideration. The State failed to challenge the adverse decision of the Court of Special Appeals, or raise the issue of a Maryland exclusionary rule, by filing a cross-petition for a writ of certiorari. Although the petitioner Parker relied on Maryland law as well as the Fourth Amendment, both in his Court of Special Appeals' brief and in his certiorari petition, and the Court of Special Appeals' vacation of the judgments and remand for a new suppression hearing was based entirely on the Davis and Adams and Carroll cases in this Court, the State did not file a cross-petition for certiorari. On the contrary, the State's answer argued in favor of the Court of Special Appeals' decision vacating the Circuit Court's judgments and ordering a new suppression hearing.

. . .

. . . The State in its brief and oral argument seeks to reverse a Court of Special Appeals' judgment to which the State had consented. Such a reversal would be contrary to settled Maryland law.

Consequently, if there was a violation of Maryland's common law "knock and announce" principle in this case, the evidence is inadmissible under the particular circumstances here. Whether such an exclusionary rule should be applied when there are violations of the Maryland "knock and announce" principle in other cases, or in cases arising after the effective date of Ch. 560 of the Acts of 2005, are matters which we leave for another day.

We agree with the Court of Special Appeals that Terrance Parker's controlled dangerous substance conviction should be vacated. This matter should be remanded to the Circuit Court for a new suppression hearing and determination. See Southern v. State, 371 Md. 93, 104-112, 807 A.2d 13, 20-24 (2002), and cases there cited. While the Circuit Court, at the conclusion of the prior suppression hearing, considered the factual showing (or absence thereof) made by the police officers at the time of the warrant application, the court did not "review ... the facts known to the officers at the time of entry," Davis and Adams v. State, supra, 383 Md. at 427-428, 859 A.2d at 1132. In addition, we disagree with the Court of Special Appeals' direction for the Circuit Court to determine whether "the evidence seized is nonetheless admissible under the 'good faith' exception to the exclusionary rule." In light of our opinion in Davis and Adams v. State, supra, at least in cases not subject to Ch. 560 of the Acts of 2005, the so-called "good faith" exception, applied by the Court of Special Appeals, is not applicable under the Maryland common law "knock and announce" principle.

Upon remand, the Circuit Court should decide whether the evidence was admissible under the principles of this Court's opinions in Davis and Adams v. State and State v. Carroll. If the court determines that the evidence was admissible, the controlled dangerous substance conviction should be reinstated. If the court decides that the evidence should be suppressed under Davis and Adams v. State and State v. Carroll, the controlled dangerous substance conviction should remain vacated and a new trial ordered on that count.

Hiding a gun in a closet that belonged to another tenant of a common building did not show reasonable expectation of privacy. Also, violation of knock-and-announce rule of Wilson is not even addressed because of Hudson. United States v. Williams, 2007 U.S. Dist. LEXIS 89570 (D. Conn. December 6, 2007):

Although Williams arguably demonstrated a subjective expectation of privacy in the closet by allegedly choosing to hide a gun there, he has not shown that his expectation of privacy in the closet was reasonable, which is fatal to his standing argument. The closet was outside Williams' own room, which was the only area on the third floor over which he had exclusive dominion and control. According to the undisputed testimony of second floor resident Leroy Pittman, Pittman was the sole person authorized to use this closet and exclusively used it to store his hunting and camping equipment for many years. No other tenants used the closet or had permission to use the closet. 7 Courts have held that one who shares his or her home with another does not have a reasonable expectation of privacy in those areas of the home used exclusively by his or her roommate. See U.S. v. Haqq, 278 F.3d 44, 50 (2d Cir. 2002), citing Lenz v. Winburn, 51 F.3d 1540, 1549-50 (11th Cir. 1995) (grandparents lacked reasonable expectation of privacy in closet in their home used exclusively by granddaughter); People v. Fleming, 345 N.E.2d 10, 14-15 (1975) (where defendant and his brother shared an apartment and brother kept his bedroom locked and kept key in his possession, defendant had no reasonable expectation of privacy in the brother's bedroom). Although there were no locks or markings to indicate the exclusive use of the closet by Pittman, the contents of the closet showed Pittman's exclusive use. In addition, the defendant has not submitted any evidence indicating that Pittman did not have exclusive use of the closet. Thus, if Williams did have a subjective expectation of privacy in the closet, it would have been unreasonable, because anyone opening the closet would have observed it only contained Pittman's belongings.

Search warrant for property for child pornography directed at defendant's roommate, but covering all computers on the property, permitted a search of defendant's computer, too. United States v. Umgelder, 2007 U.S. Dist. LEXIS 89719 (S.D. Ill. December 6, 2007):

The warrant authorized a search of the entire apartment for evidence of child pornography crimes, including the search and seizure of computers in the apartment; it clearly covered any computer in the apartment, and was not too general simply because it did not specifically authorize a search of Umgelder's computer. The warrant did specifically indicate it was searching for items related to child pornography, so the executing officers were not free to go through Umgelder's property without limits. This is sufficiently particular to withstand constitutional challenge. Accordingly, the evidence obtained from the search and seizure of Umgelder's computer is not subject to suppression. (emphasis in original)

In a tax fraud case, a warrant was not inparticular for not listing 220 participants to cover others. Practical flexibility in the warrant was required. The search of defendant's computers was not overbroad either because the government searched files beyond the warrant because nothing found there will be used in the case. Finally, the good faith exception would apply. United States v. Evanson, 2007 U.S. Dist. LEXIS 89618 (D. Utah December 4, 2007):

The decision in United States v. Le, 173 F.3d 1258 (10th Cir. 1999), also supports the government's position. In that case, Mr. Le argued that the warrant authorizing a search of his residence was not sufficiently particular. He based his argument on the fact that although agents searching his residence knew about the kinds of specific explosives Mr. Le had in his garage at the time the agents obtained a warrant, they did not disclose that information to the judge and obtained a warrant that authorized the agents to seize all types of explosives and related evidence. The court disagreed with Mr. Le, noting that it had, in the past, upheld "broad and generic terms of description" in warrants because "the nature and characteristics of some criminal operations do not easily lend themselves to specific descriptions of things to be seized." Id. at 1271-72 (citations omitted).

The Tenth Circuit has also recognized that "[t]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized." In re Matter of the Search of Kitty's East, 905 F.2d 1367, 1374 (10th Cir. 1990) (citations omitted).

On the flip side, Mr. Evanson argues that the government's failure to include the Players list, which existed at the time the agent applied for the warrant, rendered the First Warrant not specific enough. But this would not have been an effective tool to limit the warrant. Assuming the warrant had included a list of some 220 known participants in the fraud scheme, that would not have provided any guidance when the searchers confronted the 221st participant, who was previously unknown to the agents. In that case, the searching agents would have had to rely on the descriptions in the balance of the warrant, which would spell out the "distinguishing characteristics of the goods to be seized." Listing the first 220 known participants would have done nothing to specify the "distinguishing characteristics" of the 221st, 222nd, or 223rd participants in the tax fraud schemes, for whose records probable cause had been established. Thus the list would not have added particularity--as contemplated by Leary--to the warrant. Because the descriptions found in the First Warrant were sufficiently particular to direct the agents in what they could and could not seize, failure to include the list was not error.

Defendant filed a motion to suppress a traffic stop, and the officers testified there was no video of the stop. Two months later, the prosecutor gave defense counsel a tape of the stop. A motion to reopen the motion to suppress was denied, and the trial court proceeded to a bench trial, and the tape was played showing that the cops essentially lied about the stop. The fact the trial court viewed the tape at trial was insufficient; the motion for reconsideration should have been heard, and the case is remanded for hearing. State v. Lashuay, 2007 Ohio 6365, 2007 Ohio App. LEXIS 5578 (6th Dist. November 30, 2007):

[*P20] The videotape directly contradicts White's and Fairbank's testimony at the suppression hearing. The trial court, when confronted with the existence of new evidence bearing directly on the propriety of the stop, should not have, as it indicated in its order, merely reviewed the parties' filings on the motion to reopen the hearing. Aside from its own statement, the record is silent as to whether the trial court viewed the videotape before twice denying the motion to reopen the suppression hearing. Assuming, arguendo, that the trial court did view the videotape and found it to have no effect, this would have de facto been a reconsideration of the motion to suppress; in that case, the hearing should have been reopened to allow the parties to argue afresh in light of the new evidence considered. Contrarily, assuming arguendo that the trial court did not view the tape before twice denying the motion, the trial court erred in choosing to resolve factual conflicts raised by the new evidence through reference to the parties' motions alone. Therefore, whether or not the trial court viewed the videotape before ruling on the motion to reopen, it abused its discretion in refusing to reopen the suppression hearing to consider the new evidence's effect. Failure to consider the new evidence denied appellant a full and fair opportunity to present his case on the seizure's validity. Pilot, supra; State v. Boggs (Mar. 20, 1995), 12th Dist. No. CA94-08-067, 1995 Ohio App. LEXIS 1029. Appellant's second assignment of error is well-taken.

Defendant was validly frisked for his ID card under T.L.O. by school security despite the defendant's admission that he did not have it on him. The increasing threat of school violence justified it. Also, citing Indiana constitution requires a separate analysis of why it should be interpreted differently in that case. D.L. v. State, 877 N.E.2d 500 (Ind. App. 2007):

We believe that in this post-9/11, post-Columbine age of increasing school violence, a public school police officer's determination that she must identify the individuals with whom she is in contact similarly warrants our endorsement. See, e.g., Cochran v. State, 843 N.E.2d 980, 983-84 (Ind. Ct. App. 2006) (recognizing that it is an essential police function for an officer to ask individuals for identification and that doing so does not by itself raise a Fourth Amendment issue), trans. denied, cert. denied, 127 S. Ct. 943 (2007). Indeed, the presence of an unidentified individual on school grounds has greater potential safety implications than does the mere scent of cigarette smoke as in D.B. or the fact of hearsay allegations regarding a student's sale of marijuana as in Berry. D.L. was on school grounds during a non-passing period and was unable to present identification when asked. In our estimation, it was not unreasonable for Officer Lambert to respond to this situation by conducting a relatively limited pat-down search of D.L.'s pocket in search of his identification. We are unpersuaded that D.L.'s admission to being in violation of school rules somehow obviates the officer's need to confirm this violation, or her accompanying need to identify him via any identification card potentially on his person. Given the circumstances of the unidentified individuals in a school setting, Officer Lambert's clear need to determine their identities, and this court's generally finding school searches to be reasonable under the circumstances, the limited pat-down search for identification in this case was justified at its inception.

Comment: This is one of those potentially dangerous "timebomb opinions" waiting to go off later in another context. Here, the court of appeals, incidentally hearing this case at a high school (fn.3), Giulianiistically invokes "9/11" and "Columbine," the latter of which alone semi attempts to make the point. But, the Columbine shooters were students at the same school, as are almost all school shootings. I bet this oral argument at Lawrence North High School sure got the attention of the students when the questioning at argument essentially left them with the impression that they have no rights against search and seizure of their persons at school if there is now a "Columbine risk" exception to T.L.O. Under "post Columbine" rationale, anything is possible. The court succumbed to a spurious public safety argument without factual or logical basis to support a search for an ID?

Double hearsay from citizen informants was a valid basis for a stop. Two carnival workers in town reported to the City Superintendent at the grounds that the defendant attempted to sell them meth. That person called and talked with the police. The basis of knowledge of the carnival workers was not relayed to the police officer, but he could rely on hearsay from others. Defendant's stop and frisk only escalated when defendant refused to be frisked. State v. Bishop, 2007 Ida. App. LEXIS 108 (December 4, 2007).*

Exclusionary rule did not apply to a revocation proceeding, except where there was bad faith, which was not evident on this record. Police were responding to a domestic disturbance call called in by a neighbor who reported that defendant was standing over his wife threatening her with a crowbar. Stephens v. State, 2007 Ark. App. LEXIS 863 (December 5, 2007)* (unpublished).

Everything in the affidavit failed to satisfy Aguilar-Spinneli, the state standard: There was no showing of the reasons for veracity of the confidential informants part of the criminal milieu and the citizen informant's statements showed nothing for basis of knowlegde. The result is dismissal of the case. State v. Graves, 2007 Tenn. Crim. App. LEXIS 929 (December 5, 2007).*

"The proof does not preponderate against the trial court's finding that Rose waited for the Appellants to return home and asked them for consent to search the rest of the house, which we conclude that they provided, without reluctance, in written form, voluntarily and without coercion. We hold that in this case the State carried its burden of establishing that the Appellants' consent to search their home was freely and voluntarily given." State v. Lard, 2007 Tenn. Crim. App. LEXIS 928 (December 5, 2007).*

Probable cause was based on overhearing the informant and the defendant talk about a drug deal and then seeing it go down. State v. Scruggs, 2007 Ohio 6416, 2007 Ohio App. LEXIS 5634 (12th Dist. December 3, 2007).*

There is no freedom from search and seizure in a prison, even one the inmate perceives is harassing. Reznickcheck v. N. Cent. Corr. Inst., 2007 Ohio 6425, 2007 Ohio App. LEXIS 5621 (3d Dist. December 3, 2007).*

Search of defendant's person for a lump at his belt that was apparently a bag of drugs. The stop was valid, and the lump was seen immediately when defendant got out. There was no time to get a warrant. State v. Blandin, 2007 Ohio 6418, 2007 Ohio App. LEXIS 5620 (3d Dist. December 3, 2007).*

The video of defendant's driving showed a factual basis for his stop. State v. Boon, 2007 Tenn. Crim. App. LEXIS 915 (December 4, 2007).*

Trial court erred in finding that defendant did not waive his expectation of privacy in the child porn on the video files on his computer when he took it to Circuit City for installation of a new DVD drive. Installers always check to see if the video files will load after installation, and that was how it was discovered. Commonwealth v. Sodomsky, 2007 PA Super 369, 939 A.2d 363 (2007).*

Plaintiffs fail to show an equal protection claim that they were profiled, but they do survive summary judgment on the driver's claim that he was manhandled during a frisk that was unjustified. Llanes v. Barton, 2007 U.S. Dist. LEXIS 89245 (D. Neb. December 4, 2007).*

Affidavit for search warrant was so deficient that the defendant officer could not get summary judgment over the civil claim over the search. Lopez v. County of Kauai, 2007 U.S. Dist. LEXIS 89242 (D. Haw. December 4, 2007).*

Suit for injunctive relief against ICE was dismissed because the plaintiffs' claims they would be subjected to future harassment and searches was speculative. Mancha v. Immigration and Customs Enforcement, 2007 U.S. Dist. LEXIS 89414 (N.D. Ga. December 3, 2007).*

"In sum, defendant's right to be free from unreasonable searches did not grant him the constitutional right to refuse a breath test or a field sobriety test, when requiring those tests would have been supported by probable cause and the officer was faced with exigent circumstances occasioned by the dissipation of the alcohol content in defendant's blood. Nor was the state obliged to obtain a warrant before introducing evidence of defendant's refusals to submit to those tests." State v. Greenough, 216 Ore. App. 426, 173 P.3d 1227 (2007).*

Blanket strip search policy of juvenile detention center survived summary judgment. This case presents interesting summaries of the summary judgment material that shows the potential psychological damage to a juvenile from a strip search. The search of the plaintiff occurred long after introduction into the detention facility. Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants' evidence falls short of establishing the constitutionality of blanket strip searches--both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall. With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs' evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants have offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

Plaintiff's claim was precluded by the outcome of a bench trial for a petty offense, and it was also Heck barred. Gilbert v. Isham, 2007 U.S. Dist. LEXIS 89406 (W.D. Va. December 5, 2007).*

"[T]he blocking of the defendant's Chevy to determine the identity of the occupants and maintain the status quo while obtaining this information was a warrantless Terry seizure, that Officer Williams had reasonable suspicion justifying that seizure, and the search of the vehicle was constitutionally reasonable." United States v. See, 2007 U.S. Dist. LEXIS 89448 (N.D. Ohio December 5, 2007).*

Equitable tolling applies to save a § 1983 case that was filed within one year of reversal of a conviction, and after Wallace v. Kato held that the cause of action accrues after reversal. The case was dead under Heck until reversal. Kucharski v. Leveille, 526 F. Supp. 2d 768 (E.D. Mich. 2007):

In Wallace v. Kato, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey does not require otherwise. Shamaeizadeh, plainly, was overruled.

There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs' complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs' failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.

Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs' convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is "a result surely not intended." Wallace, 127 S. Ct. at 1099 n.4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.

The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs' convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.

Accordingly, it is ORDERED that the plaintiffs' motion for reconsideration [dkt # 51] is GRANTED.

"Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom." That finding is supported by the evidence. United States v. Knepper, 256 Fed. Appx. 982 (9th Cir. 2007).

The police informant in the botched Atlanta drug raid that led to the death of 92 year old Kathryn Johnson, repeatedly posted here months ago, sued the City of Atlanta for disclosing his identity in the course of the investigation. See Former police informant sues Atlanta / Alex White was involved in the Kathryn Johnston case, also posted on the ABA's website.

"First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search." Kelly v. State, 371 Ark. 599, 269 S.W.3d 326 [slip op. at *4] (December 6, 2007):

First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search. When determining whether a defendant had standing to challenge a search, the pertinent inquiry is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize the expectation as reasonable. See Mazenpink v. State, 336 Ark. 171, 907 S.W.2d 648 (1999). Even though Kelley was not present in his home during the search, he clearly had a subjective expectation of privacy in the area searched because a search of his home was involved, and society would be prepared to recognize a person’s subjective expectation of privacy in his own home. See Mazenpink v. State, supra (defendant who was not present in his home at the time of the search still had standing to challenge the searching officers’ failure to use proper knock-and-announce procedures). Thus, Kelley did have standing to challenge the search of his apartment.

The search was suppressed for violation of the Arkansas nighttime search rule for failing to show separate probable cause and reasons for a nighttime entry.

Comment: Of course he had standing. Arresting a defendant and removing him from the house deprives him of standing? Ridiculous. The docket sheet omits the name of the AAG who put forth this insipid argument.

An order for saliva, hair, and blood samples has to be based on a sworn affidavit, and merely presenting an order to a judge for signature is insufficient. Thus, it must be suppressed. Here, however, the error was harmless in light of all the evidence in the case. State v. Woods, 376 S.C. 125, 654 S.E.2d 867 (2007):

On June 6, 2003, Officer Creech approached Judge Cooper in chambers for an order to take samples of Woods' hair, blood, and saliva. Two other judges were present in chambers when Officer Creech requested the order. Although Judge Cooper found probable cause to issue the order based on his conversation with Officer Creech, there was no affidavit from Officer Creech to support the court order, and Officer Creech failed to make a statement under oath as required by section 17-13-140. The State conceded the order was defective on its face. We find the court order failed to comply with statutory guidelines. Consequently, the hair, blood, and saliva samples should have been suppressed.

Defendant waived the argument he makes on appeal now in the trial court, so it is barred. State v. McDaniel, 104 Conn. App. 627, 934 A.2d 847 (2007).*

Defendant's wife had the authority to consent to a search of their hotel room. State v. Toney, 187 N.C. App. 465, 653 S.E.2d 187 (2007).*

The recording of defendant's interview with local police showed that defendant was not in custody and his statement was voluntary. United States v. Fontecchio, 2007 U.S. Dist. LEXIS 88796 (S.D. Fla. November 9, 2007) (Comment: Yet, the federal government insists on a policy whereby they record no interviews with suspects. And why do you think that is ....?)

The affidavit for the search warrant for defendant's computer showed probable cause [without details], and the good faith exception would save it anyway. United States v. Stults, 2007 U.S. Dist. LEXIS 88845 (D. Neb. December 3, 2007).*

Plaintiff survives summary judgment on a warrantless arrest claim where defendant entered her house to arrest her for failing to report an accident and resisting arrest. Hardwick v. City of Cleveland, 2007 U.S. Dist. LEXIS 88871 (E.D. Tenn. December 3, 2007).*

Defendant had no credibility on the question of consent because of his interest in the case. United States v. Ham, 2007 U.S. Dist. LEXIS 88743 (S.D. Fla. November 15, 2007).*

Officers did not lose qualified immunity protection because they did not conduct what would be an otherwise proper investigation by not asking further questions. Fleming v. City of Bridgeport, 284 Conn. 502, 935 A.2d 126 (2007):

In the absence of exigent circumstances, adherence to the fourth amendment and to § 47a-43, and the policies underlying both, would dictate that police officers make a reasonable investigation to determine whether such persons are entitled to the protections of the statute. For example, some relevant questions to such an inquiry might be: how long the plaintiff had been staying there; whether she received mail there; whether she paid rent; whether she kept her belongings there; and whether she had a key to the premises. 29 We recognize that the officers in the present case could have asked such questions, and we urge that they do so in the future in similar circumstances; we cannot say, however, that their approach under the circumstances of this case was so unreasonable as to justify abrogation of their qualified immunity.

Defendant lacked a reasonable expectation of privacy in a car that he borrowed for a drug drop that he knew others had access to and admitted that he did not care about. United States v. Amaral-Estrada, 509 F.3d 820 (7th Cir. 2007):

Amaral-Estrada failed to manifest any sort of actual or subjective expectation of privacy. Instead, Amaral-Estrada possessed the car for the purposes of transporting contraband, such as the U.S. currency seized from the back seat. His expectations while using the car were that others would enter the vehicle, taking and/or leaving items therein. Furthermore, when the federal agents asked Amaral-Estrada about the vehicle, Amaral-Estrada denied any knowledge of the car. Amaral-Estrada also testified that he did not care about the bag in the back seat of the Chrysler M300 because it was not his bag and not his car. Under these facts reasonably relied upon by the district court, Amaral-Estrada failed to exhibit any legitimate privacy interest in the Chrysler M300 and therefore lacks standing to challenge the search of the vehicle; therefore we need not address his third issue on appeal as to whether there was probable cause to search the Chrysler M300.

Defendant was seen speeding and officers followed. He pulled into a driveway, reached under the seat, and got out of the vehicle and walked away from it. The officers recognized him as having warrants out and stopped him to arrest him. One officer looked in the vehicle and saw a gun in plain view. The vehicle was going to be impounded because it was parked in a driveway that was not defendant's. The plain view and entry to retrieve the gun was lawful. United States v. Bynum, 508 F.3d 1134 (8th Cir. 2007).*

Defendant was on the premises when a search warrant was executed, and she was asked if she would consent to a search of her car. She agreed. That did not carry with it implicit consent to search her purse for the keys, so the drugs found there had to be suppressed. State v. Fulghum, 288 Ga. App. 746, 655 S.E.2d 321 (2007):

Here, Fulghum was not suspected of any crime at the time she consented to a search of her vehicle; she was merely a visitor to the house. She did not tell Officer Scott to search for her keys, but only stated where she thought they might be. And she never specifically consented to a search of her purse.FN8 Under these circumstances, the trial court was authorized to find that a typical reasonable person would not have understood the exchange between Fulghum and Officer Scott to grant him permission to search her purse. Accordingly, we affirm the grant of Fulghum's motion to suppress.

8. See generally State v. Hanson, 243 Ga. App. 532, 542 (532 SE2d 715) (2000) (physical precedent only) (Barnes, J., concurring specially) ("A purse is no mere container ... it is a uniquely private item containing a person's most confidential possessions. Further, it is an item that is universally recognized as one in which a person has a reasonable expectation of privacy.").

Defendant was stopped for a traffic offense in the vicinity of a shooting report. When he was asked about whether he had a gun, defendant answered funny and he reached for his waistband. This justified a directive for him to get out of the car. United States v. Copeland, 2007 U.S. Dist. LEXIS 88492 (M.D. Tenn. November 30, 2007).*

Officers responded to a domestic abuse call, and they were invited to enter by defendant's wife, the caller, and had probable cause based on injuries to her face. Summary judgment granted. Kirk v. Gregory, 2007 U.S. Dist. LEXIS 88476 (S.D. Ind. September 28, 2007).*

Officers admittedly lacking probable cause did a knock-and-talk at defendant's house. Two other men fled out the back, and a cellphone visible through a window was gone. The defendant inside lied about his identity. The court found exigency and then considered whether the police created it. Instead, defendant created exigency when he lied, and the police then legitimately feared that seven computers inside which were of interest to them would be tampered with or the data destroyed.
United States v. Trowbridge, 2007 U.S. Dist. LEXIS 88257 (N.D. Tex. November 29, 2007):

In this case, the Court is convinced that like the officer in Jones, the agents did not have probable cause to search Trowbridge's computers because there was no evidence connecting his computers to the offense they were investigating. (Gov't's Resp. to Mot. to Suppress 18). Accordingly, it was reasonable for the officers to use the "knock and talk" strategy to further investigate. In addition, Trowbridge and Roberson, not the officers, created the exigency when they attempted to deceive the agents by claiming that Trowbridge was not at home. Based on the agents' testimony, the Court concluded that their investigative tactics were reasonable and did not create the exigency.

Consenting to defendant's re-entering home after a 911 call that was diffused was a police created exigency because they wanted to follow him in. United States v. Davis, 2007 U.S. Dist. LEXIS 88262 (N.D. Tex. November 29, 2007):

Based on the officers' credible testimony in the five hour evidentiary hearing, the Court determined that any emergency that existed based on Cupito's 911 call had ended when the officers approached Davis's door. The officers had spoken to Cupito, and she was standing safely outside Davis's home. Both officers testified that they had determined that they would arrest Davis before they requested his identification. If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. Even though the officers were acting in good faith, this police-created exigency does not justify their invasion of the "sanctity of the home" to effect a warrantless arrest. See Payton, 445 U.S. at 589. Accordingly, the Government has not met its heavy burden of establishing an exigency.

On rehearing from a prior holding, 457 F.3d 1088 (9th Cir. 2006), the Ninth Circuit held that pointing a gun at the head of an 11 year old boy clad only in shorts and a t-shirt, then handcuffing him during a search of a house he already had come out of stated a Bivens claim because he clearly posed no threat. Tekle v. United States, 04-55026 (December 3, 2007):

[3] Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial “intercom,” he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway. He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes. We conclude under these circumstances that the amount of force used against Tekle constituted a “‘very substantial invasion of [his] personal security.’” Id. at 1015 (quoting Baker, 50 F.3d at 1193). Consequently, this factor weighs in favor of Tekle.

[4] Turning to the second and most important factor, we conclude that “the need for the force, if any, was minimal at best.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003). All the factors to be considered in determining the need for the force weigh in favor of a finding that the need for force was minimal. First, Tekle clearly was a child and was not the subject of the arrest warrant. Tekle was unarmed and vastly outnumbered and did not pose an immediate threat to the officers’ safety. He did not actively resist arrest or attempt to flee. Under these circumstances, even if the officers needed to secure Tekle in order to execute the search and arrest warrants, it should have been apparent that this eleven-year-old boy did not pose a threat and that the need for force accordingly was minimal. Cf. id. (finding the force excessive where the officer threw the plaintiff to the ground and handcuffed her, despite the fact that she posed no safety risk and made no attempt to leave the property); Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005) (stating that the governmental interests in using handcuffs were at a minimum when there was no indication that officers believed the suspects would flee or be armed), cert. denied, 126 S. Ct. 1331 (2006); Wall v. County of Orange, 364 F.3d 1107, 1111-12 (9th Cir. 2004) (reversing the grant of summary judgment where the deputy violently arrested the plaintiff, handcuffing his hands tightly, even though there was no probable cause for arrest and the plaintiff was following the deputy’s instructions).

[5] Balancing the force used against the need, we conclude that, “when the disputed facts and inferences are treated in the manner required by law, a jury could properly find” that the force used was “greater than [was] reasonable under the circumstances.” Santos, 287 F.3d at 853, 854. There were over twenty officers present at the scene, and Tekle was not suspected of any crime. He was cooperative and unarmed and, most importantly, he was eleven years old. A reasonable agent confronted with these circumstances should have known that there was no need to use guns and handcuffs. Yet, the officers kept Tekle handcuffed and pointed their weapons at him even after it was apparent that he was a child and was not resisting them or attempting to flee. Moreover, Tekle has alleged that an officer pulled him up from behind by the chain of the handcuffs, an act which, if true, could support a jury finding of excessive force. We understand that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Nonetheless, we are convinced, if only by the sheer number of officers versus the one, clearly unarmed, barefoot child that a reasonable jury could find that the officers used excessive force.

Defendant who was hanging in a drug house that was without electricity or door locks had no expectation of privacy when the police entered without a warrant in response to neighbors' complaints. This was "wrongful" occupancy. United States v. Hoyle, 2007 U.S. Dist. LEXIS 88026 (E.D. Mich. November 30, 2007).

A resident advisor of a Hofstra University dorm called University Security officers when he smelled marijuana coming from plaintiff's room. Plaintiff was later suspended for one semester. His suit against the University under various theories was dismissed, including a lack of state action for the entry. He was not prosecuted. Franchetti v. Hofstra Univ., 2007 N.Y. Misc. LEXIS 7823, 238 N.Y.L.J. 98 (Nassau Co. October 19, 2007).*

Defendant's traffic stop escalated to reasonable suspicion based on excessive nervousness and furtive movements, the explanation of which was completely implausible. Defendant was even moved to another officer a half-mile away because the officers needed to back each other up. State v. Forbes, 2007 Ohio 6412, 2007 Ohio App. LEXIS 5616 (12th Dist. December 3, 2007).*

Plaintiffs and their children were staying at a hotel in New Orleans only from Algiers on the West Bank when Katrina hit and then the city flooded. By September 1st, the hotel they were in was running out of food and fuel, and the hotel asked them to evacuate. Their car was in the hotel's flooded garage, so they decided to walk home over the bridge. They were ordered back into New Orleans at gunpoint by Gretna police, notwithstanding their attempt to show they lived where they were walking to. They sued under various theories, and they stated a denial of interstate travel and a Fourth Amendment claim that survives a motion to dismiss. Cantwell v. City of Gretna, 2007 U.S. Dist. LEXIS 88156 (E.D. La. November 30, 2007):

The defendants contend that the facts do not state a claim for relief for a violation of the plaintiffs' rights under the Fourth Amendment. The defendants contend that the plaintiffs have not alleged any use of force and that the "threat of force" by pointing a gun as a deterrent does not allege a constitutional violation. The plaintiffs argue that the defendants violated a liberty interest guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendment when they physically restrained them from crossing the bridge.

. . .

"The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the defendants] are charged." Baker v. McCollan, 99 S.Ct. 2689, 2692 (1979). Historically, "[t]he liberty preserved from deprivation without due process included the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Ingraham v. Wright, 97 S.Ct. 1401, 1413 (1977). "While the contours of the historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment." Id. at 1413-14.

A seizure occurs when government actors have "by means of physical force or show of authority, ... in some way restrained the liberty of a citizen." Terry v. Ohio, 88 S.Ct. 1868, 1879 n.16 (1968). In Graham v. Connor, 109 S.Ct. 1865, 1871 (1989), the Supreme Court explicitly held that a claim that arises in the context of the restraint of liberty of a free citizen is properly characterized as one invoking the protections of the Fourth Amendment and is analyzed under the reasonableness standard. "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Id.; see also Saucier v. Katz, 121 S.Ct. 2151, 2158 (2001) (analysis is under Fourth Amendment standard, not substantive due process principles).

The Due Process Clause is not implicated in this case. There are no issues concerning procedural due process, and a substantive due process analysis is not appropriate. Accordingly, the defendants' motion to dismiss the claims under the Due Process Clause of the Fifth and Fourteenth Amendments is granted.

Notwithstanding, the plaintiffs have alleged facts beyond a speculative level that a violation of the Fourth Amendment could have occurred, based simply on the general rule prohibiting excessive force in restraining the liberty of a citizen. See Saucier v. Katz, 121 S.Ct. at 2159. Accordingly, the allegations plausibly suggest a right to relief, and the defendants' motion to dismiss the Fourth Amendment claim is denied.

Defendant's car was impounded because of his driver's license, and he asked if he could get some things out of the car before it was towed. The officer decided to search for weapons for officer protection, but instead did a complete search of the car, including searching in a dayplanner and the trunk. The search was excessive and violated the Fourth Amendment. State v. Warren,38 Kan. App. 2d 697, 171 P.3d 656 (2007).

A search incident under Kansas law is statutorily the same as Belton and Thornton by a change in statute from the search being for "the crime" to "a crime." Here, the defendant had just gotten out of the car when he was arrested, so a search incident was proper. State v. Henning, 38 Kan. App. 2d 706, 171 P.3d 660 (2007).

Stop was based on reasonable suspicion from a tipster that was corroborated and involved hiding a black bag under the hood. Once the defendant was stopped and admitted having marijuana on him, a search incident was proper. State v. Cheickne, 2007 Ohio 6334, 2007 Ohio App. LEXIS 5567 (1st Dist. November 30, 2007).*

Defendant was stopped for driving on a road closed to all but residents, but the officer had no idea whether defendant was a resident. The stop was unreasonable. State v. Hoard, 2007 Wisc. App. LEXIS 1041 (November 29, 2007):

P20 We note that the circuit court stated that if Hoard had not lived within the closed area, he could not challenge the stop. We disagree. The analysis of the lawfulness of a traffic stop does not depend on what the officer learns after the stop but on whether, at the time of the stop, the officer had reasonable suspicion for making the stop. Thus, whether Hoard was or was not lawfully driving in the closed area, the analysis of the lawfulness of the stop is the same.

Pretrial electronic monitoring is not a violation of the Fourth Amendment. United States v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007):

In the instant case, the sole condition of electronic monitoring does not implicate any such interest. It does not violate a reasonable expectation of privacy under the Fourth Amendment. Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner's home to ensure she complies with her curfew. Thus, electronic monitoring itself does not invade Ms. Gardner's reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) ("[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c ("[T]here is no liability ... for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.").

Defendant was taken in, but not arrested, for indecent liberties with a child, and he consented to his car being towed to the police station. After they were there, he was asked for consent to search the car, but he did not want the officers to let his wife know what was in it. The officer assured the defendant he would not tell the wife, so the defendant consented. The consent was valid. Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007).*

Police had reasonable suspicion based on defendant's description, proximity to a robbery call, and then flight when he saw the police. The search of his duffle bag at the time of detention was waived. People v. Quinones, 2007 NY Slip Op 9431, 45 A.D.3d 874, 847 N.Y.S.2d 145 (2d Dept. 2007):

The police had a founded suspicion that criminal activity was afoot when they observed the defendant, who matched the general description of a robbery suspect in a radio call, in the stairwell of the building where the reported robbery occurred .... The defendant's attempted flight, combined with the temporal proximity between the reported robbery and the officers' arrival on the scene, gave the police reasonable suspicion to detain the defendant. ...

The defendant's contention that the search of his duffel bag without a warrant constituted an unreasonable search and seizure, was not raised at the suppression hearing, and thus, it is unpreserved for appellate review ... and, in any event, is without merit ....

Military entry base search of a car at a contractor entry gate that produced a small quantity of marijuana was a valid area entry search. No matter what theory is applied, the military has a compelling interest in keeping drugs off a base. United States v. Gallock, 2007 U.S. Dist. LEXIS 87512 (E.D. Cal. November 20, 2007):

The search here is no different in principle from other types of "entry point" searches whether or not the administrative search is justified with an implied consent. In either case, the scope of the search cannot exceed the purpose for which the warrantless search is justified. United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) ("The scheme is only valid if 'the search serves a narrow but compelling administrative objective,' and 'the intrusion is as limited….as is consistent with satisfaction of the administrative need that justifies [it].'"). Even the government appeared to concede at oral argument that the military police would be hard pressed to utilize their checkpoint to search for evidence of private party stock insider trading, a crime with no general relation to Air Force activities. As is the case in many areas of criminal law, a rule of reason must be employed even for exceptions to the search-with- warrant requirement. Morgan, 323 F.3d at 781. And, the military entry point search must be limited to those areas of the person or vehicle likely to conceal the contraband prohibited from the base.

Defendant's error is in assuming that if a check for weapons alone is the rule for government buildings, Bulacon, supra, thus it must be the rule for military bases as well. The undersigned has seen no authority for such a narrow proposition, and the case law permits different search scopes, even based on dual purposes, depending on the nature of the checkpoint. See e.g., United States v. Soto-Camacho, 58 F. 3d 408 (9th Cir. 1995) (border checkpoint search based on need to ascertain immigration status and need to thwart drug trafficking upheld).

The local Air Force regulation governing the scope of the search permits military police to conduct entry point searches "to deter theft of government property and to prevent the transportation of contraband onto and off the installation." BABI31-101, 14 May 2002, § 5.7.1.1, Govt. Exhibit 3. See also AFI 31-201, § 5.2: "Controlling entry to the installation is a fundamental security police task. We control entry…to help protect the resources entrusted to the Air Force." However, although "contraband" is a broad word, it cannot exceed the scope of items which would in some way significantly disrupt the functioning of the airbase.

The court need not stretch to understand that the Air Force has a legitimate and compelling interest in keeping controlled substances off its premises.

Egloff v. New Jersey Air Nat. Guard, 648 F. Supp. 1275, 1280 (D.N.J. 1988). Air Force functions at a base such as Beale include flight, ground control and maintenance of aircraft and other sophisticated equipment. Training with dangerous weapons takes place. Private contractors assist the Air Force in its mission. Air Force bases and use of controlled substances thereon are incompatible in terms of the danger to mission, life, and property which would be risked by application of civilian controlled substance probable cause search rules to entry points on these insular bases. Nor must the Air Force implement a plethora of different rules and standards for checkpoint searches depending on the sophistication of every job, for employees working those jobs, which takes place on an Air Force base. Such would be unworkable.

Whatever "contraband" may be beyond the proper scope of an entry point search at a military base, controlled substances fall far short of that outside parameter. Upon entering the base at Beale, defendant impliedly consented to a search of his vehicle, including the center console and items such as the eyeglass case contained therein. The scope of the search was reasonable.

"Fellow officer rule" applies to the information which triggers a protective sweep, which was valid here. United States v. Anderson, 2007 U.S. Dist. LEXIS 87485 (W.D. N.Y. November 6, 2007):

Logically, the same analysis should apply to a protective sweep in determining whether there exists "a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Buie, 494 U.S. at 336. Specifically, in this case, the Court finds that information, possessed by Briganti reasonably led him to believe that the targets of the warrants might well be armed and dangerous and reasonably led him to so advise members of the arrest teams, including Brennan.

Finally, since the Court determines that the protective sweep at issue was lawful, Brennan's plain view observation of the business card on which there appeared names and numbers was also lawful.

A license plate and driver's license check which led to the discovery that the owner of the vehicle had a restricted driver's license justified a stop on reasonable suspicion. State v. Crow, 2007 Iowa App. LEXIS 1272 (November 29, 2007).*

Facebook's insidious program that told a Facebook user's friends everything the user was buying online or movies they were buying tickets to bit the dust after a mere ten days, thanks to a user uprising. See NYTimes.com yesterday: Facebook Retreats on Online Tracking:

Faced with its second mass protest by members in its short life span, Facebook, the enormously popular social networking Web site, is reining in some aspects of a controversial new advertising program.

Within the last 10 days, more than 50,000 Facebook members have signed a petition objecting to the new program, which sends messages to users’ friends about what they are buying on Web sites like Travelocity.com, TheKnot.com and Fandango. The members want to be able to opt out of the program completely with one click, but Facebook won’t let them.

Late yesterday the company made an important change, saying that it would not send messages about users’ Internet activities without getting explicit approval each time.

Facebook and MySpace are incredibly stupid and completely insipid websites for lonely people or people with too much time on their hands. It is useful to the defense bar, however, because purported crime victims have made admissions on their Facebook or MySpace pages that defense lawyers can use against them, assuming one can get into their website.

Amazingly, Facebook was sending personal information about members' purchases to all their "friends" listed on the website, without the members' permission. How they thought they could get away with this is unfathomable to me. Talk about an invasion of privacy ....

Plaintiff's car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff's Fourth Amendment claim failed under Knotts. Morton v. Nassau County Police Dep't, 2007 U.S. Dist. LEXIS 87559 (E.D. N.Y. November 27, 2007):

"A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276, 281 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. "Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them." Id. at 282.

In Knotts, law enforcement officials placed a tracking device, or "beeper," inside a barrel of chloroform which was sold to an individual suspected of manufacturing illegal drugs. After the suspect loaded the barrel containing the beeper into his vehicle, the police were able to track his movements. The Court in Knotts held that the law enforcement officials' use of the beeper did not violate the suspect's Fourth Amendment rights, because there is no reasonable expectation of privacy in the movements of an automobile on public roadways, and that the placement of the device did not constitute an unreasonable seizure. Id. Accord United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007); United States v. Gbemisola, 225 F.3d 753, 758-759 (D.C. Cir. 2000); ... Alexandre v. N.Y. City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D.N.Y. September 28, 2007); ....

Plaintiff attempts to distinguish the instant case from Knotts on the basis that the beeper in Knotts was not actually attached to the suspect's car, but rather loaded by the suspect into his own car, whereas here, the GPS Device was attached to Plaintiff's car by the Defendants. This minor distinction is not sufficient to remove the instant case from the ambit of Knotts.

Thus, the use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment, and Plaintiff's claims pursuant to the Fourth Amendment are dismissed.

Dog alert during a stop was sufficient to justify prolonging the detention. United States v. Aispuro-Medina, 256 Fed. Appx. 215 (10th Cir. 2007) (unpublished).*

Plaintiff’s mental health seizure was justified by probable cause to believe she was a danger to herself. Morrison v. Bd. of Trs. of Green Twp., 2007 U.S. Dist. LEXIS 87817 (S.D. Ohio November 29, 2007).*

"There is no reasonable expectation of privacy in a license plate number which is displayed in plain view, and it is not illegal for a police officer to use license plate information to conduct a check on the vehicle's ownership and registration." The vehicle came back unregistered. United States v. King, 2007 U.S. Dist. LEXIS 87629 (D. Del. November 29, 2007).*

"After careful consideration of Detective Boos' testimony and a careful review of the application for a search warrant, I am convinced that the affidavit contained no false or misleading information, and that Detective Boos did not knowingly or intentionally or with reckless disregard for the truth include any false statements or omit any necessary or material information in the application for the search warrant. Franks v. Delaware, 438 U.S. at 171-72. Thus, I will deny the motion to suppress." United States v. Charles, 2007 U.S. Dist. LEXIS 87647 (E.D. Pa. November 29, 2007).*

DNA can be taken from a person convicted of a non-violent drug conspiracy. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007) (2-1):

Kriesel counters that nonviolent offenders have lower recidivism rates than violent offenders. This argument is not persuasive in Kriesel's case. Indeed, he is already a recidivist, as he violated the terms of his release when he tested positive for controlled substances. While it is true that "recidivism rates vary with factors like the offender's age and type of conviction," nonetheless, "the high likelihood that non-violent offenders will re-offend--and therefore, as the Supreme Court recognized in Knights, be put in the position to conceal their crimes and identities from the authorities--underscores the Government's interest in obtaining the most accurate identification information it can from these individuals." See Banks, 490 F.3d at 1191.

Comment: I lost this issue in Arkansas two years ago, Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005), holding there is enough risk of recidivism even with drug offenders to justify it. See also Annots., Validity, Construction, and Application of DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C.A. §§ 14135 et seq. and 10 U.S.C.A. § 1565, 187 A.L.R. Fed. 373, § 12 (larceny); Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

Coincidentally, the LAPD alone needs $9.5M to clear out its DNA backlog. See yesterday's LATimes.com: LAPD far short of funds for DNA tests.

The time during a warrant check is a detention. "[W]hen Anderson ordered the warrant check, the encounter evolved into a restraint on defendant's liberty. In other words, the encounter evolved into a stop. Given the state's concession--with which we agree--that Anderson lacked reasonable suspicion to stop defendant at that point, the stop was unlawful." State v. Rider, 216 Ore. App. 308, 172 P.3d 274 (2007).

Consent was a product of unlawful entry, and it was too close on its heels to be attenuated. State v. Washburn, 216 Ore. App. 261, 173 P.3d 156 (2007)*:

In this case, the evidence as described above clearly establishes that the deputies sought consent "solely as a result of the knowledge of inculpatory evidence" obtained in the first entry. Further, the time between the two searches was short, five minutes at most; no intervening circumstances occurred; and no mitigating circumstances occurred. Additionally, the deputies "traded on," or exploited, the discoveries made during the first search in order to obtain Buchholtz's consent. They referred to both the unattended child and the condition of the room immediately before asking him if they could enter in order to further discuss the situation.

In sum, the first entry was an unlawful search. But for that search, the deputies would not have sought consent for a reentry. The state has not shown that the second entry would (or could) have occurred based on independently obtained information, nor that the connection between the unlawful search and the subsequent consent was attenuated. Defendant's motion to suppress should have been granted.

Defense counsel was not ineffective for not challenging the search of defendant's motorcycle because it was based on probable cause. Alternatively, it was a valid inventory for forfeiture. Commonwealth v. West, 2007 PA Super 349, 937 A.2d 516 (Pa. Super. 2007).*

Violation of state strip search statute did not warrant suppression because the search was valid under the Fourth Amendment. Rumore v. State, 969 So. 2d 551 (Fla. 2d DCA 2007):

Furthermore, we hold that the subsequent strip search of Mr. Rumore's person was reasonable under the Fourth Amendment but unlawful under section 901.211, Florida Statutes (2005). However, Mr. Rumore is not entitled to have the fruits of the search suppressed because the exclusionary rule is inapplicable in the context of violations of section 901.211. See Laster v. State, 933 So. 2d 41, 42 (Fla. 2d DCA 2006); Jenkins v. State, 924 So. 2d 20, 33-34 (Fla. 2d DCA), review granted, 944 So. 2d 345 (Fla. 2006).

"Plain feel" did not justify opening a candy container to look for contraband. Crawford v. State, 980 So. 2d 521 (Fla. 2d DCA 2007).*

A search warrant was not invalid for not mentioning that defendants lived there. United States v. Xiong, 2007 U.S. Dist. LEXIS 87085 (E.D. Wis. November 26, 2007):

An accurate street address is by itself sufficient to allow a reasonable person to "ascertain and identify the place intended." Id. Here, the warrant included in addition to an accurate street address, a physical description of the premises. Defendants have offered no explanation of why this was not sufficient.

Inevitable discovery supported seizure of 10,000 pounds of marijuana from defendant's house which they could smell after the door was opened. They did a "protective sweep" and sent for a warrant. The inevitable discovery doctrine supported the seizure. Herrera-Fernandez v. State, 2007 Fla. App. LEXIS 18729 (Fla. 4th DCA November 28, 2007).*

Younger abstention bars a federal civil action against a search that is still under investigation by state officials. Mirka United, Inc. v. Cuomo, 2007 U.S. Dist. LEXIS 87385 (S.D. N.Y. November 27, 2007):

Numerous courts have held that investigatory proceedings that occur pre-indictment and that are an integral part of a state criminal prosecution may constitute "ongoing state proceedings" for Younger purposes. See, e.g., Texas Association of Business v. Earle, 388 F.3d 515, 519-21 (5th Cir. 2004) (A state grand jury proceeding in which subpoenas have been issued constitutes an 'ongoing state proceeding' such that abstention is warranted.); Craig v. Barney, 678 F.2d 1200, 1202 (4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) ("The issuance [by the Arkansas Attorney General] of the subpoenas ... is part of a state proceeding in which the plaintiffs to this action had an opportunity to present their claims" and therefore requires Younger abstention.); J. & W. Seligman & Co. Inc. v Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sep. 27, 2007) ("[T]he issuance of compulsory process ... in criminal cases, initiates an 'ongoing' proceeding for the purposes of Younger abstention."); Law Firm of Daniel P. Foster, P.C. v. Dearie, 613 F. Supp. 278, 280 (E.D.N.Y. 1985) ("Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding."); Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y. 1976) ("[W]hen a grand jury has been impaneled and is sitting and investigating, there is a 'criminal case' and in New York a criminal proceeding.").

Search warrants are sometimes necessary to develop evidence sufficient to commence a criminal action and are functionally connected to criminal prosecutions. Moreover, the instant search warrant was authorized and executed during and in connection with a grand jury investigation. It would strain logic as well as both New York and federal law to conclude that a search warrant authorized by a New York state judge and executed during the course of an ongoing grand jury investigation is not part of an ongoing state proceeding. In any event, as that grand jury investigation has now resulted in an indictment against Kagan and others, state criminal proceedings are now clearly underway.

"Defendant's consent, after being shown an invalid search warrant for the [his] property, was not a valid consent." United States v. Jones, 2007 U.S. Dist. LEXIS 87221 (S.D. Ohio November 27, 2007).*

Consent was found valid by defendants' actions, without words. United States v. Hernandez, 2007 U.S. Dist. LEXIS 87080 (D. Utah November 27, 2007).*

The defendant's car was parked on an off ramp, and an officer stopped behind him putting on his "hazard [not emergency] lights" and then saw what he perceived was a furtive movement that could involve weapons. He talked to the defendant who said that his wife was sick, and he ordered the defendant out of the car, thereby effecting a stop. There was no indication of any criminality. Asble v. Commonwealth, 50 Va. App. 643, 653 S.E.2d 285 (2007):

Davis assumed that Asble's movement was a furtive gesture responsive to the approach of a policeman. However, the record does not disclose that Asble knew he was being so approached. The police car did not have its emergency lights on. No evidence disclosed that Davis was in uniform. No evidence disclosed that Asble knew Davis was a policeman or even that he was aware of his approach. The evidence disclosed only a motion that was not inherently culpable and that coincided with bringing to a stop a car that according to Davis's acknowledged prior testimony was rolling backwards.

Davis identified no criminal activity of which he suspected Asble. He noted only that "sometimes" when movement such as he saw occurs, weapons and/or narcotics are present. This was, at best, a mere hunch, not a particularized suspicion flowing reasonably from articulable facts. Thus Davis lacked justification to remove Asble from the car and to search the car.

Consent was valid because defendant was told he could refuse and he had prior experience in the criminal justice system to know he could refuse. State v. Settles, 2007 Tenn. Crim. App. LEXIS 883 (November 26, 2007):

Likewise, the record does not demonstrate that there was any hostility at all between the policemen and the Defendant or that weapons were displayed; rather, the record demonstrates that the Defendant was cooperative from the start. The police did initiate contact and request the Defendant's consent, but the record reflects that he gave it without hesitation (and with knowledge that he had the right to refuse) by signing two separate forms. In addition, the Defendant has a record of prior arrests and therefore has some experience interacting with law enforcement personnel.

Defendant's bizarre and erratic behavior justified law enforcement following him into a building he entered without a key after an encounter on the street. McDermott v. State, 877 N.E.2d 467 (Ind. App. 2007).*

Police claim of exigency fails, so the entry was illegal, but the affidavit for the search warrant had enough independent information in it to justify issuance of the search warrant. Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007).*

The Pennsylvania Supreme Court, in a wildlife case, holds that its state constitution does not create greater protection in open fields than the federal constitution, after a sensitive analysis of whether it should. State v. Russo, 594 Pa. 119, 934 A.2d 1199 (2007) (a case under submission for a year and a half):

The citizens of this Commonwealth throughout our history have shown a keen interest in protecting and preserving as an asset the diverse wildlife that find refuge in the fields and forests within our borders. This interest is so strong that it is enshrined by a separate provision of the Pennsylvania Constitution:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

PA. CONST. art. 1, § 27. The legislative and executive branches, in turn, have enacted and executed a plethora of statutes and regulations designed to enforce the people's right to the preservation of our wildlife. Thus, our Constitution and enacted statutes--as well as the agencies created to enforce them--all confirm that, in Pennsylvania, any subjective expectation of privacy against governmental intrusion in open fields is not an expectation that our society has ever been willing to recognize as reasonable. In short, the baseline protections of the Fourth Amendment, in this particular area, are compatible with Pennsylvania policy considerations insofar as they may be identified. More importantly, there is nothing in the unique Pennsylvania experience to suggest that we should innovate a departure from common law and from federal law and reject the open fields doctrine.

In light of the foregoing, we hold that the guarantees of Article I, Section 8 of the Pennsylvania Constitution do not extend to open fields; federal and state law, in this area, are coextensive. Therefore, we affirm the Commonwealth Court's determination that Officers Wasserman and Pierce did not violate appellant's right to be free from unreasonable searches and seizures.

"The officer testified appellant's vehicle did not come to a full stop until the front wheels crossed the [stop] line. This observation provided the officer with an objectively reasonable ground for a stop." There was a basis for the stop, so pretext was not an issue under Whren. People v. Binkowski, 157 Cal. App. 4th Supp. 1, 68 Cal. Rptr. 3d 741 (2007).*

Police arrived at a domestic disturbance which had defendant arguing with his girlfriend about a videotape she had in her hand. He was trying to "snatch it back" from her. Finally, he consented to the police viewing the tape because "there was nothing on it." The police saw him masturbating in front of two minor females, and he was arrested. The viewing of the videotape was consensual. Mitchell v. State, 289 Ga. App. 55, 656 S.E.2d 145 (2007).*

Handwritten consent form was valid, and it broadly granted permission to search. "The form read in part: 'I specifically give my consent and authorize these persons to inspect and remove any items of evidence which maybe related, directly or indirectly, to the investigations of the circumstances and/or the cause of the fire.' (Emphasis added)." Clothing was written in, and it was valid. State v. Marshall, 2007 Ohio 6298, 2007 Ohio App. LEXIS 5528 (4th Dist. November 16, 2007)*:

[*P33] Appellant claims that even if his consent was voluntary the scope of the search was limited due to Fire Marshall Lawless writing "for clothing" on the bottom of the form. As previously noted, Lawless testified that he wrote those words only to ensure Appellant's clothes were retrieved. He testified they had no bearing on the scope of the search. Both Lawless and Officer Wilson of the Ironton Police Department testified that the words "for clothing" were added after Appellant had already signed the consent form. Further, Wilson and Lawless testified that Appellant in no way asked to limit the scope of the search.

[*P34] "The standard for measuring the scope of consent under the Fourth Amendment is objective reasonableness, i.e., what a typical reasonable person would have understood by the exchange between the officer and the suspect." Felder at 17. In the case at hand, a reasonable person would not have concluded the scope of search was to be limited to clothes only. The text of the consent to search form, which was read aloud to Appellant, stated "any items of evidence" potentially related to the fire could be removed and the evidence shows Appellant signed the form with this understanding. The hand-written words "for clothing" were not written at the request, or under the direction, of Appellant, but were written simply to ensure that his clothes were collected in addition to any other relevant evidence.

LexisONE free caselaw has been added to the column on the right side for free links to caselaw. Some of the links derived from other sources have changed (thus, gone bad) over time, and some state opinions I have been finding are inaccessible on the state judicial websites. LexisONE enables free access to many that are otherwise inaccessible.

Defendant who hid a gun on the roof of a garage had no expectation of privacy there. United States v. Pankey, 2007 U.S. Dist. LEXIS 86785 (D. Minn. October 25, 2007)*:

The critical threshold question is whether the Defendant had a legitimate expectation of privacy on the roof of the garage where Wilson found the weapon, which would allow him to assert a Fourth Amendment claim. The Defendant acknowledges that he does not have a possessory or ownership interest in the garage. However, he argues that he had constructive control of the garage, based on the fact that he resided in a building which was located on the street immediately below the garage, and that he was present on October 26, 2006, at the Seventh Street residence rented by Dickerson, which was immediately adjacent to the garage, and that constructive control gave him a reasonable expectation of privacy on the roof of the garage.

At the Hearing, Wilson testified that he had spoken with Johnson, who owns both the garage, and the building immediately below the garage, where the Defendant was renting an apartment at the time that the search took place. According to Wilson's uncontradicted testimony, Johnson reserved the garage for his own personal use, and had not given the Defendant, or any other tenant, permission to use the garage, or its roof. See, United States v. Wiley, 847 F.3d 480, 481 (8th Cir. 1988) (defendant lacked standing when he had no legitimate access to premises without the presence of the owner and had no personal belongings stored there). The Defendant does not claim that he had a key to the garage, or had previously stored belongings there, either with or without Johnson's permission, and did not have the ability to exclude others from accessing the garage. Likewise, the Defendant did not pay any rent to use the garage, or claim that any portion of the rent that he paid to Johnson, for his apartment, was so allocated. See, United States v. Juchem, 2001 WL 34152082 at *4 (N.D. Iowa, April 23, 2001)(no expectation of privacy in garage when defendant had key and permission of owner to enter, but did not pay rent or have permission to exclude others).

Moreover, the Defendant cannot claim that he had a legitimate expectation of privacy in the roof of the garage, based on his presence in the Seventh Avenue residence. Johnson told Wilson that he had not given anyone, including Dickenson, permission to access the garage. Even if Dickenson had the ability to give the Defendant permission to access the garage, she also told Wilson that she had not granted the Defendant permission to store any items, either in or on the garage, or inside her residence.

Defendants prevailed in a civil action for serving a search warrant on the wrong premises. Defendants then sought attorneys fees for a frivolous action, which the district court denied. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 86847 (E.D. Cal. November 9, 2007).*

The California Third District Court of Appeals held that the police cannot keep marijuana seized off a bona fide medical marijuana patient who was charged and the charges later dismissed because he was, in fact, a patient. The state's argument for federal preemption over marijuana prosecution was rejected [not to mention that it was highly disingenuous] as was the argument that returning the medical marijuana would violate public policy [which borders on the fantastic, considering California's Compassionate Use Act]. This is a really interesting case. The opinion is 41 pages long, and here are only three of them. City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656 (3d Dist. 2007):

Like the City itself, amici also fear the Garden Grove police would be violating federal law by returning Kha’s marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended “to act as a pusher rather than a medical pofessional.” (Relying on United States v. Moore (1975) 423 U.S. 122.)

By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).

Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 10-12.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha’s marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)

That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.

By returning Kha’s marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court’s order comports with an officer’s dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const. art. XX, § 3.)

Defendant was a well known target as a money or drug courier crossing the border regularly through Champlain, N.Y., and he was flagged in the Customs computer. When he crossed the border this time, he was sent to secondary inspection, and he was brought inside for questioning. While he was inside, a GPS with a cellphone transmitter was planted on the car. He was allowed to go on his way, and they watched and tracked his moves and noticed that he had lied about his travel plans, and they developed reasonable suspicion for a stop. He was ultimately arrested for bulk cash smuggling for lying about having more than $10,000 in cash when he entered the country. United States v. Coulombe, 2007 U.S. Dist. LEXIS 86756 (N.D. N.Y. November 26, 2007):

A person has no reasonable expectation of privacy insofar as the exterior of his car is concerned. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (citing New York v. Class, 475 U.S. 106, 114 (1986); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). There is no Fourth Amendment violation when the installation of a tracking device on a vehicle's undercarriage does not damage the vehicle or invade its interior, when the vehicle operator does not lose dominion or control, and when there is no other Fourth Amendment invasion during the installation. See McIver, 186 F.3d at 1126-27. Charles did not damage the vehicle, he did not invade the interior, and Coulombe did not lose dominion and control. Because the vehicle's undercarriage was lawfully accessed during the secondary border inspection, there was no other unlawful invasion that violated the Fourth Amendment. See Tudoran, 476 F. Supp. 2d at 210-13. Therefore, the installation of the device and its post-installation operation were constitutionally permissible.

Even assuming the first prong of a Franks violation, including the omitted information still showed probable cause. United States v. Laliberte, 2007 U.S. Dist. LEXIS 87023 (D. Kan. November 19, 2007):

In this case, even assuming defendant could meet the first part of his Franks burden, the court would nevertheless conclude that the affidavit otherwise provided probable cause for the search. In determining this issue, the court sets aside the allegation that property records showed Robert Charles Laliberte as the owner of the 6th Street residence, and it treats the omission relating to Robert's Arizona license and Arizona correspondence as though it had been included in the affidavit. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (in determining whether affidavit still shows probable cause, false statements are set aside, while omitted information is treated as if it had been included in the affidavit). Even so, the affidavit showed probable cause to search the 6th Street residence.

On a stop and arrest with probable cause for odor of marijuana, officer had informant information that contraband would be hidden in the dashboard. This justified the officer looking into the air conditioning vent with a flashlight. Then, a hidden compartment in the dash was found with a gun hidden there. The entire search was justified under the automobile exception. United States v. Luna-Ilarraza, 2007 U.S. Dist. LEXIS 86955 (D. P.R. November 27, 2007):

However, Officer Berrios' additional reason for looking into the air conditioning vent, that a confidential informant had stated that there was a compartment in the dashboard which contained contraband, combined with her own knowledge and under the totality of the circumstances, also supplied probable cause for the search. The confidential informant described the vehicle in make and color, gave its licence plate number and location, and specified that there was marijuana in the trunk and contraband in the dashboard area. Having stopped the car described by the informant after spotting it at the identified location, verified that the licence plate matched the one given by the informant and discovered marijuana in the trunk, just as the informant had asserted, those portions of the information were corroborated as accurate. "In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Jones v. U.S., 362 U.S. 257, 269 (1960) (overruled on other grounds by U.S. v. Salvucci, 448 U.S. 83 (1980)). Even if the officers did not know the identity of the informant, under the totality of the circumstances, including the corroboration of virtually every aspect of the tip, it was reasonable for them to believe that contraband was being housed within the air conditioning vents and gauge cluster in the passenger area of the vehicle. See U.S. v. Sandoval-Espana, 459 F.Supp.2d 121 (D.R.I. 2006). In sum, the totality of the circumstances of this case establish the probable cause necessary to sustain the warrantless search of both the trunk and the gauge cluster of defendant's car under the automobile exception.

Lastly, the fact that the weapon was within a compartment does not invalidate the search. It has been clearly established by the Supreme Court that the privacy interest in closed containers within a car yields to the broad scope of an automobile search. California v. Acevedo, 500 U.S. 565, 574 (1991). "[T]he law recognizes that a vehicle search under this exception may encompass all areas of the vehicle in which the suspected contraband is likely to be found." U.S. v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (citing United States v. Maguire, 918 F.2d 254, 260 (1st Cir.1990), cert. denied, 499 U.S. 950 (1991)).

"An officer's observation of a vehicle straying out of its lane multiple times over a short distance creates reasonable suspicion that the driver violated [the state statute] so long as the strays could not be explained by adverse physical conditions such as the state of the road, the weather, or the conduct of law enforcement." United States v. Egan, 256 Fed. Appx. 191 (10th Cir. 2007)* (unpublished).

Even a bad seizure of cash can still lead to a forfeiture if the government can find untainted evidence to prove it. United States v. $172,760.00 in United States Funds, 2007 U.S. Dist. LEXIS 86974 (M.D. Ga. November 27, 2007):

Evidence obtained in the course of a search that violates the Fourth Amendment is inadmissible in a civil forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965). However, it is well-established that an illegally seized asset can still be the subject of a civil forfeiture proceeding if the Government can meet its burden of proof with untainted evidence. See, e.g., United States v. Monkey, 725 F.2d 1007, 1012 (5th Cir. 1984); ....

The Colorado Supreme Court assumes but does not decide that three sheriff's deputies entered defendant's property in violation of the Fourth Amendment. In response to the violation, he allegedly committed criminal acts against the deputies, including menacing them with a shotgun. The trial court suppressed all the evidence of his criminal acts on the ground that the evidence was derived from the deputies' unconstitutional trespass. The Colorado court concludes that this evidence is not derivative of any constitutional violation, and reverses the trial court's suppression order. People v. Doke, 171 P.3d 237 (Colo. 2007). Comment: This is the settled general rule.

Extending a traffic stop for lack of a seatbelt and a lack of a reflective strip on the temporary tag was defective for going beyond its purpose. State v. Connor, 288 Ga. App. 517, 654 S.E.2d 461 (2007):

As noted above, to pass muster under the Fourth Amendment, the continued questioning of a driver and passengers outside the scope of a valid traffic stop is permissible only when the officer has a reasonable articulable suspicion of illegal activity or when the valid traffic stop has become consensual. ... A consensual encounter requires the voluntary cooperation of a private citizen with non-coercive questioning by a law enforcement official. Because the individual is free to leave at any time during such an encounter, he is not “seized” within the meaning of the Fourth Amendment. ... In looking to the totality of the circumstances to determine whether a reasonable person would have felt free to leave, three important factors have been given particular scrutiny: (a) whether the driver's documents have been returned to him; (b) whether the officer informed the driver that he was free to leave; and (c) whether the driver appreciated that the traffic stop had reached an endpoint. ... It is clear that “an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.” (Citations omitted.) ...

There is no privity of parties between a preliminary hearing and a § 1983 case over the same arrest and search for issue preclusion to apply. Saunders v. Knight, 2007 U.S. Dist. LEXIS 86291 (E.D. Cal. November 8, 2007).*

The detention incidental to execution of arrest warrant against another was not a Fourth Amendment violation. United States v. Smith, 2007 U.S. Dist. LEXIS 86368 (E.D. Wis. November 19, 2007):

Similarly, a person who is detained during the execution of a search warrant is ordinarily not in custody for Miranda purposes. United States v. Saadeh, 61 F.3d 510, 520 (7th Cir. 1995); United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994). The Seventh Circuit noted that

[m]ost detentions that occur during the execution of a search warrant, like most Terry stops, are comparatively nonthreatening. They are often short in duration. ... Furthermore, detention in a person's own residence or hotel room could only add minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.

Burns, 37 F.3d at 281 (internal quotations omitted).

In Burns, the defendant sought suppression of certain statements she made during the execution of a search warrant at her hotel room. Id. at 278. The defendant asked to leave the hotel room numerous times, but she was detained and told to sit on the bed as two law enforcement officers searched the hotel room. Id. During the search, an officer asked Burns what she was doing in Milwaukee, to which she responded that she was visiting friends. However, later she said she did not have any friends in Milwaukee when the officer asked her who her friends were. Id. When an officer discovered a kilogram of cocaine in a dresser drawer wrapped in a hotel towel, the defendant disavowed ownership of the item. Id.

The Seventh Circuit held that the defendant was not in custody while she was detained during the execution of the search warrant, and therefore the Miranda warnings were not required. Id. at 281. The court explained its decision by stating that the defendant

was detained for less than ten minutes prior to her arrest. She was not handcuffed or physically restrained in any way until she was formally placed under arrest. Only two law enforcement officers conducted the search, and they did not brandish weapons. Finally, the officer's questioning was limited in scope and duration.

Id.

. . .

Although the present case involves an arrest warrant rather than a search warrant, the distinction is inconsequential for present purposes. The rule the Supreme Court has enunciated in Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), that a search warrant "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted," applies equally to instances where officers enter a residence pursuant to a valid arrest warrant. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Whether entering pursuant to a search warrant or an arrest warrant, officers may reasonably fear that the buildings' occupants may obtain weapons which may be used against them or destroy evidence.

Search warrant for defendant's child porn was valid at least by the good faith exception, without even considering the probable cause question. United States v. Watson, 255 Fed. Appx. 876 (5th Cir. 2007)* (unpublished).

Being compelled by the state to return one's teaching certificate is not a Fourth Amendment seizure. Smith v. California Comm'n on Teacher Credentialing, 2007 U.S. Dist. LEXIS 86251 (E.D. Cal. November 21, 2007).*

Boston gun search program posted here on November 19th is in Time magazine today.

In what is a significant border search case from the Second Circuit, five men attended an Islamic conference in Toronto, and Homeland Security received intelligence information that people attending the conference had potential terrorist connections. So, the government watched for any coming into the U.S. near Toronto. The plaintiffs crossed at Buffalo and, without any individualized suspicion (and without any criminal history), they were subjected to Customs treatment expected for a suspected terrorist: forced patdowns and fingerprinting, photographing, and detention and questioning for up to six hours. After it was determined that they were not a threat, they were released and permitted entry, and their fingerprints and photographs were later purged. They sued, inter alia, under the First and Fourth Amendment. The Second Circuit held that, assuming the facts stated by the plaintiffs were true, the government had plenary authority at the border, and it was permissible based on the intelligence the government received. Tabbaa v. Chertoff, 2007 U.S. App. LEXIS 27258 (2d Cir. November 26, 2007):

Plaintiffs' second claim is that CBP's searches were unreasonable in violation of the Fourth Amendment to the U.S. Constitution.

It is well established that the government has broad powers to conduct searches at the border even where, as here, there is no reasonable suspicion that the prospective entrant has committed a crime. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 153 (2004) ("Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant ....") (internal quotation marks omitted); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ...."); United States v. Ramsey, 431 U.S. 606, 616 (1977) ("[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border ...."); United States v. Nieves, 609 F.2d 642, 645 (2d Cir. 1979) ("It long has been established that routine border searches, conducted for the purpose of controlling the movement of people and goods across our national boundaries, do not violate the Fourth Amendment's prohibition against unreasonable searches."). Accordingly, a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered to be "routine." See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006).

The precise line between what is routine and what is not routine, however, has not been clearly delineated. On the one hand, it has been held that "[r]outine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler's privacy rights." Id. (citing United States v. Grotke, 702 F.2d 49, 51-52 (2d Cir. 1983)). By contrast, "more invasive searches, like strip searches, require reasonable suspicion." Id. The Supreme Court has stated that "non-routine" searches include "strip, body cavity, or involuntary x-ray searches." Montoya de Hernandez, 473 U.S. at 541 n.4. The determining factor is not how ordinary or commonplace a search is, but rather "the level of intrusion into a person's privacy." Irving, 452 F.3d at 123.

. . .

Plaintiffs focus on three aspects of the searches in question, which we address in turn. First, plaintiffs urge us to find that their treatment, when considered in its entirety, was not routine because of the combined effect of the various measures employed, including intrusive questioning, photographing, and fingerprinting. We are sympathetic to plaintiffs' argument because there arguably was a stigma associated with being subject to the IDSO procedures. In MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006), we found that police searches of subway passengers' bags were "minimally intrusive" in part because the searches were conducted "out in the open, which reduces the fear and stigma that removal to a hidden area can cause ...." Here, plaintiffs were gathered into a separate building along with several other Muslims who had attended the RIS Conference--and all of these attendees were subject to a form of border processing normally reserved for suspected terrorists. As a result, it is not unreasonable for plaintiffs to have felt there was a stigma attached to the searches. Cf. United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ....") (emphasis added and citation omitted).

On the other hand, none of the specific measures taken by CBP was more invasive than the types of searches at the border that courts have regularly held to be routine. Plaintiffs complain that they were required to answer intrusive questions about their activities at the conference, the content of the lectures they attended, and their reasons for attending. But these questions are not materially different than the types of questions border officers typically ask prospective entrants in an effort to determine the places they have visited and the purpose and duration of their trip. See United States v. Silva, 715 F.2d 43, 47 (2d Cir. 1983) (noting that questions about "citizenship, the length and purpose of [an applicant's] trip to Canada, [and] what items she had acquired or bought in Canada" are all routine). Likewise, pat-down searches have repeatedly been found to be routine, even when they were followed by the lifting of an applicant's shirt or the forced removal of shoes. See, e.g., United States v. Charleus, 871 F.2d 265, 268 (2d Cir. 1989) (While "[t]he light touching of appellant's back followed by a lifting of his shirt arguably straddles the line between the two categories of border searches," it can be considered a routine search because "the potential indignity ... fail[ed] to compare with the much greater level of intrusion associated with a body cavity or full strip search ...."). The forcing open of plaintiffs' feet that we assume to have occurred here in at least two instances, while perhaps marginally more invasive than the lifting of a shirt, is not so invasive of plaintiffs' privacy as to be distinguishable from our holdings that pat-down searches are routine.

We also conclude that the fingerprinting and photographing of plaintiffs does not take the searches out of the realm of what is considered routine because, at least in the context of a border search, being fingerprinted (even forcibly) and photographed is not particularly invasive, especially considering that the photographs and fingerprints were used solely to verify plaintiffs' identities and then were discarded from the government's databases. See Davis v. Mississippi, 394 U.S. 721, 727 (1969) ("Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search."); Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (noting that the Supreme Court has suggested that fingerprinting is not entitled to Fourth Amendment protection and describing fingerprinting as a "non-intrusive means of obtaining physical evidence ..."); Montoya de Hernandez, 473 U.S. at 539-40 ("[N]ot only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.") (internal citation omitted).

Thus, each of the individual elements of the searches was routine. And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy--not overall inconvenience--we find that CBP's searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

Plaintiffs' First Amendment and other arguments were also rejected.

Officers' smell of marijuana justified search, and the fact the officers said that they were searching for officer safety was not material. State v. Jennings, 968 So. 2d 694 (Fla. App. 4DCA 2007):

The officers in this case had probable cause to search the occupants of the vehicle once they smelled the marijuana. That they may have articulated a subjective intent to search for officer safety did not change the fact that the smell of marijuana smoke provided an objectively reasonable basis for the search. See United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (Whren provides broad leeway to officers to conduct searches regardless of their subjective intent so long as there is objective legal justification for their actions).

Defendant's argument that the police conducted an illegal protective sweep prior to his search incident did not have to be reached because the police had independent probable cause for a search warrant that was later issued. Therefore, there was an independent source permitting the search. United States v. Free, 254 Fed. Appx. 765 (11th Cir. 2007)* (unpublished).

"[O]nce law enforcement lawfully obtained Scott's blood sample and DNA evidence, no privacy interest persisted in this evidence. Scott's DNA profile could be used in the investigation of other crimes for identification purposes." Therefore, defense counsel was not ineffective for not challenging this use. Scott v. Werholtz, 38 Kan. App. 2d 667, 171 P.3d 646 (2007).* (Note: This case cites no authority in support, but that is the law.)

Plaintiff's complaint of excessive force for alleged unnecessary Tasering survived summary judgment because of a fact dispute. Pearson v. Byrd, 2007 U.S. Dist. LEXIS 86041 (M.D. Ala. November 20, 2007):

Pearson alleges that a police officer shoved him onto a patrol car and shocked him with a Taser gun and that two other officers handcuffed and shackled him. Pearson further alleges that, although he did not resist, one of the officers continued to use the Taser gun on him. He maintains that these officers then threw him into the back of the police vehicle, and that one of the officers choked and punched him while another officer shocked him with the Taser gun. Consequently, Pearson has alleged the deprivation of a constitutional right. See Saucier v. Katz, supra.

The defendants admit that they used some force against Pearson. The defendants, however, assert that the use of force was necessary because Pearson was a danger to the officers and nearby citizens. Specifically, the defendants allege that Pearson acted aggressively toward them, that he did not heed their warnings that he would be "tased" if he continued to resist, and that he repeatedly refused to comply with their orders. (Corkran's Affid.; Reardon's Affid.; Harrison's Affid.) Thus, there is a factual dispute concerning whether there was a need to use force and whether the force used was excessive under the circumstances.

Comment: We might as well face it: "tase" is now a transitive verb, as in "Don't tase me, bro!" and as shown on YouTube. Taser is a product and a company name. "Tase" as a verb does not appear on Merriam.com's online dictionary, but it does appear in its open dictionary as first submitted in 2005. The first use of "tase" as a verb in a judicial opinion on Lexis is Maiorano v. Santiago, 2005 U.S. Dist. LEXIS 40879, *18 (M.D. Fla. May 19, 2005), where "taser" is uncapitalized throughout and: "Finally, there is no allegation that Santiago ordered Plaintiff to desist or warned Plaintiff that he would tase her."

Defendant's placing her hand in her pocket during a stop and refusing to remove it justified a patdown for officer safety. The object, however, was obviously not a weapon, so opening it up was unreasonable, and the motion to suppress should have been granted. Sudduth v. State, 288 Ga. App. 541, 654 S.E.2d 446 (2007):

In this case, as stated above, the officer could not identify the object he felt as either a weapon, or by its contour and mass, contraband and thus the State concedes that the intrusion into Sudduth's pocket was impermissible under these facts.

Defendant admitted to consenting to a search by the police of a trailer owned by his father that he used for an adulterous relationship. The police showed up at 3:45 a.m. looking for him, and he signed a consent to search the trailer, then contended that it was not his, he only occasionally used it, and the gun was not visible until the officers pulled it out. The officers testified that the gun was immediately visible on entering the trailer, so the defendant's conviction of possession was affirmed. State v. Vassar, 966 So. 2d 654 (La. App. 5th Cir. 2007), released for publication November 9, 2007.

The motion to suppress did not adequately put the state on notice that the defendant was arguing that no search warrant actually issued. The officer presented an affidavit for a search warrant to the magistrate, but no search warrant. Based on the affidavit alone, the officers conducted the search. The issue first arose during the suppression hearing, and the state made an impromptu argument that the affidavit should suffice, but that did not cure the defense failure to put the state on notice. Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007):

Again, the question is whether Young's motion to suppress sufficiently put the State on notice that the very existence of a search warrant was being challenged, i.e., that the document that Young himself referred to as the warrant was not in fact a warrant, and that this legal issue would be resolved at the motion to suppress hearing. And it is plain that the State was not on such notice. Examination of the transcript of the suppression hearing compels the conclusion that the State's argument to the trial court was nothing more than an impromptu attempt to respond to Young's unexpected challenge to the lack of an actual search warrant.

. . .

The Court of Appeals did not err in finding waiver under the circumstances of this case.

2255 petitioner could not show that his counsel was ineffective for not arguing inapplicability of the good faith exception under Leon because it would have failed. Seckman v. United States, 2007 U.S. Dist. LEXIS 85798 (E.D. Okla. November 19, 2007).*

A drug search warrant had a "catchall" provision that made it constitutionally overbroad. Only marijuana was mentioned, and meth was found.

"instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied).

The evidence sought to be suppressed was all within the coverage of the "catchall" provision, and the state failed to show that it was otherwise in "plain view." Levenduski v. State, 876 N.E.2d 798 (Ind. App. 2007):

In the case before us, by contrast, all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to the illegal "catchall" provision in the warrant and should accordingly have been suppressed. The warrant authorized police to enter Levenduski's house and search for marijuana, hashish, "instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28) (emphasis supplied), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.) (emphasis supplied), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied). As to the evidence unrelated to marijuana or hashish, the warrant was invalid to the extent it "[left] the executing officer with discretion," Warren, 760 N.E.2d at 610, and the trial court should have granted Levenduski's motion to suppress that evidence.

The State acknowledges the language in the warrant purporting to authorize a search for and seizure of "any other item of contraband which are [sic] evidence of a crime" is "perhaps a bit too general in its description of the items permitted to be searched for by the warrant." (Br. of the Appellee at 19.) But it asserts the discovery and seizure of the methamphetamine was reasonable because the "methamphetamine evidence" was discovered "primarily in plain view." (Id. at 19-20.) It was not.

. . .

The State has not demonstrated the evidence obtained pursuant to the illegal "catch-all" provision of the search warrant was found in plain view. It therefore should have been suppressed. See Chandler v. State, 816 N.E.2d 464, 468 (Ind. Ct. App. 2004):

Nor is there evidence the marijuana was in plain view. Officer James Walsh testified some marijuana 'was found in the middle bedroom' and 'in the living room.' There was no direct testimony this marijuana was in plain view; as the State bears that burden of proof, we will not presume it was.

(Internal citations and footnote omitted).

Government's request for realtime data as to the movements of a suspected drug dealer's cellphone was denied without prejudice, subject to the government coming up with more. In the Matter of the Application of the United States of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information; and (3) Authorizing the Disclosure of Location-based Services, 2007 U.S. Dist. LEXIS 83022 (S.D. Tex. November 8, 2007). The publication of this order was the subject of a fascinating Washington Post article today: Cellphone Tracking Powers on Request / Secret Warrants Granted Without Probable Cause, by Ellen Nakashima.

The entirety of the order:

This matter comes before the Court pursuant to a written and sworn application pursuant to 18 U.S.C. §§ 3122(a)(1), 3127(5), and 2703(c)(1) by an assistant United States Attorney who is an attorney for the Government as defined by Rule 1(b)(1)(B) of the Federal Rules of Criminal Procedure and an accompanying affidavit of a special agent with the Drug Enforcement Administration.

In order to obtain an order for a tracking device, the Government must establish probable cause. Fed. R. Crim. P. 41(d)(1). "Tracking device" is defined as "an electronic or mechanical device which permits the tracking of the movement of a person or object." 18 U.S.C. § 3117(b); see also Fed. R. Crim. P. 41(a)(2)(E).

This Court has determined that when the Government seeks real-time cell site data, it does not have to establish probable cause. In the Matter of an Application for an Order, 433 F. Supp. 2d 804, 806 (S.D. Tex. 2006). In that order, the Court explained that in reaching its decision it found significant that "[t]he government is not seeking: (1) to activate remotely the subject's telephone's GPS functionality; (2) to obtain information from multiple cellular antenna towers simultaneously to 'triangulate' the precise location of a cell phone…." Id. (italics in original).

In the pending application, the assistant United States Attorney "requests an Order authorizing the [DEA] to require the [cell phone] Provider to disclose location-based data that will assist law enforcement in determining the location of the Target Device (differentiated from the first or last cell-site used to make or receive a call, which simply identifies the location of the third-party Provider's infrastructure)." (emphasis added). The Government seeks not only real time cell-site data, but "'Enhanced 911' services developed by the Provider in order to comply with the provisions of 47 C.F.R. § 20.18." Accordingly, the Provider is currently required to provide accurate and reliable locations within "50 meters for 67 percent of calls [and] 150 meters for 95 percent of calls" "[f]or hand-set based technologies." 47 C.F.R. § 20.18(h)(2). The information that the Government seeks clearly attempts to identify the exact location of the Target Device (and presumably the person holding the Target Device), and thus requires a finding of probable cause.

The special agent's affidavit contains the subscriber's name and address of the Target Device. The affidavit further alleges that Target Device is being used by the subscriber ("Subject") in furtherance of an organized scheme involved in narcotics trafficking. However, the affidavit fails to provide sufficient specific information to support the assertion that the Target Device is being used in the criminal enterprise.

Instead, the affidavit simply alleges that the Subject is engaging in narcotics trafficking and using the Target Device to do so. It fails to focus on specifics necessary to establish probable cause, such as relevant dates, names, and places. For example, the affidavit makes statements that the DEA has "identified" or "determined" certain matters, or that its investigation has "revealed." These identifications, determinations, or revelations are not facts, but simply conclusions by the agency. Moreover, the affidavit contains a critical paragraph addressing assertions of the Subject's involvement in the narcotics trafficking that lacks supporting facts. For example, it discusses negotiations for the purchase of narcotics by the Subject. It fails to indicate with whom the negotiations were conducted. Some of the information about negotiations is over three years old. It is unclear when the second negotiation occurred. It is unclear how the DEA learned of these negotiations. Ultimately, the affidavit fails to provide any specific facts or details related to the Subject's alleged criminal activity along with use of the Target Device that would establish probable cause.

Finally, to the extent that the affidavit relies on cooperating sources of information and cooperating defendants without providing any specifics or details regarding the Subject's criminal actions, the Government has failed to establish probable cause. In relying on these unnamed sources, it is incumbent upon the Government to provide sufficient details, including independent corroboration done by the agency, in order to establish that the information is reliable.

The Fifth Circuit has explained that a probable cause determination cannot be supported by "a wholly conclusory statement unsubstantiated by underlying facts." United States v. Settegast, 755 F.2d 1117, 1121 (5th Cir. 1985). In this case, the information seeking to link the Subject with the criminal activity is conclusory and unsubstantiated. As such, the Government has failed to establish probable cause.

Accordingly, the Government's application is hereby denied without prejudice.

Six Imams stated a claim for relief for being taken off a flight and detained for hours for questioning for no apparent reason other than praying in the gate area in Arabic before the flight [they obviously needed to pray before flying U.S. Air] and one in first class, upgraded for being a frequent flyer, walking back to offer his seat to one of his traveling companions which was declined, and one needed a seatbelt extension. The FBI questioned them, determined that they were not a security threat, and let them go, after hours of questioning. They stated a claim that there was no probable cause to believe that they were going to interfere with a flight crew in violation of 49 U.S.C. § 46504 that resulted in their detention. After that, U.S. Air barred them from ever flying on the airline. They had flown from Phoenix to Minneapolis for a conference and were returning when detained. Shqeirat v. United States Airways Group, 515 F. Supp. 2d 984 (D. Minn. 2007).*

The use of a dog to restrain the plaintiff was not excessive force where the dog was ordered to let go as soon as plaintiff was restrained. Williams v. Wheeler, 2007 U.S. Dist. LEXIS 85781 (S.D. Ind. November 19, 2007):

The record shows that excessive force was not used in apprehending Williams or in effectuating his arrest. This is apparent from the following circumstances:

. Williams had fled from police both in a vehicle and on foot.

. Williams concealed himself in order to avoid detection and apprehension.

. Williams refused to identify himself, refused to reveal whether he was armed, and refused directions from Officer Waters to surrender himself.

. Williams refused to surrender despite having been informed that if he did not do so the police canine would be used.

. Although the canine was used and placed a hold on Williams, biting him in the process, the canine was ordered to release his hold as soon as Officer Waters was able to control Williams. The canine immediately complied with the order to release Williams once that order was given.

The use of force to apprehend Williams was justified. The force used was not excessive either in relation to the type of force used or the manner in which it was used. See Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (force that is reasonable while suspect poses threat is no longer reasonable once threat is no longer present).

W.D.N.Y. suppresses a stop and patdown of a man on the street who vaguely matched a description of somebody "looking to break into cars." United States v. McCloud, 2007 U.S. Dist. LEXIS 85542 (W.D. N.Y. August 16, 2007):

On this record, I find that the interaction between Jones and McCloud began as a consensual encounter which required no legal justification. Jones's simple request that McCloud speak with him would not have suggested to a reasonable person that he or she was not free to leave. See Florida v. Bostick, 501 U.S. at 439. As the government concedes, however, the encounter quickly evolved into a Terry stop upon Jones's direction that McCloud put his hands behind his back and submit to a pat search for weapons. (Tr.A 12). Like the government, I believe that a reasonable person in McCloud's position would not have felt free to disregard Jones's instruction. See California v. Hodari D., 499 U.S. 621, 627 (1991) ("since the addressee [of a police order to stop] has no ready means of identifying the deficient [orders] it almost invariably is the responsible course to comply"). In fact, Jones himself testified that at that point during the encounter McCloud was not free to leave. (Tr.A 16).

The question whether the Terry stop of McCloud was justified by reasonable suspicion is, in my view, a close one. Indeed, had McCloud complied with Jones's initial direction, I likely would find that the seizure was unsupported by reasonable suspicion. At the time of that direction, Jones's suspicion was based upon (1) his belief that McCloud matched the description of the suspect; (2) McCloud's presence near the location of the alleged suspicious activity at a time close to the time of the 911 report; (3) the virtual absence of any other individuals present near the scene; (4) the fact that it was one o'clock in the morning in an area of the city known to have a high incidence of crime; (5) McCloud's failure to turn his head toward the patrol car when Jones first passed him; and (6) McCloud's unprompted production of his identification when Jones asked to speak to him. It seems unlikely to me that these facts -- taken alone or together -- provided reasonable suspicion to justify a Terry stop of McCloud.

The most that can be said about McCloud's physical description is that it was not inconsistent with the information provided in the 911 call. I cannot say, however, that McCloud matched a description of the suspect because identification of race, even accompanied by a vague characterization of clothing, does not describe a suspect with sufficient detail or identifying characteristics to meaningfully set him apart from other members of the community. See United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) ("race when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop"). Moreover, it is open to question whether McCloud's medium-colored blue jeans and hooded sweatshirt fit the description of dark pants and a jacket.

Comment: The U.S.M.J. was more solicitous of the government's position than he needed to be: "may I speak to you" from a cop on the street is not realistically a request subject to consent when a cop asks it on the street because refusal has consequences. The comment that this Terry question is a "close one" is just wrong--it is not close at all--but it is an open invitation to the District Judge to reverse it. There was no real crime "afoot," as required by Terry. The 911 call was about a potential breaking into a car, and the defendant had nothing in his hands and was not even acting suspicious when he was stopped. He was just in the wrong place at the wrong time, and the patdown produced evidence unrelated to the factual basis of the stop.

Plaintiffs' car was blown up because it was parked near a multi-national meeting demonstration site, and the police were concerned that it might have a bomb in it. It didn't. If the police reasonably believed it contained a bomb, they would have acted reasonably, but fact questions remained, so summary judgment was denied. Vogel v. City of Miami, 2007 U.S. Dist. LEXIS 85438 (S.D. Fla. November 8, 2007).*

A mere assertion that an informant did not exist was so conclusory that it was insufficient to state a claim for a civil Franks violation. White v. Wilder, 2007 U.S. Dist. LEXIS 85506 (S.D. Miss. November 7, 2007).*

Once the purpose of a traffic stop is complete, an officer may not ask about searching a car without some justification. State v. Jenkins, 104 Conn. App.
417, 934 A.2d 281 (2007):

Third, to conclude that the record is inadequate on this issue creates the implication that a police officer, during a routine motor vehicle stop made on the basis of a driving infraction, is authorized to make arbitrary requests for consent searches that are wholly unrelated to the initial purpose of the stop and unsupported by additional suspicion justifying the expansion of the stop, so long as the officer chooses not to conclude the encounter. Such a blanket authorization is contrary to our search and seizure jurisprudence, which generally proscribes such arbitrary conduct on the part of the police. See State v. Nash, 278 Conn. 620, 631, 899 A.2d 1 (2006) ("[t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries" [internal quotation marks omitted]).

Moreover, to conclude otherwise also creates an implication that, during a routine motor vehicle stop, a defendant may not contest the validity of a consent to search unless the officer's request for consent occurs after the officer has returned the defendant's license and the ticket. In State v. Story, 53 Conn. App. 733, 741, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999), this court concluded that a police officer's request for consent to search on the basis of nothing more than a hunch was not improper because the officer did not request the consent to search until after the stop had concluded and the defendant was free to leave at the time of the request. Mindful of Story, if we now sanction arbitrary requests for consent searches by the police prior to the conclusion of a stop, we effectively close the door on a criminal defendant's ability ever to contest the validity of a consent to search during a motor vehicle stop.

On the basis of the record, we conclude that Morgan's inquiry as to whether the defendant was engaged in illegal activity went beyond the scope of the traffic stop and occurred at a time when the stop reasonably should have ended. Having reached that conclusion, we now must determine whether Morgan had reasonable, articulable suspicion to expand the scope of the stop by questioning the defendant about illegal activity unrelated to the purpose of the underlying stop. See United States v. Santiago, supra, 341-42 ("Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. ... In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed." [Citation omitted.]).

A store sales clerk was a citizen informant on an identity theft and forgery attempt. The police stopped defendant's car after she left Best Buy based on the sales clerk's report. Defendant returned to Best Buy, and the car was searched there incident to an impending impoundment for driving on a fake driver's license, the one associated with the identity theft. The search was justified as a search incident, so the inventory issue did not need to be reached. Cobbs v. State, 2007 Ark. App. LEXIS 802 (November 14, 2007)* (unpublished).

Defendant was arrested and asked for consent to search his apartment for a gun which he allegedly pointed at his landlord, which he denied. He was taken in for questioning. His wife was called to come and get their child that an aunt had when defendant was taken away. When she got there, she granted consent, and she could effectively consent when presented with facts by the police, even though defendant had refused consent before leaving. Randolph is [incredibly] distinguished. People v. Olmo, 2007 NY Slip Op 27474, 2007 N.Y. Misc. LEXIS 7652 (Kings Co. November 19, 2007):

The distinction in Olmo is that defendant was not actually present when his wife gave her consent to search their apartment because he had already been taken to the precinct to begin processing his lawful arrest. The question for this Court is whether Olmo presents a necessary application of Randolph, requiring suppression, or rather would amount to an unwarranted extension of Randolph, inappropriate for a trial court to make, especially in New York State, which has traditionally upheld the right of the police to rely on a co-occupant's consent. ... The answer turns on whether the Randolph decision necessarily elevated the importance of defendant's refusal to consent at the entrance to his apartment--enough to trump the subsequent consent of his companion, who returned home to the waiting police while defendant remained at the precinct where he had just been taken.

I conclude that, until and unless a controlling appellate authority should subsequently extend or apply Randolph to an Olmo situation, Randolph does not require suppression. The rationale of the Randolph decision was based on society's customary expectations regarding privacy in one's home. And the Randolph Court was emphatic about avoiding unseemly confrontations between disputing occupants, when both are physically present at the same time. The facts in Olmo presented no such risk. Here, I see no good reason in law, custom, policy or precedent why defendant's wife should not, when she returned home and learned about what happened, have the right to cooperate with the police to have a firearm removed as expeditiously as possible from the home she also shared with a young child. I hold that, as long as the police had a valid purpose in removing defendant from his residential building apart from avoiding his objection to the search, his wife retained her authority to consent and the police could reasonably rely [on] it.

Comment: This case cannot be so readily distinguished from Randolph. It can be assumed, based on the crime victim's report, that the police had probable cause for menacing the victim with a gun. After all, that was the basis for taking him in. He refused consent, and then they asked the wife when she got there for her consent. The effort made to distinguish Randolph is lame and convoluted. This should be reversed on appeal.

Grabbing defendant's arm and being pulled into defendant's motel room when defendant tried to shut the door on the officer in the officer's effort to arrest him for a minor misdemeanor for which defendant would be cited at best was an unlawful entry because this was not hot pursuit and the situation lacked exigent circumstances when balanced against the offense. State v. Johnson, 2007 Ohio 6146, 173 Ohio App. 3d 669, 880 N.E.2d 111 (9th Dist. 2007).*

Michigan's parole search statute requires "reasonable cause" which the court equates with Griffin's "reasonable suspicion" requirement. United States v. O'Connor, 2007 U.S. Dist. LEXIS 85578 (E.D. Mich. November 20, 2007).*

Officers' observations of defendant's activities with a known drug dealer amount to probable cause. His lawful arrest gave further probable cause for a search warrant for his residence.
United States v. Willis, 2007 U.S. Dist. LEXIS 85580 (E.D. Pa. November 20, 2007).*

State court ligitation against the city that plaintiff lost precluded a claim in federal court against the city's employees under claim preclusion. Lyttle v. Killackey, 528 F. Supp. 2d 818 (N.D. Ill. 2007).*

The Ninth Circuit interprets Payton to require that a 12 hour standoff that brought the SWAT team ultimately required a warrant. The initial surrounding of the house did not, but the length of the event required a warrant. All the plaintiff obtained, however, was nominal damages [and attorneys fees?]. Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007) (2-1):

We have found no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here between the police and a citizen if any initial exigency dissipates before further intrusions into the home to coerce the targeted individual to submit to arrest. We conclude, however, from our review of cases from other circuits involving police standoffs that the Payton warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. Rather, officers must obtain a warrant before any additional intrusions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant.FN9 The initial exigency can dissipate either because the danger posed by the targeted individual decreases or because, with the passage of time, resources become available that allow the police both to maintain safety and to obtain a warrant.

9. We need not and do not decide whether a warrant would be required if armed police surrounded an individual in his home, but during the standoff made no further intrusions into the home for purposes of effecting an arrest. In this case, police clearly did intrude into the home after the initial seizure by throwing CS gas canisters into Fisher's house.

. . .

As should be evident, the dissent's suggestion, post at 15073, that we are requiring a retroactive warrant is simply incorrect. Although a seizure is initially accomplished by surrounding a home, the police in such instances may--as here--take additional steps that intrude further into the home, and do not accomplish the formal arrest until the individual surrenders. To view this entire sequence of events as a single police decision made at the outset is both to indulge in a fiction and severely to undermine the warrant requirement. So, for example, had Fisher refused to come out and had the police therefore decided forcibly to enter Fisher's home at 2:30 p.m., that decision and action could not reasonably be viewed as outside the warrant requirement on the ground that Fisher had already been seized at home earlier.

. . .

We do not disagree that Fisher was seized when police surrounded his home and stationed a sharpshooter to watch him, or that the warrant requirement applied to this seizure, absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite having been seized, it is indisputable that Fisher had not yet been placed under formal arrest and brought into the custody of the police. Because Fisher remained in his house, not free to leave but not in the custody of the police, he continued to be subjected to entries into his home for the purpose of forcing him outside to arrest him, and the Payton warrant requirement continued to apply. As a result, we must ask whether any exigency that existed at 6:30 a.m. dissipated before police made further entries into Fisher's home. We conclude that there was insufficient exigency to justify a warrantless arrest of Fisher at least by the time the CS gas canisters were thrown into his home at approximately 1:00 p.m.

. . .

As we have emphasized, to come within the exigency exception, the City must show both that dangerous circumstances existed and that it was infeasible to obtain a warrant safely. See United States v. Manfredi, 722 F.2d 519, 522-23 (9th Cir. 1984). We have used a nonexhaustive list of factors, first enunciated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc), to determine whether dangerous circumstances exist for purposes of the exigency exception. See United States v. Blake, 632 F.2d 731, 733 (9th Cir. 1980). Those criteria are: (1) "that a grave offense is involved"; (2) "that the suspect is reasonably believed to be armed"; (3) that there exists "a clear showing of probable cause"; (4) that there is "a strong reason to believe that the suspect is in the premises"; (5) that there is "a likelihood that the suspect will escape"; and (6) that peaceable entry is made onto the premises. See Dorman, 435 F.2d at 392-93.

Viewing the evidence in the light most favorable to the City, it was not unreasonable for the jury to find that the officers were justified in considering Fisher a danger both to them and to the public when they first surrounded his home in the early morning hours. Although no grave offense was involved, Fisher was armed, was certainly on the premises, and concedes that there was probable cause to arrest him. He was also intoxicated and had made at least one threatening comment to an officer. Moreover, it was not unreasonable for the jury to conclude that some level of danger persisted throughout the duration of the standoff, as Fisher remained inside his apartment, intoxicated and with access to weapons.

At the same time, the danger of the situation, if it did not [*40] terminate entirely after 6:30 a.m., certainly did not increase, and to some degree lessened. All nearby residents were evacuated at around 7:30 a.m. Furthermore, Fisher was not seen carrying a rifle for a full seven hours after 6:30 a.m., as the district court emphasized in granting the Rule 50(b) motion. During that post-6:30 a.m. period, Fisher took no further threatening actions, toward the police or anyone else. Nothing happened after 6:30 a.m. that increased the danger of the situation.

As to the second prong of the exigency exception--which requires that "the government ... show that a warrant could not have been [safely] obtained in time," United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986)--the evidence, taken in the light most favorable to the government, clearly shows that there were enough officers working on Fisher's case with enough time to obtain a warrant safely before the police sent the first of the CS gas canisters into Fisher's apartment. Given the level of danger after 6:30 a.m., which remained significant but was not increasing, officers had the resources to begin the warrant process without risking the safety of officers or the public. Some of the original officers left the scene at 7 a.m. and returned to the station house, where they or their colleagues could have initiated warrant proceedings.

Comment: This is a fact dependent case: If other officers had not been coming and going from the scene of the standoff, the facts seemed to show that the standoff was de-escalating rather than escalating. And that does create a problem. If the situation ends up at a stand still and the police decide to act because they are tired of waiting for nothing, then what? This was a tough case, no doubt about it. If I were on the Ninth Circuit, I cannot tell you how I would come down on this because I have not gone to the court's website and read the briefs. Just because the SWAT team shows up does not ipso facto mean it was a real emergency. When I first entered into the foray of knock-and-announce, I read up on SWAT teams and raid tactics. I have also cross-examined SWAT team members, and the individual officers involved do not always know what started the event they are there for. Later, they can even feel "all dressed up with no place to go," waiting for anything to happen so they can do what they love best. Here, officers were leaving the scene because they weren't needed as it dragged out, and that became a problem. But, back to nominal damages, what are the damages to the plaintiff for lack of a warrant?

Update: CNN.com today: SWAT team raids wrong house and leaves it in shambles. Not the same house, of course.

In a case handled in the trial court by one of Louisiana's most respected lawyers and by me on appeal in the Fifth Circuit, the Northern District of Mississippi held that we were not ineffective for not arguing that defendant's wife's seizure of evidence in a joint criminal enterprise was distinct from her search. The facts are somewhat convoluted, but the defendant's wife was involved in a bingo revenue skimming operation with the defendant, and she moved out when she suspected him of having an affair. Yet, she still had keys to the house, the code to the alarm system, and participated in altering records to effect the skim after they separated. There is no way defendant can prevail, so the § 2255 is denied without a hearing. The defendant assumed the risk that his wife would rat him out to the government and take information on the skimming operation to the IRS and FBI. [The District Court also noted the government's response to the 2255 was faulty, too.] Shelton v. United States, 2007 U.S. Dist. LEXIS 85244 (N.D. Miss. November 16, 2007):

Jimmy Doug Shelton argues that his trial and appellate counsel were ineffective in failing to challenge Cheryl's seizure of the evidence under the Fourth Amendment. He has cobbled together the holdings from several cases to support this argument, and if the cases had meshed better, he might have won the day. Unfortunately for Shelton, the fragments he attempts to assemble into a new rule of law arise out of factual scenarios distinguishable from the case at hand, and, in the end, cannot stand together.

. . .

Resolution of the Propriety of the Seizure of Evidence

A dilemma left unresolved under the authority cited by the parties is whether a spouse can have sufficient authority to consent to a search of the premises -- yet have insufficient authority [*17] to consent to the seizure of evidence therefrom. The court concludes that such a situation is theoretically possible -- but has not arisen under the facts of this case. As discussed below, the court finds that Cheryl Shelton had sufficient authority to seize the evidence in question and provide it to the government without a warrant. In addition, even if the court were to find that Cheryl Shelton did not have sufficient authority to seize the evidence without a warrant, Jimmy Doug Shelton assumed the risk that she would nonetheless do so, and the seizure was thus reasonable.

Jimmy Doug Shelton argues that the warrantless seizure of the papers from his home is presumptively unconstitutional unless it falls within one of the widely recognized exceptions to the warrant requirement, e.g., exigent circumstances, consent, plain view, national security, inventory search, or inevitable discovery. The exception at issue in this case is consent--Cheryl Shelton's power to give the government permission to search the Jimmy Doug Shelton home--and permission to seize the evidence used against her husband. A fact complicating the court's analysis of this issue is Cheryl Shelton's decision to move out of the marital home after discovering evidence that her husband had been unfaithful to her. Had Cheryl Shelton remained in the marital home, she would clearly have had complete custody and control of the home and its contents and thus could have given valid consent to search and seize anything in the home and provide it to the government. Matlock v. United States, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (mutual use of property, or joint access or control of it is generally sufficient). In this case, however, Cheryl Shelton had moved out of the marital home and moved in with her sister. She retained a key to the home, as well as the security code, and had agreed with her husband that she would periodically enter the home to retrieve her mail and other items. This arrangement appears to be an effort by each spouse to maintain civility during a turbulent time in their marriage. Both spouses understood that Cheryl Shelton had authority to enter the home outside the presence of Jimmy Doug Shelton. As such, no matter what restrictions she and her husband decided she should observe while there, she had unfettered--and unsupervised--access to everything inside. Cheryl and Jimmy Doug Shelton were still married--and could conceivably have reconciled if they had chosen to do so. Indeed, neither Cheryl nor Jimmy Doug Shelton took any legal steps to divorce. They were also both involved in the illegal bingo skimming operation.

This set of circumstances gave Cheryl Shelton authority to search the home and seize evidence from it--whether she acted as an agent of the government or for her own reasons. In addition, Jimmy Doug Shelton assumed the risk that his wife (who was also his partner in the bingo skimming operation) would turn on him by searching and seizing evidence of their crimes and turning it over to the government.

. . .

The Supreme Court has applied the Fourth Amendment to a seizure in the absence of a search [Soldal]--and held that a seizure may implicate the Fourth Amendment even when a defendant's privacy interests in the seized objects are completely extinguished. However, as a matter of reason, many of the factors used to determine whether a defendant has a reasonable expectation of privacy in a home (to determine the reasonableness of a search) can also be used to determine the degree of a third party's connection to a premises (to determine the reasonableness of a seizure). Naturally, the greater the connection a third party has to a premises, the lower the defendant's expectation of privacy becomes--and the more reasonable a search or seizure authorized by that third party appears. These factors rise and fall together.

Wives and husbands are bound in the closest of relationships--matrimony--and they usually share a residence. As such, situations under which a wife could not consent to a search of the premises--and the seizure of evidence therefrom--will be rare. The intimate nature of the marital relationship gives either spouse the authority to consent to searches and seizures within the marital home. Cheryl Shelton chose to move out of the marital home and move in with her sister because Cheryl believed her husband had been unfaithful to her. Neither party, however, took any legal steps to initiate a divorce, and Jimmy Doug Shelton consented to Cheryl Shelton's unfettered access to the home. He took no steps to hide the evidence of illegal skimming from the charity bingo operation from his wife by removing the evidence from the home or locking it away.

Prior history: United States v. Shelton, 181 F. Supp. 2d 649 (N.D. Miss. 2001), aff'd 337 F.3d 529 (5th Cir. 2003), cert. denied 540 U.S. 1229, 124 S. Ct. 1507, 158 L. Ed. 2d 172 (2004).

Defendant was stopped for a traffic offense, and he was told he could go when the paperwork was completed. According to the videotape of the stop, however, he voluntarily consented to a search. United States v. Esquivel, 507 F.3d 1154 (8th Cir. 2007).*

Defendant was stopped for a traffic offense, and he was visibly and excessively nervous. He gave what became inconsistent answers about what was on his person, and that led to reasonable suspicion for calling a dog. United States v. United States Currency Totaling $101,270.00, 2007 U.S. Dist. LEXIS 84882 (S.D. Ga. November 16, 2007).*

Defendant was arrested for his fourth driving on a suspended DL, which was a custodial arrest situation. After he was safely installed in the back of the police car, his car was subjected to a search incident which produced drugs, and the search incident was valid. United States v. Majette, 2007 U.S. Dist. LEXIS 84923 (W.D. Va. November 16, 2007).*

Defendant argued that HIPAA was violated in taking his blood at the hospital after a motor vehicle accident, but the argument was slightly changed between circuit court and the appellate court, so the argument was not addressed. There was otherwise probable cause to get his blood. Hoyle v. State, 2007 Ark. LEXIS 624 (November 15, 2007).*

The officer had reason to believe defendant was under the influence of drugs while driving. "Several facts provided Deputy Spotten with probable cause to believe that Defendant had committed this crime: Defendant had been driving in an erratic and dangerous manner; Defendant had slurred speech; and Defendant ended his dangerous driving in an unusual accident--a single-car collision with a trailer parked on the side of the road. Therefore, Deputy Spotten was justified in making a warrantless arrest of Defendant." State v. Despain, 2007 UT App 367, 173 P.3d 213, 591 Utah Adv. Rep. 3 (2007).*

The Boston Police Department announced this weekend, or at least in a story that broke this weekend, that it will be using information about guns held by youths and go to their houses and seek parental consent to enter and search, with amnesty for seizure of the gun, unless the gun turns up having been used in a crime. See the following articles: Cops: Let us search kids’ rooms for guns, from Saturday, November 17th, Boston Herald:

The homes targeted are in four crime-plagued neighborhoods [read: African-American and Latino], Davis said. A search team of BPD school cops will approach the homes of at-risk teens based on community tips and ask a parent or guardian for permission to search the youths’ bedrooms. If guns are recovered, the youths will not be prosecuted--unless the weapons are later linked to a crime. (bracketed material added)

From yesterday's AP: Boston Cops Seek Invites to Search Homes; from yesterday's Boston Globe: Police to search for guns in homes; from Fox News: Boston Police to Search Kids' Bedrooms for Guns.

The program depends upon targetted homes and parental consent. Once the police cross the threshold, though, you can be sure that all bets are off. What if the police smell marijuana or a meth lab when the door opens or they enter and see drug paraphernalia or harder drugs in a common area or the kid's bedroom? That smell, under general case law, would permit their rush into the house and a full scale warrantless search with probable cause and exigent circumstances.

There may be amnesty for the gun, but what about the drugs? Highly unlikely. What if they decide that the kid has too expensive stuff in the room? Does that mean an investigation into where it came from?

One more step removed: If consent is refused, are they going to seek a search warrant for the gun if the quality of the "tip" rises to probable cause? Even if it doesn't, they can use the good faith exception to get away with all kinds of things.

One more step: If the kid is 18 and excludes the parents from the room, the parents should not be able to consent to a search of that private area. Then, the kid has to be asked.

And, is this request for consent going to be preceded by a warning that they have a right to refuse consent? Or is this all going to go down as "acquiescence to a claim of authority" and not be truly consensual? Bumper v. North Carolina, 391 U.S. 543 (1968).

This is one of those events that brings to mind Justice Brandeis's dissent in Olmstead v. United States, 277 U.S. 438, 479 (1928):

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.

The mind reels at the possibilities. And I'm just scratching the surface here, I think. The worse thing is the number of people responding to a nonscientific poll that think this is a good idea. They obviously have no clue as to the ramifications of a police entry into the sanctity of the home. "Be a good German and consent."

(Hat tip to Steve Gray of Chicago who is writing about this for Time.)

Ninth Circuit holds that the state secrets privilege may bar a civil action over alleged unlawful surveillance of an alleged terrorist group under the now public Terrorist Surveillance Program. At issue was a "Sealed Document" that the government claimed protected by the state secrets privilege which the plaintiffs had seen. The court held that the plaintiffs could not testify about the document because the state secrets privilege absolutely protected the Sealed Document. The District Court declined to reach the "difficult question" of whether there was an FISA exception that would permit plaintiffs' claim to proceed. Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). The case was remanded for the District Court to make that determination. Al-Haramain Islamic Foundation, Inc. v. Bush, No. 06-36083 (9th Cir. November 16, 2007):

Al-Haramain cannot establish that it suffered injury in fact, a “concrete and particularized” injury, because the Sealed Document, which Al-Haramain alleges proves that its members were unlawfully surveilled, is protected by the state secrets privilege. At oral argument, counsel for Al-Haramain essentially conceded that Al-Haramain cannot establish standing without reference to the Sealed Document. When asked if there is data or information beyond the Sealed Document that would support standing, counsel offered up no options, hypothetical or otherwise. Thus, Al-Haramain has indicated that its ability to establish injury in fact hinges entirely on a privileged document. It is not sufficient for Al-Haramain to speculate that it might be subject to surveillance under the TSP simply because it has been designated a “Specially Designated Global Terrorist.”

“[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11. Because we affirm the district court’s conclusion that the Sealed Document, along with data concerning surveillance, are privileged, and conclude that no testimony attesting to individuals’ memories of the document may be admitted to establish the contents of the document, Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.

V. FISA AND PREEMPTION OF THE STATE SECRETS PRIVILEGE

Under FISA, 50 U.S.C. §§ 1801 et seq., if an “aggrieved person” requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials “as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials “where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance “was lawfully authorized and conducted.” Id.

As an alternative argument, Al-Haramain posits that FISA preempts the state secrets privilege. The district court chose not to rule on this issue. See Al-Haramain, 451 F. Supp. 2d at 1231 (“I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege.”). Now, however, the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit. Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (stating that the court of appeals should not ordinarily consider issue not passed on below); Barsten v. Dep’t of Interior, 896 F.2d 422, 424 (9th Cir. 1990) (observing that the wisest course is to allow district court to consider issue first).

REVERSED and REMANDED.

State trial court suppression order for racial profiling in a stop was not subject to issue preclusion in a federal civil rights case because the parties and issues were not identical and the civil defendant did not get to cross-examine. The civil claim does get to proceed, however. Ballard v. Heineman, 2007 U.S. Dist. LEXIS 84797 (D. Neb. November 15, 2007).*

Officers put out a BOLO for a white van that a CI said would be carrying drugs. The plan was to stop the van if it committed a traffic offense. An officer saw the van, followed it, and saw a traffic offense of swerving over the fog line. The officer turned on the video and captured more of the same. Once the van was stopped, the defendant was asked for consent, and he agreed. The true motive of the stop was irrelevant because there was an objective basis. Even if the stop were invalid, the court [strains] to find the consent was purged of the taint. Alternatively, the collective knowledge of the police created reasonable suspicion for the stop. United States v. Magana-Aguirre, 2007 U.S. Dist. LEXIS 84800 (W.D. Ark. November 1, 2007):

Although Carver's subjective motivation was admittedly to effect a drug-related arrest, that is irrelevant when the Court considers whether the traffic stop he carried out was reasonable under the Fourth Amendment. A pattern of driving suggestive of drunk driving qualifies as a reasonable suspicion that a traffic violation is occurring.

. . .

Finally, as noted above the Court does not find fault with Carver's conduct in stopping the van, but even if a reviewing court should view the matter differently, this Court does not believe any court would find his conduct "flagrant" or "egregious" in any respect. Thus, the Court finds that defendant's consent would have been sufficient to validate the search even if the traffic stop did not survive constitutional scrutiny.

Wyoming rejects under its state constitution a search incident to an arrest of a vehicle where the defendant was approached for being in a park after hours apparently sleeping in the car, having been kicked out of his abode, and the officer asked for his driver's license and found it had been suspended. A search incident was just not appropriate under the circumstances. Pierce v. State, 2007 WY 182, 171 P.3d 525 (2007):

[*P14] We cannot say that the search at issue in the instant case was reasonable. The general

rationale for permitting searches incident to arrest is to prevent the arrestee from reaching weapons or concealing or destroying evidence. See [Commonwealth v.] White, [543 Pa. 45,] 669 A.2d [896,] 905 [(1995)]. A search incident to arrest under our state provision for these reasons is reasonable. The inherent mobility of automobiles in combination with officer and public safety concerns created when a driver or a passenger is arrested are exigent circumstances weighing in favor of not restricting the scope, timing, or intensity of such a search.

Vasquez, 990 P.2d at 489. Such evidentiary and safety concerns are not articulable from the totality of the circumstances in the instant case, particularly considering that:

1. The officer testified that he did not observe any signs that the appellant was under the influence of alcohol or drugs.

2. There was no reasonable possibility that evidence of the crimes for which the appellant was arrested remained in the vehicle. There also was no evidence indicating that the appellant had committed any other crime.

3. The officer's "pat down" search of the appellant's person did not uncover anything of evidentiary value.

4. The State does not attempt in its appellate brief to justify the search for evidentiary reasons.

5. Our analysis of the circumstances does not reveal any reasonable basis for the officer to believe the appellant was armed or that there were weapons in the vehicle. The appellant was arrested for driving under suspension and failing to maintain liability insurance. The officer's "pat down" search of the appellant's person did not uncover any weapons.

6. There were no passengers in the vehicle, two officers were at the scene, and the officers and the appellant had already left the scene by the time the vehicle's owner retrieved the vehicle.

7. The appellant was handcuffed and placed in a patrol car immediately prior to, and during, the search. Handcuffs are by no means foolproof (see Mackrill v. State, 2004 WY 129, PP19-21, 100 P.3d 361, 368-69 (Wyo. 2004)), but we must view this fact in light of all of the other facts in this case.

8. The appellant did not exhibit any furtive or suspicious activity, particularly with respect to the contents of vehicle.

9. The State does not contend in its appellate brief that considerations such as the time of day, the setting, the temporary registration tag issue, etc. contributed to any kind of safety concern in this case. The officer did not refer to any specific officer safety concerns he had that would have arisen prior to the time he initiated the search.

10. The officer admittedly had no other information about the appellant "as opposed to any other citizen." By the officer's own account, he and the appellant engaged in a friendly conversation, the appellant was honest about his suspended license, and the appellant seemingly offered a reasonable explanation for his presence at the park (the vehicle's contents, to the extent they were visible to the officer, would seem objectively to support the appellant's explanation).

11. The appellant cooperated with the officer and did not resist arrest or become combative with the officer.

This is not to say, of course, that any of these considerations might not be viewed differently if it were to arise in the context of different facts.

[*P15] It was the State's burden to prove that the search-incident-to-arrest exception applied, and the applicability of such an exception is "dependent upon all of the facts and circumstances viewed in their entirety." Moulton, P16, 148 P.3d at 43. The State's appellate analysis instead focused almost exclusively on the fact that the appellant was arrested and advocates for a bright-line approach similar to the approach that we rejected in Vasquez. Our state constitution requires more in that regard--the search must not only be incident to a lawful arrest, but also reasonable under the circumstances. In other words, we must be able to find a reasonable basis, articulable from the totality of the circumstances in each case, to justify such a search.

Appellant's 911 call was admissible, and the admissions made in it were separate from any suppressed statements. The police were called and appellant consented to the initial entry, and the police followed up by resorting to a search warrant, which was unnecessary and commendable. Ball v. State, 2007 OK CR 42, 173 P.3d 81 (2007):

[*P23] With respect to Appellant's objections that the experts considered suppressed information about Appellant's delay in seeking treatment and his description of how the injuries occurred, such information was also before the jury in Appellant's 911 call and his statements to emergency responders. Appellant has not shown that the doctors materially relied on the suppressed statements, and to the extent that they might have done so, any taint is dissipated significantly because the same information was admitted from untainted sources. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (finding illegally seized evidence admissible where the same evidence was subject to government subpoena); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (evidence of location of body obtained in illegal interrogation admissible because body would have been discovered inevitably in extensive search). There is no reversible error here.

The defendant alleged a violation of his rights in The Netherlands by actions of the DEA. The Second Circuit held that the DEA's action was not subject to suppression under The Treaty on Mutual Assistance in Criminal Matters between the United States and the Netherlands (commonly known as MLAT). United States v. Rommy, 2007 U.S. App. LEXIS 25732 (2d Cir. November 5, 2007):

By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:

Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.

Id. art. 18, subsec. 1. This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others' countries. To the contrary, it means that, when securing evidence with out MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable "domestic laws." Id. Thus, when DEA agents proceeded to use DeVries as a confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that "federal law governs the admissibility of evidence in a federal criminal trial"); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995) (noting that "federal law is applicable in a federal prosecution even when state police officers [are] involved" in investigating case); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir. 1987) (stating that "federal law governs federal prosecutions in federal court" (internal quotation marks omitted)); cf. United States v. Alvarez-Machain, 504 U.S. 655, 670, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (holding that defendant's forcible abduction from Mexico, authorized by DEA officials, did not prohibit trial in United States for violations of United States criminal laws). Rommy makes no claim on appeal that the DEA's undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.

A second reason Rommy's MLAT argument fails is that he cannot demonstrate that the treaty creates any judicially enforceable individual right that could be implicated by the government's conduct here. As the Supreme Court has long observed, absent explicit treaty language conferring individual enforcement rights, treaty violations are generally addressed by the signatory sovereigns through diplomatic channels. See Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884) (noting that "treaty is primarily a compact between independent nations" and "depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it"). For any number of reasons, sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases. Thus, a proper respect for the diplomatic choices of sovereign nations prompts courts generally to apply "a strong presumption against inferring individual rights from international treaties." United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001).

Defendant's refusal to answer a request for consent was not an express denial of consent under Randolph, so defendant's wife could be asked and she could consent. State v. Clavette, 969 So. 2d 463 (Fla. App. 5 DCA 2007):

In the case before us, Mr. Clavette was a joint occupant of the home whose constitutional rights were clearly implicated by law enforcement's entry into the home that he shared with Ms. Greene. While not disputing Ms. Greene's right to consent to the entry, Mr. Clavette argues that his refusal to respond to law enforcement's entreaties constituted an express refusal on his part to allow the entry, thereby negating Ms. Green's consent. We disagree.

In Randolph, the Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." 547 U.S. at 120 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." Id. at 105. The latter is precisely what occurred here.

Defendant had an expectation of privacy in hiding a gun under the hood of a borrowed car, but it was not an expectation of privacy that society is prepared to recognize as reasonable. United States v. Casseus, 2007 U.S. Dist. LEXIS 84676 (E.D. N.Y. November 15, 2007):

The defendant contends that the gun found in the car must be suppressed because the search of the automobile violated his Fourth Amendment rights. As an initial matter, a borrower of a car may have standing to challenge the search. United States v. Pena, 961 F.2d 333, 337 (2d Cir. 1992) ("It is not the law, however, that only the owner of a vehicle may have a Fourth Amendment privacy interest therein that is protected against governmental invasion. Rather, the borrower of an automobile can possess such an interest."). The defendant bears the burden of demonstrating that he had "a subjective desire to keep his [] effects private" and that his "subjective expectation must be one that society accepts as reasonable." Smith v. Maryland, 442 U.S. 735, 740 (1979). In hiding his gun under the hood of the car, defendant no doubt showed a subjective desire to keep the gun private. But he has not shown that his expectation of privacy is one that was reasonable under the circumstances or that society is prepared to accept.

A warrant need only exist, not be in hand, to satisfy Payton. The existence of a warrant need only be shown by a preponderance of the evidence. United States v. Tapia, 2007 U.S. Dist. LEXIS 84574 (D. Kan. November 13, 2007).*

Pulling plaintiff up by his handcuffs states a claim for relief and for which there is no qualified immunity. "Even Officer Larsen testified that lifting someone up by the handcuffs who is in a prone position on the ground would constitute "torture.'" Hoskin v. Larsen, 2007 U.S. Dist. LEXIS 84704 (W.D. Wash. October 31, 2007).*

Officers were coming to 3513 to execute a search warrant, and one officer pulled his gun out. A gunshot was heard and one officer was hit in the vest. Officers thought a shot had been fired from 3511, and they returned fire. After firing into 3511, the officers went in to conduct a protective sweep and look for shooting victims. The protective sweep produced contraband. Even if the first gunshot was an accidental shooting of one officer by another, it produced return fire from the officers who believed at the time that the shots came from 3511. Therefore, the entry into 3511 was not unreasonable. State v. Cameron, 2007 Ohio 6066, 2007 Ohio App. LEXIS 5330 (8th Dist. November 15, 2007).

[*P24] First, there is no evidence in the record to suggest that what occurred here was anything but an accident. The police did not arrive on the scene and intentionally shoot at the house in an effort to gain entry. If the evidence suggested such a motive, our task would be simple. Obviously, the police cannot deliberately create the exigent circumstances in an effort to justify entering a residence without a warrant. Jenkins, supra.

[*P25] Second, even if officers had been informed by Detective Bush that he accidentally fired the initial shot, the police would be justified in conducting a protective sweep to search for injured individuals. See Minnesota [v. Olson], supra.

The confidential informant gave detailed information about defendant and his travels. The police did a trash pull, and the trash pull was a treasure trove of information that corroborated the informant, including a boarding pass that put defendant on the same flight the informant said he was on. There was thus probable cause. State v. Martin, 2007 Ohio 6062, 2007 Ohio App. LEXIS 5331 (8th Dist. November 15, 2007).

Defendant had not yet been seized when he was fleeing from police during a drug surveillance. He was hemmed in by police cars, drove off the road, the left front tire was shot at by the police, and then defendant drove to a pond and started throwing baggies of drugs into a pond. That justified his seizure and arrest. United States v. Prosise, 2007 U.S. Dist. LEXIS 84473 (E.D. Va. November 15, 2007).*

Search of defendant's car was not a search incident and limited; rather, it was a full search justified by the automobile exception. United States v. Rubio-Perez, 2007 U.S. Dist. LEXIS 84382 (W.D. Wash. November 5, 2007).*

Defendant's car was parked, and a park ranger walked up to the defendant's car and discovered that he was under the influence. The initial encounter was not seizure. United States v. Robson, 2007 U.S. Dist. LEXIS 84329 (D. Nev. October 30, 2007).*

Statutory violation for a BAC that did not prejudice the defendant did not warrant suppression. Bradt v. Colo. Dep't of Revenue, 178 P.3d 1250 (Colo. App. 2007).*

The search in this case was not contested, but this is a little atypical: The defendant called the police to report a domestic disturbance, and the police arrived and she consented to a search that resulted in her arrest for possession of marijuana after the officers invited in smelled burning marijuana. State v. Fisher, 2007 Iowa App. LEXIS 1177 (November 15, 2007).*

A snitch was inside the defendant's house and reported to the police when he came out that the defendant had a pill soak going on. The snitch was a meth cook himself. The house was under surveillance while a search warrant was being prepared. The defendant was outside, preparing to leave. Then, the children of the home were seen coming home, and the officers decided to seize the house to prevent the children from going inside. The seizure was valid as based on exigent circumstances. United States v. Gray, 2007 U.S. Dist. LEXIS 83946 (D. Utah November 13, 2007).*

Defendant had been arrested inside and taken outside and put in a patrol car. The search of the living room at that point was hardly incident to his arrest. The state's alternative argument that defendant abandoned the bag that was left inside on his arrest was also unavailing, he retained an expectation of privacy in it, and the occupant's consent to search that bag was ineffective. State v. McCarthy, 288 Ga. App. 426, 654 S.E.2d 239 (2007).*

Defendant was stopped because his headlights were off at 2:30 a.m., and that was justification for the stop. State v. Boyd, 2007 Wisc. App. LEXIS 982 (November 14, 2007)* (probably will be unpublished, but the opinion does not say; decided by one appellate judge).

Officer had an uncorroborated anonymous tip of smoking of marijuana at a bar, and he showed up there and the occupants reacted by running when they saw him, and that made corroboration. State v. Moore, 2007 Wisc. App. LEXIS 989 (November 14, 2007).*

Officers with an arrest warrant do not have to wait for the defendant to come out of the house to arrest him--they can go in to his residence, particularly if there are security concerns. United States v. Williams, 2007 U.S. App. LEXIS 26462 (2d Cir. November 15, 2007) (unpublished):

To the extent Williams asserts that federal agents should never have entered his residence because they could easily have executed the warrant for his arrest on the street, the law is well established that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." United States v. Lovelock, 170 F.3d 339, 343 (2d Cir. 1999) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). The record evidence established the necessary reasonable belief of Williams's presence in his residence, and further identified valid security reasons for effecting the arrest inside the premises.

Officers had probable cause to believe defendant was inside, so they could enter with a warrant to arrest him. State v. Drown, 2007 ME 142, 937 A.2d 157 (2007).*

The government failed to prove that there were exigent circumstances for a warrantless entry and protective sweep. Officers responded to a disturbance call with a report of a gun, but the person who made the call denied ever stating that there was a gun involved. Also, the defendant left the area when instructed, and then the officers had no cause to search his separate premises. Motion to suppress granted. United States v. McKinney, 2007 U.S. Dist. LEXIS 84196 (N.D. Miss. November 14, 2007).

A TVA law enforcement officer exists under federal law, 16 U.S.C. § 831r, so a § 1983 action cannot be maintained against him; it must be under Bivens, and it cannot be brought in his official capacity. Merely "unnecessarily tackling" plaintiff was not unreasonable force. Hendricks v. Governor's Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 84171 (E.D. Tenn. November 14, 2007).*

Defendant's 4 a.m. party in the backyard did not show he had an expectation of privacy from police responding to a noise call and entering the backyard. State v. Dunn, 2007 MT 296, 340 Mont. 31, 172 P.3d 110 (2007):

[*P14] Here, Dunn did not have a reasonable expectation of privacy that society is objectively willing to accept. First, we consider Dunn's use of the property at the time of the intrusion. When police arrived at 4:00 a.m., Dunn, with a group of approximately seven people, was blaring music in the backyard from a car stereo. The party was boisterous enough to cause a neighbor to call in a complaint. Pursuant to § 45-8-101(1)(b), MCA, Dunn was effectively engaged in disorderly conduct by "making loud or unusual noises" that were disturbing the peace of the neighborhood. Because the music was still playing when the officers arrived, an ongoing crime was occurring in the officers' presence. Second, an expectation of privacy must be objectively reasonable to society. We find it improbable that society is willing to accept a privacy expectation as "reasonable" where the individual uses his property to disturb the peace of others at 4:00 a.m. in the morning. Dunn was not conducting himself in a "private" manner, but rather, to the contrary, his imposition upon other residents was a very public act. Given these circumstances, we find that Dunn did not have an expectation of privacy in his backyard at the time police arrived to investigate.

A police officer's telephone call to headquarters concerning his employment status and whether he would stay off on a work related injury was tape recorded, and he had a reasonable expectation that his calls would not be recorded because there was no beep on the line. Precedent established a reasonable expectation of privacy for calls to and from a public agency where there was explicit direction as to which lines were recorded and which were not. (This was combined with a First Amendment retaliation claim.) Diana v. Oliphant, 2007 U.S. Dist. LEXIS 83834 (M.D. Pa. November 13, 2007).

Plaintiff improperly gave notice to local government under the Maryland Tort Claims Act, but his allegations of gross negligence or recklessness against the officer for shooting him without cause survives. Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007).*

In a legal malpractice case for plaintiff's counsel not properly handling an excessive force claim, plaintiff would have been able to show that the officers were not entitled to qualified immunity and that he had a submissible case for excessive force. The case was reversed for a redetermination of damages, however. Austin v. Sneed, 2007 Tenn. App. LEXIS 688 (November 13, 2007).*

Minnesota also upholds DNA testing of convicts. State v. Jackson, 741 N.W.2d 146 (Minn. App. 2007).*

The officer spotlighted the defendant in a high crime area from 35' away but quickly approached him and asked if he was on parole. This could only be considered a seizure, despite the lack of emergency lights or a verbal command. People v. Garry, 156 Cal. App. 4th 1100 (1st Dist. 2007):

In the present case, the argument can be made that no detention occurred prior to Crutcher learning about defendant's parole status. Crutcher's testimony indicates that he parked his car 35 feet away from defendant, a considerable distance, had no other officers with him, did not use emergency lights, did not draw a weapon, made no verbal commands, went to defendant rather than asking defendant to come to him, did nothing to prevent defendant from leaving, and did not touch defendant prior to learning that he was on parole.

However, Crutcher's testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. Crutcher testified that after only five to eight seconds of observing defendant from his marked police vehicle, Crutcher bathed defendant in light, exited his police vehicle, and, armed and in uniform, "briskly" walked 35 feet in "two and one-half to three seconds" directly to him while questioning him about his legal status. Furthermore, Crutcher immediately questioned defendant about his probation and parole status, disregarding defendant's indication that he was merely standing outside his home. In other words, rather than engage in a conversation, Crutcher immediately and pointedly inquired about defendant's legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that Crutcher's actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was "'not free to decline [his] requests or otherwise terminate the encounter.'" (In re Manuel G., supra, 16 Cal.4th at p. 821.)

We find a detention occurred despite the fact that Crutcher did not make any verbal commands. "It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not." (Franklin, supra, 192 Cal. App. 3d at p. 941.) No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant's circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be "under compulsion of a direct command by the officer." (People v. McKelvy, supra, 23 Cal. App. 3d at p. 1034.) Crutcher's actions set an unmistakable "tone," albeit largely through non-verbal means, "indicating that compliance with the officer's request might be compelled." (In re Manuel G., supra, 16 Cal.4th at p. 821.)

Valid traffic stop quickly led to reasonable suspicion just from observations. The officer filled out a warning in two minutes and then told the driver she was free to leave, but asked questions. That quickly led to consent, and the interior of the car had been tampered with, so the officer could search further. United States v. Diaz-Medina, 2007 U.S. Dist. LEXIS 83470 (D. Utah November 8, 2007).*

Officers received a report of a gun pointed at a citizen from an SUV, and the SUV was stopped, and a protective sweep of the SUV was appropriate under the circumstances. The fact that the defendant was out of the vehicle was no answer because he would return to the vehicle, and, if a gun were there, it could be used against the officers. State v. Bragg, 2007 Ohio 5993, 2007 Ohio App. LEXIS 5242 (6th Dist. November 9, 2007):

[*P16] The only issue, then, is whether the officers had, at the moment appellee was stopped, an articulable suspicion that appellee presented a danger and a weapon was in the vehicle, sufficient to justify a protective search. Kay and Konzen were told by an excited and agitated witness that the SUV's driver had a gun and had pointed the gun at him. U.S. v. Witherow (C.A. 6, 1996), 95 F.3d 1153. Although alternative explanations may be conjured for why one driver may accuse another of waving a handgun in traffic, these facts led the officers to rationally choose the side of caution and the resulting Long search of the vehicle was not unreasonable. State v. Williams, 5th Dist. No. 2004CA00354, 2005 Ohio 3345 (anonymous phone call that particularly described driver was waving gun out of car window justified Long search); State v. Day (1984), 19 Ohio App.3d 252, 255-256, 19 Ohio B. 405, 483 N.E.2d 1195 (officer acts reasonably by conducting Terry search of suspect's person for concealed handgun on basis of anonymous tip that suspect had handgun).

Officer had reasonable suspicion to stop the defendant based on a hand to hand buy that occurred four days earlier, when the defendant successfully fled from the officer. State v. Lane, 2007 Ohio 5948, 2007 Ohio App. LEXIS 5255 (8th Dist. November 8, 2007).*

The police did not act unreasonably in denying defendant access to his property while a search warrant arrived because they feared destruction of evidence of sexual abuse. The police even permitted a woman to enter to get a baby bottle. State v. Mooneyhan, 2007 Tenn. Crim. App. LEXIS 861 (October 30, 2007):

The police balanced privacy concerns with the needs of law enforcement. When the defendant arrived at home, the officers restricted his access until they could execute the search warrant. They also restricted the access of the defendant's family members but allowed limited access for things such as allowing the defendant's mother-in-law to obtain a bottle for a child. The restraint was imposed for a limited period of time. Although there was evidence that the process took as long as five hours, the evidence reflects that the police were corroborating information from their initial interview with the victim and obtaining the search warrant during this time. Further, the defendant was not restrained from his home for that entire period of time. The record reflects that he arrived at his residence sometime after being at his mother's house at 3:25 p.m. and that the search warrant was executed at 8:00 p.m. Nothing suggests that the brief time period was greater than that needed for diligent officers to complete these tasks. We conclude that the trial court properly denied the motion to suppress.

The owner of a car can consent to a search of it over the objection of a bailee who just borrowed it. The bailee's rights are subordinate. Grigsby v. Commonwealth, 2007 Ky. App. LEXIS 429 (November 9, 2007):

"An owner who allows another person to use his automobile retains ownership and the right to reclaim possession of the vehicle at will. While a bailee may have an expectation of privacy in the borrowed vehicle, that privacy interest is subordinate to the owner's right to his vehicle and right to reclaim possession of the vehicle at any time." quoting Hardy v. Commonwealth, 17 Va. App. 677, 681, 440 S.E.2d 434, 437, 10 Va. Law Rep. 871 (1994).

The state failed to prove theft, and the property confiscated it refused to return. The defendant was entitled to its return. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007):

In this case, the State argued to the district court that much of the property was stolen. We agree that stolen property should be returned to its rightful owner. In most cases, the theft of the property will be substantiated by the findings underlying a criminal conviction. But here, the charges had been dismissed. The State had seized property from Agee, and he was presumably entitled to its return once the proceedings were concluded, but the State did not overcome that presumption by presenting evidence of a cognizable claim or right of possession adverse to Agee's. Nor was the property contraband per se, which may not be returned because its possession is inherently unlawful. Nor did the State present evidence of any of the other grounds that have been used to justify the government's retention of property, such as an ongoing investigation, a tax lien, an imposed fine, or an order of restitution.

Defendant was on a bus that had crossed the border and was subjected to a stop in Harlingen, Texas, where an immigration officer boarded the bus and asked to see the paperwork on anybody who was not a U.S. citizen. The court found it was a close case, but determined that the encounter was consensual and defendant would have felt free to not answer questions of the officer standing over him in the bus with a gun in a holster demanding to see his paperwork. After defendant admitted he was a Mexican citizen, the officer conducted a patdown while the defendant was still seated, and that produced drugs on his person. United States v. Mendieta-Garza, 254 Fed. Appx. 307 (5th Cir. 2007)* (unpublished):

The first encounter between Agent Sanchez and Mendieta-Garza had ended, and a reasonable person would have felt free to decline Agent Moya's subsequent requests or to terminate the encounter. See United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure where the first encounter, a traffic stop, had ended and the officer had returned all of the appellant's documents); see also United States v. Esparza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (making a second request, or even a second demand, for identification does not, by itself, implicate the Fourth Amendment). Prior to noticing a bulge under Mendieta-Garza's shirt, Agent Moya did not apply any force, make an intimidating movement or an overwhelming show of force, or issue a threat or command. See Drayton, 536 U.S. at 204 (finding no seizure where there "was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice"). Though Mendieta-Garza was asked twice about his immigration status, because neither interrogation was coercive or confrontational, we hold that Mendieta-Garza was not seized in violation of the Fourth Amendment. See id. at 204 (holding there was no seizure where there "was nothing coercive or confrontational" about the encounter with law enforcement).

Comment: A reasonable person would have felt free to not answer questions? Pure fiction. It is quite obvious that appellate judges have never had a cop in their face to understand what a "reasonable person" would feel.

Defendant's stop was based on reasonable suspicion from a reliable snitch, and the defendant consented during the stop of the vehicle. United States v. Walker, 254 Fed. Appx. 300 (5th Cir. 2007)* (unpublished)

In a fire scene search, the first was immediately after the fire while it was still being put out, and the officer wanted to collect evidence before water could damage it. His leaving the scene was just to retrieve a camera to photograph what was there, and that was merely a continuation of the first entry. The third search, however, was later in time and to collect criminal evidence, so the first two entries were valid and the third was not. State v. Lewis, 2007 MT 295, 340 Mont. 10, 171 P.3d 731 (2007).

The defendant's encounter with the officer in this case in a convenience store parking lot was purely consensual, and the record supports that finding. State v. Cobbs, 2007 Ohio 5950, 2007 Ohio App. LEXIS 5215 (8th Dist. November 8, 2007).*

Two guys were stopped having bought lithium batteries and psuedophedrine and they admitted that they were delivering them to the defendant's garage in exchange for money and drugs. They became informants and made the delivery. The police entered without a warrant, but they procured a warrant later. The primary illegality of the warrantless entry was purged by the issuance of the warrant based on independent probable cause. Horn v. Commonwealth, 240 S.W.3d 665 (Ky. App. 2007).*

Police received a 911 call about a domestic dispute with shots fired from defendants' house. When they arrived, the female was outside hysterical. The officers talked to the female, and she told them to leave because they were not wanted or needed. Despite this, they went inside and found a meth lab. No emergency existed. The denial of the motion to suppress is reversed. State v. Bookheimer, 221 W. Va. 720, 656 S.E.2d 471 (2007):

Applying the above-cited legal principles to the present case, we find it unreasonable for the officers to have conducted a warrantless entry and search. At the suppression hearing, the responding officers testified that Ms. Tingler clearly told them that there was no domestic dispute, they were not wanted, they were not needed, and that she wanted them to leave. In the face of this clear rebuke, it would not be reasonable for an officer to proceed to enter and search the premises unless there was some other condition lending to an emergency circumstance.

While the officer testified that Ms. Tingler was acting in a "hysterical" manner, a review of the record reveals the contrary. After listening to the officer's testimony at the suppression hearing, the trial judge could not agree that "hysterical" was a proper characterization of Ms. Tingler's behavior. From the bench, the judge "note[d] that upon arriving at the scene the testimony of [the] Deputy ... was that Ms. Tingler was yelling, and was in a state of less than quite [sic] demeanor. I would not say that she was irrate [sic], but it appears that there was yelling by Ms. Tingler[.]" Moreover, the order stemming from the suppression hearing referred to Ms. Tingler's demeanor as "agitated." Being less than "irate" and "agitated" does not lend support to the officer's contention that Ms. Tingler was hysterical. An objective review of the record reveals a woman who was angry and who was, indeed, probably yelling. However, her anger and yelling were not caused by circumstances occurring prior to the arrival of the officers. Rather, her agitation was aimed at the fact that the officers were present on her property. Thus, Ms. Tingler's behavior did not create an emergency or an exigent circumstance justifying entry into the residence.

Plaintiff filed a § 1983 claim within about 90 days of being informed by the local DA that he could file a civil action over a seizure of his property that happened nearly four years earlier. The "discovery rule" for starting the statute of limitations runs from when one, by reasonable diligence, would know of the facts of a possible claim, not from when the DA mentioned that he could file a civil claim. This claim was barred by the state's two year limitations statute. Palmer v. City of Harrisburg, 2007 U.S. Dist. LEXIS 82978 (M.D. Pa. November 8, 2007)*:

Plaintiff's argument is without merit. The alleged injuries stem from events that occurred during the course of the criminal proceedings, which took place between March 13, 2002, and November 25, 2003, as discussed above. The alleged injuries and the cause thereof were immediately ascertainable. While it may be true that Plaintiff lacked the knowledge that he could file a civil complaint during the statute of limitations period, his lack of knowledge is irrelevant. See Rendenz, 520 A.2d at 886. Moreover, even if Plaintiff was represented by counsel, his alleged reliance on counsel does not toll the statute of limitations.

Two federal appellate cases where defense counsel was obliged to raise frivolous search issues (issues that I would have personally refused to bring because counsel does not have to do so just because the client insists (but some clients compel appealing issues as a CYA)):

Probable cause was shown by defendant's neighbor's affidavit that the defendant had moved rifles from a truck to his house. The police confirmed he was a felon. Issuing state court judge did not abuse discretion in permitting a nighttime search. United States v. Spellicy, 253 Fed. Appx. 147 (2d Cir. 2007)*(unpublished).

Reasonable suspicion for a patdown was present where the officer saw defendant put a gun in his waistband. [The court went on to explain that the defendant was also nervous when confronted, but that is hardly required if the officer actually saw a gun.] United States v. Harris, 253 Fed. Appx. 171 (3d Cir. 2007)* (unpublished).

Defendant used a cellphone at work to take a picture of a minor's private area, and the police extrapolated from that that they should get a warrant for his place of business and his home. A Rhode Island trial judge found no nexus between the use of the cellphone and a search of the defendant's business and home and suppressed the search, noting also that RI has still not adopted the good faith exception. The search in fact turned up evidence of an "unsavory" nature, but the court reminded the state that the product of the search cannot be used to justify it. State v. Byrne, 2007 R.I. Super. LEXIS 163 (November 5, 2007):

The Fourth Amendment was forged from the flames of rebellion that led the colonial settlers in Rhode Island and other colonies to resist the arbitrary rule of royal tyranny. See 1 John Wesley Hall, Search and Seizure §§ 1.5, 1.6 (3d ed. 2000); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, 325 (2002). Since then, this limitation on government authority has become a revered landmark of our nation's laws and culture. Modern society is mesmerized by media images captured by technological innovations not imagined when the framers put quill to parchment. Photographic and data storage technology has advanced to the point where it is within anyone's grasp--literally--to capture digital images with palm-sized cameras and cell phones, and quickly and quietly store them on personal computers for private viewing or public distribution.

The proliferation of these devices and the elusiveness of the images captured and stored on these devices pose unique challenges to privacy rights and law enforcement. Seven years ago, two commentators wrote, "[t]he future surely will bring more legal cases involving video voyeurism, as technology becomes smaller, more affordable, and easier to use." Clay Calvert & Justin Brown, Video Voyeurism, Privacy, and the Internet: Exposing Peeping Toms in Cyberspace, 18 Cardozo Arts & Ent. L.J. 469, 568 (2000). This case proves the accuracy of that prediction. Nonetheless, the challenges presented by media technology neither permit nor require a departure from the bedrock principles enshrined in the Fourth Amendment. Notwithstanding the disturbing actions allegedly committed by the defendant, this case is a reminder that the Fourth Amendment stands its ground in the face of new technology and condemnable behavior.

. . .

On the other hand, search warrants issued upon affidavits that wholly failed to reference the location to be searched or failed to link the property to be seized with the location to be searched have later been found to lack probable cause. In a particularly relevant case, the United States Court of Appeals for the Fourth Circuit considered a challenge to the nexus requirement brought by a defendant whose residence was searched in accordance with a warrant in spite of the fact that neither the affiant nor the police informants stated that the contraband searched for was to be found at the defendant's residence. See United States v. Lalor, 996 F.2d 1578, 1579-80 (4th Cir. 1993). In fact, the affidavit did not provide facts alleging that the defendant's criminal actions occurred at or near his residence. See id. at 1582-83. Consequently, the court found the affidavit lacked probable cause to issue a warrant. See id. at 1583. Similarly, in United States v. Schultz, the United States Court of Appeals for the Sixth Circuit considered a situation in which an informant under arrest for drug related activity identified the defendant as his drug supplier. 14 F.3d 1093, 1096 (6th Cir. 1994). Subsequent police investigations and observations of the defendant failed to yield evidence of any illegal activity by the defendant. See id. Importantly, the informant, the only person to have alleged that the defendant was involved in criminal activity, made no mention of safe deposit boxes for which a warrant was issued. See id. Consequently, the court found a "lack of evidentiary nexus in this case, prior to the search, between the safe deposit boxes and any criminal activity." Id. at 1097.

This nexus between the property searched for and the location to be searched is critical with respect to the search warrant issued for Byrne's residence. This Court cannot consider the items seized from Byrne's residence, unsavory as they are, in determining whether probable cause existed. See Joseph, 337 A.2d at 527. Rather, the Court can and must turn only to the affidavit submitted by Camara. That affidavit provides great detail regarding the actions purportedly taken by the defendant at the coffee shop. However, the facts contained in the affidavit do not implicate Byrne's residence in any way. In fact, the affidavit is almost entirely devoid of any reference to Byrne's residence. ...

. . .

Moreover, the Court is not inclined to follow the novel reasoning presented by the State during oral arguments: "one man's speculation ... is another man's reasonable inference." (Tr. 13). The application of our laws is not, and should not be, so fickle. ...

Plaintiff exhibited a reasonable expectation of privacy by shutting his bedroom door when the police were in the house, and they intruded on that expectation of privacy by shooting through the door. While the police had permission to enter from a co-tenant, the act of shutting the door still manifested an expectation of privacy in that portion of the premises that would indicate that the co-tenant did not have apparent authority as to it. Lobato v. Ford, 2007 U.S. Dist. LEXIS 82373 (D. Colo. October 31, 2007):

By closing the door to his bedroom, Lobato manifested a subjective expectation of privacy in his bedroom. Further, "[i]t is well-settled that an individual has a reasonable expectation of privacy in the interior of one's home." Reeves, 484 F.3d at 1254. Under these circumstances, it is readily apparent that Lobato had a reasonable expectation of privacy in the room where he was staying. The next question then is whether the officers, specifically Herrick and Ford, infringed on that expectation by opening the door to Lobato's bedroom and firing a shot into it. This question must be answered in the affirmative based both on the physical intrusion into this room by the bullet fired from Ford's weapon as well as the officers' viewing of this room in a manner not available to members of the public. Compare United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996) (law enforcement officers did not engage in search under the Fourth Amendment by looking through picture window adjacent to front door as anyone at the front entranceway of their home could have done). I therefore conclude that the officers conducted a search of Lobato's bedroom and must next analyze whether this search was in violation of his Fourth Amendment rights.

Officer observed what was apparently a hand to hand drug sale in a car that led him to stop the car. The officer had previously arrested the defendant for the same thing from the same car. It was thus more than a hunch. Commonwealth v. Coronel, 70 Mass. App. Ct. 906, 875 N.E.2d 877 (2007):

Considering all of the circumstances presented, it was a reasonable inference, and not a mere hunch as the motion judge suggested, that an exchange of contraband took place during the ten to fifteen second interval that Eaton was in Coronel's car. We thus conclude that the criteria of Commonwealth v. Kennedy, supra at 708-709, supporting probable cause were met in the present case, and we reverse the motion judge's order insofar as it allowed the suppression of Eaton's statements, drugs, and other evidence seized from the defendants at the scene.

Record supports the USMJ's conclusion that the officers' repeated requests to enter the defendant's premises amounted to coercion. Furthermore, a protective sweep of the premises was unjustified because there was no reason to believe anybody was inside. The defendant made a disturbance call. The smell of marijuana is all that was not tainted by the illegal entry, so the warrant was suppressed. United States v. Ortega, 2007 U.S. Dist. LEXIS 82514 (M.D. Fla. November 6, 2007):

Both officers consistently testified that defendant was very reluctant to allow them to enter the residence, and only agreed after being told that the officers were concerned for the safety of people inside the house and "needed" to check it (Doc. # 41 at 10) or that the officers "need to clear the residence," (Doc. # 41 at 22, 24), or they "needed to verify that there is nobody else injured inside the house" (Doc. # 41 at 63, 67). While the officers believed defendant's acquiescence to their claimed authority constituted consent by defendant, the Court concludes that under the totality of the circumstances they were incorrect. See, e.g., Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)(noting that repeated requests for consent to search can constitute coercion.) Accordingly, the entry into the residence cannot be justified under the consent exception to the search warrant requirement. The government's objection is overruled, and this portion of the Report and Recommendation is accepted and adopted.

. . .

At the time of the entry, defendant had not been arrested and was not viewed as a suspect; rather, he was the victim of an assault which had taken place outside the residence. No suspects were believed to be in the residence; at best, the officers simply did not know who else was in the residence, if anyone. The officers' lack of information cannot justify a warrantless protective sweep. United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999). There was no contradiction between what defendant said and the information known to the officers. The suspects were reported to have left the area, and there was no report that more than one victim was involved. There was no reason to disbelieve defendant's statement that everything was alright at the time of the officers' arrival. ...

Defendant was stopped for a traffic offense, and extra five minutes taken to inspect the exterior of the car that ultimately had been altered plus being on a common drug route was reasonable suspicion, and it was not an unreasonable extra detention. United States v. Sanchez, 507 F.3d 877 (5th Cir. 2007).*

During a routine traffic stop, the officer developed reasonable suspicion from travel plans that did not make sense and defendant's shaking hands, so he asked for and got a valid consent. Two minutes after his search started, a drug dog showed up. United States v. Vazquez, 253 Fed. Appx. 365 (5th Cir. 2007)* (unpublished).

Affidavit for search warrant: In this case "the affidavit arguably does not establish a sufficient basis to connect Hendon with either the drugs or the places to be searched and, therefore, could be found lacking to establish a sufficient basis for a finding of probable cause. Nevertheless, we need not address whether there was sufficient probable cause to justify the search of the apartment at 408 North Brazier Drive because the district court did not err in finding that the evidence seized was not subject to exclusion because of the good faith exception to the warrant requirement, as explained below." Officer's reliance on his findings that he believed were probable cause was not objective unreasonable. United States v. Hendon, 253 Fed. Appx. 809 (11th Cir. 2007).*

Four short questions at the conclusion of a traffic stop after issuance of a warning did not unduly extend the stop. People v. Roa, 377 Ill. App. 3d 190, 879 N.E.2d 366 (3d Dist. 2007):

However, the finding of an articulable basis does not end the inquiry. The analysis must proceed to determine if the four questions posed by Sergeant Blanks in this case converted the Terry stop into an illegal seizure. The record shows Blanks did not immediately ask for consent to search the vehicle. Rather, he posed several questions, each one serving as a building block for the next, logically progressing so that the last question could be asked in such a manner to make an affirmative answer more likely, if not inevitable. The first three questions the officer posed were short, succinct, and formulated to produce "yes" or "no" responses, which did not unduly delay the fourth and final question regarding consent to search. These brief inquiries are similar to the nature of questions asked by the officer in Terry and did not unfairly convert this brief investigative stop into an unconstitutional seizure of defendant or his vehicle.

Stop was validly based on a warrant for the passenger, and that led to plain smell of marijuana which justified a search of the car, which was consented to. Somesso v. State, 288 Ga. App. 291, 653 S.E.2d 855 (2007).*

Defendant failed to object to admission of evidence seized from his pocket at trial, so suppression was waived. Considering it on the merits, however, the defendant's arrest for trespassing was not unlawful and it was based on probable cause, so the search incident to that arrest was valid. State v. Johnson, 237 S.W.3d 277 (Mo. App. 2007).*

Officer stopped vehicle for speeding that he knew had been stolen. That gave probable cause to search the occupants because it was reasonable to assume they were on a joint venture with the stolen car, per Pringle. Hatcher v. State, 177 Md. App. 359, 935 A.2d 468 (2007).*

Trial judge's 13 pages of "textbook" analysis of the facts and law were followed by an apparent tirade against defendant's perjury at the suppression hearing which led to a motion to disqualify for bias, which was granted, and delay in the proceedings. The trial judge should have just stated that he did not believe the defendant and leave it at that. The disqualification did not retroactively require a new suppression hearing. On the merits of the detention, the defendant lost on that, and it was affirmed. People v. Williams, 156 Cal. App. 4th 949, 67 Cal. Rptr. 3d 711 (2d Dist. 2007).

Warrant was sought for marijuana in defendant's house, but the particularity clause said "'cocaine, crack cocaine' and collateral items believed to be related to the sale of narcotics." The motion to suppress was denied by the trial court but reversed on appeal. The particularity clause was binding. Even plain view of the marijuana on the premises was rejected. State v. Browne, 104 Conn. App. 314, 933 A.2d 735 (2007):

The state argues that the allegations asserted by the affiants in the affidavit and warrant application reflected a consistent and continuous reference to marijuana such that the absence of marijuana from the particularity clause of both the warrant and application was merely a scrivener's error. This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: "The fact that the application adequately described the 'things to be seized' does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) ('[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional'); see also United States v. Stefonek, 179 F.3d 1030, 1033 ([7th Cir.] 1999) ('The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer ... asked to issue the warrant' (emphasis in original)) [cert. denied, 528 U.S. 1162, 120 S. Ct. 1177, 145 L. Ed. 2d 1085 (2000)]. And for good reason: 'The presence of a search warrant serves a high function,' McDonald v. United States, 335 U.S. 451, 455 [69 S. Ct. 191, 93 L. Ed. 153] (1948), and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. ... But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation." (Citations omitted; emphasis added.) Groh v. Ramirez, supra, 557-58. Even if the state is correct that the affidavit and allegations sufficiently describe the items to be seized so as to inform the reader that marijuana, not cocaine, is the object of the search, here, as in Groh, the affidavit did not accompany the warrant.

The state also argues that the warrant was valid because the executing officer had personal knowledge of the crime being investigated and knew that marijuana, not cocaine, was the focus of this search. "It is true that the executing officer's personal knowledge of the place to be searched may 'cure' minor, technical defects in the warrant's place description. 2 W. LaFave, Search and Seizure [(2d Ed. 1987) § 4.5 (a), pp. 209-10]. However, where the inadequacy arises not in the warrant's description of the place to be searched but rather in the things to be seized, the officer's personal knowledge of the crime may not cure the defect. See generally 2 W. LaFave §§ 4.5-4.6 (discussing the particularity requirement in relation to a warrant's description of the places to be searched and the things to be seized). This is so because the purpose of a warrant is not only to limit the executing officer's discretion, but to inform the person subject to the search what items the officer may seize. United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) [cert. denied, 479 U.S. 1086, 107 S. Ct. 1289, 94 L. Ed. 2d 146 (1987)]." (Citation omitted; emphasis added.) Washington v. Riley, 121 Wash. 2d 22, 28-29, 846 P.2d 1365 (1993). The United States Supreme Court has "long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. See [Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987)]. A particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." (Internal quotation marks omitted.) Groh v. Ramirez, supra, 540 U.S. 561.

The state argues that because it had probable cause to believe that some of the collateral items were located in the house, the police officer could seize the marijuana under the plain view doctrine. "[O]bjects not named in the warrant, but found within an officer's plain view, may be seized if the ... officers had a reasonable basis for believing that the seized evidence was reasonably related to the offense which formed the basis for the search warrant. ... This doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized." (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 347, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The problem with this theory in this case is that the police were not lawfully on the premises of the defendant where the marijuana was found. See United States v. George, 975 F.2d 72, 80 (2d Cir. 1992) (noting that plain view doctrine inapplicable when "the sufficiently particularized portions make up only an insignificant or tangential part of the warrant"). Moreover, the collateral items, standing alone without the illegal drug, would not support probable cause to believe a crime was committed. Accordingly, the marijuana could not be seized under the plain view doctrine.

Defendant's own motion to suppress showed he lacked guest standing, so the motion was denied. United States v. Tolley, 2007 U.S. Dist. LEXIS 81937 (W.D. Ky. November 2, 2007):

Tolley states only that at the time of the search, he was a lawful guest of a resident who he describes as an "acquaintance." He offers nothing to suggest that he was anything more than a casual visitor to the Madison Avenue residence. Tolley contends that he is entitled to a hearing because the nature of his relationship with the owners is a "factual one." However, he does not offer any facts which are in dispute. The United States does not disagree that Tolley was present in the residence with the consent of an acquaintance.

Officer was entitled to qualified immunity for justifiably shooting and killing plaintiff's decedent during an arrest. The scuffle started over an investigation of whether the decedent was involved in vandalizing a Coke machine, and the events spiraled out of control to a pepperspraying, dragging the officer from a moving car, and then going for the officer's gun. Wright v. Powell, 2007 U.S. Dist. LEXIS 82062 (M.D. Ga. November 2, 2007):

Under these circumstances, the Court finds that Wright presented a risk of danger to Powell, and possibly others, sufficient to justify the use of deadly force. Wright had shown that he was hostile and aggressive and had already made at least one attempt to gain control of Powell's gun. Powell was justified in shooting Wright as they struggled over the gun because it was objectively reasonable for Powell to be concerned that Wright would continue to fight him for the gun and might succeed in gaining control of the gun and ultimately shooting Powell or others in the area.

"Woman scorned" was a credible informant, showing probable cause. United States v. High, 2007 U.S. Dist. LEXIS 82102 (W.D. Wisc. November 2, 2007):

So which is Sims? She is not an anonymous telephonic informant with an inscrutable personal agenda, nor is she a paradigmatic street informant unwillingly working off a beef. Detective Woodmansee found her to be a credible citizen conflicted by friendship but motivated by her desire to do the right thing. High tries to impeach Sims's motives by insinuating that she was trying to punish Ross-High because of their spat, but this was not Detective Woodmansee's impression at the time and on these facts it is an illogical premise. Sims's report of what Ross-High told her and why Ross-High said it was much too intricate and indirect to qualify as a fabrication intended to get even with Ross-High. As circuitous as Sims's tale may have been, it was internally consistent and logical: a jealous wife, humiliated by her footloose husband in front of others, lashes out to salve her pride and punish his transgression.FN3

3 "Heaven has no rage like love to hatred turned
"Nor hell a fury like a woman scorned"

-- William Congreve, "The Mourning Bride."

Defendant left his computer open for Internet access for peer to peer access to download files, and this did not show he maintained a reasonable expectation of privacy in his computer. Moreover, there was probable cause for issuance of a search warrant off those entries into the computer. United States v. Stults, 2007 U.S. Dist. LEXIS 81975 (D. Neb. November 2, 2007):

In his supplemental motion to suppress, Stults argues government agents illegally searched his computer prior to the issuance of the search warrant and used such information to establish probable cause for the issuance of the search warrant. Stults contends Agent Cecchini conducted a warrantless search when he viewed the files from IP address 24.252.31.129 (Stults's IP address) after Agent Cecchini launched the P2P program searching for child pornography. Stults argues Agent Cecchini was able to determine the contents of Stults's computer, retrieve files from Stults's computer, and view those files at a distant location without Stults's consent. Stults asserts without such information, there would be insufficient probable cause to obtain a search warrant of Stults's premises or computer files.

The application and affidavit detail the workings of a P2P network and that of Limewire which was used in this instance. The application and affidavit set forth how Agent Cecchini accessed the P2P network, noted the downloads of various files by IP address 24.252.31.129, and then downloaded those particular files from the P2P network for viewing. The P2P network is a file sharing network that belies a reasonable expectation of privacy. Absent such an expectation, the Fourth Amendment does not prohibit law enforcement officers accessing the P2P network and viewing files that have been downloaded by various IP addresses. Stults's assertion that Agent Cecchini's actions amounted to a warrantless search tainting the application and affidavit is without merit.

In a qualified immunity analysis, the question is not probable cause; it is arguable probable cause, and here there was not, so qualified immunity is no protection. Defendants' argument of exigency also fails because they had three hours to procure a warrant. Barnette v. City of Phenix City, 2007 U.S. Dist. LEXIS 82300 (M.D. Ala. November 6, 2007).*

Plaintiff was taken down by the officer when he refused arrest, and this was not excessive force because he was resisting. Cardinal v. Allain, 2007 U.S. Dist. LEXIS 81862 (M.D. La. November 5, 2007):

Deputy Balcuns used a straight arm bar take down tactic to bring Mr. Cardinal to the ground. Such a tactic was not excessive force because Mr. Cardinal was jerking way from Deputy Balcuns to prevent Deputy Balcuns from handcuffing him. In addition, when Deputy Balcuns made a second attempt to handcuff Mr. Cardinal, Plaintiff again responded by jerking away and pushing Deputy Balcuns. It was Mr. Cardinal's conduct and intoxicated state which created the situation at issue.

Defendant was detained because he matched the description of somebody involved in an assault. He was apparently intoxicated. A patdown produced a hard cigarette pack which the officers opened, and then saw a folded piece of paper which was opened finding drugs. The search of the folded piece of paper was not justified under Terry. The alternative justification for a public intoxication search incident was rejected as a post hoc rationalization because the determination was made to arrest for the drugs and not intoxication, by the officers' own testimony. United States v. Lee, 2007 U.S. Dist. LEXIS 82241 (E.D. Va. November 6, 2007).*

The search warrant clearly described the place to be searched and firearms to be seized in a domestic violence report involving a felon in possession of a firearm. The owner of the truck defendant was driving had the authority to consent to its search; defendant's possession of the only set of keys did not deprive the owner of ability to consent and the officer could rely on the owner's apparent authority. United States v. Guzman, 507 F.3d 681 (8th Cir. 2007).*

Plaintiff was indicted for drugs and weapons charges in federal court, but the charges were dismissed before a Franks hearing could be held. He sued under § 1983 claiming that the informant in the case was manufactured, but he could come forth with no evidence of it and summary judgment was granted for the officer because there was probable cause. Ladd v. St. Louis Bd. of Police Comm'rs, 2007 U.S. Dist. LEXIS 81651 (E.D. Mo. November 2, 2007).*

Defendant was stopped for a traffic offense, and he opened the glove compartment to get his paperwork, and the officer could see that it was full of cash that was "suspiciously wrapped." That, plus defendant's implausible story about his travel plans, was reasonable suspicion for a detention that led to a consent search. United States v. Carrion-Soto, 2007 U.S. Dist. LEXIS 82273 (D. N.J. November 7, 2007).*

Search incident of a vehicle eight minutes after defendant was handcuffed and in custody in a police car was still valid under the bright line rule of Belton and Thornton. United States v. Grooms, 506 F.3d 1088 (8th Cir. 2007). Worth noting is this passage about defendant's policy argument which the court found unavailing. The fact it was mentioned at all suggests that the court might have been sympathetic to it, but bound by SCOTUS precedent.

Grooms relies on this statement in Thornton and argues he is not a recent occupant because eight minutes is too long after an arrest to conduct a valid search incident to arrest. In United States v. Hrasky, however, we found an automobile search which began one hour after the defendant was arrested was a valid search incident to arrest because we found the defendant was a "recent occupant." 453 F.3d 1099, 1102 (8th Cir. 2006). We noted "the determination of whether a search is a contemporaneous incident of arrest involves more than simply a temporal analysis" and concluded "a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events." Id. We reasoned the search in that case "took place at the scene of the arrest, immediately after the police determined to proceed with a full custodial arrest" and was therefore valid. Id. at 1103. In this case, we find the search of Grooms's vehicle occurred during a continuous sequence of events after his stop. Eight minutes is not a long period of time and some of the delay can be attributed to Grooms's attempts to offer explanations for his prior criminal conviction, for his return to the pub, and for his possession of the two cases. Under Hrasky, we find Grooms was a recent occupant of his automobile.

In addition, as a policy matter, Grooms argues the search should be found invalid because there were no safety issues and no probable cause to believe evidence relevant to the crime of arrest would be found in his vehicle. Grooms argues the law governing the Fourth Amendment exception for a search incident to arrest has diverged from the rationale expressed in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). He argues the dual purpose behind a contemporaneous search incident to arrest of both the person arrested and the immediate surrounding area is (1) the need to remove weapons that might be used to resist arrest or escape and (2) the need to prevent concealment or destruction of evidence. Belton, 453 U.S. at 457-58 (citing Chimel, 395 U.S. at 762-63). Once a person has been arrested, frisked and handcuffed, Grooms argues the rationale for a search for weapons used to resist arrest or escape disappears. With respect to the need to prevent concealment or destruction of evidence, Grooms argues searches should be limited to those cases in which there is probable cause to believe evidence relevant to the crime of arrest might be found in the vehicle. He argues this case provides an excellent forum for determining whether Belton and Thornton should be modified in light of what he argues is an erosion of their underpinnings.

Defendant's handcuffing was not a minimal intrusion, and it was not based on reasonable suspicion. Taking the LaFave factors from LaFave's Criminal Procedure

(1) the particularity of the description of the offender or the vehicle in which he fled;
(2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the time occurred;
(3) the number of persons about in that area;
(4) the known or probable direction of the offender's flight;
(5) observed activity by the particular person stopped; and
(6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

the court, considering them seriatim, finds no reasonable suspicion. The strongest factor the court found was corn rowed hair, which the appellate court finds not subject to judicial notice that it was unusual enough to be a factor. Nervousness is also not a factor because even the innocent are nervous when they are stopped by the police. Madison-Sheppard v. State, 177 Md. App. 165, 934 A.2d 1046 (2007). Comment: This is kind of reminiscent of the "divide and conquer" analysis rejected in Arvizu. Because this was an arrest without a warrant, de novo review is required under Ornelas. Under de novo review, the appellate court is free to consider the factors itself under the totality standard. Here, the factors were found factually weak and against a finding of reasonable suspicion: race of the suspect was not particularly selective, the time since the offense under investigation was long, etc.

Officers entering a house to arrest the plaintiff in a domestic violence situation were entitled to qualified immunity. It was not hot pursuit, but it was a situation for the safety of all concerned. Cannon v. Hamilton County, 2007 U.S. Dist. LEXIS 81407 (E.D. Tenn. November 1, 2007), relying on Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1991).*

Stop of vehicle with a temporary tag that was in the back window and not on the bumper was valid because the officer was entitled to make reasonable mistakes of fact. During the stop, the officer saw brass knuckles in plain view. The plain view was valid. United States v. Dates, 2007 U.S. Dist. LEXIS 81494 (W.D. Pa. October 30, 2007).*

Use of stolen identity to rent a storage unit did not show a reasonable expectation of privacy in the storage unit. United States v. Johnson, 2007 U.S. Dist. LEXIS 81465 (D. Utah November 2, 2007):

While Defendant acknowledges that the storage unit was rented using a false name, he contends that he had an expectation of privacy in the storage unit because he placed his personal property inside it, paid the fees for it, placed a lock upon it, and never disavowed an interest in it. Nonetheless, it is questionable whether Defendant could have subjectively believed that this storage unit could remain free from a search if the fraudulent rental agreement was discovered by the storage facility employees, the police, or Haroldsen. The evidence indicates that Defendant directed Christensen to enter into the rental agreement using Haroldsen's driver license. The rental agreement, itself, provides that only Shannon Haroldsen had authority to enter the unit.

Even if the court found that Defendant had a subjective expectation of privacy in the storage unit, society does not recognize that expectation as objectively reasonable. Defendant fraudulently used a stolen identity to rent a storage unit in an attempt to conceal criminal activities. It is not objectively reasonable to assume that the individual whose name has been used for such improper purposes would not have the right to consent to a search of the unit. Prohibiting Haroldsen, a victim of identity theft, from assisting law enforcement in the investigation of crimes perpetrated with the use of her name would elevate the privacy rights of Defendant over the rights of Haroldsen to clear her name. Defendant forfeited his privacy rights to the storage unit when he directed Christensen to enter into a fraudulent rental agreement in Haroldsen's name. Society has no interest in protecting the rights of someone using another person's name to fraudulently conceal his criminal activities.

A minimal description of things to be seized distinguishes this search warrant from the one in Groh v. Ramirez. Thus, the search was valid despite the general additional phrase "[o]r any other evidence indicative of the criminal offense of Burglary, Theft or Possession of Stolen Property." United States v. Sims, 2007 U.S. Dist. LEXIS 81517 (C.D. Ill. November 2, 2007):

This court concludes that this is a close case. The description provided in the search warrant is certainly lacking in detail, and the warrant does not incorporate by reference Weinstock's affidavit, which did include a description of particular items, such as the Aussie grill and yellow welder. However, this court agrees with the Government that Groh is distinguishable because the warrant in this case did include a description of the things to be seized. The Seventh Circuit has stated that, while a warrant must "describe the objects of the search with reasonable specificity, it need not be elaborately detailed." United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995). A warrant need not "enable authorities to 'minutely identify every item for which they are searching.'" United States v. Shoffner, 826 F.2d 619, 630 (7th Cir. 1987), quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir. 1984). It is sufficient if the executing officers are able "to identify the things to be seized with reasonable certainty." Jones, 54 F.3d at 1290. "If detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized." United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998).

Defendants conceded that they had no probable cause for plaintiff's detention at gunpoint and handcuffing for suspicion of bank robbery that ended up on local television. After a prompt showup, it was determined that plaintiff was not the person wanted, and she was released. Defendant's motion for summary judgment denied. Mitchell v. Anchorage Police Dep't & Anchorage, 2007 U.S. Dist. LEXIS 81372 (D. Alaska October 30, 2007).*

Plaintiff was the target of an investigation in his prison after it was determined that a false allegation had been made that the Clerk's Office of the Ninth Circuit had ordered something. It turned out that the plaintiff had developed a relationship with a deputy clerk, and there had been 243 telephone calls in six months and visits at the prison. A cell search was conducted, things copied and returned. The plaintiff's motion for return of property was denied because it had been returned. The plaintiff had no expectation of privacy in his cell. Moore v. Daniels, 2007 U.S. Dist. LEXIS 81374 (D. Or. October 26, 2007).*

The record, including the videotape of the petitioner's stop and field sobriety test, support the conclusion that there was at least reasonable suspicion for defendant's stop and determination that he was likely DWI. Batten v. Wyo. DOT Drivers' License Div., 2007 WY 173, 170 P.3d 1236 (2007).*

Defendant probationer's actions (sounding like he was hiding things) before the search of his bedroom created reasonable suspicion for a search of the bedroom. State v. Uhlig, 38 Kan. App. 2d 610, 170 P.3d 894 (2007):

Also pertinent to this case, Samson makes a distinction between probationers and parolees. The Court held that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation." 126 S. Ct. at 2198. This statement suggests to us a continuum:

-- Prisoners have no expectation of privacy (see Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 [1984]) and lack Fourth Amendment rights (they can therefore be searched at any time for any reason);

-- parolees have a slight expectation of privacy and therefore can be searched in the absence of reasonable suspicion, but not arbitrarily or capriciously (Samson, 126 S. Ct. at 2202); and

-- probationers have a higher expectation of privacy than parolees, but no standard is set forth.

Such lessons are clear. The law of search and seizure varies based upon the status of the individual searched. First, Griffin indicates that probable cause is not required when a search of a probationer is made because of the special needs of the government. According to Griffin, a state regulation only requiring reasonable grounds to search is constitutionally sufficient. Second, Knights teaches that reasonable suspicion is sufficient when a search of a probationer is made. The reasonableness of the search is determined by applying a balancing test that gives much weight to the government's strong interest in allowing the search. Third, Samson indicates that no suspicion is required when a search of a parolee is made, but the opinion fails to set the standard for probationers.

Compare United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007), posted just hours ago.

Officers' 12 second wait was reasonable under the circumstances because of defendant's known propensity to be armed. The trial court erred in suppressing. (Hudson was argued by the state, but the court declines to go there based on the merits of the entry.) State v. Pruitt, 967 So. 2d 1021 (Fla. App. 2DCA 2007):

In the instant case, the officers knew they were not dealing with a minor league crack or marijuana dealer. The affidavit for search warrant described a person who ran a large or growing heroin distribution operation, who used semi-sophisticated techniques to elude law enforcement, such as the use of female "mules" or hiding heroin in the dashboard or body of a vehicle, and who was a participant in a larger heroin distribution network. Additional information provided to TACT supported their reasonable belief that they were dealing with a violent career criminal. See Power v. State, 605 So. 2d 856 (Fla. 1992) (holding that police officers were not required to knock and announce when executing a search warrant where they had been informed that the defendant used a gun or knife to rape, had committed armed robbery, had a black belt in karate, had a gun, and had a violent background). In Power, there was no indication that the "specific" information that Power had used a gun or knife in the rape was also included in the warrant; it was simply information provided to the police officers prior to their execution of the warrant. See also Poole v. United States, 630 A.2d 1109, 1124 (D.C. App. 1993) (holding that where officers entered after ten seconds in the reasonable belief that defendant was on premises and had a gun and would use it if confronted provided exigent circumstances excusing full compliance with the knock-and-announce statute). Significantly, during the hearing, the TACT commander testified that he had not even read the warrant itself. Thus inclusion of information in the warrant regarding Pruitt's potential for violence and the murder investigation would not have assisted his exigency assessment regarding officer peril.

The record supported the trial court's conclusion that the defendant, while officers were waiting for him to move out from his girlfriend's place, consented to a search of a lockbox for a gun and found marijuana instead. Bridgett v. State, 1 So. 3d 1054 (Ala. Crim. App. 2007), affd Ex parte Bridgett, 2008 Ala. LEXIS 127 (Ala. 2008).*

Under Mendenhall factors ("Mendenhall lists four examples of circumstances that may be indicative of a seizure, even where the person did not attempt to leave: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled.") the defendant's consent was found to be the product of an unlawful seizure. People v. Ocampo, 377 Ill. App. 3d 150, 879 N.E.2d 353 (2d Dist. 2007):

Regarding the last Mendenhall factor, Rogers testified that he told defendant that he "needed to talk" with defendant. The State argues that a person's indicating that he "needs to talk" with someone is "in everyday language *** merely an opening to a conversation," and therefore the State urges that a reasonable person in defendant's position would not have interpreted Rogers's statement as a command. We disagree. First, the word "need" indicates a requirement, and Rogers testified that he informed defendant that he "needed" to talk with him, not that he asked defendant if he could talk with him. Second, and relatedly, Rogers did not testify that he waited for defendant's assent after approaching him indicating a need to talk.

. . .

Though we find two of the Mendenhall factors to indicate a seizure in this case, the State relies on several additional characteristics of the encounter here for its argument that the encounter did not constitute a seizure. The State notes that Rogers was not in uniform, approached defendant in a public area, did not park his car to block defendant's path, and did not inform defendant of his Miranda rights. However, as discussed above, there were also several indicia of a seizure present in this case, including the first and last Mendenhall factors. The State urges that each of the individual indicia in this case has been held elsewhere not to amount to a seizure, but our test "focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of police conduct in isolation." People v. Stofer, 180 Ill. App. 3d 158, 166, 534 N.E.2d 1287, 128 Ill. Dec. 682 (1989). Our review of all the circumstances of this encounter, in their totality, convinces us that a reasonable, innocent person in defendant's position, confronted behind a gas station by an officer, who was soon joined by three other officers, and told that the officer "needed to talk to him" under circumstances that indicated the officer sought him out specifically, would not have felt free to leave. Accordingly, we agree with the trial court that defendant was seized before he gave any consent to search.

Arkansas parole conditions permitted parole search based on reasonable suspicion and not suspicionless searches. Nevertheless, the PO here had reasonable suspicion based on the testimony at the hearing. Part of it was defendant's failure to promptly respond to the door when the PO knocked because sounds from inside made it sound as though he were hiding something. United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007).* Comment: Note the similarity to reasonable suspicion from noise from inside after an announcement which is indicative of people secreting things and not coming to the door. Since dispensing with announcement is based on reasonable suspicion, this is a valid analogy. Not one the court drew, but one I draw.

Defendant's vehicle was lawfully impounded under the community caretaking function. He had been arrested, and the car was unlocked and illegally parked on the street and would have been subject to theft and the officers had no idea when he would be back to claim it, if ever. United States v. Barrios, 2007 U.S. Dist. LEXIS 81136 (S.D. N.Y. November 1, 2007):

Moreover, to the extent that Edmond can be read to permit Barrios to challenge the programmatic purpose behind the seizure itself, the discussion above establishes that Barrios's vehicle--which credible testimony showed was illegally parked, potentially unlocked, likely to be unattended for an unknown but significant period of time -- was seized pursuant to the "community caretaking" policy that is inherent to the law enforcement function, see generally United States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st Cir. 1991), and that has been repeatedly endorsed by both the Supreme Court and the courts of this circuit.

An involuntary commitment is a seizure under the Fourth Amendment, and it would not be unreasonable if with probable cause. Based on the pleadings, the plaintiff states a claim for relief. Van Cortlandt v. Westchester County, 2007 U.S. Dist. LEXIS 80977 (S.D. N.Y. October 31, 2007).*

Private shipping company had a hard time attempting to deliver multiple boxes to the defendant. The address was no good, and the telephone numbers given did not work. So, they opened the packages to see if there was more inside aiding in identification of the recipient, and contraband was found and the police were called. This was purely a private search. United States v. Garcia-Bercovich, 2007 U.S. Dist. LEXIS 81089 (N.D. Fla. October 13, 2007).*

"Katrina probable cause": Three men were seen coming out of an already being looted Burlington Coat Factory with backpacks right after Hurricane Katrina. The officer, who had worked security there before the hurricane, had reason to believe that they were looters, and that justified their stop and a search of the backpacks. State v. Jones, 970 So. 2d 1143 (La. App. 5th Cir. 2007), released for publication January 11, 2008.

Videotape of defendant's hour long stop showed that defendant consented to a search of his car but not his person. He consented to a search of the car, and he was frisked and nothing of interest was found, and then he was told to empty his pockets and thus searched again but before anything was found in the car. The government conceded that search incident did not apply because the defendant was not under arrest at the time. United States v. Ocampo, 2007 U.S. Dist. LEXIS 80898 (E.D. Mich. November 1, 2007).*

Preliminary hearing testimony was sufficient to show that there was probable cause for plaintiff's arrest, so his false arrest civil case fails. Jackson v. County of Washtenaw, 2007 U.S. Dist. LEXIS 80885 (E.D. Mich. October 31, 2007).*

The document search of 2255 petitioner's house was not unlawful, so defense counsel was not ineffective for not challenging it. Hill v. United States, 2007 U.S. Dist. LEXIS 80703 (D. Md. September 28, 2007).*

An officer went to a site where defendant was building a home. It was fenced, and the gravel driveway was blocked by a locked gate. "No Trespassing" and "Beware of Dog" signs were posted at the entrance. The officer climbed over the gate and was later joined by another officer. The unfinished house on the property was framed but had no sheet rock or doors, and no one appeared to be living there. The property fell within the "open fields" doctrine and thus was not protected by the Fourth Amendment. The unfinished structure was not a "dwelling" under the Fourth Amendment and did not yet have the protection of curtilage. Defendant's effort to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection. While on the property, the officers could look at the serial number of a stolen trailer. Morse v. State, 288 Ga. App. 725, 655 S.E.2d 217 (2007).

Extraterritorial stop of the defendants' vehicle violated the Fourth Amendment's reasonableness requirement, so the officer's statutory violation in stopping a vehicle outside of his jurisdiction required suppression of evidence flowing from the stop. State v. Jones, 2007 Ohio 5818, 2007 Ohio App. LEXIS 5113 (5th Dist. October 29, 2007). Also, the passenger's conduct was never indicative of a crime to subject him to a search. State v. Skropits, 2007 Ohio 5817, 2007 Ohio App. LEXIS 5119 (5th Dist. October 29, 2007).

Search of a cigarette package during an otherwise lawful consent search of the person was not unreasonable. Also, the fact the defendant did not object [right, like any reasonable person knew he could] to the search of the cigarette package showed it was voluntary. State v. Damron, 2007 Ohio 5808, 2007 Ohio App. LEXIS 5109 (5th Dist. October 26, 2007). Comment: I confess that I still do not understand how a person who has consented to a search of the person, and the officer takes something off of him, can be expected to know that he can still object to the search of the package. The failure to limit consent after the search starts is commonly invoked by courts as a factor in consent, but I just do not buy it; people just do not know that they can but the courts do, so the courts apply it against the defendant.

Arizona holds that any additional delay after issuing defendant two warnings and defendant was [purportedly] free to go, when consent was sought, was de minimus by constitutional standards. Waiting 100 minutes for a drug dog to arrive was not unreasonable because it was based on reasonable suspicion of drug trafficking. State v. Teagle, 217 Ariz. 17, 170 P.3d 266, 516 Ariz. Adv. Rep. 18 (2007), rev. den. 2008 Ariz. LEXIS 42 (Mar. 18, 2008):

P28 At the time of this incident, Officer Greene had approximately four years experience in law enforcement and had attended numerous schools in addition to basic academy training, including three drug interdiction schools. Based on his specialized training and experience, the officer testified that the following indicators present at this traffic stop were, in combination with one another, consistent with the trafficking of illegal drugs or other criminal activity: (1) the nature of defendant's travel plans, namely, that he traveled from Florida to Phoenix in only two to three days, unusually fast for someone on vacation, and that his stated purpose for driving from Florida to Las Vegas was to play pool in a bar, yet he had no specific plans or hotel reservations; (2) the mounted cellular phones, indicating both were in use; (3) the fast-food wrappers and containers of food; (4) the luggage and clothing hung in the backseat rather than the trunk; (5) defendant's response during the first stop that he was not "aware" of anyone placing contraband in his vehicle; (6) defendant's decision to exit his vehicle and approach the patrol car during the second stop; and (7) the stop occurred in a known drug corridor.

Under State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), defendant was arrested too far away from his car to make it subject to search incident. However, the state wins this case based on the fact that inevitable discovery would save the search because of application of the inventory doctrine, a challenge not made below. State v. Rojers, 216 Ariz. 555, 169 P.3d 651 (2007). Comment: The court faults the defendant for not putting the trial court and the state on notice of this argument and then gleans from the record enough to show that it sort of was peripherally raised because the arguments sounded like an inventory issue. This is the perverse beauty of appellate review. In this case, the court could have just said "this wasn't fully litigated below, so you lose," but it chose to go into the merits without a full record to further nail the defendant by showing that "with what we have here, this search looks OK." In this case, the defendant is faulted for not being more specific as to what he wanted to litigate because the tenor of the argument showed that he was on the right track. The bottom line is really more simple than the court allows, and it is visible to me between the lines: The defendant knew the argument and he raised it, but knew he could not win on the facts so he chose to not delve into it in detail. Been there; done that; have the lost suppression motions to prove it.

Defendant obviously felt pressure to consent, but it was [apparently] of his own making, and that did not make consent invalid. Defendant seized on one sentence in the USMJ's R&R. United States v. Tindell, 2007 U.S. Dist. LEXIS 80418 (E.D. Tenn. October 30, 2007):

Viewed in its complete context, Judge Guyton's statement means nothing more than Tindell probably felt pressure under the circumstances based on his outstanding warrant or based on the fact that the KPD officers appeared to have considerable information about his drug dealing. The key point in all of this, however, is that Judge Guyton ultimately concluded that police coercion did not contribute to defendant's statements and admissions. Judge Guyton correctly concluded in effect that the totality of the circumstances indicates that any statement by Tindell was the product of free and rational choice rather than any police coercion. There is ample case law supporting Judge Guyton's conclusion that the situation in this case falls far short of the police coercion required to render a defendant's statement involuntary. ...

Defendant sought discovery under Fed. R. Crim. P. 16(a)(1)(E) for the government's computer search protocols, just to see if there was a basis for a suppression motion. The court finds it irrelevant to application of the exclusionary rule because some deviations from the protocols are permitted. Also, when the evidence is offered, there may be some other basis for excluding, but not the search. United States v. Fumo, 2007 U.S. Dist. LEXIS 80543 (E.D. Pa. October 30, 2007). Because of the ubiquity of computer searches in everyday practice of computer searches, I quote a lot from this case:

When a defendant's Fourth Amendment rights have been violated by a search or seizure of his property, "the principal means today for effectuating the rights secured by the Fourth Amendment is through the judicially created exclusionary rule." United States v. Christine, 687 F.2d 749, 757 (3d Cir. 1982). If a seizure pursuant to a warrant is overbroad, the appropriate remedy is exclusion from use at trial of evidence outside the scope of the warrant. Id. This suppression remedy is available under Rule 12(b)(3)(C), which lists "motion to suppress" as one of five types of pretrial motions. To facilitate the making of this motion, Rule 12(b)(4) allows the government, "[a]t the arraignment or as soon afterward as practicable" to "notify the defendant of its intent to use specified evidence at trial." Thus, if Fumo later discovers that evidence offered by the government is beyond the scope of the items described in the warrants, he should file a motion to suppress individual exhibits.

The search protocols and keywords used by the government are irrelevant to the decision whether the warrants were overbroad or the seizures exceeded the scope of the warrants. In both cases, the constitutionality of the warrants and of the seizures of particular documents can be determined by examining only the warrants and the evidence.FN5

5. Fumo does not argue that the warrants permitting the searches and seizures were in any way deficient, so I assume, when necessary, that they were not.

Individual documents offered into evidence might be subject to suppression because (1) the warrants allowing the seizures were overbroad, or (2) the seizure exceeded the scope of the warrants. First, if evidence offered by the government for admission at trial is the result of seizure pursuant to an overbroad warrant, overbreadth can be determined from the face of the warrant, and no further discovery is necessary. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (referring only to the inclusive language in a warrant authorizing a search of a law office to determine that the warrant was overbroad). The warrant can be evaluated and, if necessary, redacted; evidence seized pursuant to the offending portions of the warrant can be excluded. Christine, 687 F.2d at 758 ("Materials seized under the authority of those parts of the warrant struck for invalidity must be suppressed, but the court need not suppress materials seized pursuant to the valid portions of the warrant."). No information about search protocols or keywords is necessary or relevant to the analysis.

Second, if the seizure exceeded the scope of the warrant, this will be apparent when the evidence offered is compared to the description on the face of the warrant of items to be seized and when defense counsel questions the proponent of the evidence about the circumstances of its seizure. Cf. United States v. Coleman, 805 F.2d 474, 483 (3d Cir. 1986) (noting that "[t]o the extent material outside the list [contained in the warrant] was seized, the district court properly determined that that material could be suppressed"). Again, information about search protocols or keywords is unnecessary and immaterial to the determination. Therefore, I will deny Fumo's motion to compel.

Regardless of the search protocols or keywords used by the government, the government may open and briefly examine each computer file to determine whether it is within the description recited in the warrant. The Supreme Court has been clear that a search need not be conducted in the least intrusive manner. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). For example, in a search of a file cabinet, the government may examine briefly many documents in the course of looking for a particular document: "In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized." Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). The Third Circuit expanded on this observation, adding that "no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision." Christine, 687 F.2d at 761. Instead, "flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records." Id. These rules are particularly applicable in the case of documents on computers, where files may be disguised, relevant documents may be intermingled with irrelevant ones, and "there is no way to know what is in a file without examining its contents." United States v. Hill, 459 F.3d 966, 978 & n.14 (9th Cir. 2006); see also United States v. Vilar, No. S305CR621KMK, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *35-38 (S.D.N.Y. Apr. 4, 2007). For these reasons, search protocols and keywords do not mark the outer bounds of a lawful search; to the contrary, because of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant.

In support of his argument that "forensic investigators are not permitted to randomly peruse computer data simply because they have lawfully seized digital media" (Def.'s Mem. 5), Fumo cites United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). In Carey, a computer technician and detective searching computer files for evidence of drug sales happened upon one image of child pornography in the course of their search. Id. at 1270-71. The Tenth Circuit held that they exceeded the scope of the warrant when they abandoned the original search and began looking for other pornographic images, id. at 1276, noting that the file cabinet analogy was "inadequate" and "inapposite," id. at 1275. The court, however, limited its holding to the facts of the case. See id. at 1276 ("[W]e are quick to note these results are predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result."). Additionally, the Tenth Circuit has narrowly construed the holding of Carey to be the truism that "law enforcement may not expand the scope of a search beyond its original justification." United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). Evidence seized must simply be "consistent with the probable cause originally articulated by the ... judge." Id. at 1268-69. As noted above, this comparison may be performed without reference to search protocols and keywords.

For the reasons set out above, there is no requirement that the government, in executing a warrant, limit itself to its search protocols or keywords, so long as the search and seizure actually conducted are supported by the probable cause and within the scope of the particular descriptions recited in the warrants. Because deviations from search protocols and keywords are permissible, knowledge of those protocols and keywords will not allow Fumo or a court to draw conclusions about the reasonableness of the search actually conducted. If the evidence is within the scope of the warrant, it will be admissible. If it is not, it will be suppressed unless an exception to the warrant requirement applies.

Judge who previously represented defendant's husband more than a decade earlier who issued search warrant for her property was not shown to be not neutral and detached. United States v. Barry-Scott, 251 Fed. Appx. 983, 2007 FED App. 0758N (6th Cir. 2007) (unpublished):

Barry-Scott also appeals the district court's denial of her motion to suppress the search of her residence, arguing that the judge who issued the warrant was not neutral and detached because he previously represented her and her husband around 1994-95 and was aware of their drug activities. The Government argues that the judge was sufficiently neutral and detached and, in any event, the good faith exception would apply even if the warrant were lacking.

. . .

In this case, the evidence seized is admissible because the record does not establish that the judge was not neutral and detached and, even if he were not, the warrant was sufficiently grounded in probable cause for the officers to reasonably rely upon it. Barry-Scott has not shown that the judge had any specific personal knowledge of her or her husband that was detrimental to her or that had any impact on his issuance of the warrant. Neither has Barry-Scott shown that the judge had a personal, pecuniary or substantial interest in the outcome of the search or that he was too closely tied to the functions of law enforcement. Without such evidence, there is nothing to suggest that the judge abandoned his role as a neutral and detached judicial officer. Thus, the decision of the district court based upon these same factors was not clearly erroneous.

However, even if it were shown that the judge was not neutral and detached, the good faith exception to the exclusionary rule would apply. The warrant was based upon a three-month investigation that included controlled buys, which were recorded and some of which were witnessed by the officer requesting the warrant. The warrant on its face, to a reasonable officer, was sufficient to support a finding of probable cause.

During appellant's four minute traffic stop, during which the computer check was completed, the defendant validly consented to a search of his vehicle which produced cash. United States v. Huerta, 252 Fed. Appx. 694 (5th Cir. 2007)* (unpublished).

Reasonable suspicion was based on excessive nervousness plus driving a rental car 1200 miles to see her family and return in one day. United States v. Contreras, 506 F.3d 1031 (10th Cir. 2007).*

Protective sweep of apartment occurred while the police were obtaining a warrant, and the product of the protective sweep did make it into the affidavit for the warrant, so the search would not be suppressed. Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 875 N.E.2d 539 (2007).*

"Consistent with the decisions of other federal courts to consider the issue, we hold that police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter that person's residence to the extent necessary to execute the warrant" even for a misdemeanor under Payton. United States v. Gooch, 506 F.3d 1156 (9th Cir. 2007):

The Ninth Circuit has not previously had occasion to decide whether a misdemeanor bench warrant for failure to appear--as opposed to a felony arrest warrant--is sufficient to permit entry into a residence under Payton. The Second Circuit, however, in United States v. Spencer persuasively reasoned that the Court's decision in Payton permits entry into a residence to effectuate a valid arrest warrant, regardless of the precise nature of the underlying warrant. 684 F.2d 220, 223 (2d Cir. 1982), cert. denied, 459 U.S. 1109, 103 S. Ct. 738, 74 L. Ed. 2d 960 (1983). Rejecting an argument identical to the one that Gooch makes here--that a misdemeanor bench warrant not premised on a formal finding of probable cause does not lie within Payton's reach--the Second Circuit explained:

The decision of the New York City Criminal Court Judge to issue a bench warrant constituted a finding made by a neutral magistrate that [the defendant] had failed to appear in a pending criminal matter. We recognize that its issuance did not amount to a judicial finding of probable cause to arrest in the traditional sense .... Nonetheless, the police, armed with the warrant, had authority to find and seize [the defendant] anywhere they could find him for his failure to appear in court. Thus, the presence of the police in the defendant's room was pursuant to a direction made by a neutral magistrate. Defendant's rights under the Fourth Amendment require no more.

684 F.2d at 223 (citing Payton, 445 U.S. at 582 n.17, 586 n.24); see also id. at 223-24 ("[T]he courts, in striving to safeguard a suspect's Fourth Amendment rights when he is arrested at home, emphasized the necessity that a warrant be issued by a neutral magistrate. . . . In determining reasonableness, the nature of the underlying offense is of no moment.").FN1

1. The holding in Spencer, permitting entry into a residence based on a misdemeanor arrest warrant or a bench warrant for failure to appear, has been followed in similar cases with near uniformity by the federal courts. See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 689 (6th Cir. 2006); United States v. Clayton, 210 F.3d 841, 843-44 (8th Cir. 2000); Cogswell v. County of Suffolk Deputy Sheriff's Dept., 375 F. Supp. 2d 182, 187-88 (E.D.N.Y. 2005); United States v. Ray, 199 F. Supp. 2d 1104, 1112-13 (D. Kan. 2002); Smith v. Tolley, 960 F. Supp. 977, 991-92 (E.D. Va. 1997); Heine v. Connelly, 644 F. Supp. 1508, 1514-15 (D. Del. 1986).

We find the reasoning of Spencer persuasive, and affirm the district court's denial of Gooch's motion to suppress. We hold that a valid arrest warrant issued by a neutral magistrate judge, including a properly issued bench warrant for failure to appear, carries with it the limited authority to enter a residence in order to effectuate the arrest as provided for under Payton. The Fourth Amendment presumption against warrantless entries into the home is designed to protect privacy interests against uncabined police discretion. Payton, 445 U.S. at 586 ("[W]e have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions [into the home]."). Those interests are sufficiently safeguarded when an entry is premised on the execution of a valid arrest warrant issued by a judge or magistrate, regardless of whether that warrant is for a felony, a misdemeanor, or simply a bench warrant for failure to appear. Here, the police held a valid warrant for Conn's arrest, a warrant that bore the confirmed address of the residence police entered after following Conn. The entry and subsequent search for Conn were reasonable and permissible under Payton and the Fourth Amendment.

Defendant who left his belongings at the side of the road in plastic bags along with a TV set after moving out of a mobile home who called somebody to assist in picking them up did not abandon them. He did, however, have a reduced expectation of privacy from the placement and appearance of the property. The defendant had been arrested, and the police decided to go back and take the property as evidence. Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007):

The reason that the defendant's motion to suppress fails is because of his inability to establish that his subjective expectation of privacy was reasonable. Unlike certain exceptions to the warrant requirement, where the burden of demonstrating that an exception applies is allocated to the Commonwealth, here the defendant "must bear the threshold burden of showing that a warrantless search or seizure occurred." Commonwealth v. Bly, 448 Mass. at 490, citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986). Put differently, before a defendant may thrust on the Commonwealth the burden of justifying why a warrant was not obtained, that defendant must establish initially that a search in the constitutional sense has occurred. See Commonwealth v. D'Onofrio, supra at 714 ("Unless the defendants had a reasonable expectation of privacy at [the premises] when the officer made observations there, there was no 'search' within the meaning of the Fourth Amendment"). In these circumstances, the defendant must demonstrate both that he had a subjective expectation of privacy and that society would recognize such expectation as reasonable. See Commonwealth v. Mamacos, 409 Mass. at 639; Commonwealth v. Montanez, 410 Mass. at 301.

. . .

The defendant indeed may not have relinquished his purpose, which was to retain the property without interference by others. He did, however, surrender control of the property in a manner that was inconsistent with a reasonable expectation that the bags would be left undisturbed. "In evaluating the reasonableness of an individual's expectation of privacy, we look to a number of factors, including ... whether the defendant controlled access to the area ... and whether the area was freely accessible to others." Commonwealth v. Montanez, 410 Mass. at 301-302. "[A]n individual can have only a very limited expectation of privacy with respect to an area used routinely by others." Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742 (1981). We look also to whether a defendant "has taken normal precautions to protect his privacy." Commonwealth v. Berry, 420 Mass. 95, 106-107 & n.9 (1995) (cigarettes and matches left on counter in public area of police station; expectation of privacy not reasonable).

Here, the defendant left his property by the side of the road. He could not reasonably have been confident that the bags would not be taken by a traveler who thought that the contents had been discarded, or who had no concern whether the bags belonged to another. Nor could he rely reasonably on an assumption that a passerby would not look in the bags. While, as the judge noted, there was no evidence regarding the level of use of the road, it is not disputed that the road was available for public use. "It is well established that, in general, government agents may make a warrantless search of areas in which the public has free access ...." Commonwealth v. Krisco Corp., 421 Mass. 37, 42-43 (1995), citing United States v. Hall, 47 F.3d 1091, 1095 (11th Cir.), cert. denied, 516 U.S. 816 (1995). The facts here differ considerably from those of Commonwealth v. Straw, 422 Mass. 756, 758-762 (1996) (locked briefcase thrown into fenced-in curtilage), and Commonwealth v. Small, 28 Mass. App. Ct. at 535-536 (reasonable expectation of privacy where luggage in airline transit unclaimed for three hours). The police had no less a right to look in the bags, or to carry them away, than did any passerby.

Comment: The logic of this opinion is compelling, and one cannot quarrel with it.

Religious items can be reasonable suspicion when combined with other factors. United States v. Baranoff, 2007 U.S. Dist. LEXIS 80095 (N.D. Fla. October 29, 2007):

In this case, the strong smell of the cleaning liquid, the religious items in and on the van, and the Defendant's nervous behavior, combined with Deputy Condy's training and experience in narcotics investigations all created a set of circumstances giving him "reasonable suspicion that an additional crime was being committed".

2254 petitioner was denied relief because the findings of the state court were fully supported by the evidence (28 U.S.C. § 2254(d)) that petitioner abandoned the property and disclaimed any interest in it. Ramirez v. Phillips, 2007 U.S. Dist. LEXIS 79936 (S.D. N.Y. October 30, 2007).* (Comment: This case is part of what is a noticeable shift from Stone v. Powell being an absolute bar to § 2254(d) being a factual and legal bar under AEDPA. In this case, Stone was an alternative finding.)

Defendant police officer was entitled to qualified immunity for plaintiff's arrest. The officer actually had probable cause before the arrest, and he prudently chose to keep investigating. Plaster v. Boswell, 2007 U.S. Dist. LEXIS 80197 (W.D. Va. October 30, 2007).*

In a § 1983 case, plaintiff was fleeing from the police and got stuck in the snow. When the police approached, he shot himself in the chest, and then the officers shot him five times. [Apparently concerned that his suicide attempt might fail?] The claim was to be viewed under the Fourth Amendment and not substantive due process under Albright. The case was removed from the state court system that was a fact pleading jurisdiction to the notice pleading federal court, but the court granted a motion for a more definite statement so the defendants could at least attempt a qualified immunity defense. Barr v. City of Beaver Falls, 2007 U.S. Dist. LEXIS 79614 (W.D. Pa. October 26, 2007). (Comment: In related news, ABC's Good Morning America today had a story about a gun and taser cam already in use in Orange County, NY, which may become the norm someday, assuming police departments will also buy all the new holsters for the modified guns. The story is not online at the time of this posting.)

The trial court's finding that defendant consented to an entry and interview at her day care center for allegedly doping kids (apparently to calm them down) was not clearly erroneous and is supported by the record. State v. Bieber, 2007 MT 262, 339 Mont. 309, 170 P.3d 444 (2007).*

Ohio's implied consent law is constitutional, but a defendant cannot be separately punished for withdrawing consent. State v. Hoover, 2007 Ohio 5773, 173 Ohio App. 3d 487, 878 N.E.2d 1116 (3d Dist. 2007).*

Defendant's own testimony established his standing to challenge the search, contrary to the government's assertions. United States v. Gomez-Vega, 519 F. Supp. 2d 241 (D. P.R. 2007):

Gomez-Vega testified at the suppression hearing only as to the standing issue.FN6 Based on Gomez-Vega's testimony, we concluded at the hearing, and now we explain in further detail, he has standing to challenge the seized items under the totality of the circumstances and the evidence before the Court. Accordingly, Gomez-Vega has met the threshold established in Aguirre and Lochan.

6. One should not lose sight of the fact that "it has been well settled for over twenty years that testimony given to meet standing requirements cannot be used as direct evidence against the defendant at trial on the question of guilt or innocence." United States v. Garcia-Rosa, 876 F.2d 209, 219 (1st Cir. 1989) (citing Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L. Ed. 2d 1247 (1968)). Thus, a defendant should have no prejudicial consequence in admitting ownership of the drug or portions thereof to sustain standing to contest its seizure under Fourth Amendment grounds.

Comment: Under Simmons, the defendant has the ability to testify in his own behalf to establish standing, and the testimony cannot be used against him at trial, unless, of course, he testifies at trial and contradicts that standing testimony.

Defendant lacked standing because he was not an overnight guest under Olson. He was a mere Carter visitor. Defendant also fled and abandoned evidence, and there was no seizure until after he was arrested. United States v. Roane, 2007 U.S. Dist. LEXIS 79789 (D. Del. October 29, 2007).*

Court finds as a matter of fact that the defendant understood enough English to consent to the search that led to the discovery of the money sought to be forfeited. United States v. $78,850.00 in United States Currency, 2007 U.S. Dist. LEXIS 79704 (D. S.C. July 25, 2007).*

In a rare occurrence in the realm of computer searches, a court holds that a computer hard drive seizure was overbroad and the good faith exception was inapplicable. The government obtained a search warrant for the hard drives of any computers on defendant's ship seeking to prove unlawful discharge from the bilge, but the warrant was deemed overbroad because the hard drives were mirror imaged and completely searched, and not just for discharge information. The corporate owner of a ship had standing to challenge search of computers on the ship. United States v. Fleet Management, Inc., 521 F. Supp. 2d 436 (E.D. Pa. 2007):

In the instant case, unlike the situation in Christine or Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, the warrant at issue did not describe in "specific and inclusive generic terms" what was to be seized, and did "vest the executing officers with 'unbridled discretion' to search for and seize whatever they wished." Id. Indeed, the warrant authorized the seizure of "any and all data" from the three seized computers, "including, but not limited to" certain types of data relating to the Ship's "operation, engineering, maintenance, pollution control equipment, navigational charts, and crew." (See Attach. B to the Warrant Appl.) (emphasis added). It therefore placed absolutely no limitation on the data to be seized and "vest[ed] the executing officers with unbridled discretion to conduct an exploratory rummaging through [defendants'] papers in search of criminal evidence." Christine, 687 F.2d at 753. Given the lack of guidance in the warrant itself, it is not surprising that the officer who conducted the forensic analysis of the computer hard drives relied only on the list of search terms that were provided to him. (9/24/07 N.T. (Fehrman) at 204-06, 213.) Meanwhile, the search terms, while primarily geared toward obtaining information about overboard discharges of waste, do not derive that focus from the general warrant, which contains no reference to overboard discharges. As such, it is plain that the executing officers exercised total discretion in the search, making their own determinations as to what they would seize from the hard drives, without any actual judicial control.

The Government asks that we focus on the particularity with which Attachment A to the warrant application identifies the three computer hard drives themselves, and emphasizes that the warrant clarifies the "any and all data" language by following it with the phrase "including, but not limited to [data] relating to the ship's operation, engineering, maintenance, pollution control equipment, navigational charts, and crew." We do not find these arguments persuasive. First, it is plainly insufficient to identify the computer hard drives with particularity as the hard drives were merely the property to be searched, not the properly to be seized. As the Fourth Amendment makes clear, a warrant must identify with particularity both the property to be searched and the property to be seized, and here, it is the description of the property to be seized that is at issue. See U.S. Const. amend. IV (requiring warrants to "particularly describ[e] the place to be searched, and the persons or things to be seized").

Second, we find that the warrant's "including, but not limited to" clause does not add particularity to the otherwise general warrant as it, by its own terms, imposes no limitation on the data to be seized. While the Government argues that "the warrant describes the data to be seized as relating to the ship's operation, engineering, maintenance, pollution control equipment, navigational charts, and crew," that is simply not the case. (Gov't Mem. at 29.) Rather, as stated above, the warrant describes the data to be seized as "any and all data in the computers ... including, but not limited to" the general categories of data referenced by the Government. As such, it merely lists those general categories of data as types of data that are necessarily included in the broad seizure power. Thus, in actuality, the warrant placed no restriction on the data that the Government could seize from the hard drives.

. . .

The Government contends that even in the face of a facial deficiency, the good faith exception can apply unless the facial deficiency "was so obvious that a law enforcement officer, without legal training, should have realized, upon reading the warrant, that it was invalid and should thus have declined to execute it." Ninety-Two Thousand Four Hundred Twenty-Two Dollars, 307 F.3d at 146. However, "[g]iven that the particularity requirement is set forth in the test of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid." Groh, 540 U.S. at 563 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). The warrant here plainly did not comply with the particularity requirement, because it did not limit the scope of the officers' search in any way, and we are confident that it would not take legal training for an officer trained in law enforcement to recognize as much. Accordingly, we find that the good faith exception simply cannot apply here.

Comment:I predict that the government will appeal this ruling. As I said, it is a rare occurrence that a court actually applies the particularity clause to a computer search. No area of the law is more prone to abuse by the courts and police than particularity and computer searches. But that's just my opinion.

Being a probationer alone does not justify a full search of the probationer's premises without some other justification by regulation or court order. Here, the defendant was arrested and a 45 minute search incident of the entire premises occurred without a warrant. Search suppressed. Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007):

As discussed above, the Supreme Court of the United States has strongly suggested that the Fourth Amendment right not to have one's home searched without a warrant may only be denied to probationers through a valid law, legally authorized regulation, or sentencing order giving notice of that deprivation of rights. We find such reasoning persuasive because notice is a critical consideration in determining the limits of any reasonable expectation of privacy. The State has pointed out no such law, legally authorized regulation, or sentencing order stripping Jones of his Fourth Amendment right not to have his home searched without a warrant. Accordingly, we hold that Jones's status as a probationer, standing alone, cannot serve as a substitute for a search warrant.

Exclusionary rule does not apply to a Children in Need of Services petition. The search here was of a digital camera without any apparent reason during a 911 call after a walk through by the police. In re J.V., 875 N.E.2d 395 (Ind. App. 2007).

Defendant cannot lose a suppression motion with a magistrate and then plead for judgment in Superior Court, the "certified plea process." The Superior Court must decide both issues. People v. Richardson, 156 Cal. App. 4th 574, 67 Cal. Rptr. 3d 552 (3d Dist. 2007):

Penal Code section 859a authorizes a magistrate to accept a guilty or no contest plea from a defendant charged with a felony, then certify the case to the superior court for pronouncement of judgment. The question here is whether a defendant who takes advantage of this certified plea process after the magistrate has denied his or her motion to suppress at the preliminary examination can thereafter seek appellate review of the magistrate's ruling on the search and seizure issue. We agree with People v. Garrido (2005) 127 Cal. App. 4th 359 that the answer to that question is "no." Under the rule from People v. Lilienthal (1978) 22 Cal. 3d 891, if a defendant wants to seek appellate review of a search and seizure issue, he or she must raise that issue before a superior court judge acting in that capacity. As we will explain, if a defendant pleads guilty in front of a superior court judge--or anyone else--acting as a magistrate, there is no way the defendant can renew his or her suppression motion or otherwise raise the search and seizure issue in the superior court. Accordingly, appellate review of a search and seizure issue pursuant to section 1538.5, subdivision (m) (section 1538.5(m)) is barred when the certified plea process is used. This result is consistent with the purpose of that process, which is to provide for the expeditious resolution of felony cases.

Filing a suppression motion two years before trial and never asking for a hearing on it and then not objecting to the admission of the subject evidence at trial is a waiver. Judkins v. State, 282 Ga. 580, 652 S.E.2d 537 (2007).*

National Park Ranger's traffic stop of the defendant for driving on parking lights was valid, but the subsequent search, allegedly by consent that was belied by the video of the stop, was not, so the court suppresses a patdown based on alleged consent that was preceded by a complete search of the vehicle and luggage in it before the patdown without any suspicion or valid consent. United States v. Moore, 2007 U.S. Dist. LEXIS 79587 (W.D. Va. October 26, 2007):

The court cannot find, even under the relatively low Terry standard, that the government has met its burden and that the search in this case was legal. No reasonable articulable suspicion existed to justify the prolonged detention and questioning of Moore. Ranger Gagnon testified that as he approached the vehicle, Moore placed both his hands outside of the vehicle, demonstrating his willingness to cooperate. Moore's continued cooperation, talkative demeanor and friendly attitude does not suggest that crime was afoot. Finally, Ranger Gagnon testified that Moore was breathing heavily, sweating, and taking his hat on and off during the stop, but the video does not bear this out. Review of the video shows that Moore did not take his hat on and off in a nervous manner as the Ranger testified. Instead, Moore took his hat off once when Ranger Gagnon ordered him out of the truck. Rather than appearing nervous, shifty, or suspicious in any degree, Moore appeared cooperative and friendly on the video. Furthermore, in the video, Ranger Gagnon explicitly states to Moore that he wasn't "sweating when [he] got out of the vehicle" and only began sweating after the Ranger patted him down and found the marijuana pipe.

The video shows that Ranger Gagnon requested Moore's license and ordered him to exit the vehicle immediately after Moore told Ranger Gagnon that he was at Floydfest. At this point in the stop, a mere twenty-five seconds into it, the only activities that Ranger Gagnon witnessed to provide any basis for a reasonable articulable suspicion were Moore's placing of his hands out of the truck's window as Ranger Gagnon approached vehicle and Moore's statements that he thought he had his lights on, was looking for a place to get coffee, and that he just left Floydfest. Ranger Gagnon does not ask any questions about why Moore had his hands out of the vehicle or otherwise mention it, thus leaving Moore's statement as to where he had been as the only possible source of suspicion. In contrast to the Ranger's testimony, on the video Moore does not seem nervous, his responses seem perfectly normal, and there is no indication that he is breathing heavily. One aspect of the stop that Ranger Gagnon did testify about correctly was Moore's cooperative, friendly, and polite behavior.

Thus, the only basis for any suspicion that the court can glean from the video is Moore's statement that he had been at Floydfest. As explained above, Floydfest is an annual music festival held in Floyd County, Virginia. To access the festival, many people travel on the Parkway. Due to the increased volume of traffic on the Parkway, the NPS has established a Criminal Interdiction Team, the focus of which is festival attendees. Ranger Gagnon testified that the focus of the Criminal Interdiction Team was drugs, alcohol, and weapons, mirroring the line of questioning posed to Moore and his passenger.

Search of vehicle was shown to be by consent. Defendant's inquiry as to the consequences of refusal showed she knew what was going on. United States v. Simmons, 2007 U.S. App. LEXIS 25260 (3d Cir. October 26, 2007)* (unpublished).

Sixth Circuit again declines to apply the "automatic companion" rule to affirm suppression of evidence obtained by a patdown of a passenger when the driver was in possession after his patdown. There was no independent justification for the passenger's search. The driver admitted to having a prior firearms conviction before his patdown. United States v. Wilson, 506 F.3d 488, 2007 FED App. 0434P (6th Cir. 2007):

Although this court ultimately held that the search of Bell [in United States v. Bell, 762 F.2d 495 (6th Cir. 1985)] was not in violation of his Fourth Amendment rights, it expressly declined to adopt a so-called "automatic companion" rule whereby any companion of an arrestee would be subject to a "cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." Id. at 498 (citation omitted). "As to the propriety of the 'automatic companion' rule, we do not believe that the Terry requirement of reasonable suspicion under the circumstances ... has been eroded to the point that an individual may be frisked based upon nothing more than an unfortunate choice of associates." Id. at 499 (citation omitted). It further concluded that an "automatic companion" rule would be inconsistent with the Supreme Court's stated policy of carefully maintaining the "narrow scope of Terry's exception to the warrant requirement." Id. (citation and quotation marks omitted).

This court instead upheld the search in Bell on the basis that there were "specific articulable facts known to Agent Snyder at the time he approached the passenger side of the Cadillac, as well as rational inferences therefrom, which might reasonably support the perception that Bell posed a risk to the security of the officers." Id. at 500. These facts included Agent Snyder's knowledge that Cherry, the target of the arrest warrant, was suspected of being armed and dangerous because narcotics transactions often involve weapons. Id. Moreover, the agents were advised in advance of the execution of the warrant that Cherry had been seen with an accomplice. Id. at 501. The court thus noted that Bell's presence as a passenger, "while not itself justifying a frisk, was permissibly considered in analyzing whether there was reasonable cause to believe that Bell was potentially armed and dangerous." Id. For these and other reasons not relevant to the present case, the court concluded that, under the "totality of the circumstances test," the pat-down search of Bell did not violate the Fourth Amendment. Id. at 502.

Contrary to the government's argument, the facts in the present case are not analogous to the totality of the circumstances that existed in Bell. The driver of the vehicle in Bell was known to be potentially armed and dangerous because he was a drug dealer, and the very purpose of the stop was to arrest that driver. Moreover, the driver was known to have been traveling with an accomplice. This is a totally different fact pattern from that in the present case, where Jones and Wilson were pulled over simply because they were not wearing their seat belts, a minor traffic violation. Jones's spontaneous admission that he had served time on a federal gun charge does not suggest that "Jones was potentially armed." If anything, the admission at that point in the traffic stop suggests cooperation with authorities, not resistance. Had Jones intended to draw a gun on the officers, it is unlikely that he would have been so forthcoming about his prior conviction.

Officer's actions in extending a "public safety" stop to other things showed the stop was excessive. State v. Marx, 38 Kan. App. 2d 598, 171 P.3d 276 (2007):

Here, the district court determined that Doudican's stop was not primarily motivated by community caretaking concerns. The district court noted that Doudican did not immediately stop the motor home as soon as he caught up to it, but instead Doudican followed the motor home for about 1 mile before he stopped the Marxes for the traffic infraction. Also, Doudican testified he was looking for a violation to stop the motor home, and Doudican clearly testified the real reason for the stop was the perceived traffic infraction. Substantial competent evidence supports the district court's decision that Doudican's primary motivation in stopping the motor home was due to a traffic infraction, not to return the hubcap.

Doudican's motivation aside, the Marxes argue that losing a hubcap is not a sufficient reason to justify a public safety stop. We agree. Although the Gonzales court upheld the initial vehicle stop for public safety reasons, the court expressly rejected the open fuel hatch as justification for the stop. The court stated: "There is no dispute that the open hatch cover was not perceived as a safety problem; even [the officer] referred to it as a 'courtesy' to alert the driver to that condition. It was the bouncing tire that was the alleged safety concern." 36 Kan. App. 2d at 453.

Here, under the initial prong of the test enunciated in Gonzales, there were no facts that suggested to Doudican that a citizen was in need of help or was in peril at the time of the stop. Doudican already had the hubcap in his possession, and there was only a minimal risk that the motor home might lose other hubcaps on the highway in such a manner as to endanger the public. Consistent with the court's determination in Gonzales that the open fuel hatch did not implicate public safety, Doudican's return of the hubcap more closely resembled a "courtesy" to the Marxes rather than a concern for public safety. We conclude as a matter of law that the stop of the Marxes' motor home was not warranted under a public safety rationale.

Police came to do a knock-and-talk at defendant's apartment and misrepresented themselves as "maintenance." Defendant told them to come back. Then they identified themselves and he opened the door and they asked to come in. He backed up and let them in. The argument was apparently framed as lack of probable cause for a knock-and-talk and not as a coercive atmosphere. [Whether it would have succeeded argued otherwise is hard to tell.] United States v. Valensia, 2007 U.S. Dist. LEXIS 79338 (N.D. Ill. October 11, 2007):

In the present case, the evidence shows that the officers knocked three times on Valensia's apartment door. When they first identified themselves as "maintenance," Valensia or someone else inside asked them to come back at a later time. When the officers responded by saying that it would only take a short time, Valensia then willingly opened the door. When he did, he was facing a uniformed police officer and another man with a badge on his chest. At this point, the officers requested permission to enter the apartment. There is no evidence that the officers used any intrusive measures, or forced their way in, or made any demands whatsoever. When the officers asked Valensia if they could come into the apartment, the uncontroverted evidence is that he backed up slightly, opened the door wider, and gestured with his hand for them to enter. While Valensia did not testify at the suppression hearing, McCain and Sellers did, and neither of them testified that the officers forced their way into the apartment or demanded to be let into the apartment. Therefore, Valensia's argument that the officers did not have probable cause to approach his apartment or to conduct a "knock and talk" is without merit.

Passenger's walking away from a vehicle that pulled into a convenience store and officer put on blue lights was a factor in reasonable suspicion as to the driver. United States v. Johnson, 2007 U.S. Dist. LEXIS 79270 (S.D. Ohio October 12, 2007):

Officer Sykes approached the vehicle because the front seat passenger quickly exited the vehicle and rapidly walked to the convenience store immediately after the officers arrived in a marked cruiser. This Court finds that the actions of the passenger provided reasonable suspicion for Officer Sykes to further investigate. In Illinois v. Wardlow, 528 U.S. 119 (2000), the United States Supreme Court found under similar circumstances that an officer is justified in maintaining a reasonable suspicion based on such behavior. It was not merely Defendant's presence in a high crime area, but, also the passenger's unprovoked and rapid exit from the area that aroused the officers' suspicion in this case. As observed in Wardlow, "[o]ur cases have also recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." Id. at 124.

Defense counsel filed a motion to suppress but withdrew it because defendant lacked standing. The post-conviction court found that it would have denied the motion to suppress if it had not been withdrawn, and that supported the findings of the trial court so there was no IAC. Cluck v. State, 2007 Ark. LEXIS 557 (October 25, 2007).*

Plaintiff's complaint fairly pled a Fourth Amendment violation without specifically pleading § 1983, and when the complaint was amended and pled § 1983, defendant attempted to remove the action to federal court. The removal was untimely. Howard v. City of Atlanta, 2007 U.S. Dist. LEXIS 79283 (N.D. Ga. October 25, 2007).*

A protective search of the interior of defendant's vehicle was justified under the facts even though he was handcuffed because of the possibility he would not be arrested, unhandcuffed, and get back into the car. United States v. Hill, 252 Fed. Appx. 532 (4th Cir. 2007) (unpublished):

Here, the police officers had a reasonable belief Hill was dangerous because they had reason to believe he had removed items from a house containing numerous weapons. The officers also knew that at least one of the items taken from the house appeared to be a gun. Moreover, when they approached the car, both officers involved in stopping Hill's car observed a gun in the back seat. As was the case in Holmes, although Hill was out of the car and restrained when the officer searched the passenger compartment, the officer was entitled to conduct a protective search of that area because of the possibility that Hill would have access to any weapons located there. See Holmes, 376 F.3d at 280 (protective search of passenger compartment warranted when suspect was handcuffed in the back of police cruiser, because if not arrested, the suspect would be permitted to return to the vehicle).

Bare suspicion did not support defendant's stop. "The officers in this case had not observed Smith engage in any criminal activity or violate any traffic offenses at the time of the encounter. While there had been prior tips that Smith was engaged in drug activity, those tips had not been corroborated by independent police investigation and there is no evidence in the record which otherwise reflects the reliability of those tips. Thus, those tips afforded no basis for Smith's detention." Conviction reversed. Smith v. State, 288 Ga. App. 87, 653 S.E.2d 510 (2007).*

Motion to suppress had not been filed, and the search was, for all apparent reasons (see fn. 2), conducted for failure to consent to a search; a drug dog was called after he refused to consent. The issue was waived for appellate review. Smith v. State, 243 S.W.3d 722 (Tex. App. — Texarkana 2007).*

Plaintiff's car was searched on school property with reasonable suspicion of marijuana possession under T.L.O. Morgan v. Snider High Sch., 2007 U.S. Dist. LEXIS 79103 (N.D. Ind. October 23, 2007):

The searches of Kevin's vehicle were "justified at [their] inception" and "reasonably related in scope to the circumstances," T.L.O., 469 U.S. at 341, as there was at least a reasonable suspicion that his car contained contraband, particularly so since Kevin admitted that he drove a student onto school property who was found to be under the influence and in possession of marijuana. Moreover, the initial search was with Kevin's oral consent (as well as the prior consent derived from his parking permit application), a status that presumably continued as the second search proceeded with a flashlight. As to the alleged third search, it was conducted after some marijuana pieces were found in the car and after Kevin admitted that he had recently smoked marijuana, so clearly by then a more thorough search was reasonable. Finally, while the Plaintiffs complain that the searches were conducted, or at least initiated, in the absence of Kevin's parents, they cite no authority that would suggest the searches were thus unconstitutional.

Exigent circumstances of a threat with a gun permitted an entry despite lack of consent. Even consent argument is unavailing, though, because defendant had no standing in the place searched. United States v. Henderson, 2007 U.S. Dist. LEXIS 79036 (W.D. Mo. October 24, 2007).*

Officers were investigating a hit and run and they were looking at defendant's vehicle in his driveway when he came out and pointed a gun at them and told them to get away. He then tried to go inside with the officer holding on, and the officers went in after him. The entry was lawful. State v. Jankite, 2007 Ohio 5706, 2007 Ohio App. LEXIS 5010 (8th Dist. October 25, 2007):

[*P12] In addition, a police officer may not make an arrest on a misdemeanor without a warrant unless the offense is committed in the presence of the arresting officer. R.C. 2935.03, State v. Mathews (1976), 46 Ohio St.2d 72, 346 N.E.2d 151. At the suppression hearing Officer Alvarez testified that he witnessed appellant threaten to shoot him and Officer Mladek. On the basis of this threat, Officer Alvarez attempted to arrest appellant for aggravated menacing, a misdemeanor. The court found that the police attempted to arrest appellant in the backyard and only entered the home when appellant dragged Officer Alvarez through the back doorway.

[*P13] Officer Alvarez was not required to obtain a warrant under the circumstances in which he found himself at appellant's house. Officer Alvarez testified at the suppression hearing that, in his lawful attempt to arrest appellant, appellant pulled him inside the house, through the back door, and into the vestibule. There was no conflicting testimony at the suppression hearing as to how the police officer gained entry into appellant's house. The court found sufficient evidence to support Officer Alvarez's account of the facts that the arrest of appellant began in the backyard and ended in the house.

Allegation that plaintiffs were repeatedly tasered while handcuffed stated enough to go forward for an excessive force claim. Crihfield v. City of Danville Police Dep't, 2007 U.S. Dist. LEXIS 79182 (W.D. Va. October 11, 2007).*

A lie about travel plans can be a factor in the totality for reasonable suspicion in detention. Here, defendant consented to a search, and officers found an obvious hidden compartment in the passenger speaker. The search was within the scope of consent. United States v. Garrett, 2007 U.S. Dist. LEXIS 79193 (E.D. Mich. October 25, 2007).*

Defendant's driving was reasonable suspicion to believe he was DWI, even though it turned out he wasn't drunk. Then, the officer asked about contraband and he offered to allow a search. United States v. Floyd, 2007 U.S. Dist. LEXIS 79095 (D. Conn. October 25, 2007):

Here, in response to Officer Rosedale's inquiry as to whether there was any contraband in the vehicle, the defendant not only advised Rosedale that there was no contraband in the vehicle but invited Rosedale to search the vehicle. The defendant consented to the search of the vehicle and no Fourth Amendment violation occurred in connection with the seizure of the firearm.

Compare State v. Washington from Indiana posted on the 26th holding such questioning unreasonable under the Indiana Constitution.

Under Stone v. Powell, there only need be a procedural mechanism under state law to challenge a search, and then the question is whether the procedural mechanism failed somehow such that a Fourth Amendment claim could not have been brought. McNoriell v. Warren, 2007 U.S. Dist. LEXIS 79199 (E.D. Mich. October 25, 2007)*:

Federal courts will not address a Fourth Amendment claim upon habeas review if the petitioner had a full and fair opportunity to litigate the claim in state court and the presentation of the claim was not thwarted by any failure of the state's corrective processes. Stone v. Powell, 428 U.S. 465, 494-95 (1976). A court must perform two distinct inquiries when determining whether a petitioner may raise a claim of illegal arrest in a habeas action. First, the "court must determine whether the state procedural mechanism, in the abstract, presents the opportunity to raise a fourth amendment claim. Second, the court must determine whether presentation of the claim was in fact frustrated because of a failure of that mechanism." Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000) (quoting Riley v. Gray, 674 F.2d 522 (6th Cir. 1982)).

Defendant was arrested for DWI. Immediately prior to the stop, there were possible furtive movements, but the officer told the defendant on the first encounter that he was not afraid of him (defendant put his hands outside the window). Defendant was arrested and detained, and his girlfriend showed up to take the car. The officer searched the car before she could leave, and the search was without basis since there was no evidence to be derived from the search supporting the DWI. State v. Parham, 875 N.E.2d 377 (Ind. App. 2007).

On an Anders brief, defendant did not show that the search issue in his case was plain error. He contended that the search started at 6 a.m., but the warrant was not issued until 11:25 a.m. Pettigrew v. State, 937 A.2d 140 (Del. 2007).*

Defendant lacked standing and an expectation of privacy to contest the admission of the all-terrain vehicle on his father-in-law's property. Also, there was no evidence that the magistrate who issued the search warrant for the washer and dryer seized from defendant's home was not neutral and detached. English v. State, 288 Ga. App. 436, 654 S.E.2d 150 (2007).*

Odor masking in car and driver's nervousness and body language and discrepancies in the driver's and passenger's stories can make reasonable suspicion. Flood v. State, 2007 WY 167, 169 P.3d 538 (2007).

Stop was not consensual because a reasonable defendant would not have felt free to leave. "Despite the return of documents, the court cannot conclude that Defendant would have felt free to leave. Nixon testified that he was not actually going to let Defendant go because of the suspicions he and Jensen had regarding illegal activity." Nevertheless, there was reasonable suspicion. United States v. Ferro, 2007 U.S. Dist. LEXIS 78670 (D. Utah October 23, 2007). (Comment: Finally, a court that is capable of seeing the truth of a traffic stop that a motorist is not free to leave just because the paperwork has been returned.)

Although appellant succeeded in suppressing the evidence in his criminal case, Logan v. Commonwealth, 47 Va. App. 168, 622 S.E.2d 771 (2005) (en banc), that same evidence could be used to revoke his previous probation because the exclusionary rule does not apply to probation revocation proceedings. Logan v. Commonwealth, 2007 Va. App. LEXIS 393 (October 23, 2007).

There is no Franks violation where the informant was corroborated by listening to his telephone calls with the defendant. United States v. Mikulewicz, 2007 U.S. Dist. LEXIS 78801 (W.D. Wis. October 19, 2007):

Agent Ohm could have included in his warrant application every single impeaching fact--true or not--proffered by Mikulewicz against Colegrove and it would have not affected the court's probable cause determination a whit. So what if Colegrove were a meth addict who stole $ 1300 of her Sugar Daddy's cash to pay for drugs? The police possessed and had listened to a recording of Colegrove's phone calls with third parties intercepted by Mikulewicz. This is the evidentiary equivalent of a junkie snitch charged with drug crimes handing the police a tape recording of her dealer saying "thanks for the two hundred dollars, here's your eightball of crack." Probably enough to convict, definitely enough to establish probable cause of a crime.

The bottom line is that Agent Ohm provided sufficient information to establish probable cause that Mikulewicz repeatedly violated § 968.31(1)(a), and Agent Ohm did not withhold information that was genuinely material to the court's probable cause determination. This is not a basis to quash the warrant or suppress evidence.

Officer's trespass on the curtilage led to observations that made it into a search warrant application. The trial court erred in not granting the motion to suppress. This started as a knock and talk, but the officer strayed from the front door. State v. Peterson, 2007 Ohio 5667, 173 Ohio App. 3d 575, 879 N.E.2d 806 (2d Dist. 2007):

[*P26] It is important to note that the police were at Peterson's residence initially to execute a "knock and advise" and not to execute a search warrant. The purpose of the knock and advise program, as stated in the General Order of the Dayton Police Department, is to notify the resident or residents of the structure that a complaint has been received alleging drug activity at the premises. (See Def. Ex. C.) This, of course, can be accomplished by going to the front door of the residence and knocking and advising the resident of the purpose of the visit. In executing a search warrant, the warrant normally authorizes officers to enter the residence, the surrounding curtilage, and any detached garage or outbuildings listed in the warrant.

[*P27] The State argues that we have held that police officers are privileged to be on private property while in the performance of their official duties, citing State v. McClain (2003) Mont. App. 19710, 2003 Ohio 5329. In that case, however, the observations of the police officer were made through the passenger window of a car parked in a front driveway accessible to the public.

[*P28] In this matter, Detective House testified at the suppression hearing that the window he looked through was on the side of the appellant's residence, which he accessed by walking on the lawn. (Tr. 82.) Further, House testified that there was no driveway or sidewalk by the window and that he was standing a few feet from the side of the house. (Tr. 83, 128.) Similar to the officer in Lorenzana, House made his observations while standing on land not expressly open to the public.

[*P29] Citizens have an objectively reasonable expectation that police will not enter onto the side yards of their homes in the night time and peer into their basement windows. We agree with the appellant that Detective House's observations were made while he was trespassing on the curtilage of Peterson's property. As such, the evidence recovered by the police during the warrantless and warrant searches was the product of the initial unlawful police conduct. The evidence was the "fruit of the poison tree" and must be suppressed. Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Specific items listed in the particularity clause followed by a catch all phrase does not make the warrant impermissibly overbroad. In addition, a plain view may properly occur that is separate from the overbreadth issue. State v. Juwan, 2007 Ohio 5651, 173 Ohio App. 3d 373, 878 N.E.2d 694 (2d Dist. 2007).

Knock-and-announce requirement was not violated, but, if it was, Hudson would apply and the evidence would still not be excluded. A violation of state law, as opposed to the state constitution, does not mandate exclusion. State v. Lam, 2007 Ohio 5664, 2007 Ohio App. LEXIS 4984 (2d Dist. October 19, 2007).*

Indiana holds that the growing use of questions about possession of drugs during a routine traffic stop is unreasonable under the Indiana Constitution. State v. Washington, 875 N.E.2d 278 (Ind. App. 2007):

As a preliminary matter, we observe that this court has expressed its concern over "'the increasingly common practice of police stopping vehicles for minor traffic offenses and seeking consent to search with no suspicion whatsoever of illegal contraband[.]'" Clark v. State, 804 N.E.2d 196, 201 (Ind. Ct. App. 2004) (quoting Callahan v. State, 719 N.E.2d 430, 439 (Ind. Ct. App. 1999)); see also Camp v. State, 751 N.E.2d 299, 302 (Ind. Ct. App. 2001), trans. denied (2002); Norris v. State, 732 N.E.2d 186, 191 n.1 (Ind. Ct. App. 2000). We now take the opportunity to address the propriety of that increasingly common practice of officers asking about the presence of illegal substances during an otherwise routine traffic stop.

. . .

Officer Hoffman explained that he asked Washington whether he had any "guns or drugs," because Washington appeared nervous and did not make eye contact with him. Tr. at 7-8. It is true that nervousness may indicate potential wrongdoing. Quirk, 842 N.E.2d at 341. However, Indiana courts have been hesitant to assign significant weight to a person's display of nervousness. Id. Indeed, our Indiana Supreme Court has observed, "Because it is not at all unusual that a citizen may become nervous when confronted by law enforcement officials, other evidence that a person may be engaged in criminal activity must accompany nervousness before the nervousness will evoke suspicion necessary to support detention." Id.

Certainly, we recognize the concern for officer safety, and, to that end, Indiana courts have acknowledged the appropriateness of, during the course of a traffic stop, asking about the presence of guns. Lockett v. State, 747 N.E.2d 539, 543 (Ind. 2001) (officer may as matter of routine practice ask driver stopped for traffic violation if he has a weapon on his person or in his vehicle); Jarrell v. State, 818 N.E.2d 88, 92 (Ind. Ct. App. 2004), trans. denied (2005) (where weapon was found following general Lockett-type inquiry that asked whether there was anything in the vehicle that the officer should know about, no Fourth Amendment violation occurred). However, in the context of this afternoon traffic stop of a moped for a traffic infraction, which presented no indications of drugs or other criminal activity, Officer Hoffman's inquiry that asked Washington whether he possessed drugs was not related either to the purpose of the stop or to officer safety. The State urges that because the question did not extend the length of the stop, it was not an intrusion of constitutional dimension. While we concede that Officer Hoffman's inquiry was minimal in terms of duration, it nevertheless extended the duration of the stop. Of greater significance, however, is the fact that to allow police to routinely question individuals during a traffic stop about the presence of drugs would open the door to all sorts of inquiries, including whether the person cheated on his last year's tax return or had in the past illegally pirated music from the internet. While tax fraud and internet piracy are--like illegal drug possession--serious concerns, routine traffic stops are not the place for such inquiries.

Indiana's narrow trash search rule in Litchfield applies retroactively to any case pending when it was decided. Belvedere v. State, 875 N.E.2d 352 (Ind. App. 2007).*

Plaintiff received a summons for shoplifting rather than be arrested. A summons was not a seizure. Banton v. Dowds, 2007 U.S. Dist. LEXIS 78355 (C.D. Ill. August 20, 2007):

The issue of whether the issuance of a summons and requirement that Plaintiff appear in court constitutes a seizure is not the subject of an abundance of case law. "The sparsity of case law on the question suggests not that the principle is dubious but that it is too obvious to have incited many challenges." Amati v. City of Woodstock, 176 F.3d 952, 956 (7th Cir. 1999). However, of the few courts which have dealt directly with the issue at hand, none have extended the Fourth Amendment concept of seizure to include issuance of a summons or the requirement to appear at an arraignment. Britton v. Maloney, a case with a similar set of circumstances as those alleged herein, considered the question of "whether a state actor effects a 'seizure' within the meaning of the Fourth Amendment by filing baseless criminal charges against someone, even when those charges never cause the respondent to be arrested or detained." Britton v. Maloney, 196 F.3d 24, 29 (1st Cir. 1999). The Britton court determined that the issuance of a summons is not a seizure under those circumstances because "neither the use of physical force nor a show of authority amounts to a seizure unless it results in the 'intentional acquisition of physical control' over the subject and causes a 'termination of [his] freedom of movement.'" Id. at 30 (emphasis in original). The court concluded that "[a]bsent any evidence that [plaintiff] was arrested, detained, restricted in his travel, or otherwise subject to a deprivation of his liberty before the charges against him were dismissed, the fact that he was given a date to appear in court is insufficient to establish a seizure within the meaning of the Fourth Amendment." Id. See also Myers v. Shaver, 245 F. Supp. 2d 805, 812 (W.D. Va. 2003) ("A summons to answer charges on a criminal complaint is not, by itself, a seizure under the Fourth Amendment.").

Heck bar applies to probation revocation proceedings. Cougle v. County of Desoto, 2007 U.S. Dist. LEXIS 78929 (N.D. Miss. October 24, 2007).*

Plaintiff, a native born Latina woman, was stopped by ICE officers for no suspicion of any crime, and alleged she was pretextually stopped. The court [troubled by it] finds that the officers would prevail on qualified immunity because the stop at least was reasonable under all the circumstances. Mancha v. Immigration and Customs Enforcement, 2007 U.S. Dist. LEXIS 78859 (N.D. Ga. October 23, 2007).*

Landlord's right to inspect leased premises does not permit him to admit law enforcement officers to aid in the inspection. Blanchard v. Lonero, 2007 U.S. Dist. LEXIS 78506 (E.D. La. October 22, 2007):

The lease does give the landlord the right to inspect the property during regular business hours; however, the lease does not authorize the landlord to consent to a search of the premises by law enforcement personnel. Courts have consistently recognized that a landlord does not have authority to admit others to a premises without the consent of the tenant. See Chapman v. United States, 365 U.S. 610, 616, 81 S.Ct. 776, 779-80, 5 L.Ed.2d 828 (1961); see also Georgia v. Randolph, 547 U.S. 103, 111, 126 S. Ct. 1515, 1522, 164 L. Ed. 2d 208 (2006). Because the Loneros' contractual right to inspect the property did not extend to the right to admit law enforcement officers to search the property, the motion to dismiss is denied.

Plaintiff refused to stop, so he was not seized by the defendant officers. Lewis v. Wilcox, 2007 U.S. Dist. LEXIS 78450 (M.D. Ga. October 22, 2007).*

Park ranger during a traffic jam heard a commotion from one vehicle and went to see about it and asked general questions. It was merely a consensual encounter. Then he reasonably suspected the occupants were under the influence, and he saw an open container in violation of 36 C.F.R § 4.14(b). United States v. Ownby, 2007 U.S. Dist. LEXIS 78288 (E.D. Tenn. October 19, 2007).*

Reviewing the videotape of defendant's driving, the court cannot conclude that the officer had reasonable suspicion for the stop. United States v. Pace, 2007 U.S. Dist. LEXIS 78286 (E.D. Tenn. October 18, 2007).*

2255 petitioner did not show that defense counsel was ineffective for not moving to suppress consent granted by one with apparent authority when the moving papers and affidavit in support did not mention that defense counsel was ever informed of this, even if it was meritorious, which the court does not accept. Smith v. United States, 2007 U.S. Dist. LEXIS 78272 (E.D. N.C. October 17, 2007).*

Even a criminal diversion bars an action under Heck. S.E. v. Grant County Bd. of Educ., 523 F. Supp. 2d 486 (E.D. Ky. 2007).*

City employer did not violate plaintiff's Fourth Amendment rights by ordering her to rehab as a condition of employment. That is not false imprisonment. Davis v. City of New York, 2007 U.S. Dist. LEXIS 78031 (E.D. N.Y. September 28, 2007).*

"Even if the officers had stated that they would get a warrant if he did not consent, this would not render his consent involuntary; that the police inform a party that they will obtain a warrant if the party does not consent to a search does not amount to coercion." United States v. Racca, 255 Fed. Appx. 367 (11th Cir. 2007)* (unpublished).

2255 could not be based on same issue already decided on appeal. Payne v. United States, 2007 U.S. Dist. LEXIS 78245 (N.D. Miss. October 19, 2007).*

Officer had reasonable suspicion about the content of bag that defendant was carrying, just by the looks of it from the rectangular objects in it. Defendant's actions drew the officers' attention that he was carrying drug money. United States v. Naut, 2007 U.S. Dist. LEXIS 78062 (S.D. N.Y. October 19, 2007).*

Plaintiff's stop and then arrest for DWI was based on reasonable suspicion and then she failed field sobriety tests. Ryder v. Pucillo, 2007 U.S. Dist. LEXIS 78202 (D. Conn. September 27, 2007).*

Officer had justification for stopping the defendant who was going 81 in a 35. The video of his stop showed that the stop was not extended, and the defendant consented. State v. Fernandez, 2007 Tenn. Crim. App. LEXIS 825 (October 23, 2007).*

Defendant was standing near a person the police believed was a prostitute, and, when they saw the police, they went in different directions. When officers followed defendant, he ran. When he was stopped, officers patted him down, found car keys, and questioned him about the car since he was on Maryland parole but in D.C. They obtained a consent to search the car after defendant admitted it was nearby and they walked around until the remote car lock showed the car. The D.C. Cir. suppressed the search of the car because taking the keys was beyond the scope of a Terry stop and frisk. The government's alternative arguments of inevitable discovery and attenuation of the taint were also rejected. United States v. Holmes, 378 U.S. App. D.C. 277, 505 F.3d 1288 (2007). As to the frisk:

Next, the defendant must make a prima facie showing of a causal nexus between the Fourth Amendment violation and the evidence he seeks to suppress. See United States v. Crews, 445 U.S. 463, 471 (1980). In this case, Holmes has met his burden of showing that, but for the illegal seizure of the keys, the officers likely would not have discovered the gun and ammunition in his car. If they had not removed Holmes's keys during the patdown, the officers would not have been able to visibly inspect them to determine whether Holmes possessed a car key. Visual confirmation that Holmes was carrying car keys gave the officers reason to continue their line of questioning about how Holmes came to the area that night. Additionally, Officer Greene testified that he used the remote opener on the keychain to both locate and unlock Holmes's vehicle on the adjacent street. Each of these factors contributed to the pistol's discovery, and we are satisfied Holmes met his burden of showing a prima facie causal nexus between the illegal seizure and the challenged evidence.

After the defendant has met his burden, the evidence must be suppressed unless the government proves, by a preponderance of evidence, that the evidence would have been discovered inevitably, was discovered through independent means, or that its discovery was so attenuated from the illegal search or seizure that the taint of the unlawful government conduct was dissipated. See Alderman, 394 U.S. at 183; United States v. Kornegay, 410 F.3d 89, 93-94 (1st Cir. 2005).

Because the district court did not hold that the key seizure violated Holmes's Fourth Amendment rights, it failed to shift the burden at this point. The district court should have placed on the government the burden of proving that the gun would have been discovered inevitably even without the illegal seizure or, alternatively, that Holmes's consent to search his vehicle attenuated the taint, the two arguments it now advances. Though the government argues that the district court made findings favorable to the government on both issues which should now be accepted by this Court, to the extent that this is true, the district court arrived at those conclusions after incorrectly assigning the burden of proof.

In the same vein as ACLU v. NSA: Plaintiffs lacked standing to challenge administrative subpoenas for bank transfer records.

The government sought by administrative subpoenas information from the SWIFT banking network.

Defendant S.W.I.F.T. SCRL (the Society for Worldwide Interbank Financial Telecommunication, or SWIFT) is an international cooperative consortium of banks, brokers, and investment managers. Based in Brussels and with its principal American place of business in northern Virginia, SWIFT supplies secure standardized messaging services to financial institutions. Quoting from SWIFT's website, the complaint describes the SWIFT consortium as follows:

"Defendant SWIFT is 'the financial industry-owned co-operative supplying secure, standardized messaging services and interface software to 7,800 financial institutions in more than 200 countries. SWIFT's worldwide community includes banks, broker/dealers and investment managers, as well as their market infrastructures in payments, securities, treasury and trade.'"

Additionally, the complaint notes that most of the eleven million transactions per day handled by SWIFT are international in nature in that they involve communication across national borders.

Plaintiffs lacked standing to sue over disclosure of information to the government under administrative subpoenas from the Treasury Department. Walker v. S.W.I.F.T., 517 F. Supp. 2d 801 (E.D. Va. 2007)*:

Plaintiff Walker filed the present suit against SWIFT on June 23, 2006--the same day the Times article was published--in the United States District Court for the Northern District of Illinois. Plaintiff Kruse was added as a plaintiff on February 27, 2007. The complaint alleged four counts of wrongdoing. Count I alleged that SWIFT "denied Plaintiffs ... their rights to speak and receive speech privately under the First Amendment." Count II alleged that SWIFT "violated [their] reasonable expectations of privacy and denied ... their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States." Count III alleged that SWIFT violated the RFPA when it "disclosed information contained in customer financial records without reasonable description or any of the other five criteria enumerated" in the statute. Count IV alleged that SWIFT engaged in unfair, unlawful and/or fraudulent business practices in contravention of the ICFDBPA.

. . .

It is axiomatic that a party seeking to establish standing in the federal courts must demonstrate an injury in fact, i.e., she must demonstrate "an invasion of a legally protected interest which is (a) concrete and particularized and (b) 'actual or imminent, not "conjectural" or "hypothetical."'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). A party must therefore allege facts creating a plausible inference that an injury in fact has occurred. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) ("[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions . . . . Factual allegations must be enough to raise a right to relief above the speculative level."). This plaintiffs have failed to do.

The complaint is deficient in its factual allegations relating to standing. Apart from the conclusory allegation in paragraph 41, to the effect that "[b]y the acts alleged herein, SWIFT's conduct proximately caused harm to Plaintiffs and class members," the complaint fails to allege facts from which injury in fact may be inferred. For example, although the complaint adequately alleges that SWIFT disclosed information regarding certain financial transactions, there is no allegation that plaintiffs' bank or banks are members of SWIFT, nor is there any information indicating that plaintiffs' financial information was disclosed by SWIFT. Plaintiffs rely on their own belief that their financial information has been disclosed, but such a belief, without more, cannot support standing. This point is well illustrated by the recent Sixth Circuit decision in ACLU v. Nat'l Security Agency, 493 F.3d 644 (6th Cir. 2007), which held that a plaintiff's own assessment of injury in fact is insufficient to establish standing. 493 F.3d at 673-74 ("[I]t would be unprecedented for this court to find standing for plaintiffs to litigate a Fourth Amendment cause of action without any evidence that the plaintiffs themselves have been subjected to an illegal search or seizure."). The complaint fails to identify plaintiffs' bank or banks, fails to establish whether such bank or banks are members of SWIFT, and fails to allege any facts giving rise to a plausible inference that plaintiffs' financial information was disclosed by SWIFT.

It may be that these omissions can easily be remedied. Plaintiffs certainly know the identity of their banks and presumably can readily determine whether those banks' transactions are handled by SWIFT. 127 S.Ct. at 1974. Plaintiffs would "nudge their claims across the line from the conceivable to the plausible" were they (i) to allege the identity of the banks or financial institutions they used, (ii) to conduct a reasonable inquiry to determine whether these banks were members of SWIFT, and (iii) to conduct a reasonable inquiry to determine whether SWIFT disclosed the named banks' transactions. Bell Atlantic, 127 S.Ct. at 1974. In this respect it seems at least plausible that plaintiffs' banks know or can ascertain from SWIFT whether data they provided to SWIFT was later disclosed by SWIFT.

Moore v. Andreno, 505 F.3d 203 (2d Cir. 2007):

Courts have long acknowledged that a person has the right to establish a private sanctum in a shared home, a place to which he alone may admit or refuse to admit visitors. Yet, with the recurrence of domestic violence in our society, we are loath to assume that a man may readily threaten his girlfriend, take her belongings, lock her out of part of his house, and then invoke the Fourth Amendment to shield his actions. Deputies Joseph A. Andreno and Kurt R. Palmer, responding to an emergency call, were faced with reconciling these two competing interests. While they misapplied the relevant constitutional calculus, they are police officers, not lawyers or mathematicians. And thus, because the law governing the authority of a third party to consent to the search of an area under the predominant control of another is unsettled, and because Deputies Andreno and Palmer made a reasonable mistake in applying that law to the situation with which they were confronted, the district court erred in denying them summary judgment on qualified immunity grounds.

Plaintiff appeared to have abandoned his property in his hotel room when he planned to keep his stuff in the room for four days but be gone, having paid for it. However, he was gone for an additional week or so, and he failed to respond to voicemails to his cellphone. The hotel moved his stuff out, and found a lot of cash, and called the police. Cook v. United States DEA, 2007 U.S. Dist. LEXIS 77769 (W.D. Pa. October 19, 2007).*

Officer had probable cause to believe that the defendant was the suspect in a credit union robbery that just occurred. He was on foot, matched the description, was sweating, and had paperclipped money bulging in his cargo pants pockets. United States v. Morgan, 2007 U.S. Dist. LEXIS 77826 (N.D. Ill. October 19, 2007).*

The Sixth Circuit, in an unpublished opinion, holds that a fugitive had no reasonable expectation of privacy in a motel room that he was hiding in. The opinion was unpublished because of application of harmless error, as well. United States v. Stuckey, 253 Fed. Appx. 468, 2007 FED App. 0738N (6th Cir. 2007) (unpublished):

But Knights did hold that probation status did reduce the expectation of privacy, and it was otherwise a close question whether Stuckey's temporary fugitive stay in the apartment in question gave him a reasonable expectation of privacy. "Inherent in the very nature of probation is that probationers do not enjoy the absolute liberty to which every citizen is entitled." Knights, 534 U.S. at 119 (internal quotations omitted). Supervised release, like probation, is a form of criminal sanction and limits an individual's freedom. Although Stuckey's supervised release conditions did not authorize the search, the fact that Stuckey was subject to supervised release itself lessened Stuckey's expectation of privacy. Like the defendant in Carter, Stuckey was temporarily using an apartment other than his own. Although nothing in the record suggests that Stuckey was purely a business guest, Stuckey was using the apartment for the purpose of evading capture by the police, and so neither was Stuckey purely an overnight guest, like the defendant in Minnesota v. Olson. In Olson, the Supreme Court emphasized the "everyday expectations of privacy that we all share" and the "longstanding social custom [of being an overnight guest] that serves functions recognized valuable by society." 495 U.S. at 98. Sleeping at another's apartment in order to evade capture by police does not comport with our everyday expectations of privacy and is not a longstanding social custom. Thus, taking together the fact that the apartment was not Stuckey's and the fact that Stuckey was on supervised release, reasonable suspicion may have been enough to justify the search. Thus the reasoning of Carter and Knights together might warrant the conclusion that Stuckey lacked a reasonable expectation of privacy in the apartment in question in the circumstances of this case. We need not rule definitively on the question, however, because even if there was a Fourth Amendment violation that Stuckey could complain of, the error was harmless, as explained below.

After an elaborate discussion of probable cause and pretextual stops, the court concludes that a stop based on illegal window tinting can [and must] be permitted on the officer's own observations of whether the tinting is too dark. State v. Arvel, 401 Md. 676, 934 A.2d 38 (2007) (This case has an excellent discussion of pretextual stop law, but the case is not on the Maryland court's website as of the time of this post; if you have a pretextual stop case, at least read this case for a good overview; click on the link, and it should be posted shortly.).

Plaintiff's arrest by an Iowa National Guardsman during the post-Katrina evacuation was not an action by the NOLA PD, so he could not maintain an action against the police. Terry v. City of New Orleans, 2007 U.S. Dist. LEXIS 77645 (E.D. La. October 17, 2007).*

The affidavit for the search for child porn was based on probable cause [the question was not even close]. Commonwealth v. Kenney, 449 Mass. 840, 874 N.E.2d 1089 (2007).*

Even if police violated knock-and-announce [and it was not even decided, but it seems they did not], the Illinois Supreme Court likely would follow Hudson and not suppress. People v. Chapman, 883 N.E.2d 510, 318 Ill. Dec. 279 (4th Dist. 2007):

Moreover, as a matter of law, violations of the knock-and-announce rule, even if proved, will not automatically result in the exclusion of evidence obtained as a result of the search. Hudson v. Michigan, 547 U.S. ___, 165 L. Ed. 2d 56, 126 S. Ct. 2159 (2006). In Hudson, the Court held that the exclusionary rule is unwarranted under the fourth amendment (U.S. Const., amend. IV) for violations for the knock-and-announce rule. Hudson, 547 U.S. at ___, 165 L. Ed. 2d at 71, 126 S. Ct. at 2170. Given the recent decision of the Supreme Court of Illinois in People v. Caballes, 221 Ill. 2d 282, 313, 851 N.E.2d 26, 44-45, 303 Ill. Dec. 128 (2006), reaffirming that court's commitment to the limited-lockstep analysis regarding decisions of the United States Supreme Court applying the search-and-seizure provisions of the fourth amendment, we believe the Supreme Court of Illinois would likely adhere to Hudson. Therefore, even if the trial court had found that the police failed to comply with the knock-and-announce rule, excluding the evidence obtained in the search would not necessarily have been required. In light of our conclusion that the trial court's decision to deny the motion to suppress was not against the manifest weight of the evidence, we decline defendant's invitation to address the appropriate remedy for a violation of the knock-and-announce rule under Illinois law.

Comment: It seems to me that there was no real knock-and-announce violation, although it was unusual. Here, the police used a modified flash-bang device in the backyard as a distraction. A true flash-bang device is literally a "destructive device" under federal law [trust me; I've briefed it], and they can set buildings on fire. Here, the purpose was to cause the bang and flash of light without destroying property or even breaching the house, all as a part of announcing the presence of the police. Then they knocked and entered, albeit a short time after knocking. There is no fixed time as to how long the police had to wait, and it is possible that that trial court could have found on this record that the time was too short. Factoring in the flash-bang in the backyard, maybe not. But, the question is moot in this case.

Washington holds that its state constitutional search incident power is narrower than the Fourth Amendment. State v. Moore, 161 Wn.2d 880, 169 P.3d 469 (Wash. 2007):

¶7 Search Incident to Arrest. The Washington Constitution mandates that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7. In contrast to the Fourth Amendment to the United States Constitution, the article I, section 7 provision “recognizes a person's right to privacy with no express limitations.” O'Neill, 148 Wn.2d at 584. A warrantless search is per se unreasonable unless it falls within one of the few narrowly drawn exceptions. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).

¶8 “[T]he search incident to arrest exception to the warrant requirement is narrower” under article I, section 7 than under the Fourth Amendment. O'Neill, 148 Wn.2d at 584. Under the Washington Constitution, a lawful custodial arrest is a constitutional prerequisite to any search incident to arrest. Id. at 587. The lawfulness of an arrest stands on the determination of whether probable cause supports the arrest. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). Probable cause exists when the arresting officer has “knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed” at the time of the arrest. Id.

¶9 In the instant case, officers searched Moore without a warrant, incident to his arrest for having a dangerous dog outside of an enclosure and for refusal to give information/cooperate with an officer. The State does not challenge the trial court's finding that probable cause does not support either of these bases for Moore's arrest. The State nonetheless argues that Officer French had additional probable cause to support an arrest of Moore for violating former RCW 46.61.021(3), which provides in pertinent part that “[a]ny person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself.” (Emphasis added.)

¶10 The record does not support the State's argument that Officer French conducted an “investigation” of the seatbelt violation. The crime of failing to correctly identify one's self under RCW 46.61.021(3) requires more than the mere observation of a traffic infraction and an unrelated request for identification. Rather, the officer must ask the individual for identification pursuant to an investigation of a traffic infraction. Officer French did not cite any passengers for the seatbelt violation and only mentioned her observation that the passengers were not wearing seatbelts in a supplemental report. Officer French also clarified at a subsequent hearing that she did not ask Moore for his name pursuant to an investigation of the seatbelt infraction. RP (Apr. 9, 2004) at 41, 45-46. Based on the objective fact that Officer French was not investigating the seatbelt infraction, a reasonable officer would not have concluded that Moore violated former RCW 46.61.021(3) by failing to correctly identify himself pursuant to an investigation of a traffic infraction. Accordingly, we conclude that probable cause does not support Moore's arrest.

Defendant was removed from the premises on his arrest, and consent was sought from his cotenant. There was no showing that the defendant's removal was for the purpose of avoiding asking him for consent under Randolph. State v. Ball, 2007 Ohio 5564, 2007 Ohio App. LEXIS 4887 (2d Dist. October 12, 2007).*

Federal DWI stop was based on articulable reasonable suspicion. United States v. Caine, 517 F. Supp. 2d 586 (D. Mass. 2007).*

Defendant's handcuffing and frisk was based on reasonable suspicion and the fact he was on probation. United States v. Jones, 2007 U.S. Dist. LEXIS 77270 (E.D. Tenn. October 16, 2007).*

Citizen informant told officers at an inland border checkpoint on I-87 in Upstate New York that a vehicle made a U-turn to avoid the checkpoint. Officers found the vehicle on a state highway near the Interstate. It swerved and was stopped for that, and the officer then smelled marijuana. A consent search was mentioned, and the defendant admitted to having marijuana. The search was valid. People v. Boyea, 2007 NY Slip Op 7775, 2007 N.Y. App. Div. LEXIS 10707 (3d Dept. October 18, 2007).*

Unreasonable deadly force can be unreasonably precipitated by officers such that summary judgment should be denied. Hastings v. Barnes, 252 Fed. Appx. 197 (10th Cir. 2007)* (unpublished):

Deadly force is reasonable under the Fourth Amendment if a reasonable officer in the defendant's position would have had probable cause to believe there was a threat of serious physical harm to himself or others. Jiron, 392 F.3d at 415; see also Tennessee v. Garner, 471 U.S. 1, 11-12 (1985). Therefore, an officer's use of deadly force in self-defense is not unreasonable under the Fourth Amendment. Romero v. Bd. of County Comm'rs of the County of Lake, Colo., 60 F.3d 702, 704 (10th Cir. 1995).

At the moment of the shooting, Todd was advancing toward Barnes and Davis with the sword. Thus, when Barnes and Davis shot Todd, they were acting in self-defense and, viewed in isolation, the shooting was objectively reasonable under the Fourth Amendment. Hastings does not dispute this conclusion. Rather, he argues Barnes and Davis' actions preceding the shooting precipitated their need to use deadly force, thereby rendering their use of such force unreasonable.

The reasonableness of the use of force depends not only on whether the officers were in danger at the precise moment they used force but also on whether the officers' own conduct during the seizure unreasonably created the need to use such force. Jiron, 392 F.3d at 415; see Medina v. Cram, 252 F.3d 1124, 1132 (10th Cir. 2001); Allen v. Muskogee, Okla., 119 F.3d 837, 840 (10th Cir. 1997); Sevier v. City of Lawrence, Kan., 60 F.3d 695, 699 (10th Cir. 1995). However, only reckless and deliberate conduct that is immediately connected to the seizure will be considered. Medina, 252 F.3d at 1132. In other words, mere negligent conduct or conduct attenuated by time or intervening events is not to be considered. Sevier, 60 F.3d at 699 n.8.

Our review of the record convinces us that whether Barnes and Davis' actions unreasonably precipitated their need to use deadly force calls for a jury determination. But, viewing the facts in the light most favorable to Hastings, a constitutional violation occurred. Todd was not a criminal suspect. He was a potentially mentally ill/emotionally disturbed individual who was contemplating suicide and had called for help. Rather than attempt to help Todd, Barnes and Davis crowded themselves in Todd's doorway (leaving no room for retreat), issued loud and forceful commands at him and pepper-sprayed him, causing him to become even more distressed. 8 At the time they pepper-sprayed him, Todd was not verbally or physically threatening them. At least one of the officers heard Todd say "'help me'" or "'they are coming to get me.'" (R. App. at 210.) Although Todd had a sword, his stance, at least up until the time he was pepper-sprayed, was defensive not aggressive, posing no threat to anyone but himself. A reasonable jury could find that under these facts Barnes and Davis' actions unreasonably escalated the situation to the point deadly force was required.

In surveying the history of the Texas exclusionary rule, the court concludes that the exclusionary rule does apply to a citizen's arrest. Miles v. State, 241 S.W.3d 28 (Tex. Crim. App. 2007):

Thus, the plain language and history of Article 38.23 lead to an inescapable conclusion: if an officer violates a person's privacy rights by his illegal conduct making the fruits of his search or seizure inadmissible in a criminal proceeding under Article 38.23, that same illegal conduct undertaken by an "other person" is also subject to the Texas exclusionary rule. If the police cannot search or seize, then neither can the private citizen. Conversely, if an officer may search or seize someone under the particular circumstances, then the private citizen's equivalent conduct does not independently invoke the Texas exclusionary rule, and the evidence obtained by either the officer or the private person may be admissible.

B. Searches and Seizures Conducted by "Other Persons."

Few Texas cases have discussed the types of searches and seizures conducted by private citizens that are illegal for purposes of the Texas exclusionary rule. In Gillett v. State, this Court declined to address whether the search of a dressing room by a Foley's Department Store security officer constituted an illegal search by a private person. Instead a majority of the Court held that the defendant did not have an objectively reasonable expectation of privacy in the dressing room because signs were posted saying that the dressing rooms were monitored. 36 Thus, evidence obtained from such a search, whether undertaken by an officer or a private security guard, was not barred by the Texas exclusionary rule.

. . .

None of these cases was explained on this basis, but this rule--that a private person can do what a police officer standing in his shoes can legitimately do, but cannot do what a police officer cannot do--would explain the outcome in each case and is consistent with the purpose of Article 38.23. We conclude that the historical rationale for including unlawful conduct by an "other person" under the Texas exclusionary statute is best explained and implemented by this rule.

. . .

Based on the history and purpose of Article 14.01(a), as well as precedent, we reaffirm the reasoning in Woods and conclude that a citizen may make a warrantless arrest of a person who commits a misdemeanor within the citizen's presence or view if the evidence shows that the person's conduct poses a threat of continuing violence or harm to himself or the public. It is the exigency of the situation, not the title of the offense, that gives both officer and citizen statutory authorization to protect the public from an ongoing threat of violence, harm, or danger by making a warrantless arrest.

Officers at defendant's home with arrest warrant were able to go to the back door, too. McCloud v. Commonwealth, 2007 Ky. App. LEXIS 402 (October 5, 2007).*

Officer stopping defendant on a citizen informant's complaint was corroborated by observation. Sayler v. North Dakota Dept. of Transportation, 2007 ND 165, 740 N.W.2d 94 (2007).*

The affidavit for the search warrant was speculative, and judges should not act as mere rubberstamps for the police. Here, the warrant was so deficient that the good faith exception could not apply. Hensley v. Commonwealth, 248 S.W.3d 572 (Ky. App. 2007), released for publication April 25, 2008:

When requested to issue search warrants, judges may not simply act as rubber stamps for the police and merely ratify the bare conclusions of others, nor may they consider information outside the affidavit. See Crayton v. Commonwealth, 846 S.W.2d 684, 688-9 (Ky. 1992) (judicial officers must issue or deny warrants solely on facts within four corners of affidavit). It is clear to us that Officer Hodge's affidavit does not pass constitutional muster as it contained no substantial basis for the district judge's determination that probable cause existed to issue a search warrant.

Having held the affidavit to have been so deficient as to have provided no basis for the issuance of the search warrant, we further hold the trial court erred in applying the "good faith exception" to the exclusionary rule in denying the motion to suppress the seized evidence. The dual purpose of the exclusionary rule has historically been to deter police misconduct by excluding evidence obtained in violation of the Fourth Amendment to the U.S. Constitution, as well as to encourage compliance with the constitutional protection against unreasonable searches and seizures. See United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974), Young v. Commonwealth, 313 S.W.2d 580 (Ky. 1958). The exclusionary rule was made binding upon the states in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), by application of the Due Process Clause of the Fourteenth Amendment. We further note that the language found in the Fourth Amendment is nearly identical to that used in Section 10 of the Kentucky Constitution, thus making federal caselaw analysis particularly relevant to our decision.

Historically, a violation of the Fourth Amendment required the automatic suppression of the evidence seized. However, in Leon, supra, the Supreme Court reversed this per se suppression rule and added what we know today as the "good faith exception." The Supreme Court in Leon held an officer's reasonable reliance on a search warrant issued by a neutral and detached magistrate could save evidence from being excluded when the warrant was later determined to be deficient for lack of probable cause. However, the Court went on to add that if the magistrate had been misled with false information, any evidence seized should be suppressed as the officer's reliance on the search warrant could not be seen as reasonable. Further, if the magistrate abandons the "detached and neutral" judicial role or if the officer's belief in the existence of probable cause was wholly unreasonable, suppression of evidence remains available as a remedy. Upon a careful review of the record, it is clear the magistrate was misled by false information provided by Officer Hodge, and the officer's later reliance on the resultant search warrant was wholly unreasonable.

Officer had probable cause to search car based on the defendant's apparent drug intoxication discovered during a stop and a search of her person produced paraphernalia and cash. "I find that the inebriated appearance of the passenger, her possession of drug paraphernalia, the defendant's suspicious responses, and the cash were sufficient evidence from which a reasonable officer could conclude that she had probable cause to search the vehicle for narcotics." United States v. Valentine, 517 F. Supp. 2d 816 (W.D. Va. 2007).*

Defendant's search and arrest were justified by probable cause. The search incident that followed was valid. United States v. Quiroz-Mendieta, 2007 U.S. Dist. LEXIS 76900 (D. Minn. August 15, 2007).*

A 68 year old inmate with a history of prostate problems was subjected to a forced catheterization for a random drug test, and it was unreasonable. Levine v. Roebuck, 2007 U.S. Dist. LEXIS 77073 (W.D. Mo. October 16, 2007):

The Court holds that involuntary catheterization of a 68-year-old man with a history of prostate problems, as part of a random drug screening and without suspicion, is unreasonable. This invasive procedure is particularly unreasonable--as opposed to taking hair, blood, sweat or saliva samples--because, unlike those other collection methods, catheterization is a gross personal indignity to the prisoner. See Yanez, 619 F.2d at 855. Youngs could have chosen several other less intrusive options, including keeping LeVine in a room until he was able to urinate; Youngs was surely aware of these alternatives as they were outlined in the prison's own drug testing policy. As a result, prison officials like Youngs, when considering the use of invasive procedures, and before deciding which action to ultimately take, should look at the readily available alternatives and their respective levels of intrusiveness in determining the constitutionally acceptable range of reasonableness. See Bell, 441 U.S. at 559 (outlining test for reasonableness, stating "[c]ourts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted"); cf. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (in qualified immunity context, "[w]hen an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate"). Therefore, because Youngs did not conduct the search in a reasonable manner, she violated LeVine's Fourth Amendment rights.

The officers did not have justification for dispensing with knocking and announcing under all the circumstances, and the search was suppressed. [The court did not cite Hudson, effectively rejecting it.] Commonwealth v. Santiago, 70 Mass. App. Ct. 519, 874 N.E.2d 693 (2007).

Deputy sheriff stopped defendant's boat because the deputy did not see a flotation device. That was a valid stop and led to the officer concluding that defendant was BWI, so the stop was valid. State v. Hussong, 739 N.W.2d 922 (Minn. App. 2007).*

Defendant had no guest standing in a hotel room where he could not show that he was planning on being an overnight guest. United States v. Harris, 2007 U.S. Dist. LEXIS 77133 (S.D. Ohio October 17, 2007).*

Plaintiff's DV arrest was with probable cause and qualified immunity. Willette v. City of Waterville, 516 F. Supp. 2d 139 (D. Me. 2007):

Officer Sellar was dispatched to the house because of a report of a mother and daughter fighting and Detective Bonney also responded because of his familiarity with the family, including their history of violent behavior and Ms. Willette's own emotional challenges. When they arrived at the residence, the officers found Ms. Willette hysterical, her daughter backed up against a wall crying, and the apartment littered with broken glass, a broken phone, and other items. Ms. Willette was agitated and shouting at her daughter, and later, at the officers. Ms. Willette requested that her daughter be arrested.

The police had a search warrant with a clause providing for the search of "and and all persons present." When they arrived, the defendant, the attorney of a person inside, was outside on a cellphone, and he was searched under the warrant. The warrant did not authorize his search. A Terry frisk, however, was valid under all the circumstances, but the "plain feel" was not because it was apparent that there was no weapon. State v. Boyer, 967 So. 2d 458 (La. 2007):

The warrant does not particularly describe the persons to be searched as required by the Fourth Amendment and La. Code Crim. Pro. art. 162. It only authorizes the search of "the person(s). Curtlidges [sic], vehicles, and residence of 470 Greenville Street." It does not authorize the search of all persons or all persons found therein or thereon or any persons. Neither the warrant nor the underlying affidavit provide probable cause to believe that anyone standing twenty feet from the mobile home had a physical nexus to the ongoing criminal events. The affidavit supporting the warrant avers that the Lafourche Parish Drug Task Force made a controlled purchase of crack cocaine from Antonio Tillman on October 20, 2005. There is no indication where this [Pg 16] controlled purchase was made, thus it is unknown if the sale occurred in the mobile home, on the premises or at another location. The affidavit further declares that Sgt. LaGraize obtained information from several confidential informants that the buyers of the crack cocaine would exit their vehicles and go to the gray van parked in the backyard of 470 Greenville Street and either Antonio Tillman or Benny Sanders aka "Monkey Man" would sell the crack cocaine to them. The affidavit further provides that when agents were patrolling the area on July 11, 2006, and stopped at 470 Greenville Street because of several people congregating around an illegally parked vehicle, including Antonio Tillman, they observed known drug users near the gray van, along with Benny Sanders. The agents further observed, in plain view, drug paraphernalia inside the van. Considering the totality of the information supplied in the affidavit, there is insufficient particularity in the probable cause sense to support the conclusion that anyone standing twenty feet from the mobile home when the warrant was executed is involved in the criminal activity in such a way to have evidence on his person. From the affidavit, it appears that the drug sales occurred in or near the abandoned van. The State produced no evidence that the defendant was anywhere near the abandoned van, which was in the backyard of the property. Officer Guillot testified that the defendant was standing about twenty feet from the front right corner of the mobile home. Moreover, there is nothing in the underlying affidavit or warrant itself to indicate the judge issued a warrant to search unnamed persons because their mere presence at this particular location would implicate them as a participant in a crime. In deciding the motion to suppress, the trial court specifically observed "[t]o characterize the language of the search warrant as unartful would be a compliment." Although the trial court found the warrant was sufficient to place law enforcement at the location, the court found the warrant did not authorize the search of everybody within the vicinity of the residence.

. . .

For the foregoing reasons, we find the court of appeal erred in reversing the trial court. We cannot find this search warrant authorized the search of everyone within the vicinity of the residence as that would violate the Fourth Amendment's proscription against general warrants. Although the initial detention and Terry frisk of the defendant, under the totality of the circumstances, was reasonable, the subsequent search and seizure of the contraband did not meet the plain feel exception to the warrant requirement. Nor was this search justified as one incident to arrest, as the defendant's actions did not constitute the offense of resisting an officer.

Plaintiffs' allegations that defendants acting on an anonymous tip that the children were abused and the house uninhabitable coerced consent stated a claim for relief, and the motion to dismiss was denied. Loudermilk v. Arpaio, 2007 U.S. Dist. LEXIS 76819 (D. Ariz. September 27, 2007):

Plaintiffs have asserted in their First Claim that their Fourth Amendment rights were violated when Defendants Cash and Cramer searched their home. The Fourth Amendment generally prohibits the warrantless entry of a person's home except in a few well-defined circumstances, such as based on voluntary consent or exigent circumstances. Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). Plaintiffs assert in support of their Second Claim that their Fourteenth Amendment rights were violated when Defendants Cash and Cramer repeatedly threatened to remove the children without cause. "The Fourteenth Amendment guarantees that parents will not be separated from their children without due process of law except in emergencies." Mabe v. San Bernadino County, Dept. of Public Schools, 237 F.3d 1101, 1107 (9th Cir. 2001)(citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)).

"Officials may remove a child from the custody of its parents without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury." Wallis v. Spencer, 202 F.3d 1126, 1136-37 (9th Cir. 2000); Calabretta, 189 F.3d at 813-14. Courts generally have found that entry of social workers or police officers into a home to inspect or remove a child requires a warrant. Calabretta, 189 F.3d at 813; Roska v. Peterson, 328 F.3d 1230, 1240 (10th Cir. 2003).

With respect to Plaintiffs' claim based on violation of the Fourteenth Amendment, parents and children have a constitutional right to live together without governmental interference and will not be separated without due process of law except in emergencies. Doe v. Lebbos, 348 F.3d 820, 827 (9th Cir. 2003) (citing Mabe, 237 F.3d at 1107). Courts have analyzed threats to remove a child from a family under the fundamental right to familial relations, which includes the liberty interests of parents in the care, custody and management of their children. Doe v. Heck, 327 F.3d 492, 524 (7th Cir. 2003); King v. Olmsted County, 117 F.3d 1065, 1066-68 (8th Cir 1997). The liberty interest in maintaining the family unit is guaranteed by the Fourteenth Amendment. See Heck, 327 F.3d at 523.

. . .

Based on the Amended Complaint's allegations, Defendants Cash and Cramer persisted in seeking entry into Plaintiffs' home in order to search the premises, despite Plaintiffs' continued refusal and consultation with their attorney. Moreover, as further alleged, Defendants persisted in their threats to remove the children if the Plaintiff Parents did not consent to the search, stating that they could arrest or handcuff the Parents in front of the children. Based on the allegations set forth in the Amended Complaint, viewed in Plaintiffs' favor, no reasonable official would have believed that his or her conduct was authorized by state or constitutional law.

While being pursued, defendant fled from Missouri into Illinois, and the stop might have violated Illinois law, but it did not violate the Fourth Amendment. United States v. Mitchell, 2007 U.S. Dist. LEXIS 76461 (E.D. Mo. October 12, 2007):

There does appear to be a split in the circuits regarding whether an officer's lack of authority under state law to conduct an arrest, which is otherwise constitutionally valid, constitutes an unreasonable seizure under the Fourth Amendment. Santoni v. Potter, 369 F.3d 594, 598-99 (1st Cir. 2004) (recognizing split and declining to reach issue); United States v. Atwell, 470 F. Supp. 2d 554, 573 (D. Md. 2007) (recognizing split). The view expressed by Bell and Abbott, however, continues to be the law of this Circuit. See, e.g., United States v. Stonerook, 134 Fed. Appx. 982, 984 (8th Cir. 2005) (following Bell); .... Moreover, the law expressed by this Circuit appears to express the emerging majority. Atwell, 470 F. Supp. 2d at 573 (collecting cases). Thus, to determine whether Defendant's Fourth Amendment rights were violated, the court looks to the totality of the circumstances surrounding the incident. United States v. Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir. 2007).

On these facts, it is clear that the officers' actions were proper under the Fourth Amendment. When a police officer observes a traffic violation -- however minor -- he has probable cause to stop the vehicle. Whren v. United States, 517 U.S. 806, 818, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996); United States v. Martin, 411 F.3d 998, 1000 (8th Cir. 2005). "This is true even if a valid traffic stop is a pretext for other investigation." United States v. Linkous, 285 F.3d 716, 719 (8th Cir. 2002). Here, the evidence is undisputed that Officer Joyner personally observed a traffic offense committed by the Defendant. As such, the officers had probable cause to stop the car.

Once an officer has a right to stop a driver, the officer may "conduct an investigation 'reasonably related in scope to the circumstances that justified the interference in the first place.'" United States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (quoting United States v. Cummins, 920 F.2d 498, 502 (8th Cir. 1990)). "This reasonable investigation includes asking for the driver's license and registration, requesting that the driver sit in the patrol car, and asking the driver about his destination and purpose." Id.; United States v. Jones, 269 F.3d 919, 924-5 (8th Cir. 2001). When "'the responses of the detainee and the circumstances give rise to suspicions unrelated to the traffic offense, an officer may broaden his inquiry and satisfy those suspicions.'" United States v. Johnson, 58 F.3d 356, 357 (8th Cir. 1995) (quoting United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993)); accord, United States v. Pereira-Munoz, 59 F.3d 788, 791 (8th Cir. 1995) (officers are permitted to graduate responses to the demands of the particular situation).

Recovery of shotgun from defendant's property was by a relative of his without any encouragement or assistance from the police. United States v. Gatling, 2007 U.S. Dist. LEXIS 76564 (E.D. N.C. October 15, 2007).*

Defendant was the target of a knock-and-talk because of his subscription to child porn websites. The officers spent over an hour with him, and he consented [by all appearances because he knew the computers would be taken anyway, so it was looked at as a realization that the government was going to get them anyway], and the consent was valid. United States v. Delano, 2007 U.S. Dist. LEXIS 76626 (W.D. Ky. October 15, 2007).*

The affidavit for the search warrant of defendant's house, as opposed to his office, was stale and it was speculative even as to extending good faith to it. United States v. Paymon, 523 F. Supp. 2d 584 (E.D. Mich. 2007):

The government points to a line of cases that rely on the abstraction that if someone is involved in drug trafficking, there is probable cause to search his residence because drug dealers tend to keep contraband or evidence of crimes in their residence. In Newton, the Sixth Circuit Court of Appeals found that the searches of the defendant's four listed addresses were supported by probable cause despite the lack of a nexus because detailed evidence of Newton's drug operations was provided to the state judge. 389 F.3d at 636. In Miggins, the finding of probable cause to search defendant's actual residence was upheld by the Sixth Circuit even though defendant signed for a controlled shipment of drugs at a separate residence. 302 F.3d at 393. In Jones, the search warrant used to search defendant's residence was upheld despite the fact that the control buys only took place in the driveway as opposed to inside the house. 159 F.3d at 975. In Caicedo, after being arrested for possessing blocks of cocaine, a search warrant was properly issued to search defendant's residence despite the fact that there was no evidence linking the residence to drug trafficking. 85 F.3d at 1192-93.

Although it may be argued that the supporting affidavit included detailed evidence involving Paymon's alleged drug trafficking, there is a key difference between this case and the line of cases cited by the government. In each of the cases, there was direct evidence prior to the search warrants issuing that the suspect was trafficking in drugs that directly led to the defendant's arrest. In Newton, the defendant was arrested for driving to a rural residence and loading thirty-three bundles of marijuana into his car, afterwards the search took place. In Miggins, the defendant accepted a controlled package of cocaine delivered from a police officer posing as a Federal Express driver. In Jones, the defendant sold drugs to a confidential informant at least six times in the driveway of the residence. In Caicedo, the defendant was arrested after a legal search of his backpack turned up bricks of cocaine.

. . .

Unlike these cases, Paymon was not arrested for drug possession nor was their sufficient evidence to arrest Paymon on drug charges prior to the searches. Moreover, the only evidence contained within the affidavit placing Paymon in the presence of drugs was stale. Had the Government established through fresh evidence that Paymon had direct contact with drug trafficking, the lack of a nexus between his Riverfront Towers and the probability of finding contraband would not be at issue. Here the supporting affidavit was defective because the lack of a nexus was not alleviated by fresh information that Defendant was a drug trafficker. Under the totality of the circumstances test, this Court finds that the affidavit failed to provide a sufficient basis to find probable cause for a warrant to search Paymon's Riverfront Towers residence.

. . .

Similar to Laughton the application simply listed the address of Paymon's premises to be searched, a summary of the Special Agent's professional experience, and the speculation that Paymon used the dock, not even his home, to launch his boat to illegally enter Canada. There is no modicum of evidence to connect the alleged criminal activity described in the affidavit to Paymon's Riverfront Towers other than mere speculation that Paymon may have used the dock at the apartment complex to make his illegal entries into Canada. The affidavit, although detailed in terms of criminality and connections to the Southfield home, lacked the required nexus between criminality and the Riverfront address to such a degree to make a well trained officer would not be able to objectively and reasonably believe that the warrant was sufficient. Thus, Leon's good faith exception does not apply.

There were two searches incident to an arrest, the first being contemporaneous with the arrest and second occurring after plaintiff was taken away. The second was invalid, and the officer had no qualified immunity. Brown v. Fisher, 251 Fed. Appx. 527 (10th Cir. 2007) (unpublished):

Here, the district court cited Belton and Thornton, but not Lugo. Of more concern, the district court did not distinguish between Fisher's search of Brown's vehicle and Weber's search of Brown's vehicle. The court stated: "Fisher had probable cause to arrest plaintiff, who was a recent occupant of the vehicle. It was therefore reasonable for the officers to search the passenger compartment." (R. Vol. I, Doc. 40 at 11.) The court's conclusion in this regard glosses over the fact that the two searches were not contemporaneous. Fisher searched Brown's vehicle immediately after placing Brown in his patrol car, in order to retrieve Brown's billfold. Weber, on the other hand, did not search Brown's vehicle until after Fisher and Brown had left the scene. Thus, viewing the disputed facts in the light most favorable to Brown, Fisher's search was incident to a lawful arrest, under Brothers, while Weber's was not, under Lugo.

Record supports that consent was voluntary despite drawn weapons at first. United States v. Arreola, 250 Fed. Appx. 765 (8th Cir. 2007) (unpublished):

Eduardo argues that his consent was nonetheless coerced because numerous law enforcement officers were present when he consented, and because they all drew their weapons when they entered the apartment. We disagree. The mere presence of multiple officers and weapons does not compel a finding that consent is involuntary. ... The officers here never used their weapons to coerce Eduardo to give consent. They drew their weapons only when they first entered the apartment, and holstered them once the scene was secure. Eduardo has not identified any behavior by the officers designed to intimidate him or to force him to cooperate, and he signed a written form that granted them permission to search. The district court did not clearly err in finding that Eduardo's consent was voluntary.

Google Earth sent me an e-mail because I posted a piece once before about their GPS Track Stick, with a new low price: $269. It is advertised as follows:

The Super Trackstick is the perfect tool for individuals, law enforcement and government agencies looking for a way to track anything that moves. The Super Trackstick records its own location, time, date, speed, heading, altitude and temperature at preset intervals. With over 4Mb of memory, it can store months of travel information.

The included magnetic mount makes the Super Trackstick easy to attach and remove from any metal surface.

. . .

How it works The Super Trackstick receives signals from twenty four satellites orbiting the earth. With this information, the Trackstick Pro can precisely calculate its own position anywhere on the planet to within fifteen meters.

Where it works The Super Trackstick will work anywhere on the planet Earth. Your exact location and the route traveled can be viewed and played back directly within Google Earth™. Everything is included and there are no monthly fees.

Applications / Features
• Seamless integration into Google Earth™
• Professional GPS location Recorder
• Vehicle location and route histories
• Package / container shipment history
• Employee and vehicle monitoring
• Mileage recording and verification
• Homeland Security
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• Military Operations
• Private Investigation
• Public Safety
• Law Enforcement
• Child / Family Safety

It records information, rather than transmitting it to the subscriber through the Internet.

Knock-and-announce and request for consent inside the home is not inherently coercive, and there is no heightened scrutiny of such requests for consent. "In sum, the police were not required to request permission to speak to Rivera or specifically inform him that he had a right to refuse to speak to them." People v. Rivera, 156 Cal. App. 4th 60, 67 Cal. Rptr. 3d 19 (4th Dist. 2007), publication status of this document has been changed by the court from unpublished to published October 16, 2007, on remand from People v. Rivera, 41 Cal.4th 304, 59 Cal. Rptr. 3d 473, 159 P.3d 60 (2007).*

Traffic stop of another person led to reason to conduct a knock-and-talk at defendant's residence. When the officers knocked, a female inside ran to another room. This concerned the officers about their own safety, and they followed her, finding a gun and drugs in the room she was hiding in. The entry and finding of the drugs and gun was valid. Hamilton v. Commonwealth, 2007 Ky. App. LEXIS 362 (September 28, 2007).

Officers had probable cause for defendant's stop and felony take down. State v. Williams, 2007 Ohio 5489, 2007 Ohio App. LEXIS 4817 (3d Dist. October 15, 2007).*

Valid traffic stop + smell of marijuana = probable cause. United States v. Hodges, 2007 U.S. Dist. LEXIS 76245 (M.D. Ga. October 15, 2007).*

Search warrant for drugs validly led to seizure of $2,336 off the defendant during the search as a search incident. United States v. Bethea, 2007 U.S. Dist. LEXIS 76109 (D. Vt. October 12, 2007).*

Police rousted the plaintiffs from their house in nightclothes because the police were looking for a murder suspect that was not there. The city filed a motion to dismiss for insufficient allegations against them under § 1983, which was granted with leave to amend the complaint. McCall v. City of Portsmouth, 2007 U.S. Dist. LEXIS 76356 (E.D. Va. October 12, 2007).*

Plaintiff's complaint that he was strip searched by the defendant officer on the side of a highway was precluded under Heck. As a factual matter, the court finds the allegation completely implausible because it was contradicted by plaintiff's prior testimony in another related matter than he ran away from the police officer to avoid being searched. Douglas v. Bonafede, 2007 U.S. Dist. LEXIS 72248 (W.D. N.Y. September 27, 2007).*

Defendant's guilty plea belied his claim that counsel was ineffective for not pursuing a search issue that essentially was frivolous because the underlying state warrant was valid. Moreover, his guilty plea precluded his attempted appeal of the search issue. Hutchinson v. United States, 2007 U.S. Dist. LEXIS 72314 (E.D. Mo. September 26, 2007).*

ONE case today, a Tuesday. Go figure:

Defendant's terms of his suspended sentence, which he conveniently omits to argue in his brief, was sufficient basis for the search of his property. Officers came to the property "to serve some kind of a probate order" and found a meth lab. While they were there, the appellant showed up, and he was handcuffed, claimed control of the property, and consented. Appellant's bad faith search argument was rejected on the facts, and the record supports the trial court's conclusion. Morris v. State, 2007 Ark. App. LEXIS 680 (October 10, 2007)* (unpublished).

Search incident was based on defendant's arrest for public intox that led to his shouting obscenities, which reinforced the officer's conclusion. After he was handcuffed and placed in the back of the police car, his backpack was validly searched. He had requested that the backpack be brought with him. State v. Allen, 2007 Iowa App. LEXIS 1096 (October 12, 2007).*

Defense counsel was not ineffective for not making a motion to suppress. "Viewing a stopped car in the country at two o'clock in the morning gave the officer reasonable cause to believe a driver may need assistance. Seeing a group of persons using Moyer's property also supports a reasonable suspicion of trespass. The officer had reasonable cause to make an investigatory stop." Moyer v. State, 2007 Iowa App. LEXIS 1059 (October 12, 2007).*

Officer had reasonable suspicion to stop defendant based on a report of a burglary and a susicious vehicle at 2:20 a.m., and defendant was seen parked at a closed business in the vicinity. State v. Brock, 2007 Iowa App. LEXIS 1104 (October 12, 2007).*

Stop in a high crime area plus furtive movement in the car on the stop justified a search of the console. Commonwealth v. Murray, 2007 PA Super 307, 936 A.2d 76 (2007):

We find that Officer Keith articulated sufficient facts to lead him to properly conclude that Murray could have been armed and dangerous, thus justifying a limited search for weapons in the passenger compartment of the vehicle. Specifically, the knowledge of the neighborhood being a well-known narcotics area, when coupled with the excessive movement inside the vehicle and hour of night, raised serious and obvious safety concerns that justified a search for weapons.

A general conset to search a motel room permits a search of everything that could contain the object of the search; in this case, drugs. United States v. Contreras-Ramos, 2007 U.S. Dist. LEXIS 75870 (D. Ore. October 10, 2007).*

Plaintiffs failed to state a due process or Fourth Amendment claim for housing code entry on to their property to remove weeds and debris. They were given notice of the proposed action and did nothing to head it off. The defendants also had qualified immunity. Nixon v. Montgomery County, 251 Fed. Appx. 141 (4th Cir. 2007)* (unpublished).

Officer's affidavit for search warrant also referred to a 2000 search that was suppressed for lack of probable cause, and that was excised from the affidavit by the district court. The officer's current personal observations were credited by the trial court, and the appellate court could not go behind those findings on the record. United States v. Popham, 250 Fed. Appx. 170, 2007 FED App. 0725N (6th Cir. 2007)* (unpublished).

Prison officials accidentally opening legal mail outside of the inmate's presence was only an isolated instance, and it was not a pattern of conduct. Therefore, the prison officials are not liable under § 1983. Stockdale v. Dwyer, 2007 U.S. Dist. LEXIS 75819 (E.D. Mo. October 11, 2007).*

Officer observing improper lane change had probable cause for stop that led to observation that defendant was under the influence. People v. James, 2007 NY Slip Op 27384, 2007 N.Y. Misc. LEXIS 6781 (Queens Co. July 30, 2007).*

A Terry stop for a parking infraction is not justified under the Washington Constitution. State v. Day, 161 Wn.2d 889, 168 P.3d 1265 (2007):

¶10 A Terry investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on “specific, objective facts” that the person detained is engaged in criminal activity or a traffic violation. Duncan, 146 Wn.2d at 172-74 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry investigative stop exception was first adopted under the Fourth Amendment to the United States Constitution, which forbids “unreasonable” searches and seizures, implicitly recognizing the State's police power to conduct “reasonable” ones. Terry, 392 U.S. at 20; Johnson, supra, at 598. It was later (largely) accepted as an exception under article I, section 7 of the Washington Constitution. State v. Hobart, 94 Wn.2d 437, 441, 617 P.2d 429 (1980); State v. Lesnick, 84 Wn.2d 940, 942-43, 530 P.2d 243 (1975).

¶11 Article I, section 7, does not use the words “reasonable” or “unreasonable.” Instead, it requires “authority of law” before the State may pry into the private affairs of individuals. Const. art. I, § 7. Washington's adoption of the Terry investigative stop exception is grounded upon the expectation of privacy. Our constitution protects legitimate expectations of privacy, “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” Myrick, 102 Wn.2d at 511. Whether the Fourth Amendment or article I, section 7 of the Washington Constitution is in issue, a detaining officer must have “a reasonable, articulable suspicion, based on specific objective facts, that the person seized has committed or is about to commit a crime.” Duncan, 146 Wn.2d at 172 (citing Terry, 392 U.S. at 21). Under the Fourth Amendment, whether the officer had grounds for a Terry stop and search is tested against an objective standard. Johnson, supra, at 598. See also Whren v. United States, 517 U.S. 806, 813-16, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (pretextual traffic stops do not violate the Fourth Amendment). By contrast, under article I, section 7, we consider the totality of the circumstances, including the officer's subjective belief. See State v. Ladson, 138 Wn.2d 343, 358-59, 979 P.2d 833 (1999); Kennedy, 107 Wn.2d at 6. Our constitution does not tolerate pretextual stops. Ladson, 138 Wn.2d at 352.

¶12 Terry has also been extended to traffic infractions, “due to the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of transportation.” State v. Johnson, 128 Wn.2d 431, 454, 909 P.2d 293 (1996) (footnote omitted)(citing United States v. Ross, 456 U.S. 798, 806-07, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). However, we see no reason to extend it even further to parking infractions. The reasons underlying extending Terry to traffic violations simply lose force in the parking context.

Defendant sent a letter from jail seeking perjury at trial from one of his friends. The letter was returned as undeliverable, and it was opened on return to the jail and read. There is no Fourth Amendment right to not have nonprivileged letters to the jail go unopened or unread. Commonwealth v. Thompson, 2007 PA Super 304, 934 A.2d 1281 (2007), quoting Commonwealth v. Moore, 2007 PA Super 207, 928 A.2d 1092, 1102 (Pa. Super. 2007):

Although prison walls do not separate inmates from their constitutional rights, because of the unique nature and requirements of the prison setting, imprisonment carries with it the circumscription or loss of many significant rights … to accommodate a myriad of institutional needs … chief among which is internal security. Prisoners have used the mail to transport contraband into and out of prison, to discuss and participate in ongoing criminal activity, and to coordinate escape plans. An unrestricted privacy interest in non-privileged mail would assist criminal objectives by facilitating the transmission of information. On the other hand, prisoners must appreciate the inherent loss of privacy in a prison, where security and surveillance obviate any legitimate expectation of privacy.

The Court went on to hold that a prisoner has no constitutional right to privacy in his non-privileged mail.

Defendant's second statement to the police after his first appearance in court where he identified a witness that the police had not heard of before was sufficiently attenuated from the primary illegality under Wong Sun and Ceccolini. State v. Kirkman, 2007 Tenn. Crim. App. LEXIS 797 (October 10, 2007):

Application of the "independent means" or "degree of attenuation" test established by the Supreme Court in Wong Sun and further illuminated in Ceccolini leads us to conclude that the items recovered from the convenience store dumpster--which were not mentioned in the defendant's initial statement to police--were sufficiently purged of the taint of the defendant's illegal arrest and were therefore admissible. Fiveash was discovered through the defendant's initial, illegally obtained statement, and nothing appears in the record to suggest that the police would have discovered Fiveash absent the defendant's statement. However, the police contacted Fiveash several hours after the defendant's arrest and initial statement to police. Furthermore, Fiveash could have refused to talk to police, but she instead chose to cooperate. No evidence exists to suggest that Fiveash's statements to police were coerced or otherwise involuntary. Additionally, after police discovered the location of the dumpster, the police requested, and were granted, permission to search the dumpster. The police ultimately recovered the dumpster items based upon the independent decisions of Fiveash to talk to police and of the convenience store worker to permit police to search the store's dumpster. These independent decisions serve as sufficient attenuation to purge the evidence recovered from the dumpster of the taint of the defendant's illegally obtained statement. Thus, this evidence was properly admitted into evidence.

Plaintiff was awarded $900,000 and $545,973.50 in attorney fees and costs of $7,105.37 in a suit over a search warrant alleged to have been issued without probable cause. The appellate court found that the warrant was not facially invalid, and the officer was entitled to qualified immunity in any event, and the judgment for the plaintiff was reversed. Wood v. Emmerson, 155 Cal. App. 4th 1506, 66 Cal. Rptr. 3d 847 (4th Dist. 2007).*

The trial court ruled that the defendant was patted down without reasonable suspicion that he was armed. Even reasonable suspicion was iffy, because the defendant was cooperative and compliant and gave no reason to believe he was a danger to the officers. Affirmed. State v. Prevo, 2007 Ohio 5452, 2007 Ohio App. LEXIS 4789 (8th Dist. October 11, 2007).*

Defendant's arrest under a Cleveland ordinance was unjustified under the ordinance, so the product of that arrest was properly suppressed. State v. Baker, 2007 Ohio 5450, 2007 Ohio App. LEXIS 4784 (8th Dist. October 11, 2007).*

Defendant was stopped next to a fire hydrant and an officer approached his car with a flashlight in hand, which revealed a handgun between the seats. Search for the handgun was valid. United States v. Fuller, 2007 U.S. Dist. LEXIS 75403 (E.D. N.Y. October 10, 2007).*

Record supports the USMJ's finding of reasonable suspicion. "The only new argument is found in defendant's objection that the magistrate judge erred in finding that his circuitous, elusive and nebulous actions while driving his vehicle late at night on deserted city streets gave rise to reasonable suspicion of criminal activity." United States v. Howard, 2007 U.S. Dist. LEXIS 75683 (E.D. Tex. October 10, 2007)* (classic Terry).

Attorneys representing the plaintiff in a § 1983 case which started with eight defendants and ended with a $1 compensatory and $250,000 punitive (reduced to $5,000) award against one defendant with abandoned claims against others filed what the court described as an "unconscionable" fee request that was denied, after some soul searching, in its entirety. Mendez v. County of San Bernardino, 2007 U.S. Dist. LEXIS 75495 (C.D. Cal. May 21, 2007):

Thus, what began with five plaintiffs alleging over eighteen claims against eight defendants ended with one plaintiff prevailing against one defendant on two claims with an award of only nominal damages.

Notwithstanding the relative lack of complexity of the litigation and the less than stellar result, Plaintiff, on May 10, 2005, filed a motion for attorneys' fees and costs as the prevailing party. In the motion, Plaintiff's counsel indicated they had run up a staggering total of $1,213,542.75 in fees and costs in a relatively uncomplicated case. The Plaintiff reduced that amount to the claimed amount of about $790,000, after reducing the fees relating to litigating the unsuccessful Monell claims and a further reduction to make the fees more reasonable.

. . .

First, the fee request is staggering in light of the issues prevailed upon at trial and the actual amount of damages recovered by Plaintiff. The Court granted the defense motion for summary judgment as to both the Monell claims and the negligent training claims. Plaintiffs then voluntarily dismissed all excessive force claims, the illegal entry claims, and the claims against Deputy Lawyer. Thus, this case, which began with five plaintiffs asserting over eighteen claims, was whittled down to two plaintiffs, stating claims for false arrest and illegal search.

The trial of this case was not lengthy or extensive[;] measured in a few days, not weeks or months. It did not invoke complex issues of law or, indeed, of fact. In short, counsel took a routine case, involving claims of false arrest and illegal search, and billed over 2,500 hours.

This case was not complex, nor did it present any novel constitutional issues. The incident which formed the basis for the claims that went to trial happened over several hours during the night of one day and the early morning of the next. The legal claims were straight-forward and were made even less complicated by the fact that, as will be discussed, plaintiffs' counsel had litigated at least two prior cases with almost identical facts.

Indeed, here the facts were largely undisputed. Moreover, the shooting and events leading up to it were not even at issue. Thus, the only relevant facts were those occurring after the shooting when Plaintiff was detained briefly in the police unit and questioned at the station. There was similarly no dispute about the actual search of Plaintiff's residence. Plaintiff was not present during the search, and the only result was the disturbance of clothing in the closets. No evidence was found or seized. As to the propriety of the search, Deputy Reyes admitted he failed to give the admonition that Plaintiff could decline to consent.

. . .

Further, as mentioned above, this case was made even simpler to prepare and try due to the fact that Plaintiffs' counsel had litigated at least two prior cases involving almost identical circumstances. See e.g. Sepulveda v. Hawn, 2002 U.S. Dist. LEXIS 11373 (E.D. Cal. 2002); Gallardo v. Reinnecius, 1998 U.S. Dist. LEXIS 18495 (E.D. Cal. 1998). In fact, a substantial portion of Plaintiff's motion for partial summary judgment in this case appears to have been cut and pasted directly from a motion in the Sepulveda case. Defendants' Opposition to Plaintiffs' Motion for Attorneys' Fees and Cost, 11: 18-28; compare Defs' Exh. E. at pp. 4-5 and 7 with Defs' Exh. F. at pp. 10,11 and 13. Nevertheless, counsel billed a total of 92.25 hours to prepare a summary judgment motion which was essentially a reproduction of the Sepulveda motion with cosmetic modifications.

However, this is not the only billing request that illustrates the outrageousness of the instant petition. To the contrary, the motion is replete with excessive billing entries, often involving multiple attorneys, and relating to matters that were not overly complicated. For instance, from August 7, 2003, to August 11, 2003, counsel billed 19.75 hours to "Review motion to dismiss and prepare opposition." While this entry does not appear excessive at first glance, the Court also discovered that an associate had billed 22.5 hours for the same task. In total, counsel billed 42.25 hours to prepare a response to an uncomplicated motion to dismiss that addressed only two issues. Counsel subsequently billed another 19 hours to prepare for the hearing on this motion to dismiss. In contrast, Defendants' counsel spent a mere minutes in preparation for the hearing. Counsel also includes time billed on claims either abandoned prior to trial or dismissed by the Court. For example, from June 9, 2004, to July 26, 2004, Geoffrey Graber, an associate, billed a total of 57 hours for the "Preparation of Joint Stipulation regarding plaintiffs' motion to compel information regarding prior discipline against deputies." The time spent on this task was clearly excessive. More important, the motion to compel was aimed at seeking information to support the Monell claim. As that claim was disposed of on summary judgment, counsel should not have billed for any of that time.

Moreover, in light of the sheer number of hours billed, the Court was presented with the daunting task of sifting through these thousands of hours to assess the propriety of the fees sought. However, a large number of the entries were improperly "block-billed," thereby frustrating the Court's efforts to determine whether the fees were, in fact, reasonable. Indeed, counsel's pervasive use of block-billing made it virtually impossible to determine whether the fees related to claims dismissed by the Court or abandoned by Plaintiffs. Of course, the "fee applicant bears the burden of establishing entitlement to an award…and should maintain time records in a manner that will enable a reviewing court to identify distinct claims." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). . . .

Plaintiff claims $1,857.30 for "Travel expenses for attorney West, including car rental, meals, lodging, laundry, DSL, copies," and $71.88 for "Office Supplies from Office Depot." This amount, which is unrecoverable in any event, was apparently incurred by Mr. West in a mere three day stay in a Fresno hotel. The summary of costs, together with the attorney's fee request, clearly demonstrate the unreasonableness of the counsels' billing practices.

The Court, having been presented with an outrageous and excessive request, finds it appropriate to deny the motion for fees and costs in its entirety. Congress, when it enacted the Civil Rights Attorneys' Fees Act, certainly did not intend the section as a vehicle for the recovery of such excessive attorneys' fees and costs from the public treasury. The section 10 clearly contemplates only the award of reasonable fees to the prevailing party. 42 U.S.C. § 1988 (emphasis added).

Plaintiff cannot compel this Court to merely cut the offensive request to a reasonable amount. First, this is impossible in light of the improper billing records submitted as discussed, supra. More important, courts have acknowledged that Congress did not intend to condone the practice of submitting outrageously inflated fee requests in the hope that the district court would then pare down the award to reach a reasonable amount. Brown, 612 F.2d at 1059; see also Scham, 148 F.3d at 559. The Seventh Circuit's reasoning is persuasive on this point:

If, as appellant argues, the Court were required to award a reasonable fee when an outrageously unreasonable one has been asked for, claimants would be encouraged to make unreasonable demands, knowing that the only unfavorable consequence of such misconduct would be reduction of their fee to what they should have asked for in the first place. To discourage such greed a severer reaction is needful[.]

Brown, 612 F.2d at 1059.

Rather, Congress intended to allow the reasonable recovery of attorney's fees in order to encourage the representation of individuals in civil rights cases, who otherwise might be unable to afford counsel. Fair Housing Council, 999 F.2d at 97. Thus, the section was enacted to enable those injured by police misconduct to pursue appropriate relief. This Court recognizes the laudable and important goat of section 1988 and will not allow it to be perverted by outrageous and totally unsupportable fee requests such as that at issue here. Accordingly, the Court finds that under the circumstances of this case, a more severe reaction than mere reduction of the fee is warranted.

As indicated, this Court acknowledges the importance of pro bono representation and, in general, commends Plaintiffs' firm for its demonstrated commitment to providing free legal service. However, pro bono work is defined as the involvement in "uncompensated legal services especially for the public good" Black's Law Dictionary 1220-21 (7th ed. 1999) (emphasis added). Generally speaking, attorneys taking on pro bono cases do so with little or no expectation of reimbursement. While section 1988 permits the recovery of attorney's fees for a plaintiff who prevails in a civil rights action, this Court does not view the section as contemplating the use of pro bono civil rights cases as a mechanism for generating fees, attorney hours, or as a firm "profit center," and this Court views that as a fair characterization of what was done in this case. As detailed above, the firm took a relatively simply case involving a claimed false arrest and illegal search and billed over 2,500 hours. Counsel then submitted an incredibly excessive petition for fees and costs seeking nearly $800,000, which, to make matters worse, it expects to be paid by the taxpayers of this state. Moreover, the actual fees and costs purportedly exceeded $1.2 million.

Prior opinion: Mendez v. County of San Bernardino, 2005 U.S. Dist. LEXIS 45700 (C.D. Cal. April 4, 2005).

Comment: When I charged less per hour, I used to evaluate fee requests for losing defendants in § 1983 and prepare an affidavit of what was reasonable under the circumstances. In the ones given me, I would always find padding: e.g., (1) "10 hours, research on state action" where it was a city law enforcement officer as the defendant, where state action is a given; (2) "42 hours preparing response to X's brief" where the resulting product was 6 pages long, citing five cases. With everything online now, a lawyer cannot take the same brief and reproduce it in another case and bill for it just like the first time. It is unethical, immoral, and unconscionable. Which is why hourly rates promote unethical billing practices.

Plaintiff stated a claim that his stopping and ticketing was based on political motives and lacked probable cause. Gullick v. Ott, 517 F. Supp. 2d 1063 (W.D. Wis. 2007). This is a fascinating opinion, and this is just a tiny part of it:

As a general proposition, the court of appeals has rejected defendant's argument. Generally, it makes no difference whether the defendant could have taken an adverse action against the plaintiff for a legitimate reason. If the actual reason was the plaintiff's exercise of a constitutional right, the defendant may be held liable for retaliation under § 1983. Vukadinovich v. Board of School Trustees of North Newton School Corp., 278 F.3d 693, 699 (7th Cir. 2002). See also Crawford-El v. Britton, 523 U.S. 574, 577, 594 (1998) (in First Amendment retaliation case, rejecting "proposal to immunize all officials whose conduct is 'objectively valid,' regardless of improper intent"); Balderston v. Fairbanks Morse Engine Division of Coltec Industries, 328 F.3d 309, 323 (7th Cir. 2003) (in discrimination case, refusing to consider alleged deficiencies of plaintiff when there was no evidence that those deficiencies actually influenced decision maker in terminating plaintiff).

As will be discussed further below, in almost every case involving retaliation, the defendant advances an objective reason for taking the adverse action against the plaintiff. Never has the court of appeals suggested that a defendant may avoid liability simply by identifying a theoretical justification for his conduct. Even in the prison context, where First Amendment rights are at their weakest, the court of appeals has made it clear that motive matters. E.g., Hasan v. United States Dept. of Labor, 400 F.3d 1001, 1006 (7th Cir. 2005). In other words, an official may not take refuge in a pretextual justification that in fact had nothing to do with his actions.

On its face, this rule makes perfect sense. If probable cause acts as an absolute bar for any retaliation claim against a police officer, this would provide immunity for even the most egregious examples of selective enforcement. And yet, more than 120 years ago, the Supreme Court held that even a statute that is valid on its face may not stand if it is enforced in a discriminatory fashion. Yick Wo v. Hopkins, 118 U.S. 356 (1886). Thus, the consequences of accepting defendant's argument are troubling because it would permit unethical officers to target their enemies or critics with a litany of citations for petty violations that would be ignored if committed by anyone else. Mark A. Edwards, Law and the Parameters of Acceptable Deviance, 97 J. Crim. L. & Criminology 49, 87 (Fall 2006) (arguing that risk of selective enforcement is greatest when conduct is "formally illegal" but within zone of "acceptable deviance," such as driving several miles an hour over speed limit). If, as the Court has observed, "the Constitution prohibits selective enforcement of the law based on considerations such as race," Whren v. United States, 517 U.S. 806, 813 (1996), it follows that the Constitution equally prohibits selective enforcement because of an exercise of a constitutional right.

Defendant could not complain that a witness told of conversations between her and the defendant over the jail telephone which led to obtaining the jail tapes. Also, the court assumed he had standing to challenge a search of his girlfriend's apartment which he was a casual visitor to, but she clearly consented. [He clearly did not have standing.] United States v. Plummer, 2007 U.S. Dist. LEXIS 75258 (W.D. Pa. October 10, 2007).*

Immigration checkpoint stop quickly turned into reasonable suspicion. The first part of the stop lasted only 60-90 seconds. United States v. Hinojosa-Echavarria, 250 Fed. Appx. 109 (5th Cir. 2007)* (unpublished).

Defendant's arrest led to a spontaneous admission and officers observing a blood trail in his apartment. Defense counsel was not ineffective for not challenging a futile motion to suppress. United States ex rel. Brown v. McCann, 2007 U.S. Dist. LEXIS 74927 (N.D. Ill. October 5, 2007).*

The ACLU of Colorado has threatened to sue a Colorado school district for its practice of searching student cellphone text messages, according to its press release issued yesterday:

According to the ACLU’s letter [to the school district], the searching and transcribing of students’ text messages violates a Colorado statute that was enacted to protect the privacy of telephone and electronic communications. That statute makes it a felony to read, copy, or record a telephone or electronic communication without the consent of the sender or receiver. The letter also explains that searches of cell phones at Monarch High School also violate state and federal constitutional provisions that forbid unreasonable searches and seizures.

The ACLU said it learned of the actions of Monarch administrators in interviews with numerous parents and students who complained about a series of cell phone searches at the end of the last school year. According to the letter, the searches began when a student accused of smoking cigarettes was sent to an administrator’s office. After a search of the student’s pockets and backpack turned up nothing, the administrator searched the student’s cell phone. He then interrogated the student about text messages the administrator characterized as “incriminating.” With names of other students obtained from the student’s text messages, administrators called in additional students, questioned them, and also searched their cell phones. With names obtained in this second wave of questioning administrators then called in a third round of students and questioned them. Transcripts of cell phone messages were placed in the disciplinary files of multiple students, the letter says.

Hat tip to Taylor Pendergrass, Staff Attorney, American Civil Liberties Union of Colorado for providing this.

How the school district can square this with T.L.O. and federal law escapes me. But, school districts often think of themselves and the law unto themselves. At least everytime I have tangled with them they've been that way. (We sued the Little Rock School District for telling students to empty their pockets and leave a room, and they would search everything, including backpacks. We won. Doe v. Little Rock School District, 380 F.3d 349 (8th Cir. 2004).)

[cross-linked to Talkleft]

Defendant's live-in girlfriend consented to a search of the premises while defendant was in the bedroom asleep. Randolph has no application, and the trial court erred in applying it trying to give the defendant veto power when he was unavailable to consent. People v. Parker, 325 Ill. Dec. 768, 898 N.E.2d 1047 (2007):

Here, we find that the warrantless search of defendant's home was reasonable and did not violate his fourth amendment rights where police had secured a voluntary consent to search the premises from the co-tenant in defendant's absence. Similar to the defendant in Rodriguez, defendant in this case was sleeping in the bedroom when Grisham, his live-in girlfriend, gave police her consent to enter and search the home that they shared. Although defendant was present nearby, he was not present at the threshold colloquy where Grisham gave her voluntary consent. Due to his absence at that point, defendant could not object when police entered his home and began their search. Following the reasoning of the Randolph court, defendant "lost out" on his opportunity to do so. We further note that the record contains no evidence that defendant ever expressly voiced an objection to the search, even after being confronted by police in the bedroom.

In addition, we reject defendant's argument that the search was unreasonable because he was deprived of his opportunity to object. In order for defendant to override Grisham's consent, it was necessary for him to be present "at the door" and expressly object to the search when police entered his home. There is no evidence in the record that the police removed him from the "entrance" to avoid his possible objection. Randolph, 547 U.S. at 121, 164 L. Ed. 2d at 227, 126 S. Ct. at 1527.

In New Mexico, Randolph came down while defendant's case was pending, and the defense put the state on notice of the case. The state, however, apparently never read the case, and it failed to preserve its argument for appellate review when the defense won his motion to suppress under Randolph. State v. Janzen, 2007 NMCA 134, 142 N.M. 638, 168 P.3d 768 (2007):

[*14] Moreover, we disagree with the State's claim that because Randolph was relatively new at the time of the hearing and because the prosecutor did not fully understand the basis of Defendants' argument, the State's failure to properly preserve the issue is somehow excused. We observe that Defendants filed their motion to suppress some three months before the suppression hearing. The motion made clear that Defendants would rely heavily on Randolph in arguing that the evidence should be suppressed. Defendants provided sufficient notice of their arguments, and the State certainly had adequate time to review Randolph and develop an argument in response. We therefore disagree with the State's assertion that we should somehow relax our preservation rules in the present case due to prosecutorial ignorance. Thus, we decline to address the State's argument that the search was valid as to Defendant Janzen.

Defendants' alleged violation of HIPAA by disclosing medically private information did not constitute a violation of § 1983 or the Fourth Amendment. Urbina v. Carson, 2007 U.S. Dist. LEXIS 74890 (E.D. Cal. September 25, 2007):

The first issue is whether Plaintiff sufficiently alleges a constitutional deprivation. Plaintiff argues that he was deprived of his Fourth and Fourteenth Amendment rights.FN1

1. Plaintiff also argues that Defendants are in violation of Federal law because their conduct violates the "privacy rule" under the HIPAA 45 C.F.R. §§ 160.103, 164.502. He states that Carson's telephone disclosures to Orner and Callanan were not authorized by HIPAA because Carson did not have Plaintiff's consent. However, Plaintiff also recognizes in his opposition that there is no private right of action for damages under HIPAA but discusses the statute to "demonstrate that Plaintiff's claims are not barred by California's litigation privilege and that Plaintiff has stated a cause of action under 42 U.S.C. § 1983." (Doc. 28, Opposition, n. 3.) Plaintiff offers no support for the proposition that a violation of HIPAA's medical privacy rule implicates a recognized constitutional right for purposes of 42 U.S.C. § 1983.

. . .

Plaintiff does not allege any facts suggesting there has been an unreasonable search or seizure by Defendants. To the contrary, Plaintiff admits that Plaintiff himself subpoenaed the Medical Screening Form and provided it to Defendants as part of Plaintiff's discovery obligations. Plaintiff cannot credibly suggest that he did not know that his medical records would be subject to scrutiny and discovery. He impliedly consented to the use of his medical records in this case. These records are highly relevant to the nature and extent of his injuries and damage claims. Plaintiff offers no law or argument that he had a legitimate expectation of privacy in the medical information that he voluntarily provided to the defense in this lawsuit; that he was legally required to provide; and that he put his medical conditions and the extent of his injuries in issue by the allegations of his complaint. Plaintiff also does not address this issue in his opposition. Plaintiff only alleges that Carson spoke to Callanan and Orner during the course of the Urbina I litigation about Plaintiff's medical screening and medical condition. This is insufficient to show a Fourth Amendment violation. Neither does Plaintiff allege that either private defendants acted under the color of state law.

Exigent circumstances here were police created, but it was a result of reasonable investigative methods and not to manipulate the situation. Therefore, exigent circumstances justified the entry. State v. Laboo, 396 N.J. Super. 109, 933 A.2d 4 (2007):

In State v. Stanton, 265 N.J. Super. 383, 388, 627 A.2d 674 (App. Div. 1993), we determined that a police-created exigency, similar to the present case, was prompted by reasonable investigative tactics. In that case, the police received a tip from an anonymous informant that the defendant was selling narcotics from his motel room where he also kept several guns. Id. at 384-85, 627 A.2d 674. Approximately twelve hours later, four police officers went to the motel and one officer knocked on the defendant's motel room door, identifying himself as a police officer. Id. at 385, 627 A.2d 674. When one of the room's occupants pulled back the drapes to the window, another officer observed a plastic bag containing cocaine in plain view. Ibid. The officers immediately entered the room without a warrant and seized the drugs, as well as two handguns, a box of ammunition, and a knife. Ibid.

Although the exigent circumstances justifying entry into the motel room were "police-created," we concluded that "they arose as a result of reasonable police investigative conduct." Id. at 386, 627 A.2d 674.

We discern nothing constitutionally offensive in the decision of the police to proceed to the scene and investigate. Indeed, the officers would have been derelict in their duty had they failed to do so. We also perceive nothing unreasonable in the officers' decision to knock on the motel room door and identify themselves. Whether or not this conduct was intended to detect criminal activity, it was not unreasonable or inconsistent with Fourth Amendment principles. We assume that the police routinely respond to complaints of criminal conduct by proceeding to the scene, announcing their presence and making reasonable inquiries. That is their job. We know of no constitutional prohibition barring such conduct.

[Ibid.]

Noting that the officers "could have taken other investigative action" such as conducting a surveillance, we recognized that "[t]he point to be stressed ... is that [the officers] were not constitutionally compelled to pursue these options, and the course they chose was not unreasonable." Ibid.

Here, we are equally convinced that, although the exigent circumstances that justified entry into the apartment may have been "police-created," they arose as a result of reasonable police investigative conduct. Hutchins, supra, 116 N.J. at 460, 561 A.2d 1142; Stanton, supra, 265 N.J. Super. at 386, 627 A.2d 674. We also disagree with the judge's analysis that the exigent circumstances lacked spontaneity or urgency.

The district court found that the stop was "over" and defendant was told he was free to go. He then asked where the next exit was, and conversation ensued that led to consent. The finding of voluntariness and consent was supported by the evidence. United States v. Munoz-Villalba, 251 Fed. Appx. 90 (3d Cir. 2007)* (unpublished).

Plaintiff's 13 hour detention before release was based on probable cause and was not unreasonable. Lee v. O'Malley, 533 F. Supp. 2d 548 (D. Md. 2007).*

OnStar service, with 5M subscribers, will be able to stop cars so equipped by slowing the engine starting with the 2009 models. OnStar from General Motors is seeking to sell its service to other manufacturers. The GPS system of OnStar already tracks 800-900 cars a month that are stolen. This is reported in today's New York Times.

A thief has no expectation of privacy in a stolen car, but, as ABC News Good Morning America played up today (because it has eyecathing video of car chases), is a single sentence in the Times article: "GM would be willing to sell the technology to other automakers in an effort to cut police chases." ABC had video of the car telling the driver it was "being stopped at the request of law enforcement." Private contractors can stop cars for the police.

Sure, the story is about stopping police chases. But, how long before the police figure out that they can stop people just because they can and then walk up to ask questions under a ruse to assist?

This is not far fetched. Just think about it.

[cross-posted to Talkleft]

Defendant's frisk was justified because the officer found a warrant for the defendant for a violent crime, and that is the classic situation contemplated by Terry. United States v. Faison, 2007 U.S. Dist. LEXIS 74573 (E.D. Pa. October 5, 2007).*

Officer had reasonable suspicion to patdown the defendant, and that led to lawful discovery of crack on the defendant. United States v. Johnson, 2007 U.S. Dist. LEXIS 74560 (E.D. Pa. October 5, 2007).*

An Eighth Amendment deliberate indifference claim does not implicate any Fourth Amendment claim. Corley v. Prator, 2007 U.S. Dist. LEXIS 74599 (W.D. La. October 4, 2007).*

Plaintiff was naked and armed with a handgun, and there was a five hour standoff with police, and plaintiff was tasered when arrested and taken for a psyche eval. The officers were clearly entitled to qualified immunity for their actions in dealing with the plaintiff. Nero v. Baltimore County, 512 F. Supp. 2d 407 (D. Md. 2007).*

Officer who obtained search warrant for medical provider records had probable cause for seizure of the records at the time the warrant was issued, and that was fatal to plaintiffs' civil claims under § 1983. Afreedi v. Devlin, 2007 U.S. Dist. LEXIS 74676 (D. Mass. August 2, 2007).*

Defendant was in the process of moving in with deceased, but he admittedly had moved out a couple of days before. He said he had filled out a rental application but had not fully moved in before the break up. He had no standing to challenge the search. He also failed to show he qualified as a guest for standing. Dunn v. State, 2007 Ark. LEXIS 528 (October 4, 2007).*

Defendant's 15 year old son consented to an entry for the police to talk to defendant in a knock and talk. Defendant was asleep in his bedroom, and his son led the police to the bedroom, saying "He's in here." The knock and talk was not invalid, and the son could consent to this limited entry to talk to defendant. Perkins v. Commonwealth, 237 S.W.3d 215 (Ky. App. 2007).*

State implied consent law was complied with, and defendant could not revoke implied consent. State v. Cochran, 2007 Tenn. Crim. App. LEXIS 785 (October 1, 2007):

We note that to allow a defendant to consult with his attorney and revoke his consent to testing hours, days, or even weeks after a breath or blood sample is collected would essentially circumvent the firmly established rule in this state that a defendant has no right to consult with counsel before he submits to the test. See State v. Frasier, 914 S.W.2d 467, 471 (Tenn. 1996). The appellant is not entitled to relief.

Dog sniff during the pendency of a traffic stop checking records was not invalid, and reasonable suspicion was developing anyway. State v. Kempa, 235 S.W.3d 54 (Mo. App. 2007).*

Posted on Bender's Immigration Bulletin--Daily Edition, an immigration judge in NYC on October 3d held in a removal proceeding that the alien was profile stopped without justification. While the Fourth Amendment exclusionary rule does not apply to removal proceedings (INS v. Lopez-Mendoza), this stop rose to the level of a due process violation. The Judge also held that a profile stop violated 8 C.F.R. § 287.8(b)(2), and that was a separate basis for suppression:

If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.

A 2005 order in the Brian Mayfield case (the final order, Mayfield v. United States, 504 F. Supp. 2d 1023 (D. Ore. 2007), posted here) appeared on Lexis overnight: In Mayfield's Bivens claim, the affidavit for his arrest rather than a subpoena was shown to be sufficiently doubtful that the motion for summary judgment was denied because of false statements under Franks. Mayfield v. Gonzales, 2005 U.S. Dist. LEXIS 45684 (D. Ore. July 28, 2005):

Defendants ultimately assert that "probable cause existed because of the fingerprint match." Id. at p. 12. Plaintiffs, however, have raised serious issues surrounding the validity of those fingerprint matches as made by the three individual defendants. Plaintiffs allege that Werder's statement that Mayfield's print was a "100% match" was at least reckless and possibly intentionally false. Regarding specific information on Mayfield, it is unclear to plaintiffs what information the individual defendants had available to them prior to and during their individual fingerprint analyses.

Moreover, plaintiffs allege that the "corrected" affidavit fails to provide sufficient probable cause that Mayfield would not honor a subpoena. The Ninth Circuit has stated that, "sufficient facts must be shown to give the judicial officer probable cause to believe that it may be impracticable to secure the presence of the witness by subpoena. Mere assertion will not do." Bacon v. United States, 449 F.2d 933, 943 (9th Cir. 1971). The court in Bacon held that "the fact that Bacon had access to large sums of money is at best remotely relevant to her possible recalcitrance. There was no showing of past attempts by Bacon to evade judicial process, nor of past clandestine travels by Bacon." Id. at 945.

Plaintiffs assert that Werder's "corrected affidavit" provides no basis for a court to conclude that Mayfield, an attorney with roots in the community, would not obey a subpoena. Again, plaintiffs' allegations of intentional or reckless misstatements greatly concern this court. Therefore, the court will allow discovery on the issue of what information was known to the defendants regarding Mayfield's flight risk and the likelihood that he would not obey a subpoena; specifically, of any past attempts to evade judicial process, or past clandestine travels.

Mayfield even got discovery in the face of a national security argument by the government:

As set forth above, plaintiffs move for an injunction requiring the government to retrieve and destroy all materials pertaining to plaintiffs that they allege were illegally collected, disseminated, and retained by the government pursuant to FISA. Plaintiffs also move for a declaratory judgment that FISA, as amended by the Patriot Act, is unconstitutional. Defendants first respond to plaintiffs' request for injunctive relief, arguing that plaintiffs' 12th claim is moot due to defendants' willingness to turn over the material requested by plaintiffs. Next, pursuant to Fed. R. Civ. P. 12(b)(6), defendants move to dismiss plaintiffs' claim of unconstitutionality of the Patriot Act for failure to state a claim for which relief can be granted. At this stage in the proceedings, the court will address only plaintiffs' request for injunctive relief.

In that regard, defendants assert that "upon the conclusion of the relevant proceedings, the government is willing to destroy the materials seized or reproduced during the execution of searches authorized by the FISC and communications intercepts obtained during the execution of surveillance authorized by the FISC." Defendants' Reply in Support of Motion to Dismiss, p. 14. Defendants are further willing, "during the pendency of the relevant proceedings, to retrieve these materials and secure them in the vault at the FBI, in the same manner that the materials gathered pursuant to criminal search warrants are being maintained pursuant to Judge Jones' order and consistent with the classified nature of the materials." Id. Therefore, with the "resolution of [plaintiffs'] request for injunctive relief," defendants argue that Count 12 must be dismissed.

First, because no injunctive relief has been provided to plaintiffs at this point in time, I disagree that plaintiffs' Claim Twelve is currently in a posture to be dismissed on that basis. Further, despite defendants' representation to the contrary, I find that defendants' willingness to gather back, all of the disseminated materials and hold them in a secure place until this ligation has concluded while allowing access to the materials to defend this lawsuit and to respond to any "pending internal investigations," is not the injunctive relief plaintiffs have requested.

I am persuaded by plaintiffs' argument that "consideration of the facial constitutionality of FISA, as amended by