The District of Montana has held that a judge's oversight in not signing a search warrant in a child porn case, although the judge signed the application for the warrant made before the judge, voided the warrant. Also, the good faith exception could not save the search for an unsigned search warrant. United States v. Evans, 469 F. Supp. 2d 893 (D. Mont. 2007):

Judge Erickson may very well have intended to sign the search warrant at issue in this case. Nevertheless, the fact remains the warrant was not signed and there was no ten-day limit posted on its face. This Court is unwilling to accept the potential repercussions of adopting the forgiving interpretation of the Fourth Amendment urged by the government. If a reviewing court can speculate about what a magistrate intended to do, what prevents it from surmising what a magistrate would have done? Why not permit officers to come before this Court after a search has been conducted to seek admission of seized evidence on the ground that if a warrant had been presented to a magistrate before the search, the magistrate would have issued the warrant? Absent an exception, the Fourth Amendment requires a probable cause determination to be made and issued by a magistrate before officers invade a person's privacy. If the right to privacy is too precious to entrust to the discretion of officers who detect crime, it is similarly too precious to entrust to after-the-fact conjecture about a magistrate's intentions. McDonald, 335 U.S. at 455-56; see also Robinson, CR 04-32-BU-DWM, 358 F. Supp. 2d 975 at 10. Because the warrant in this case did not provide any indication that it was officially authorized, the search of Defendants' residence was warrantless in violation of the Fourth Amendment.

. . .

Even if the search of Defendants' residence was not warrantless, the Leon good faith exception does not apply. An officer's reliance on an invalid warrant (as opposed to no warrant at all) must be objectively reasonable before the government can claim the benefit of the good faith exception. Reliance on an unsigned warrant is not objectively reasonable. Groh is again instructive in this regard. After determining the warrant in Groh, which completely failed to describe the items to be seized, was unconstitutional, the Court concluded the officer's reliance on the warrant was not objectively reasonable. 540 U.S. at 563-65. The Court observed "even a cursory reading of the warrant in this case--perhaps just a simple glance--would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal." Id. at 564. The Court refused to apply the Leon good faith exception under such circumstances. Id. at 565 (noting the exception does not apply when a warrant is "so facially deficient ... that the executing officers cannot reasonably presume it to be valid"). The Court also rejected the officer's argument, based on Sheppard, that he was immune from liability because any constitutional error was committed by the magistrate. The Court reasoned, the warrant in Groh was so patently defective, it was unreasonable for the officer to rely on it. Id. at 561 n.4. In so holding, the Court acknowledged officers executing a search warrant have a duty to "make sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct." Id. at 563 n.6.

Massachusetts courthouse entry search was valid, and it was treated as an administrative search. The fact he could not leave the courthouse to avoid the search did not void it. Commonwealth v. Roland R., 448 Mass. 278, 860 N.E.2d 659 (January 30, 2007).

Declining to find presumptive exigent circumstances in the need for a blood draw in an alcohol related automobile death, the Utah Supreme Court still finds exigent circumstances under the totality of the circumstances presented. State v. Rodriguez, 2007 UT 15, 156 P.3d 771, 570 Utah Adv. Rep. 55 (2007), rev'g 2004 UT App 198, 501 Utah Adv. Rep. 8, 93 P.3d 854 (2004).*

The defendant's employer found child porn on his workstation computer. While the defendant had standing, the employer was directed by the police to copy the hard drive, and they could do so because they owned the computer. United States v. Ziegler, 474 F.3d 1184 (9th Cir. January 30, 2007). As to standing:

The threshold question then is whether Ziegler had a legitimate expectation of privacy in the area searched or the object seized. If he had no such expectation, we need not consider whether the search was reasonable.

1

The government does not contest Ziegler's claim that he had a subjective expectation of privacy in his office and the computer. The use of a password on his computer and the lock on his private office door are sufficient evidence of such expectation. See United States v. Bailey, 272 F. Supp. 2d 822, 835 (D. Neb. 2003) (citation omitted).

2

But Ziegler's expectation of privacy in his office and workplace computer must also have been objectively reasonable. The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that "if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing." Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.

Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O'Connor, 480 U.S. 709, 716, 107 S. Ct. 1492, 94 L. Ed. 2d 714 (1987) (noting that in Mancusi "this Court ... recognized that employees may have a reasonable expectation of privacy against intrusions by police."); id. at 730 (Scalia, J., concurring) ("In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) 'union higher-ups' could enter the office.") (internal citations omitted).

Furthermore, Ziegler's expectation of privacy in his office was reasonable on the facts of this case. His office was not shared by co-workers, and kept locked. See Schowengerdt v. United States, 944 F.2d 483, 487 (9th Cir. 1991) ("Schowengerdt would enjoy a reasonable expectation of privacy in areas given over to his exclusive use, unless he was on notice from his [government] employer that searches of the type to which he was subjected might occur from time to time for work-related purposes."); United States v. Taketa, 923 F.2d 665, 672-73 (9th Cir. 1991). And while there was a master key, the existence of such will not necessarily defeat a reasonable expectation of privacy in an office given over for personal use. See Taketa, 923 F.2d at 673 (noting that allowing the existence of a master key to overcome the expectation of privacy would defeat the legitimate privacy interest of any hotel, office, or apartment occupant).

Because Ziegler had a reasonable expectation of privacy in his office, any search of that space and the items located therein must comply with the Fourth Amendment. n9

n9 Had the company computer assigned to Ziegler for his business-use only been physically located outside a private office, we might have had to consider whether Ziegler had reasonable expectation of privacy in the device itself, in the face of a corporate policy of monitoring the corporate computers. See Muick v. Glenayre Elecs., 280 F.3d 741, 743 (7th Cir. 2002). However, we leave that question for another day.

As to the consent to search:

IV

A

The remaining question is whether the search of Ziegler's office and the copying of his hard drive were "unreasonable" within the meaning of the Fourth Amendment. As in Mancusi, the government does not deny that the search and seizure were without a warrant, and HN5"it is settled for purposes of the Amendment that 'except in certain carefully defined classes of cases, a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant.'" Mancusi, 392 U.S. at 370 (quoting Camara v. Municipal Court, 387 U.S. 523, 528-529, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967)).

One well-settled exception is where valid consent is obtained by the government. Davis v. United States, 328 U.S. 582, 593-594, 66 S. Ct. 1256, 90 L. Ed. 1453 (1946); Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). In proving voluntary consent, the government "is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); see also United States v. Davis, 332 F.3d 1163, 1168-69 (9th Cir. 2003). Common authority to authorize a search rests upon the premise that one "[has] assumed the risk that one of [his] number might permit the common area to be searched." Matlock, 415 U.S. at 171 n. 7.

B

We first consider whether Frontline exercised common authority over the office and the workplace computer such that it could validly consent to a search. Mancusi is again instructive. In Mancusi, the Supreme Court recognized that in his office, DeForte retained an expectation "that records would not be taken [by the police] except with his permission or that of his union superiors." 392 U.S. at 369. The Court continued: "It is, of course, irrelevant that the Union or some of its officials might validly have consented to a search of the area where the records were kept, regardless of DeForte's wishes, for it is not claimed that any such consent was given, either expressly or by implication." Id. at 369-70; see also United States v. Carter, 569 F.2d 801, 804 (4th Cir. 1978), cert. denied 435 U.S. 973, 98 S. Ct. 1618, 56 L. Ed. 2d 66 (1978). Mancusi thus establishes that even where a private employee retains an expectation that his private office will not be the subject of an unreasonable government search, such interest may be subject to the possibility of an employer's consent to a search of the premises which it owns.

We are also convinced that Frontline could give valid consent to a search of the contents of the hard drive of Ziegler's workplace computer because the computer is the type of workplace property that remains within the control of the employer "even if the employee has placed personal items in [it]." Ortega, 480 U.S. at 716. In Ortega, the Supreme Court offered an analogy that is helpful to our resolution of this question. Ortega, 480 U.S. at 716. The Court posited a situation where an employee brings a piece of personal luggage to work and places it within his office. The Court noted that "[w]hile . . . the outward appearance of the luggage is affected by its presence in the workplace, the employee's expectation of privacy in the contents of the luggage is not affected in the same way." Id. (emphasis in original). The Court further explained that "[t]he appropriate standard for a workplace search does not necessarily [*19] apply to a piece of closed personal luggage, a handbag or a briefcase that happens to be within the employer's business address." Id.

The workplace computer, however, is quite different from the piece of personal luggage which the Court described in Ortega. Although use of each Frontline computer was subject to an individual log-in, Schneider and other IT-department employees "had complete administrative access to anybody's machine." The company had also installed a firewall, which, according to Schneider, is "a program that monitors Internet traffic ... from within the organization to make sure nobody is visiting any sites that might be unprofessional." Monitoring was routine, and the IT department reviewed the log created by the firewall "[o]n a regular basis," sometimes daily if Internet traffic was high enough to warrant it. Finally, upon their hiring, Frontline employees were apprised of the company's monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature.

In this context, Ziegler could not reasonably have expected that the computer was his personal property, free from any type of control by his employer. The contents of his hard drive, like the files in Mancusi, 392 U.S. at 369, were work-related items that contained business information and which were provided to, or created by, the employee in the context of the business relationship. Ziegler's downloading of personal items to the computer did not destroy the employer's common authority. Ortega, 480 U.S. at 716. Thus, Frontline, as the employer, could consent to a search of the office and the computer that it provided to Ziegler for his work.

Thus, the employer could and did consent to the search.

Overbroad business records warrant challenge failed because the government showed a prima facie case for the "permeated with fraud" doctrine that permits wholesale seizures of records. United States v. Bernardini, 2005 U.S. Dist. LEXIS 44409 (W.D. Va. October 18, 2005).*

Officers were executing an arrest warrant and they did an intensive protective sweep that even went into the crawl space of the building and evidence was found. This was not an unreasonable protective sweep. United States v. Stover, 474 F.3d 904 (6th Cir. January 30, 2007):

The inquiry therefore becomes whether the officers had "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Buie, 494 U.S. at 334. We answer this question in the affirmative. The fact that police identified a car registered to a local criminal who did not live at Defendant Hinton's address is sufficient to justify a quick and limited protective sweep. That Defendant Hinton lived in a duplex is of no moment. The local criminal who owned the car in Defendant Hinton's driveway was as likely to be visiting Defendant Hinton as he was to be visiting Defendant Hinton's neighbor. This probability is sufficient to justify a protective sweep. See United States v. Biggs, 70 F.3d 913, 916 (6th Cir. 1995) (upholding a sweep of defendant Biggs' motel room where police had received information that Biggs was meeting someone at the motel, Biggs had left the motel door open so that anyone inside could see out, and, on two previous occasions, Biggs had been arrested in the presence of persons armed with firearms).

Defendant Hinton argues, however, that because of the remoteness of the crawl space and the size of the door, the officers nevertheless exceeded their authority to conduct a protective sweep. These arguments are without merit. Under the second prong of Buie, there is no requirement that the area searched be immediately adjacent to the area where the defendant was arrested. See Buie, 494 U.S. at 334. Although discovering the crawl space where the marijuana was found required officers to go through the kitchen, an attached garage, and the laundry room, it was nevertheless a part of the premises in which a potentially dangerous individual could be found. See id. at 335. Nor is the size of the opening of the door important. It is undisputed that the crawl space could hold a person. A small, out-of-the-way space makes a good hiding place for a dangerous individual; it is implausible to think that the persons who are the object of the protective sweep would limit themselves to large, open areas where they could be easily spotted. We therefore conclude that the district court properly denied Defendant Hinton's motion to suppress.

The officer applied no physical power of arrest over the defendant by approaching him. Defendant's flight under Wardlaw only added to the reasonable suspicion that the officer already had when he approached him. United States v. Moore, 2007 U.S. Dist. LEXIS 5892 (E.D. Wis. January 26, 2007).*

Telling a traffic detainee that he was "good to go," but "can I ask a few questions" did not unreasonably prolong the stop. United States v. Meraz, 2007 U.S. Dist. LEXIS 5973 (E.D. Wis. January 26, 2007).*

School strip search that was obviously invasive but based on near probable cause was still insufficient to state a claim in the face of a qualified immunity defense and lack of development of the law. Phaneuf v. Cipriano, 2007 U.S. Dist. LEXIS 5963 (D. Conn. January 25, 2007).*

The oral argument in American Civil Liberties Union v. National Security Agency is being argued at 3 p.m. Eastern before the Sixth Circuit in Cincinnati.

The oral argument is here.

An anonymous 911 call about a home invasion robbery by two men and a woman brought the police who were able to corroborate essential details at the scene, and the corroboration was sufficient for the entry and subsequent search that led to syringes in plain view. State v. Wilson, 2007 Ohio 353, 2007 Ohio App. LEXIS 299 (12th Dist. January 29, 2007):

The caller indicated that two white men and a white female were breaking into a specific apartment, and police arrived to find evidence of a forced entry into that apartment. A white male came to the door as police were reacting to what they perceived to be a discovered forced entry. Some, and eventually all, of the statements of the anonymous caller were corroborated by police observation or investigation. Further, the evidence supported the belief by the police that the exigent circumstances continued and an additional suspect and weapon were still inside the residence.

Consent for search of defendant's home was not shown to be voluntary. Officer asked three times and defendant insisted on talking on the porch. The officer demanded to speak inside, and defendant let him, but it was not consensual. People v. Plante, 308 Ill. Dec. 856, 862 N.E.2d 1059 (3d Dist. 2007):

Defendant did not consent to Bass's third entry into the home. Defendant never told Bass that he may enter the home on his third attempt and specifically asked if they could speak outside. The State relies on defendant's "nonverbal conduct" in walking back into the home after Bass demanded to speak inside to support its theory of consent. While "'there is little authority as to what constitutes consent in the absence of an express verbal statement'" (Anthony, 198 Ill. 2d at 202, quoting People v. Henderson, 142 Ill. 2d 258, 298, 568 N.E.2d 1234, 154 Ill. Dec. 785 (1990)) the supreme court has recognized that "'mere acquiescence to apparent authority is not necessarily consent'" (Anthony, 198 Ill. 2d at 202, quoting People v. Kelly, 76 Ill. App. 3d 80, 87, 394 N.E.2d 739, 31 Ill. Dec. 537 (1979)). Bass admitted that he told defendant "I am going to talk to you inside." This is not a request. It is an evident display of "apparent authority" to which defendant merely acquiesced.

The State's repeated assertion that Bass never "yelled, screamed, *** threatened [or] touched" defendant is both unavailing and misplaced. Consent may not be "extracted 'by explicit or implicit means, by implied threat or covert force." (Emphasis added.) Anthony, 198 Ill. 2d at 202, 761 N.E.2d at 1192, quoting Bustamonte, 412 U.S. at 228, 36 L. Ed. 2d at 863, 93 S. Ct. at 2048 (1973). Bass's tactics were more than "subtly coercive." Bass at minimum implied that force would be employed to secure his final entry when he blocked defendant in the door to the residence and stated affirmatively his intent to enter in spite of defendant's request to speak outside.

Dirty license plate was not cause for a stop that led to the defendant being ordered out of the car and the officer seeing drug paraphernalia. 75% of the license plate was visible [and a computer check would verify its validity]. State v. Brooks, 2007 Ohio 344, 2007 Ohio App. LEXIS 302 (11th Dist. January 26, 2007).

Anonymous call about a shooting incident that produced a witness at the scene who pointed out that the shooter went thataway was corroboration which that officer radioed to another which led to a stop. United States v. Traylor, 2007 U.S. Dist. LEXIS 5708 (S.D. Ill. January 26, 2007).

Investigatory stop of a DUI suspect after his having allegedly driven his car into a ditch when he was seen as a passenger in another car was valid. Hartman v. State, 152 P.3d 1118 (Alaska January 26, 2007):

[Officer] Tuckwood therefore had a reasonable suspicion that someone had been driving the Honda while under the influence and that the intoxicated driver of the Honda was likely in the Ford Taurus when Tuckwood stopped it. Although Hartman was now a passenger in the Ford Taurus, this is not enough to show that he no longer posed an imminent public danger. Passenger status did not automatically establish a non-driving intention on Hartman's part. Nor was Hartman's non-ownership of the Ford Taurus determinative absent evidence that the owner of the vehicle was unwilling to give him a chance to drive. In view of Hartman's continuing access to the Taurus, Tuckwood's belief that Hartman posed an imminent public danger was reasonable. Therefore, under these circumstances, the investigatory stop was legal.

Officer's call to EPIC about defendant's immigration status did not unreasonably extend the stop because of the evidence of possible wrongdoing that the officer observed. United States v. Urrieta, 2007 U.S. Dist. LEXIS 5669 (M.D. Tenn. January 24, 2007).

Officers had reasonable suspicion for a stop of the defendants based on their observations. United States v. Saenz, 474 F.3d 1132 (8th Cir. January 29, 2007):

Here, the officers had more than a mere hunch to justify the stop. See Terry, 392 U.S. at 27. The officers knew of the wire transfer from Hernandez to Melissa Saenz, they had received information from a confidential source that she was visiting St. Charles, and they confirmed the presence of Emilio Saenz's vehicle at Hernandez's house. The officers also witnessed the blue pickup truck enter the garage and leave thirty minutes later, consistent with the unloading or loading of drugs or drug profits.

We conclude that the officers had reasonable suspicion to pull over the truck. Moreover, that suspicion did not dissolve after they talked with Emilio and Melissa Saenz because neither could name the sale price of the red truck which they both said they had sold to Hernandez and they gave conflicting responses about the location of the money they claimed to have received from the vehicle sale. We conclude the district court did not err in denying the motion to suppress.

The affidavit for search warrant was based on informant hearsay without a reference to the informant's reliability, but it was sufficient and met the standards for internal corroboration of the hearsay previously articulated by that court. United States v. Pulk, 2007 U.S. Dist. LEXIS 5639 (D. Me. January 24, 2007):

Even if that were not the case, the defendants' attack on paragraphs 3-8 of the affidavit would not succeed. They contend that these paragraphs do not present sufficient information to allow the court to determine whether the statements of informants reported in those paragraphs are reliable and that "most of the information is stale" because it was received nine or more months before the application was made. Joint Motion at [8]-[9]. "When an affidavit relies upon the credibility of informants to demonstrate probable cause for the issuance of a warrant the informants' credibility can be established in multiple ways." United States v. Fournier, 2002 WL 31414112 (D. Me. Oct. 23, 2002), at *1. Any and all of the following factors may be considered:

1. Consistency among independent reports.
2. Declarations against penal interest.
3. Consistency with information provided by "ordinary citizens" (such as complaints by neighbors that an individual was cultivating marijuana)--a type of report that enjoys special stature since information provided by ordinary citizens has particular value in the probable cause equation.
4. Corroboration by external data.
5. Self-authentication through specificity and detail.

Id. at *1-*2 (citation and internal punctuation omitted). When these factors are considered, "an informant's tip can establish probable cause even though the affidavit does not contain information about the informant's past reliability." United States v. Greenburg, 410 F.3d 63, 67 (1st Cir. 2005).

Defendant's pro se claim in response to his lawyer's Anders brief that his wife could not have consented because she was under the influence of drugs had no support in the record. As to the claim the informant was not believable for issuance of a search warrant, there was corroboration by the police officer of what details were subject to corroboration. United States v. Howard, 216 Fed. Appx. 463 (6th Cir. 2007)* (unpublished).

Civil case over search at school based on student's smell of marijuana was reasonable under the circumstances. KW v. Metropolitan Sch. Corp., 2007 U.S. Dist. LEXIS 5625 (S.D. Ind. January 24, 2007).*

Civil case over alleged false arrest and excessive force brought a motion for summary judgment from the defendant which the plaintiff did not respond to. The court found a factual basis for the reasonableness of the arrest and use of force and dismissed the case. Young v. Cavanaugh, 2007 U.S. Dist. LEXIS 5627 (S.D. Ind. January 24, 2007).*

A field sobriety test, after a stop based on reasonable suspicion, is not an unlawful seizure. Arthur v. State, 216 S.W.3d 50 (Tex. App. — Ft. Worth 2007):

The scope of the detention must be carefully tailored to its underlying justification. Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325-26, 75 L. Ed. 2d 229 (1983). The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. Id. The scope of the detention must be temporary and last no longer than necessary to effectuate the purposes of the stop. Id. Furthermore, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicions within a short period of time. Id.

Here, Officer Berry observed Appellant's car weaving out of its lane of travel and speeding. These articulable facts, combined with Appellant's admission that she had been drinking, were sufficient to give Officer Berry a reasonable suspicion to detain Appellant further to administer field sobriety tests. See id. The administration of the field sobriety tests was the least intrusive means by which Officer Berry could verify or dispel his suspicion that Appellant had been driving while intoxicated. See id. This minimal intrusion into Appellant's personal freedom was reasonable under the circumstances. See id. Accordingly, we hold that Appellant's Fourth Amendment rights and her rights under article one, section nine, of the Texas Constitution were not violated by Officer Berry's temporary detention of Appellant and his request that she perform field sobriety tests.

Taking defendant to a police car to put him in did not elicit an incriminating response. Russell v. State, 215 S.W.3d 531 (Tex. App. — Waco 2007).*

Where the officer overextended the scope of consent, the search was unlawful. The defendant disclaimed ownership of a suitcase in the vehicle, but only after the stop had become unreasonable, so the motion to suppress was properly granted. State v. Veltri, 136 Wn. App. 818, 150 P.3d 1178 (January 25, 2007).

Search incident of a cellphone's text messages was valid, and they could be admitted at trial. United States v. Finley, 477 F.3d 250 (5th Cir. 2007):

B. Search Incident to Lawful Arrest

Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment." United States v. Robinson, 414 U.S. 218, 235 (1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial. See id. at 233-34. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee's person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police may search containers, whether open or closed, located within arrestee's reach); Robinson, 414 U.S. at 223-24 (upholding search of closed cigarette package on arrestee's person).

Finley concedes that the officers' post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container,n6 the police had no authority to examine the phone's contents without a warrant. He relies on Walter v. United States, 447 U.S. 649 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235. Special Agent Cook was therefore permitted to search Finley's cell phone pursuant to his arrest.n7 Cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding retrieval of information from pager as search incident to arrest). The district court correctly denied Finley's motion to suppress n8 the call records and text messages retrieved from his cell phone.

n6 Finley cites United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (analogizing numbers in pager's memory to contents of closed container). Although Finley relies on this case, the Chan court concluded that police officers may, incident to the defendant's arrest, retrieve numbers from the memory of a pager seized from the defendant's person. See id. at 535-36.

n7 The fact that the search took place after the police transported Finley to Brown's residence does not alter our conclusion. Cf. United States v. Edwards, 415 U.S. 800, 803 (1974) ("[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention."). In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant's person is still incident to the defendant's arrest. United States v. Ruigomez, 702 F.2d 61, 66 (5th Cir. 1983) (citing Edwards, 415 U.S. at 804). Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible.

Incorporation of affidavit to cure deficiencies in the particularity clause in Tennessee requires physical attachment, and "See attached affidavit" is not sufficient. In that case, only the warrant itself can be considered. Here, however, the officers had justification for a search under the automobile exception, so the defective warrant becomes irrelevant. State v. Sherwood, 2007 Tenn. Crim. App. LEXIS 58 (January 26, 2007):

However, in Tennessee, an affidavit "is not considered an actual part of the warrant, even if it appears on the same printed form as the warrant" without incorporation by the warrant itself. Lowe, 949 S.W.2d at 303 (citing State v. Smith, 836 S.W.2d 137, 141 (Tenn. Crim. App. 1992)). In the instant case, the warrants in question do not specifically incorporate or reference the attached affidavits. Rather, the directive to "see attached affidavit," i.e. the "Affidavit of Probable Cause," is made in the affidavits on the back of each search warrant. Because there is no reference incorporating the affidavits in either of the search warrants, the affidavits may not be construed to bolster deficiencies in the warrant. Accordingly, we will determine the sufficiency of the description of the property to be seized based on the quoted language contained in the body of the warrant alone.

The defendant's merely having property in a motel room not occupied by him did not give him standing. State v. Crosby, 2007 Tenn. Crim. App. LEXIS 61 (January 26, 2007):

Despite Defendant's contentions to the contrary, there was no evidence that Defendant had a possessory interest in the rooms. No one saw Defendant pay the motel clerk to rent the motel room. He never transferred the motel room into his name. There was no evidence to indicate how long Defendant had actually been staying in the motel room, nor any witnesses who testified that they had seen Defendant occupying the room for a period of consecutive days. Nor was there any testimony that Defendant had acted to prevent anyone from entering the motel room. In fact, when the officer inquired as to Defendant's address, he gave the officer a home address of 4593 Xavier Drive, Antioch, Tennessee. Although Defendant had property in the room, a Play Station Two, some mail, and various items of clothing, the trial court did not find this sufficient to indicate Defendant had an expectation of privacy in the room. We agree with the trial court.

Defendant's mere possession of a vehicle did not give him standing because he could show no legitimate connection to the car. United States v. Lopez-Gutierrez, 2006 U.S. Dist. LEXIS 86319 (D. Utah November 21, 2006):

Moreover, Defendant has failed to produce evidence to counter the Government's evidence that Defendant did not, in fact, know the owner of the vehicle, and therefore, could not legitimately be in possession of it. Although the Court believes that the difference in locations of the purported cousin and the state of registration is insignificant, that Defendant had to look at the registration to ascertain the name of the owner, and did not know the last name of his purported cousin, are significant. Such facts indicate that Defendant did not know the owner of the vehicle, and was not lawfully in possession of the vehicle.

Officers had probable cause to detain defendant based on a video that showed a hand-to-hand sale. United States v. Davis, 2006 U.S. Dist. LEXIS 86397 (N.D. Ind. November 20, 2006).*

Traffic stop was valid, and license produced was suspended. Officer noticed baggie of marijuana while defendant was looking for papers for car. Search incident or automobile exception supported the search. United States v. Hill, 2006 U.S. Dist. LEXIS 86320 (W.D. Ky. October 6, 2006).*

IAC claim fails because petitioner failed to show that any search claim would win. Talley v. United States, 2006 U.S. Dist. LEXIS 86401 (E.D. Tenn. November 27, 2006).*

2000 blood draw in a rape case was valid and it mooted defendant's argument that the 1998 blood draw was invalid because of inevitable discovery. State v. Gregory, 2006 Wash. LEXIS 890 (November 30, 2006).

An anonymous 911 call said that a meth lab was in a farm building. The caller hung up, and the police could not get the caller to answer the call back, and that was enough to justify the entry. United States v. Elder, 466 F.3d 1090 (7th Cir. November 1, 2006):

A 911 call led to the dispatch of two officers to a farm in Humbolt, Illinois. A caller had told the dispatcher "I think we got meth out here" and added that "suspicious" people were "flying like quails." The caller hung up, and when the dispatcher called the originating number no one answered. One obvious possibility was that the caller had been injured. Officers saw lights and heard a TV within the farm house, but no one answered knocks on the front or rear doors. The door of a nearby outbuilding was open. (Whether it was open was disputed in the district court; the judge found that it was open and did not commit clear error in doing so.)

Looking through the doorway, the officers saw what appeared to be a laboratory. They entered in search of the caller and did not find him. But what they saw from outside (and both saw and smelled from inside) provided evidence against Elder, the property's owner. The caller turned out to have been Elder's father, who had not been abducted or injured -- though the officers could not have known that without checking, because even if (as Elder maintains) they knew or should have known that the proprietors of the meth lab were fleeing during the 911 call, the officers could not have known whether they took a hostage (or a life) in the process, or whether some third party was refusing to acknowledge his or her presence, and what danger that person posed (or was in).

The entry into the outbuilding was reasonable, and a warrant was not essential to make it so. The officers acted sensibly in attempting to assure the caller's safety. The fact that drug dealers often use guns and knives to protect their operations created a possibility that violence had been done, or that someone was still there and lying in wait. So considerations of safety -- the caller's and the officers' -- made a look-see prudent. See Brigham City v. Stuart, 126 S. Ct. 1943 (2006); Maryland v. Buie, 494 U.S. 325 (1990). Everything else followed from there, and the evidence was admissible against Elder. His argument that police cannot take steps to protect a caller's safety unless they know the caller's identity and "reliability" would require them to act unreasonably. Many 911 calls are brief, and anonymous, precisely because the speaker is at risk and must conceal the call. These persons are more rather than less in need of assistance.

Comment: My problem with this case is how it works so diabolically: An anonymous 911 caller cannot be reached, so, in a drug case, the police are justified in entering without a warrant because of the mere possibility that the caller was injured by the person he or she was calling about. So, can the police just not call the caller back but say they did and then use that as an excuse to enter? The point really is: if they did not call back but say they did, can the defense ever prove it? Unlikely.

Defendant was stopped for suspicion of transporting illegal aliens, and ICE officer got him out of the car and had him put his hands over his head. To the extent this was a Terry stop, the ICE officer had authority to do so under 8 C.F.R. § 287.8(b). The defendant failed to prove that his Fourth Amendment rights were violated, so he loses. United States v. Ambris-Sebastian, 2006 U.S. Dist. LEXIS 79343 (N.D. Fla. October 31, 2006). Comment: This is incredible: A warrantless arrest and the court holds that the defendant has the burden of proof? Wrong!

Consent was voluntary where the defendant came to the police station saying that he wanted to cooperate and his "life was an open book." There was no indication that anything was coercive about the situation. United States v. P.A. Landers, Inc., 2006 U.S. Dist. LEXIS 79256 (D. Mass. October 31, 2006).*

Hot pursuit of a DUI suspect in Illinois is different than in Welsh which was really a hot pursuit case. An officer could enter a house in hot pursuit of a suspect. This case has a great discussion of hot pursuit into a dwelling and as an exigency in itself. People v. Wear, 371 Ill. App. 3d 517, 867 N.E.2d 1027 (4th Dist. 2007):

6. "Hot Pursuit" as an Exigent Circumstance Unto Itself

Defendant argues that Dawdy violated the fourth amendment by arresting him inside Foiles's home because Dawdy was aware of no "'exigent circumstances,'" within the meaning of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984), to justify his warrantless, nonconsensual entry of the home.

In Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, the Supreme Court held that entering a home without a warrant or consent and arresting someone therein--even for a felony that the police had probable cause to believe the arrestee committed--was presumptively unreasonable under the fourth amendment, applicable to the states via the fourteenth amendment (U.S. Const., amend. XIV) (Payton, 445 U.S. at 576, 63 L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state could rebut this presumption of unreasonableness only by showing "'exigent circumstances'" (Payton, 445 U.S. at 589, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to "consider the sort of emergency or dangerous situation, described in [its] cases as 'exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search" (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct. at 1378), "thereby leaving to the lower courts the initial application of the exigent-circumstances exception" (Welsh, 466 U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097).

While no list of factors is exhaustive, our own supreme court has set out some factors that a court may take into account when assessing exigency in a particular situation. Those factors are as follows:

"(1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably." People v. Foskey, 136 Ill. 2d 66, 75, 554 N.E.2d 192, 197, 143 Ill. Dec. 257 (1990).

In Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093, the Supreme Court considered whether "'exigent circumstances'" allowed the police to make "a warrantless night entry of a person's home in order to arrest him for a nonjailable traffic offense" of DUI. In that case, a motorist, Randy Jablonic, saw a car changing speeds and veering side to side until it swerved off the road and came to rest in an open field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093. Another passerby stopped at the scene, and Jablonic asked her to call the police. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093-94. Before the police arrived, the driver of the car got out and walked home, leaving the car in the field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094. Without obtaining a warrant, the police entered the driver's home, found him lying naked in bed, and arrested him for DUI. Welsh, 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2094. The Supreme Court held that the "warrantless, nighttime entry into the petitioner's home to arrest him for a civil traffic offense" was "clearly prohibited by the special protection afforded the individual in his home by the [f]ourth [a]mendment." Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100.

"[A]n important factor to be considered when determining whether any exigency exist[ed] [was] the gravity of the underlying offense for which the arrest [was] being made." Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. Under Wisconsin law, no incarceration was possible for a first offense of DUI. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100. The State claimed a potential emergency in the need to ascertain the driver's blood alcohol level. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But considering that Wisconsin had "chosen to limit severely the penalties that [could] be imposed" (Welsh, 466 U.S. at 754 n.14, 80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby designating the offense as a minor one, "mere similarity to other cases involving the imminent destruction of evidence [was] not sufficient" (Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100).

Unlike the state of Wisconsin in Welsh, Illinois does not limit the penalties for a first DUI: it is a Class A misdemeanor (625 ILCS 5/11-501(b-2) (West 2004)), punishable by imprisonment for up to 364 days (730 ILCS 5/5-8-3 (West 2004)). Fleeing or attempting to elude a police officer also is a Class A misdemeanor. 625 ILCS 5/11-204(a) (West 2004). Because Dawdy had probable cause to effect a seizure of the person for jailable offenses, Welsh is distinguishable. More important, Welsh was not a case of hot pursuit, as the Supreme Court pointed out. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.

We need not decide whether the factors in Foskey justify, on balance, Dawdy's warrantless, nonconsensual entry of Foiles's home; Dawdy was in hot pursuit of defendant and, for that reason alone, had the right to enter the house and arrest him. It appears that the majority of jurisdictions that have considered this question would so hold. D. Gilsinger, Annotation, When Is Warrantless Entry of House or Other Building Justified Under "Hot Pursuit" Doctrine, 17 A.L.R.6th 327, §§ 12, 14 (2006).

According to defendant, "the law is clear that hot pursuit is not itself an exigent circumstance or exception to the warrant requirement, but merely one factor to consider." He cites Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which the Fifth District disagreed with the State's contention "that 'hot pursuit' [was] an exception to the warrant requirement separate and distinct from the exigent[-]circumstances exception." The Fifth District stated:

"The cases do not discuss a separate hot pursuit exception to the warrant requirement, but discuss it within the context of discussing exigent circumstances. Hot pursuit is merely one factor to be considered in determining whether exigent circumstances justified a warrantless home entry. See Dorman v. United States (1969), 140 U.S. App. D.C. 313, 435 F.2d 385, 391 ('Another doctrine excusing failure to obtain a warrant in case of entry for arrest has been cast in terms of "exigent circumstances," or "necessitous circumstances." While some decisions also refer to condition of "hot pursuit," this term is not a limitation but rather an illustration of the kind of exigent circumstance justifying entry without a warrant to arrest a suspect')." Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519.

In its holding in Santana, the Supreme Court did not refer to hot pursuit as only one factor among others. Although the Court remarked upon the possibility of destruction of evidence, its final, unqualified holding was as follows: "[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not add the qualification "provided that other factors" (such as those listed in Foskey) "are satisfied." Most courts appear to take Santana's holding at face value, treating hot pursuit as an exception unto itself rather than as just another factor. E.g., People v. Tillman, 355 Ill. App. 3d 194, 198, 823 N.E.2d 117, 121-22, 291 Ill. Dec. 107 (2005), appeal denied, 215 Ill. 2d 616, 833 N.E.2d 8 (2005); People v. Wimbley, 314 Ill. App. 3d 18, 25, 731 N.E.2d 290, 295, 246 Ill. Dec. 762 (2000) ("Courts have also found exigent circumstances where police are in 'hot pursuit' of a suspect who flees from a public place into his residence"); State v. Blake, 468 N.E.2d 548, 553 (Ind. App. 1984) ("immediate and continuous pursuit from the scene of the crime formed the exigent circumstance"); People v. Lloyd, 216 Cal. App. 3d 1425, 1429, 265 Cal.Rptr. 422, 425 (1989) ("the officer's 'hot pursuit' into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement").

Hot pursuit, as an exception unto itself, appears to have deep roots in 17th- and 18th-century English common law. Payton, 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386. Hale stated: "[I]f the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break the door, tho[ugh] he have no warrant." 2 M. Hale, Pleas of the Crown 92 (1736), quoted in Payton, 445 U.S. at 595 n.41, 63 L. Ed. 2d at 656 n.41, 100 S. Ct. at 1385 n.41.

One court has explained:

"Hot pursuit situations have a policy basis distinct from other exigent circumstances in that they involve arrests that have already been set in motion. Logic dictates that, regardless of the gravity of [*51] the offense, an individual should not be able to avoid an otherwise lawful warrantless arrest merely by outracing the police officers into the individual's dwelling." Erickson v. Commissioner of Public Safety, No. C2-92-507, slip op. at ____ (Minn. App. August 25, 1992).

Under Minnesota law, this unpublished opinion is "not precedential," but parties are permitted to cite it (Minn. Stat. § 480A.08(3) (2004)), and we find its logic to be persuasive.

Thus, we respectfully disagree with the Fifth District's discussion of the doctrine of hot pursuit in Lagle. Moreover, we are uncertain that the language the Fifth District quotes from Dorman actually supports the proposition that the Fifth District draws from it: just because one characterizes hot pursuit as an "exigent circumstance," it does not necessarily follow that hot pursuit is "merely one factor" among others.

When defendant repeatedly ignored Dawdy's commands to stop and tried to elude him by going (or, rather, staggering) into Foiles's house, reasonable suspicion ripened into probable cause, and the fourth amendment did not require Dawdy to simply shrug his shoulders and go obtain a warrant. Apparently, defendant thought the enforcement of traffic laws resembled a children's game of tag, whereby Dawdy was "it" and defendant was "safe" if he reached "home" before Dawdy apprehended him. See United States v. Schmidt, 403 F.3d 1009, 1014 (8th Cir. 2005). As Santana teaches, the fourth amendment does not contemplate this game.

The affidavit showed a substantial basis for showing probable cause, given that warrants are entitled to substantial deference. There was a substantial basis for believing that evidence would be found at defendant's house in a murder case based on what was presented to the magistrate. State v . Berry, 2007 Ohio 278, 2007 Ohio App. LEXIS 263 (8th Dist. January 25, 2007).* (Comment: The defense argument was more that the probable cause had other possible innocent explanations, but that is not the question for the reviewing magistrate.)

The Fourth Amendment does not provide for suppression of evidence of a crime committed against the officers during the arrest in defendant's house. State v. Skipper, 2007 Tenn. Crim. App. LEXIS 53 (January 25, 2007).*

Particularity was lacking for part of a warrant as to the items to be seized by the state's use of a cross reference to a statutory definition of "documentary evidence" which was really overbroad as applied here. United States v. Joe, 2007 U.S. Dist. LEXIS 5282 (N.D. Cal. January 10, 2007):

The third sentence and fourth sentences of the warrant are problematic, however. The third sentence authorized the seizure of "all documentary evidence defined in California Penal Code 1524(f) including, all U.S. currency, buyer/seller lists, records of marijuana cultivation, trafficking, and money laundering." California Penal Code Section 1524(f) states, "documentary evidence" includes, but is not limited to, "writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description." Cal. Penal Code § 1524(0. Although there was probable cause to search for U.S. currency, buyer/seller lists, and records of marijuana cultivation and trafficking, there was not probable cause to seize evidence of money laundering (as the government concedes), nor was there probable cause to search for all of the "documentary evidence" listed in Section 1524(f). Section 1524(f) is written extremely broadly to include, inter alia, "papers of any type or description." The warrant could easily have been written to limit the "documentary evidence" to be seized to material with a connection to marijuana cultivation or distribution. Instead, the warrant authorized the seizure of any writings, documents, papers, etc., whether or not they were connected to marijuana cultivation. This language was overbroad, see United States v. Kow, 58 F.3d 423, 426-27 (9th Cir. 1995), and the Court severs the language "all documentary evidence defined in California Penal Code 1524(f)" and "money laundering" from the warrant. See Fulbright, 105 F.3d at 453. Any evidence obtained pursuant to this portion of the warrant is suppressed. See United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994).

The fourth sentence of the warrant authorized the seizure of "computers and related or similar devices, and information on hard or floppy drives, which may contain any documents or records as described above." This sentence does not contain any specific limitation to criminal conduct, and instead simply references "documents or records as described above." However, as discussed supra, a portion of the preceding sentence authorized the seizure of, inter alia, "papers of any type or description." Because this language is overbroad, the fourth sentence's incorporation of that language similarly renders the fourth sentence defective. Accordingly, the Court severs this sentence and suppresses any evidence seized pursuant to this portion of the warrant. See id.

A veteran detective testified at a Franks hearing that he has never put named informants' criminal histories into an affidavit and he never will. Luckily for the government, it did not change the outcome because probable cause was otherwise shown, but the district judge did not like it. United States v. Heer, 2007 U.S. Dist. LEXIS 5151 (D. Ore. January 19, 2007):

"There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine '(t)he criminal is to go free because the constable has blundered.'" Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). This case represents a classic example of sloppy police activity in what should have been a simple warranted search and seizure, now made into a difficult legal issue not because of ignorance, but because of the stubbornness of the veteran officer-in-charge to change his ways and comply with current protocols. Law enforcement officers have ready access to the Oregon State Police Law Enforcement Data System ("LEDS"), a computerized database that is the primary source of criminal history information in Oregon, either through a radio dispatch center or a dedicated computer terminal at their agency's office. (Decl. of Investigator James Strupp in Support of Mot. to Suppress (# 18) hereafter "Strupp Decl.") at 3, PP8-9.)

Detective Davis testified during the Franks hearing that he did not learn how to perform LEDS checks, and did not run one on Sadie Lamberson because it was his standard practice not to perform criminal history and background checks when statements from a named (as opposed to a confidential) informant were used in a supporting affidavit. The simple act of disclosing to the magistrate who issued the warrant the history of drug use and accompanying criminal background of Ms. Lamberson would have provided a constitutionally solid foundation for the search warrant executed at 1245 Tutuilla Road, because there would then be no question that the magistrate had all of the information needed to assess Ms. Lamberson's credibility and reliability as an informant.

. . .

I am satisfied that Detective Davis did not omit the details of Ms. Lamberson's criminal background with the intent to deceive the magistrate who was reviewing the warrant application. However, Detective Davis admitted that he did not include the above information because he never had before and did not want to change his ways to conform to current practices. Such disregard of protocol is, at the very least, reckless; the good faith exception to the Fourth Amendment provided in United States v. Leon, 468 U.S. 897 (1984), does not salvage what otherwise could have been an oversight or inadvertent mistake. Therefore, the issue remains: "Would the omitted information about the informant's background have affected the decision of the magistrate who issued the warrant on August 4, 2005?" I conclude that the answer is, "No."

47 minute delay in arrival of the drug dog was permissible because there was reasonable suspicion. If this were just a traffic stop and they waited that long for a drug dog, it would have been unreasonable. United States v. Kelley, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006, filed January 18, 2007).

The plaintiffs were a family of four stopped in a remote spot on a Florida highway. The father was a suspect in a drug deal that occurred hours earlier, and that was the justification for the stop. When stopped, he readily consented to a search, and nothing was turned up. The officers kept conferring and finding other ways to search. Nothing was found, and they were ultimately released after four hours on the side of the road. In a § 1983 case tried to a jury for six days in what the judge found was an unusually "clean" trial virtually without error, the plaintiffs recovered a total of $300,000 [before attorneys fees]. McCloud v. Fortune, 2007 U.S. Dist. LEXIS 5292 (N.D. Fla. January 25, 2007). This is an interesting opinion, but just the opening summary is provided here:

ORDER DENYING MOTION FOR NEW TRIAL OR REMITTITUR

This § 1983 action arises from the prolonged detention of a family of four following a traffic stop on a remote highway after midnight by law enforcement officers who had evidence that the father made a drug sale earlier in the evening. The father (who was driving) readily consented to a search of the car, and officers conducted a thorough search (including with a dog). They found nothing. Officers held the father and the other family members for nearly three hours after the conclusion of the search of the car, releasing them shortly after 4:00 a.m. Holding the family members (other than the father) after completion of the search of the car was lawful if and only if they consented. After a full and fair trial, the properly instructed jury found that they did not consent and awarded both compensatory and punitive damages. Defendants have moved for a new trial or alternatively for remittitur of the punitive damages awards. Because the verdict was fully consistent with the weight of the evidence and the jury's assessment of damages was reasonable, I deny the motion.

The Eastern District of Arkansas, after a two day court trial, entered an order in an excessive force case awarding the plaintiff $558,000. The officer testified that he was arresting a misdemeanant prone to flee, and a struggle ensued where the officer had to use his baton against the plaintiff, but the plaintiff got the baton away from him and advanced on him so he fired his .357 from 3-4' away. The court credited the testimony of the plaintiff, corroborated by the medical testimony that plaintiff was shot in the back near the spine and the exit wound was in his stomach. This use of force was objectively unreasonable under the Fourth Amendment. Medicals were $186,000, and pain and suffering was calculated at twice that, $372,000. Cooperwood v. Wages, No. 4:05CV00902 JLH (E.D. Ark. January 25, 2007).* (Update and Comment: Since this was first posted, I have talked to defense counsel (because we have a case together, too), and he said that the defense evidence that supported the plaintiff coming at the officer with the baton which appears in admissions in the medical reports and elsewhere were not even mentioned in the opinion, so the findings will get less deference on appeal, which there definitely will be.)

Plaintiff was a certified boiler maintenance worker for the Cuyahoga Metropolitan Housing Authority (CMHA), and he came to work one day and went to an empty building to use the bathroom. Inside the building, he was confronted by CMHA police who ignored he was working where he belonged, pushed him up against a wall, searched him, peppersprayed him, and left him laying face down in the snow for 45 minutes with pepperspray in his eyes. Their motion to dismiss was denied in part. His excessive force claim was not contested in a F.R.C.P. 12(b)(6) motion. Fuller v. Cuyahoga Metro. Hous. Auth., 2007 U.S. Dist. LEXIS 5387 (N.D. Ohio January 25, 2007).

Officers had defendants under surveillance for marijuana distribution for a long time and had conducted a "sneak and peak" search [which itself necessarily had to be based on probable cause] that did not reveal marijuana but did reveal some incriminating evidence that added to their investigation. The officers saw bags being transferred to cars from a truck and warehouse. They had sufficient suspicion for a stop. United States v. Prentice, 2007 U.S. Dist. LEXIS 5211 (W.D. Wash. January 24, 2007).

No reasonable expectation in a drain spout where a street corner dealer doing hand to hand sales kept his stash. United States v. Lewis, 2007 U.S. Dist. LEXIS 5192 (N.D. Va. January 24, 2007).

(Many cases today; more later.)

On de novo review of whether there was reasonable suspicion for a traffic stop, having reviewed the transcript and the videotape of the stop, the Eighth Circuit disagrees with the district court that there was no objective basis for a stop for driving over the fog line for 10-15 seconds and reverses. United States v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. January 26, 2007):

To the contrary, under the circumstances of this stop--the 10 to 15 second crossing of the fog line, the time of day (morning), the clear weather conditions, the fact that there was a full lane of travel between Herrera-Gonzalez and the tow trucks, the lack of any additional adverse conditions that would have made it impractical for Herrera-Gonzalez to keep his car in the lane, and the fact that Herrera-Gonzalez returned to his lane to avoid the bridge and then continued within his lane as he passed the tow trucks--and given the obvious difficulty of observing from a patrol car whether a driver has ascertained that his move can be safely made, we conclude that Faiferlick had an objectively reasonable basis to believe that a violation of the Iowa statute had occurred. See Alvarado, 430 F.3d 1305, 1309; cf. Washington, 455 F.3d at 828 (noting that where there is a basis in state law for an officer's actions and some ambiguity exists that caused the officer to make the mistake, it may still be objectively reasonable). We recognize that this is a relatively close question, but we believe that based on what he reasonably knew at the time of the stop, Smart, 393 F.3d at 770, Faiferlick "could have formed" a reasonable suspicion that Herrera-Gonzales had committed a traffic violation, Martin, 411 F.3d at 1001. Accordingly, we conclude that the traffic stop was lawful.

On de novo review of consent, the Fifth Circuit states its test and attempts to focus on the recurring question of courts which "ought to be skeptical of a defendant's alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found." United States v. Arias-Robles, 477 F.3d 245 (5th Cir. 2007):

Voluntariness of consent is a finding of fact reviewed for clear error, but where there are "virtually no uncontested facts," review is "essentially de novo." Where a defendant challenges the voluntariness of consent to search, the Government must prove voluntariness by a preponderance of the evidence. A court should consider the totality of the circumstances, focusing on six factors: 1) the voluntariness of the defendant's custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the defendant's cooperation with the police; 4) the defendant's awareness of his right to refuse consent; 5) the defendant's education and intelligence; and 6) the defendant's belief that no incriminating evidence will be found. Although all factors are relevant, none is dispositive.

. . .

Marshaling all six factors, we cannot say that the district court erred in concluding that Arias's consent was voluntary. Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer's request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant's alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no "Miranda requirement" attending a simple request for permission to search.

While investigating a homicide, the officers went to defendant's apartment to talk to his girlfriend. They did not suspect the defendant was there. She agreed to talk to them at first, but she decided not to when consent was asked for. One officer left to get a search warrant, and the other stayed behind for fear she might destroy evidence. While there, she said that the defendant was hiding there and that she would consent to the search. The officer on the scene called the others back. The consent was valid and the search was reasonable under McArthur. State v. Gay, 214 Ariz. 214, 150 P.3d 787 (2007):

P9 In McArthur, police refused to allow McArthur to reenter his home without a police escort for about two hours, while they obtained a warrant to search the home for drugs. 531 U.S. at 328-29, 121 S. Ct. at 948-49. When McArthur did enter, a police officer stood just inside the door and watched what McArthur did. Id. at 329, 121 S. Ct. at 949. An Illinois appellate court upheld the trial court's decision to suppress the drug evidence obtained after a search pursuant to the warrant. Id. at 329-30, 121 S. Ct. at 949. The Supreme Court reversed. Id. at 337, 121 S. Ct. at 953. In upholding the search, it relied on the exigent circumstances exception to the warrant requirement. Id. at 331, 333, 121 S. Ct. at 950, 951. The Court considered four circumstances "in combination." Id. First, the police had probable cause to believe the residence contained contraband. Id.

"Second, the police had good reason to fear that, unless restrained, McArthur would destroy the drugs before they could return with a warrant. . . .

"Third, the police made reasonable efforts to reconcile their law enforcement needs with the demands of personal privacy. They neither searched the trailer nor arrested McArthur before obtaining a warrant. Rather, they imposed a significantly less restrictive restraint, preventing McArthur only from entering the trailer unaccompanied. They left his home and his belongings intact-until a neutral Magistrate, finding probable cause, issued a warrant. . . .

"Fourth, the police imposed the restraint for a limited period of time, namely, two hours."

Id. at 332, 121 S. Ct. at 950-51.

P10 Gay's challenge centers on the second and third circumstances announced in McArthur. We conclude those requirements were met here. Because Gay and Fresby shared the apartment, it was reasonable for the detectives to believe there might be evidence incriminating Gay in the apartment, and Fresby might have incentive to destroy it. See McArthur, 531 U.S. at 331, 121 S. Ct. at 950 (police claim of "specially pressing or urgent law enforcement need" must be "plausible"). Furthermore, the police made a reasonable attempt to accommodate Gay's privacy by not searching the apartment until they had obtained a warrant. See id. at 332, 121 S. Ct. at 950 (decision not to search prior to obtaining warrant a factor in reasonableness of temporary seizure). And Gay cannot raise any violation of Fresby's privacy interests here. See State v. Papineau, 146 Ariz. 272, 273, 705 P.2d 949, 950 (App. 1985) ("Only one whose own rights have been violated may seek the remedy of exclusion.").

Reopening the suppression hearing, where the court orally suppressed, for admission of a transcript of a preliminary hearing in another court would not alter the outcome, so the motion to suppress remains granted for lack of reasonable suspicion. United States v. Pinckney, 2007 U.S. Dist. LEXIS 4624 (D. D.C. January 23, 2007). The court relates the standard for reopening a suppression hearing where the government admits it erroneously failed to include the transcript without deciding whether the proffered reason was sufficient:

"Motions to reconsider suppression orders or reopen suppression hearings rest with the sound discretion of the Court." United States v. Dubose, Criminal Action No. 05-372, 2006 WL 1876999, at *5 (D.D.C. July 5, 2006). Where a new submission suggests that suppressed evidence was lawfully obtained and casts doubt upon the suppression ruling, reconsideration might be appropriate. See United States v. Watson, 391 F. Supp. 2d 89, 93-94 n.2 (D.D.C. 2005). In seeking to reopen the record, the government must "provide a reasonable explanation for its failure to present its proffered evidence initially at the first suppression hearing." Id., 391 F. Supp. 2d at 94 n.3 (citing United States v. Kithcart, 218 F.3d 213, 219-20 (3d Cir. 2000); McRae v. United States, 420 F.3d 1283, 1289 (D.C. Cir. 1969).

Officers found out defendant's name and address after raiding a child porn provider. They did a knock and talk, and defendant made some admissions, was reluctant to talk to them, and essentially lawyered up. Based on the admissions, the officers called defendant's probation officer who quickly came and did a home search, and the PO seized the computer. The search was valid under Knights, no matter what Florida law might have said [and it was not clear that it mattered]. United States v. Gomes, 2007 U.S. Dist. LEXIS 4625 (N.D. Fla. January 23, 2007).

In a civil rights case, the detention for a dog sniff was de minimus, and the case is dismissed. The record showed that the dog was on the scene before the first officer completed his duties related to the stop. Hugueley v. Dresden Police Dep't, 469 F. Supp. 2d 507 (W.D. Tenn. 2007).*

The officers had probable cause to get a state search warrant, but it was not served at the time of the execution of the warrant. Even assuming this might be a constitutional violation, "it was not a 'but-for cause' of seizure of the evidence" under Hudson, so suppression is no remedy. The District Court suppressed based on analysis of Ninth Circuit cases that indicated that failure to comply with the formalities of warrant execution was a constitutional violation. United States v. Hector, 474 F.3d 1150 (9th Cir. January 25, 2007):

The causal connection between the failure to serve the warrant and the evidence seized is highly attenuated, indeed nonexistent, in this case. After the decision in Grubbs II, the only legitimate interest served by the presentation of a warrant appears to be the one we adopted in United States v. Gantt, 194 F.3d 987, 1004 (1999): "The purpose of handing the occupant ... the warrant [under Rule 41(d)], like that of the 'knock and announce' rule is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate" (quoting Stefonek, 179 F.3d at 1035) (internal quotation marks omitted). This interest does not implicate the seizure of evidence described in the search warrant nor would it be vindicated by suppression of the evidence seized.

Finally, the social costs of excluding relevant evidence obtained pursuant to a valid search warrant are considerable. In contrast, the deterrent benefit associated with suppressing the evidence is relatively small in the case of failure to present a copy of the warrant. As noted in Hudson, "[t]he value of deterrence depends upon the strength of the incentive to commit the forbidden act." 126 S. Ct. at 2166. Assuming, as here, that a valid warrant has been obtained, the decision to present or not present the warrant bears little on the validity of the search. Indeed, the officers' failure to present the warrant to Hector was not unreasonable in light of the department policy that explicitly stated that no presentation of the warrant was required. See supra note 2.

In light of the rationale of the exclusionary rule and the considerations set out by the Supreme Court in Hudson, we conclude that suppression was not an appropriate remedy in this case, and that the district court should have granted the government's motion for reconsideration. The district court's order for a new trial on Counts One and Three should be reversed.

Comment: The overwhelming majority of cases before this one and Hudson held that service of the warrant was a matter of notice to the target of the search and it seldom, if ever, rose to any level of prejudice to warrant suppression. Clients, however, always came in with high hopes that a failure to properly or timely serve a search warrant was going to extricate them from their predicament.

Officer had reasonable suspicion for prolonging detention because of various factors (numerous air fresheners in the car, three cellphones, improbable story about trip) and in the conversation the officer asked to talk some more and the defendant promptly consented to a search. The officer lifted the rear tire, and it was heavier than normal. When he got it out, he could hear hard objects rolling around inside. He cut the tire open and found packaged meth. The videotape showed the consent was voluntary. United States v. Flores, 474 F.3d 1100 (8th Cir. January 25, 2007).*

Apparent authority existed for mother's consent to search her adult son's bedroom. While, at the time of the search, she did not have a key in hand, she generally had access to the room and a key. She owned the building, and the son stayed there only at her sufferance. Lack of a key in hand is not determinative. Pratt v. United States, 214 Fed. Appx. 532 (6th Cir. 2007)* (unpublished).

Search warrant issued after two warrantless entries on to property near the border by Border Patrol agents had what the government admitted was false information in it. When that information was purged from the affidavit, probable cause still remained for issuance of the warrant. United States v. Stockton, 2007 U.S. App. LEXIS 1555 (9th Cir. January 22, 2007)* (unpublished).

Handcuffing plaintiff for obstructing an arrest of plaintiff's son when the officer ran into plaintiff pursuing him through the house. The officer was unaware of a prior injury exacerbated by pulling his arms back. The use of force was "de minimus" [at least in police terms; but see what is de minimus], and summary judgment was granted for the officer. Hall v. Neal, 2007 U.S. Dist. LEXIS 5100 (M.D. Fla. January 24, 2007):

The Eleventh Circuit has repeatedly recognized that "the application of de minimis force, without more, will not support a claim for excessive force." Durruthy, 351 F.3d at 1094-95 (finding de minimis force where police officer pulled plaintiff to the ground, pinned his arms behind him, kneed him in the back, and handcuffed him); see Vinyard v. Wilson, 311 F.3d 1340, 1349 (11th Cir. 2002) (finding de minimis force where officer grabbed plaintiff's arm, jerked her out of a chair, handcuffed her behind her back, and later dragged her into the jail by either her shirt, arm or hair); Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000) (finding de minimis force where officer grabbed plaintiff from behind, threw him against a van, kneed him in the back, pushed his head into the side of a van, searched his groin, and handcuffed him); Jones v. City of Dotham, 121 F.3d 1456, 1460 (11th Cir. 1997) (finding "minor" amount of force where officers threw plaintiff against a wall, kicked his legs apart, required him to raise his arms above his head, and pulled a wallet from his pants, causing pain to plaintiff who received minor medical treatment in his arthritic knee after the incident). Further, "what would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown at the time [to the officer]." Durruthy, 351 F.3d at 1095 n. 10.

Defendant Neal struck the Plaintiff in the back in an attempt to pass by the Plaintiff and through a doorway to apprehend the Plaintiff's son, who had an outstanding arrest warrant for violent felony offenses. Defendant Neal, continuing his pursuit, reversed direction, turned in the doorway without looking behind, and again collided with the Plaintiff. After unsuccessfully pursuing the Plaintiff's son, Defendant Neal returned to arrest the Plaintiff for obstructing an officer without violence. In effectuating a full custodial arrest and placing handcuffs on the Plaintiff, Defendant Neal pulled the Plaintiff's hands behind his back and towards his neck in a way that caused him pain. Defendant Neal used no further force on the Plaintiff. While Defendant Neal may have re-injured the Plaintiff's back by striking him during the initial pursuit, that re-injury does not make the force used excessive where, as here, there is no evidence or allegation that Defendant Neal was aware of the Plaintiff's back condition. The force used in this case was clearly less than that determined to be de minimis in Durruthy, Vinyard, Nolin and Jones.

Soon, the right margin will have links to slip opinions so those without Lexis or Westlaw will be able to get opinions as soon as possible.

It will look like this, and you can scroll down to this until it is on the right margin:

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Some U.S. District Courts post major decisions publicly on their websites so one does not have to access them through PACER. Looking through all 93 federal district court websites would not be productive because so few cases end up publicly posted that it is not worthwhile.

New Jersey holds in two cases that the state DNA act can be applied to crimes occurring before its effective date and it applies to juveniles, even under 14, who have committed acts which would be a felony if committed by an adult. A.A. v. Attorney General of New Jersey, 189 N.J. 128, 940 A.2d 260 (N.J. January 24, 2007), aff'g 384 N.J. Super. 67, 894 A.2d 31 (2006); State v. O'Hagen, 189 N.J. 140, 914 A.2d 267 (N.J. January 24, 2007).

Defendant was arrested in his house, but the search incident did not occur for twenty minutes after the officer called to talk to others. There is no time limit on when a search incident can occur, and there was no intervening act of consequence, so the search incident was valid. United States v. Wong, 2007 U.S. Dist. LEXIS 4468 (N.D. Cal. January 9, 2007):

Based upon the record before the Court, the Court finds that the search of defendant's bedroom was "roughly contemporaneous" with his arrest. Cagney's phone call to Martinovich was not an intervening act, but rather was "part of a continuous, uninterrupted course of events" of conducting the search. McLaughlin, 170 F.3d at 893. Cagney called Martinovich to inform him that he had found marijuana and a shotgun in defendant's bedroom, and Martinovich told Cagney that he had found an operating marijuana grow to which defendant was believed to be connected. The call took place during the course of the search, and was topically related to the search. Accordingly, the Court finds that the call to Martinovich did not invalidate the search incident to arrest.

Although it is a closer call, the Court concludes that based upon the evidence submitted, the alleged questioning of defendant also did not constitute an intervening act. Defendant states that officers questioned him for 15 to 20 minutes after he was arrested. Significantly, however, defendant does not state that officers questioned him before conducting the search of his bedroom; defendant's reply declaration is silent on when the alleged questioning took place. Defendant's reply declaration also does not provide any specific information regarding what allegedly transpired during the questioning. Because there is no evidence before the Court that defendant was questioned prior to the commencement of the search, the Court finds that there was no intervening act to invalidate the search of defendant's bedroom as a search incident to arrest.

NYC Sanitation officers entered plaintiff's paper and cardboard recycling business property following a private hauler's truck to inspect it. He sued over the entry, and they moved to dismiss on the ground that the recycling business held a permit and that made it closely regulated. The district court disagreed and denied the motion to dismiss without developing the record much more. Based on what was presented thus far, the court cannot conclude that the recycling business fits the Burger test for a closely regulated industry. Meserole St. Recycling, Inc. v. City of New York, 2007 U.S. Dist. LEXIS 4580 (S.D. N.Y. January 23, 2007).

Execution of a nighttime search warrant was permissible under 21 U.S.C. § 879 even though F. R. Crim. P. 41 limited nighttime searches. The Sixth Circuit has not held that special rules govern execution of nighttime searches. Plaintiff's handcuffing in her bed with flashlights shining in her face at night was not unreasonable. (The probable cause for obtaining the warrant not being at issue.) All of plaintiff's claims fall within the realm of a reasonable exercise of police authority in controlling the situation during the execution of a search warrant, even at night. Taylor v. City of Detroit, 2007 U.S. Dist. LEXIS 4587 (E.D. Mich. January 23, 2007).

Defendant had been arrested, handcuffed, and placed in a police car by the DEA. After being advised of a right to refuse consent, he refused consent to search his house, and the officers then got on a cellphone to call to see about getting a search warrant. Then the defendant consented to the search. On the totality of the circumstances, his consent was valid. United States v. Woods, 2007 U.S. Dist. LEXIS 4529 (D. Idaho January 22, 2007). (Note: The officers also had an admission from a jail telephone call to a woman that he consented to the search that was used at the suppression hearing.)

Defendant was involved in a traffic stop just before 3 a.m. in an SUV. When the officer ran his name, the driver came back as being involved in thefts. On the video, the officer mentioned that he was not accusing the defendant of anything but that his name had come up as being involved in some thefts, and the officer asked for permission to get the serial numbers off some car parts in the back of the SUV. The defendant consented to this search, and a gun was found. The search was valid. United States v. Bauer, 2007 U.S. Dist. LEXIS 4517 (N.D. Iowa January 22, 2007).

Defendant who broke into his parent's house because he had been kicked out and had no key had no standing to challenge the police search of the house on the parent's call to the police about the break-in. United States v. Ochse, 2007 U.S. Dist. LEXIS 4515 (D. S.D. January 19, 2007):

Although defendant formerly lived in his parents' home, it is of no consequence now. At the time of the search, defendant did not live in his parents' residence. This fact was corroborated by defendant's father during his contact with the sheriff's department as he reported defendant's break-in. Defendant was not in possession of a house key and had no other way to access the home when his parents were not present; rather, defendant used extreme force to enter the house.

DNA swab of hands of a man in jail overnight who was accused of a sex offense after he was arrested was valid. Victim’s DNA was found on his hands. State v. Madplume, 2007 MT 11, 335 Mont. 290, 150 P.3d 956 (January 23, 2007).

Discarding contraband while running from the police is not an illegal seizure under Hodari D. United States v. Barham, 2007 U.S. Dist. LEXIS 4238 (E.D. Pa. January 19, 2007).*

Fourth Amendment claim not pursued by defense counsel would have failed on the merits so defense counsel could not be ineffective. Palacios v. Burge, 2007 U.S. Dist. LEXIS 4337 (E.D. N.Y. January 18, 2007).*

Officers responding to an assault in progress with a description of those involved had reasonable suspicion to detain the defendant since he was at the place and fit the description. United States v. Simmons, 2007 U.S. Dist. LEXIS 4376 (S.D. N.Y. January 17, 2007).*

DNA was taken from the defendant on a 2003 conviction and again by search warrant in 2004 for the crime under which he was charged. The court essentially held that it did not matter which sample was used but found the 2003 sample was lawfully taken [just as every other court has]. State v. Williams, 2007 Ohio 212, 2007 Ohio App. LEXIS 211 (11th Dist. January 19, 2007).*

Defective address, 2926 v. 2629, was wrong in warrant but correct in affidavit, the correct address had been surveilled and that is where they went to search, and the other address did not exist. United States v. Giles, 2007 U.S. Dist. LEXIS 4169 (D. Neb. January 19, 2007).*

Probable cause and nexus were shown to the premises. Outside was parked a car involved in a shooting. United States v. Abraham, 213 Fed. Appx. 240 (4th Cir. 2007)* (per curiam).

Plaintiff’s allegation of unnecessary pepper spraying by an officer during an arrest was sufficient to survive summary judgment on the merits and qualified immunity as an excessive force claim. Brown v. City of Warren, 2007 U.S. Dist. LEXIS 4319 (N.D. Ohio January 22, 2007).

Despite a nolle pros of charges against plaintiff in her criminal case, the prior proceedings included an admission of guilt, and that defeated her malicious prosecution claim under the guise of a Fourth Amendment claim. Shilling v. Brush, 2007 U.S. Dist. LEXIS 4330 (M.D. Pa. January 22, 2007).

While defendant was arrested at gunpoint, he made unsolicited statements and twice consented to a search. United States v. Woods, 2007 U.S. Dist. LEXIS 4218 (D. Idaho January 19, 2007).

Witness’s testimony derived from an illegal search affecting the witness did not implicate the defendant’s Fourth Amendment rights, so that testimony will not be excluded at trial. United States v. Defonte, 2007 U.S. Dist. LEXIS 4279 (S.D. N.Y. January 19, 2007).*

Domestic violence and hostage report was exigent circumstances for an entry [and not belaboring the obvious]. United States v. Leon, 2007 U.S. Dist. LEXIS 4291 (S.D. N.Y. January 19, 2007).*

Arrest after response to a tip and questioning outside a motel room led police to arrest the defendant for manufacturing meth inside. Although the arrest was 20' away from the motel room, and a search incident of the motel room was not possible, officers could legally conduct a protective sweep of the motel room to look for unknown confederates, and the resulting plain view was valid. United States v. Atchley, 474 F.3d 840 (6th Cir. January 23, 2007):

Although Atchley and the police were approximately 20-30 feet outside the room, we hold that the protective sweep was warranted. The facts in this case are somewhat similar to those in United States v. Biggs, 70 F.3d 913 (1995), where we held that a protective sweep of a motel room 20-75 feet from the arrest site was constitutional. We found that there were several articulable facts which would lead a reasonable officer to believe that another person was hiding inside the motel room. Id. at 916. For example, the officers had information that another person would be meeting the defendant at the motel room, but had not observed anyone enter and therefore did not know if that person was already inside the room. Further, the room's door was open so if anyone was inside, he would have a clear view of the arrest site. Finally, the officers knew that the defendant had been arrested twice before for possession of a firearm, which justified them accompanying him back into the room so he could retrieve clothing and shoes. Id. at 916. In this case, the arrest site was a similar distance from the hotel room. Two of Atchley's companions escaped (one was later apprehended), and because officers were distracted during the scuffle, they could not be sure whether anyone had reentered the room. Also similarly, the door of the room was open. And in fact, while still outside, officers were able to observe a handgun (later determined to be loaded) lying on the bed in plain view. These factors, combined with the suspects' conduct, reasonably led officers to believe that they might be in danger, and thus the protective sweep was justified.

Pro se complaint from inmate in a mental health institution alleged that forced blood draws were a violation of his Fourth Amendment rights. The court found the blood draws consistent with the special needs exception based on plaintiff’s own allegations. Makas v. Miraglia, 2007 U.S. Dist. LEXIS 4400 (S.D. N.Y. January 23, 2007):

By comparison, courts have found the special needs exception applicable in a hospital setting when there is no evidence that the medical tests are intended to serve a law enforcement purpose. For example, in Anthony v. City of New York, 339 F.3d 129 (2d Cir. 2003), the Second Circuit found that mandatory blood and urine tests undertaken by a state hospital to facilitate diagnosis, treatment, and patient health were constitutionally permissible. In that case, the police detained Anthony and transported her to a state psychiatric hospital. Id. at 133-34. After a psychiatric examination at the hospital, which resulted in a finding that Anthony was "fearful, anxious, delusional, and paranoid," hospital staff drew blood and collected a urine sample from her before providing her with anti-psychotic medication. Id. at 134. Rejecting Anthony's Section 1983 claim, Judge Sotomayor observed that, even though the hospital examined Anthony's blood and urine in order to determine whether she was using drugs or had a physiological imbalance, there was no law enforcement purpose behind the tests. Id. at 142. The tests in Anthony thus fell within the "special needs" exception to the Fourth Amendment's warrant requirement because they were undertaken to help the hospital treat Anthony, rather than to incriminate or otherwise harm her. Id. at 142; see also Roe v. Marcotte, 193 F.3d 72, 78 (2d Cir. 1999) (warrantless collection of blood samples from convicted sex offenders in prisons approved under the "special needs" exception because significant governmental interest in maintaining institutional security, public safety, and order outweighed minimal intrusions on individual privacy).

The applicability of the special needs exception therefore turns on the principal use for which the blood tests in this case were intended. If the purpose was to foster institutional or inmate health or safety, the tests pass constitutional muster. On the other hand, if the purpose was to bolster a criminal prosecution, a warrant would be required before obtaining a sample.

In his papers, Makas concedes that the purpose of many of his blood tests was to detect syphilis and hepatitis, to monitor his cholesterol and thyroid levels, and to check his liver function. (See Compl. 23-24, Ex. A). Such testing plainly was undertaken to ensure that Makas remained healthy while at Mid-Hudson and did not infect others, rather than to further a law enforcement purpose. There consequently was no need for the Defendants to secure a warrant or court order before drawing Makas' blood.

New Jersey, recognizing that all cases are to the contrary, finds that, since its state constitution provides greater rights for individuals, there is an expectation of privacy in an internet service provider's records of screen name owners. State v. Reid, 2007 N.J. Super. LEXIS 11 (January 22, 2007):

Writing on a nearly clean slate, we conclude that defendant had a reasonable expectation of privacy in her ISP account information obtained by Detective Smith from Comcast by means of the invalid subpoena. We do so treading the State constitutional path illuminated by the Court in cases such as McAllister, Hunt and Hempele, decisions which are highly protective of an individual's right to privacy even when the information sought is, of necessity, in the hands of a third-party. As the Court said in Doe, supra, 142 N.J. at 89-90, 662 A.2d 367, "[w]e have found a constitutional right of privacy in many contexts, including the disclosure of confidential or personal information" (citations omitted).

By her use of an anonymous ISP address, 68.32.145.220, or "screen name," defendant manifested an intention to keep her identity publicly anonymous. She could have used her own name or some other ISP address that would have readily revealed her identity, but she did not. Having chosen anonymity, we conclude that defendant manifested a reasonable expectation of privacy in her true identity, known only to Comcast. Defendant's interest in anonymity is both legitimate and substantial, see Doe, supra, 142 N.J. at 87, 662 A.2d 367, and the data on file with Comcast fell within the concept of informational privacy, which we have earlier endorsed.

Comment: Because this case stands alone for this proposition, I do not quote at greater length. The case name is a free link to the opinion which is replete with references to New Jersey having determined that it has a greater right of privacy than that recognized under federal law since a 1907 case, and it develops from there. This is not new for New Jersey because they have rejected several Supreme Court cases that limit the expectation of privacy.

In a federal prosecution for DWI of a civilian under the Assimilative Crimes Act, where Congress has not spoken, under Maryland statutory and common law a military police officer has no authority to pursue a civilian suspect off federal property to make an arrest, even in fresh pursuit. State law had to be applied, too. United States v. Atwell, 470 F. Supp. 2d 554 (D. Md. 2007):

The same restrictions apply to military police officers. See Major Matthew Gilligan, Opening the Gate?: An Analysis of Military Law Enforcement Authority Over Civilian Lawbreakers On and Off the Federal Installation, 161 Mil. L. Rev. 1, 31 (1999). Indeed, the restrictions might even be greater for military law enforcement officers, as military police officers have never been granted broad statutory authority to arrest civilians. Id; Administrative & Civil Law Dep't, The Judge Advocate General's School, U.S. Army, JA-221 Law of Military Installations Deskbook at 2-305 (Sept. 1996) ("Congress has not granted any statutory authority to arrest civilian lawbreakers."). "A firmly rooted principle of American government is that the federal armed forces shall be subordinate to civil authorities." Gilligan, 161 Mil. L. Rev. at 31. Accord 9 Op. Att'y Gen. 516, 522 (1860)("[M]ilitary power must be kept in strict subordination to the civil authority, since it is only in the aid of the latter that the former can act at all."). As a result, while on military property military officers have the same authority that civilian law enforcement officers have, i.e., to maintain order, security, and discipline on a military reservation, see Kennedy v. United States, 585 F.Supp. 1119, 1123 (D.S.C. 1984), such general authority has not been granted for areas where the United States Army does not have exclusive or concurrent jurisdiction.

Officers had probable cause to arrest plaintiff for DWI based on admissions to EMTs which they related to the officers. Therefore, the taking of her blood after an accident under N.Y.'s implied consent law was reasonable, and summary judgment granted. D’Angelo-Fenton v. Town of Carmel, 2007 U.S. Dist. LEXIS 4071 (S.D. N.Y. January 17, 2007).*

When one student alleged that another had raped her at a public school, the school resource officer was able to investigate, and his questioning and requesting that a student remove his shirt to look for scratches or other evidence of the alleged assault was sufficiently based on reasonable suspicion. The reasonableness standard for school resource officers has been applied by numerous other courts, and the Seventh Circuit would apply it here. Wilson v. Cahokia Sch. Dist. # 187, 470 F. Supp. 2d 897 (S.D. Ill. 2007).

Although the Seventh Circuit Court of Appeals has not spoken to the issue, the weight of authority holds, and the Court agrees, that a search of a student on school grounds by a school resource officer at the request of school officials should be deemed a search by a school employee for Fourth Amendment purposes and thus is subject to the reasonableness standard, not the probable cause standard. See, e.g., In re William V., 4 Cal. Rptr. 3d 695, 699-700 (Cal. Ct. App. 2003) (a police officer on assignment to a school as a resource officer was a "school official" for purposes of the Fourth Amendment, and thus his search of a student was analyzed under the T.L.O. reasonableness standard); State v. N.G.B., 806 So. 2d 567, 568-69 (Fla. Dist. Ct. App. 2002) (reasonableness, not probable cause, was the appropriate standard by which to assess the legality of a search of a student by a school resource officer, where the investigation was initiated by the school's vice principal who enlisted the officer's assistance); State v. Whorley, 720 So. 2d 282, 283 (Fla. Dist. Ct. App. 1998) (a search of a student by a school resource officer must be justified at its inception, and the search must be reasonably related in scope to the reason for the search); People v. Dilworth, 661 N.E.2d 310, 317 (Ill. 1996) (the reasonableness standard, not the probable cause standard, applied to determine whether a police liaison officer, who was a staff member at an alternative school for students with behavioral disorders, violated a student's Fourth Amendment rights by searching a flashlight possessed by the student, who was suspected of involvement with drugs); In re Josue T., 989 P.2d 431, 436-37 (N.M. Ct. App. 1999) (applying the reasonableness standard where a school resource officer conducted a search of a student at the request of a school official); In re Angelia D.B., 564 N.W.2d 682, 687 (Wis. 1997) (citing Cason v. Cook, 810 F.2d 188, 191-92 (8th Cir. 1987)) (the reasonableness standard, not the probable cause standard, applied to a search conducted by a school liaison officer, at the request of and in conjunction with school officials, of a student reasonably suspected of carrying a dangerous weapon on school grounds; the officer became involved in the investigation only after school officials requested his assistance, and, throughout the course of the investigation, he acted in conjunction with school officials on school grounds).

Turning then to the search at issue in this case, the Court discerns no genuine issue of fact as to the reasonableness of the search. The search obviously was justified at its inception, as Adams had reported to Prince that she had been sexually assaulted by another student, an incident which clearly demanded prompt investigation by school officials. Further, the record demonstrates that the search was reasonably related in scope to the reason for the search, in light of the factors outlined in Vernonia.

Defendants were driving a rented SUV from Seattle east, and they ran it off the road and onto its side in a blizzard in North Dakota. An officer came upon the vehicle with no one around, and checked and found no accident having been reported with it. He found it open and he sought to ascertain whose vehicle it was from looking through the glove box and then inventorying the contents. The court found the officer's determination that the vehicle was a "hazard" was reasonable because people might have stopped to render aid since it was 40 feet from the highway and visible. His inventory of the vehicle was sufficiently standardized to pass constitutional muster. United States v. Thi Le, 474 F.3d 511 (8th Cir. January 22, 2007)*

An anonymous tip that was uncorroborated failed to justify granting summary judgment for a police officer in a false arrest case. Diaz v. Jenne, 2007 U.S. Dist. LEXIS 4049 (S.D. Fla. January 19, 2007).*

Officer's talking with plaintiff to gather information from him prior to the plaintiff's arrest was not a seizure because plaintiff was not restrained at that point. At some point, however, the situation escalated into a handcuffing, and the justification for it is unclear, so the officer's motion for summary judgment is denied as to that part of it. Morales v. Taveras, 2007 U.S. Dist. LEXIS 4081 (E.D. Pa. January 18, 2007).*

An issue which has appeared a couple of times recently, such as Jan. 18th's post, is an apparent willingness to engage in real fact analysis and expand the rights of social guests: social guest standing where the guest was not an overnight guest. Finding standing where the social guest was a good friend who hung out at his friend's house and spent the night is United States v. McKinney, 470 F. Supp. 2d 1226 (D. Kan. 2007). "Ultimately, the court must determine whether [the defendant], as a social guest, had an 'ongoing and meaningful connection to the residence.'"

Although Mr. McKinney did not permanently live at Mr. Newsom's residence, Mr. Newsom's testimony indicates that the two had known each other for about two years and that Mr. McKinney visited Mr. Newsom socially about once a month to watch ball games or barbeque. Furthermore, although Mr. McKinney did not have a key or keep any personal belongings at the residence, he had spent the night there about five or six times in the two years prior to the night of the search. On two or three occasions, Mr. Newsom allowed Mr. McKinney to use the residence in Mr. Newsom's absence. Mr. McKinney also kept his vehicle in Mr. Newsom's garage and there was no indication that Mr. Newsom received any money in exchange for this.

In support of his argument that he had standing to object to the search as a social guest, Mr. McKinney relies heavily on the Tenth Circuit's opinion in United States v. Rhiger, 315 F.3d 1283 (10th Cir. 2003). The defendant in Rhiger had known the homeowner about two weeks, had stayed overnight at the residence three or four times, and on the day of the search had entered the unoccupied residence unannounced to take a nap. Id. at 1286. A neighbor testified he had seen the defendant's car at the residence for several days and receipts left by the defendant were found in the residence. Id.

The Tenth Circuit began its analysis with the Supreme Court decision in Minnesota v. Carter, 525 U.S. 83 (1998), which held that an individual present at another's property for purely commercial reasons has no expectation of privacy to challenge a search of that property. Id. citing Carter, 525 U.S. at 90-91. The Circuit also observed that "the Court pointedly contrasted the status of a guest who has a 'degree of acceptance into the household' from a guest present for 'purely commercial' reasons, noting the former possessed a far greater expectation of privacy in the premises than the latter." Id. at 1286 (citing Carter, 525 U.S. at 90). The Circuit ultimately concluded that the defendant in Rhiger had "'an ongoing and meaningful connection' to [the residence] as a social guest" and therefore had a legitimate expectation of privacy in the residence. Id. at 1287.

In this case, the friendship between Mr. McKinney and Mr. Newsom may not be as close as the friendship Mr. Rhiger had with his host. Mr. Rhiger had only known the host two weeks and spent the night at his residence three or four times. In this case, Mr. McKinney stayed the night at Mr. Newsom's residence only five or six times over the course of two years. However, the court does not think the relative "closeness" of the friendship is significant. The question is whether Mr. McKinney was more like one who is present for "purely commercial reasons" or whether he was a guest who had a sufficient "degree of acceptance" in Mr. Newsom's home. Ultimately, the court must determine whether Mr. McKinney, as a social guest, had an "ongoing and meaningful connection to the residence."

This case is different from the purely commercial relationship in Carter. 525 U.S. at 83. Although Mr. Newsom worked on Mr. McKinney's car while it was stored at the residence, the facts do not indicate that Mr. Newsom received any significant compensation. Furthermore, similar to the facts in Rhiger, Mr. McKinney stayed the night at Mr. Newsom's residence several times and visited him socially quite a few times over the course of their friendship. Although he had to have Mr. Newsom's permission, Mr. Newsom would allow Mr. McKinney to be in the residence when he was not home. All of these facts indicate that Mr. McKinney experienced a "degree of acceptance" in Mr. Newsom's residence.

Based on the Tenth Circuit's reasoning in Rhiger, the court concludes that Mr. McKinney had an "ongoing and meaningful connection" to Mr. Newsom's residence. Accordingly, he had a legitimate expectation of privacy in the residence and he has standing to challenge the search of Mr. Newsom's home. Because Mr. McKinney has established that he had a legitimate expectation of privacy in Mr. Newsom's home, the court must go on to determine the validity of Mr. Newsom's consent to the search and whether the officers in this case exceeded the scope of that consent.

Probable cause as to a vehicle means it is searchable under the automobile exception because there is no separate exigency requirement. United States v. Freemyer, 2007 U.S. App. LEXIS 1212 (9th Cir. January 16, 2007)* (memorandum).

(Postings were late today because of not enough bandwidth choking off my access. Whether that is a DOS attack or just too many readers remains to be seen. I know this site is not that popular.)

Police had probable cause to search defendant's tractor-trailer which was locked up and parked behind a locked fence. The vehicle was still mobile enough for the vehicle exception to apply. State v. Anderson, 949 So. 2d 544 (4th Cir. 2007):

Moreover, although the appellant refers to an immobilized tractor-trailer in this case, there is nothing in the record to indicate that the vehicle was not readily mobile. Detective Stovall repeatedly referred to a truck, not a trailer. At one point he did refer to the vehicle as a "tractor-trailer" noting that it had been "backed into this lot." The fence in front of the lot was not locked and apparently was easily opened in light of the detective's testimony that the defendant repeatedly entered the lot. Because the vehicle was backed in, it presumably could be pulled out of the lot and driven away. Overall, it appears that, like the truck parked in a driveway in the Labron case, the vehicle was still "readily mobile" even if not parked on a public thoroughfare at the time of the search.

Officers went to a house during a homicide investigation that had occurred nearby and saw what appeared to them to be a recent burglary, which is not merely a property crime [because burglaries happen when people are at home and they become home invasion robberies]. This was an emergency that justified their entry on its own and because of the mere potential it might have been related to the homicide. State v. Lemieux, 726 N.W.2d 783 (Minn. January 18, 2007):

Burglary of a dwelling is not "deemed a purely property offense because *** such an offense always carries with it the possibility of violence and therefore some special risks to human life." State v. Nunn, 297 N.W.2d 752, 754 (Minn. 1980). Other courts have concluded that police entry is justifiable under the emergency-aid exception where police have reasonable grounds to believe that a burglary is in progress or has recently occurred. See, e.g., United States v. Lenoir, 318 F.3d 725, 730-31 (7th Cir. 2003) (upholding warrantless entry where defendant who was carrying two high-powered rifles fled from police into nearby home but had trouble entering the door and police reasonably feared for the safety of the home's occupants); United States v. Tibolt, 72 F.3d 965, 970-71 (1st Cir. 1995) (upholding warrantless entry on reasonable, though mistaken, belief that residence was the source of security alarm); Murdock v. Stout, 54 F.3d 1437, 1441-42 (9th Cir. 1995) (upholding warrantless entry during investigation of suspected burglary, where facts known to police indicated that resident was not responding and circumstances suggested that resident should have been present); Carroll v. State, 335 Md. 723, 646 A.2d 376, 384 (Md. 1994) (upholding warrantless entry based on open door, a broken window pane, and information that the resident was away and not expected to return for a day or two); see generally 3 Wayne R. LaFave, Search and Seizure § 6.6(a), at 459-61 (4th ed. 2004) (stating that entry is reasonable "to seek possible victims of violence in premises apparently burglarized recently"); Decker, supra at 490 (stating that "[m]ost courts have applied the emergency doctrine in circumstances where police reasonably believe that a burglary is in progress or has recently occurred").

Furthermore, here the apparently burglarized residence was in close proximity to a brutal and seemingly random homicide. Ultimately, it was determined that the perpetrator entered the residence through the window: the victim's blood was under the window on the exterior wall of the residence, the victim's belongings were inside under the window sill, and, in closing arguments, counsel for both parties acknowledged that the perpetrator gained entry through the window. That the officers later learned Lemieux had entered his own abode is of no moment: "what matters is their reasonable belief" that a burglary was in progress or had recently occurred at the time of the entry. In re Sealed Case, 332 U.S. App. D.C. 84, 153 F.3d 759, 765 (D.C. Cir. 1998).

The officers' search was also limited to the scope of the emergency, sweep-searching the floors for the presence of intruders or injured occupants and departing immediately upon finding the residence unoccupied. And assuming that the officers' subjective motivations are a relevant state-law consideration, a warrantless search conducted during a criminal investigation does not necessarily preclude application of the emergency-aid exception so long as one of the motives for the warrantless search corresponds to an objectively reasonable emergency. See, e.g., Cervantes, 219 F.3d at 891 (concluding that officer making warrantless entry to locate a methamphetamine lab during criminal investigation was primarily motivated by concern for the safety of the apartment building's occupants, as evidenced by the officer's order that the tenants turn off open flames and evacuate the building); see also Decker, supra at 511-16 (discussing subjective-motivation element). Here, the officers' warrantless entry was primarily motivated by concern of a burglary in progress, as evidenced by the call for backup and entry with firearms drawn.

In conclusion, we hold that the police entry of the residence in close proximity to a brutal and seemingly random homicide was justified under the emergency-aid exception to the warrant requirement because the officers had reasonable grounds to believe that a burglary was in progress or had recently occurred, the entry was motivated primarily to look for possible victims, and the scope of the search was limited to the emergency.

The place to be searched, an apartment in a multiunit building, was sufficiently described. "The affidavit described the location with sufficient certainty and designated a specific apartment 'located in the south building on the south side on the rear near the railroad tracks.' This description distinguishes the apartment to be searched from all other nearby apartments." State v. Cotton, 2007 Tenn. Crim. App. LEXIS 34 (January 18, 2007).*

The most significant case of the week, maybe the month, is this one from Iowa on Friday, State v. Lane, 2007 Iowa Sup. LEXIS 5 (January 19, 2007) (case name is free link), where the Iowa Supreme Court rejected Wong Sun for a Brown v. Illinois attenuation analysis (all of which seemed a little overdone under the circumstances which I save for the comment below). Remember, Wong Sun applied to searches and Brown applied to confessions, but the Iowa court found that Brown fit this case better, and it goes to great lengths to justify it. This was not, however, a great leap because the court cites other cases which have done the same.

We must address several factors to determine if Hogan's consent was an exploitation of the previous illegality. In Brown v. Illinois, 422 U.S. 590, 603-04, 95 S. Ct. 2254, 2262-63,45 L. Ed. 2d 416, 427 (1975), the United States Supreme Court identified important factors to consider in a confession case. These factors included the temporal proximity between the illegality and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Id. at 603, 95 S. Ct. at 2262-63, 45 L. Ed. 2d at 427; see State v. McCoy, 692 N.W.2d 6, 24 (Iowa 2005) (applying those factors). The present case, of course, is not a confession case, but a consent case. Nevertheless, the issues in each case are similar: whether the confession, or consent, is an exploitation of the prior illegality. The United States Supreme Court has recognized this similarity, see Florida v. Royer, 460 U.S. 491, 501, 103 S. Ct. 1319, 1326, 75 L. Ed. 2d 229, 238-39(1983), and other courts have consistently applied the factors identified in Brown to consent cases, see, e.g., Rodriguez, 945 P.2d at 1364 (analyzing the three factors identified in Brown); Hight, 781 A.2d at 14 ("[W]e find instructive the [three] factors considered relevant by the United States Supreme Court [in Brown]."); Borges, 511 N.E.2d at 59-60 (ordering the trial court to consider the issue according to, inter alia, the factors set forth in Brown); Hansen, 63 P.3d at 665-66 ("The United States Supreme Court has noted three factors that have particular relevance in reviewing the facts: [temporal proximity, intervening circumstances, and the purpose and flagrancy of the illegal conduct].").

On temporal proximity, the court found the factors weighed in favor of attenuation because a fair amount of time apparently had passed. On presence of intervening circumstances, the court found that the defendant was advised of his right to refuse consent. On the purpose and flagrancy of the police misconduct, the court also found that that weighed in favor of attenuation. On a fourth question of “additional factors,” the court found that the fact that the illegal entry was of another building unrelated to the premises searched. The court added that this had nothing to do with the good faith exception to the exclusionary rule.

Comment: Maybe it's just me, but I don't see how the defendant had standing to complain of the first search anyway. Maybe I missed something. Or maybe the court did because they wanted to create this rule.

Avoiding a drunk driving roadblock is not reasonable suspicion without more, such as observing the defendant weaving. Here, there was no reasonable suspicion. State v. Heapy, 113 Haw. 283, 151 P.3d 764 (2007).

Crossing the fog line once in Kansas is not justification for a stop without more, such as weaving. State v. Ross, 149 P.3d 876 (Kan. App. January 19, 2007).*

Dog sniff of interior of car was valid where the dog jumped into the car on his own. United States v. Hutchinson, 471 F. Supp. 2d 497 (M.D. Pa. 2007):

The reasoning of Stone was followed in United States v. Watson, 783 F. Supp. 258 (E.D. Va. 1992), where the district court denied a defendant's motion to suppress narcotics discovered in his open vehicle while it was parked in a valet-parking location of a hotel with the driver's-side door open. In that case, a canine officer kept the vehicle under observation while other officers were searching defendant's hotel room and, ultimately, in placing the defendant under arrest following the discovery of narcotics within the hotel room. Following the arrest, a police officer came downstairs to coordinate with the canine officer and, while there, asked the officer to "do a search of the car." Id. at 262. At this point, "[t]he drug-sniffing dog proceeded to climb into the car where he 'started biting on the passenger seat, indicating that he hit on some type of narcotic smell, either on that seat or underneath it.'" Id. Thereafter, an officer "popped the trunk lever located next to the driver's seat" and the dog jumped in the trunk of the car, where he bit on a plastic foam food container. Id. The officer proceeded to open the container and discovered approximately $16,000 in bundled cash. Id.

Noting that it was clear that the officers were entitled to use the dog to conduct an exterior sniff of the vehicle, the court found that "[t]he next question ... is whether by jumping in the open passenger door, the dog caused what is supposed to be a very limited encounter to escalate into a violation of the Fourth Amendment." Id. at 265. Relying exclusively on Stone, the district court concluded that the search was lawful because the court had been presented "with no evidence that the dog was encouraged to jump in the car by its handler." Id. Finding that the dog's act of alerting to the passenger seat provided probable cause to believe the automobile contained narcotics, the court upheld the subsequent search of the foam container in the trunk and the seizure of the cash located therein. Id.

The reasoning of Stone has been applied in similar and analogous contexts in other cases involving canine sniffs that became relatively more invasive as the sniff progressed. See, e.g., United States v. Reed, 141 F.3d 644, 650 (6th Cir. 1998) (upholding a canine sniff of the interior of an apartment that revealed crack cocaine where the police and canine were in the apartment lawfully to look for a suspected intruder, where dog may have moved dresser drawers in the course of the sniff, thereby exposing the contraband contained in the drawers to plain view; the court found that the dog's "instinctive actions" in moving the dresser drawers did not render the sniff constitutionally infirm); United States v. Lyons, 957 F.2d 615, 616-17 (8th Cir. 1992) (upholding the seizure of narcotics discovered in defendant's bag after drug-detecting canine alerted to, and immediately tore into, the bag in the course of a sniff; relying on Stone and rejecting defendant's argument that the dog's independent act of tearing into the bag tainted the sniff and subsequent seizure); United States v. Lyons, No. 05-3099, 2006 U.S. Dist. LEXIS 14454, *11-21 (D. Neb. Feb. 15, 2006) (upholding a dog sniff where the dog's nose penetrated the vehicle's open window, even where officer directed dog to sniff window area, finding that the dog detected the odor of drugs while outside the vehicle and the act of sticking its head inside the car was not directed by the handler but was "initiated by the dog himself"); United States v. Lewis, No. 05-69, 2005 U.S. Dist. LEXIS 38142, *25-26 (W.D. Mich. Dec. 27, 2005) (after questioning sua sponte whether a dog's entry into a vehicle tainted the validity of a dog sniff, the court concluded that a dog's sniff of vehicle's interior was lawful because the evidence established that the driver's side window was down when the sniff commenced and, apparently, because the court found dog's entry into the vehicle was prompted by the odor of the narcotics that were contained therein rather than the actions of its handler); see also United States v. Liberto, 660 F. Supp. 889, 891 (D.D.C. 1987) (predating Stone) (where narcotics dog sniffing in a public passageway outside the defendant's train compartment lunged into his open roomette and sniffed in the direction of a suitcase located on a rack above the floor, held that the lunge was not a search under the Fourth Amendment, relying on Place). But cf. United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir. 1998) (suppressing contraband discovered in a van following a canine sniff of the interior where officers lacked any reasonable suspicion that the van contained narcotics and where officers opened the van's door, allowed the open van to sit on the side of the road while they waited for a canine unit to arrive, and where the dog's handler unleashed the dog as it neared the open door; distinguishing Stone because the evidence demonstrated that the officer endeavored to facilitate a sniff of the van's interior).

As the foregoing demonstrates, the majority of federal courts that have confronted questions similar to that presented in this case have concluded that canine sniffs of the interior of a vehicle or other container are lawful, but suggest that such interior sniffs may become constitutionally infirm in the event that the interior sniff is accomplished or facilitated by the officer-handler.

Comment: And, of course, the officer always testifies that the dog jumped in the car on its own, and the officer never encouraged it. Right. In fact, in the videos I've been seeing in court, the officer suspiciously turns the audio on and off at various times. Thus, even with a videotape, the officer could tell the dog to jump into the open door or window and then just deny it because there is no sound and one cannot see his mouth move because of his body being turned. They do know, after all, that they are being videotaped.

A Franks violation was not shown by reference to “items” on defendant’s criminal history because it did not suggest convictions or by leaving out that there was another apartment nearby which could explain the unusual traffic going to and coming from defendant’s apartment. United States v. Santos, 2007 U.S. Dist. LEXIS 3723 (D. Mass. January 17, 2007).*

Plaintiff failed in his claim of false arrest because there was probable cause for his detention by the police where he went to work at 3:00 a.m. by crawling over a back fence from behind a neighboring K-Mart that was also closed. It had all the appearances of a crime in progress, although plaintiff had permission to enter the property as he did and had in the past with the permission of his boss. Harris v. City of Southaven, 2007 U.S. Dist. LEXIS 3844 (N.D. Miss. January 17, 2007).*

Defense counsel was not ineffective for not arguing that seizure of allegedly illegally seized shotgun should be excluded from sentencing because circuit law already permitted illegally seized evidence to be admitted unless “such evidence might be excluded if the police intentionally violated the Fourth Amendment for the purpose of sentence enhancement,” which the court already found the officers did not. Guzman v. United States, 2007 U.S. Dist. LEXIS 3823 (D. R.I. January 17, 2007).

Officers doing a knock-and-talk came to defendant's house and knocked, but did not state their purpose. When defendant opened the door and saw the police, he exclaimed "Oh, shit!" and tried to shut the door, but an officer blocked shutting the door with his foot. They then forced their way in. The defendant's conduct was a denial of 149 P.3d 961 (November 9, 2006, released for publication January 16, 2007), cert. granted (No. 30,131) December 14, 2006.

During a suppression hearing, a Franks issue arose, and the court invited the parties to brief it. The state did not. The court purged the false information and concluded the remainder did not show probable cause and suppressed. The judgment was affirmed on appeal. The state was invited to brief the Franks issue and failed to do so. State v. Ralston, 2007 Ohio 177, 2007 Ohio App. LEXIS 175 (4th Dist. January 11, 2007).

In a criminal copyright infringement action, a search warrant for counterfeit goods was being executed when a truck with additional allegedly counterfeit goods arrived at the scene of the search. The truck was searched, too, and more was found. The defendants' challenge of the search warrant as to the premises failed. As to the truck, the government obtained a superseding indictment alleging attempted possession after the defendants denied ownership or control of what arrived in the truck. The question now was relevance at trial under F.R.E. 401 on the attempt question. United States v. Ohri, 2007 U.S. Dist. LEXIS 3381 (E.D. Va. January 16, 2007).

In a civil case against 14 defendants, the defendants' motion to enlarge the deposition to 16 hours over two days under F.R.C.P. 30(d)(2) was granted where plaintiff would not stipulate, and the number of defendants required that much time to determine their potential liability. Saunders v. Knight, 2007 U.S. Dist. LEXIS 3387 (E.D. Cal. January 4, 2007).*

Habeas claim that state court applied wrong standard of review in state PCR proceeding was not cognizable on habeas. Peek v. Hooks, 2006 U.S. Dist. LEXIS 94793 (M.D. Ala. December 5, 2006).*

Trial court's assessment of credibility on question of consent required denial of motion to suppress be denied. State v. Purser, 2007 Ohio 192, 2007 Ohio App. LEXIS 166 (2d Dist. January 19, 2007).*

The defendant's employer had a computer use and e-mail policy that effectively eliminated all reasonable expectation of privacy in the system or defendant's own work station. United States v. Hassoun, 2007 U.S. Dist. LEXIS 3404 (S.D. Fla. January 17, 2007):

However, the Defendant argues in his objections that the employer's ownership of the seized computer and components and the existence of the above-quoted policy, which does not forbid all personal use of computers and allows for employee monitoring of an employee's work computer, is not dispositive of the employee's expectation of privacy.

In his R & R, the Magistrate Judge relied on cases that did not forbid all personal uses of the employer's computer and/or computer network systems. United States v. Angevine, 281 F. 3d. 1130 (10th Cir. 2002) and United States v. Scrushy, No. CR-03-BE-0530-S, 2005 WL 4149004 (N.D. Ala. 2005). Moreover, MarCom's policy did not limit in any way its right to monitor an employee's computer. Although the MarCom policy did not forbid employees' personal use of their assigned computers, the policy makes clear that all uses --work or personal, would be subject to the company's monitoring. "Employer monitoring is largely an assumed practice, and thus...a disseminated computer-use policy is entirely sufficient to defeat any expectation that an employee might nonetheless harbor." United States v. Ziegler, 456 F.3d 1138, 1146 (9th Cir. 2006).

In a forfeiture case, the record supports the finding that the claimant consented to a search of the vehicle that produced the cash. Jury verdict of relation to drugs was supported by the evidence. United States v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars in United States Currency, 214 Fed. Appx. 432 (5th Cir. 2007)* (unpublished).

A suspicionless search of a known parolee, under the authority of Cal. Penal Code § 3067(a), did not violate the Fourth Amendment. That section applied to defendant's parole via § 3067(c) because the underlying offense for his parole was committed on March 7, 2001. Because even a suspicionless search of a person known by police to be a California parolee subject to § 3067(a) was not unconstitutional, defendant's challenge to the search based on lack of reasonable suspicion failed. The court noted that defendant did not challenge the search as arbitrary, capricious, or harassing. United States v. Dixon, 217 Fed. Appx. 712 (9th Cir. 2007)* (unpublished) (virtually quoting from the Lexis Overview).

Police responded to a 911 call that someone in the area of defendant's house was firing a shotgun at their house. Police arrived and found shotgun shells on the ground, and defendant was associated with the premises. He was removed from the area. Officers then talked with his girlfriend, and they learned that she had moved into the house months earlier. She also paid the telephone bill. She had apparent authority to consent, and Randolph did not apply. United States v. Groves, 2007 U.S. Dist. LEXIS 3518 (N.D. Ind. January 17, 2007)* (on remand from the Seventh Circuit in light of Randolph which was decided after briefing).

The Supreme Court Friday granted cert in Brendlin v. California, 06-8120, per SCOTUSBlog: "if police stop a car along the highway, does that result in detention of the passengers in the vehicle, for Fourth Amendment purposes, thus allowing them to contest the legality of the original stop. A divided California Supreme Court ruled that a Fourth Amendment violation resulting from an illegal traffic stop may be challenged only by the driver, not any passenger, since the passenger has not been 'seized.'"

The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: "Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy's authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs." [The free link to the California Supreme Court opinion is now dead.]

Prediction and comment: Unless the Supreme Court parts with 90% of the existing state and federal authorities, this case will be reversed. A stop of a car is a seizure of the occupants. They may not having standing to challenge a search of the car they were riding in, but what happens when they are searched themselves as a result of an unlawful stop?

An officer was approaching defendant's house to do a knock and talk and discovered a propane tank used for anhydrous ammonia in the back of a truck with the distinctive bluish color. The state satisfied its burden of being in a lawful vantage point and that the evidentiary value of the tank was immediately apparent. Keehn v. State, 223 S.W.3d 53 (Tex. App. — Ft. Worth 2007)*:

Viewing the evidence in the light most favorable to the trial court's ruling, we hold that law enforcement officers had probable cause to believe that the propane tank--located inside the van that was parked in the driveway in front of Keehn's home--was associated with criminal activity. See Kelly, 204 S.W.3d at 818. It was thus immediately apparent that the propane tank constituted evidence of a crime. See Walter, 28 S.W.3d at 541. Because Deputy Deford and Officer Spragins had a lawful right to be on Keehn's driveway when they observed the tank, and because it was immediately apparent that the propane tank constituted evidence of a crime, the State met its burden of proving the reasonableness of the search and seizure by establishing the applicability of the plain view doctrine--a "specifically defined and well-established" exception to the warrant requirement. See McGee, 105 S.W.3d at 615. Accordingly, we overrule Keehn's sole point.

Defendant was stopped for weaving, and he gave a false name and claimed no driver's license on his person. The officer ran the name given and got no hits. He asked the driver to come back to the patrol car so they could talk about it because a differently spelled first name had a warrant out. Defendant claimed the name, and the warrant. Defendant and the occupants were more than normally nervous. Bail was $630 and the officer said he would take the defendant to get the bail. Going back to the car, he told the passengers, and a door was opened and the inside light showed the handle of a gun, which the officer seized. The officer was justified in seizing the gun. United States v. Cloud, 2007 U.S. Dist. LEXIS 3211 (D. Minn. January 16, 2007).*

Under new F.R.A.P. 32.1, we are starting to get memorandum opinions from some federal appellate courts that are as cryptic or more as some New York appellate decisions that are per curiam and simply state "We find that, based on the totality of the circumstances, the arresting officers did not act unreasonably in securing the evidence that Brown sought to have suppressed," with no statement of fact. United States v. Brown, 2007 U.S. App. LEXIS 934 (D.C. Cir. January 16, 2007).* Opinions like this are meaningless to everybody but the parties.

There is normally no expectation of privacy in a stolen vehicle, but the Indiana Court of Appeals finds standing in a locked metal box defendants had in a stolen vehicle, analogizing it to a purse which has been left in a stolen vehicle during a stop. State v. Winkle, 859 N.E.2d 1244 (Ind. App. January 17, 2007).

Chiropractor's claim he was searched before a state chiropractic board hearing was barred by the statute of limitations because the claim ran from when the search occurred, not when he learned it was illegal. Pearce v. Romeo, 2007 U.S. Dist. LEXIS 3100 (N.D. Cal. January 3, 2007).*

In a habeas ineffectiveness claim on a search issue, the court necessarily must get to the merits of the search issue. Here, there was reasonable suspicion for the stop, and the petitioner would fail on the merits of the issue, so counsel was not ineffective. Palacios v. Burge, 470 F. Supp. 2d 215 (E.D. N.Y. 2007)*:

"Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice." Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

Strip search class action failed: Jail inmates received were stripped down to their underwear for a clothing search, and transferees from other jails or courts were strip searched on arrival. These were reasonable. Sutton v. Hopkins County, 2007 U.S. Dist. LEXIS 3150 (W.D. Ky. January 11, 2007).*

Defendant was at the apartment of a woman he had known for 15 years and had just come out of the shower when the police arrived with a search warrant. The Washington Supreme Court held that he had standing to challenge the search of the premises even though he was not an overnight guest. He fell into the area in between a casual visitor with no standing and an overnight guest with standing that required a fact intensive inquiry. State v. Link, 2007 Wash. App. LEXIS 70 (January 17, 2007) (the case name is a free link if one wants to see the cases in fn. 11-12):

Link [inexplicably] did not challenge the search warrant [implying that he should have]; instead he moved to suppress the evidence found in Woolsey's house under CrR 3.5 and 3.6. The trial court held that Link had standing to challenge the search because he was more than a casual guest in Woolsey's apartment, as evidenced by Link's (1) romantic relationship with Woolsey; (2) having a key to the apartment; and (3) being in a state of semi-undress when he was apprehended.

But the trial court denied Link's motion to suppress. ...

. . .

Federal and state courts that analyzed whether a social guest had standing found importance in the following factors: (1) the defendant's relationship with the homeowner or tenant; (2) the context and duration of the visit during which the search took place; (3) the frequency and duration of the defendant's previous visits to the home; and (4) whether the defendant kept personal effects in the home. n11 Relating to the second factor, courts typically have found no standing when the defendant was merely the guest attending a large party or the defendant failed to prove that he was the legal occupant's guest. n12 We adopt these four factors as relevant, but not exhaustive, guidelines for the ultimate question of whether the defendant manifested a subjective expectation of privacy that society recognizes as reasonable. Jacobs, 101 Wn. App. at 87.

Looking at these four factors, we conclude that Link had a legitimate expectation of privacy in Woolsey's home and thus has standing.

THE DEFENDANT'S RELATIONSHIP WITH THE HOMEOWNER OR TENANT

Link and Woolsey had a romantic relationship. This factor indicates that Link would have a reasonable subjective expectation of [*15] privacy when he was alone with Woolsey and her children. Society recognizes that a tenant's intimate partner has an expectation of privacy while in his partner's home and that this expectation is reasonable.

THE CONTEXT AND DURATION OF THE VISIT DURING WHICH THE SEARCH TOOK PLACE

Link testified that he was helping Woolsey pack and move, while the State theorized that Link was in the apartment to manufacture and use methamphetamine. It is clear, however, that the purpose of Link's visit was not simply to engage in illegal and commercial activities; he took a shower and was partially undressed when Officer Mettler intruded. This is more evidence that Link had a subjective expectation of privacy that society would recognize as reasonable.

THE FREQUENCY AND DURATION OF THE DEFENDANT'S PREVIOUS VISITS TO THE HOME

Link spent the night at Woolsey's home once or twice before, he had stayed in Woolsey's apartment alone once, and had his own key. Link had a greater sense of privacy than would a visitor who was helping Woolsey move and who had not been entrusted with a key to the home.

WHETHER THE DEFENDANT KEPT PERSONAL EFFECTS IN THE HOME

Link kept an extra hat, jacket, and possibly a pair of shoes in Woolsey's home. These items established Link's frequent and possible overnight guest relationship at the apartment and evidence a subjective expectation of privacy in the apartment.

In summary, all four factors indicate that Link had a legitimate expectation of privacy in Woolsey's home. Accordingly, we hold that Link has standing as a social guest to challenge Officer Mettler's warrantless search.

Contrast this: The defendant contended that he had no interest in a trailer in an effort to distance himself from the drugs found in it. The court held that he had moved out and he was merely contributing to rent for the occupant. Therefore, he had no standing; yet, he [somehow] could consent to its search. Halderman v. State, 964 So. 2d 1163 (Miss. App. 2007):

P10. This Court holds that the trial court correctly determined that Halderman had no standing to challenge the warrantless search. Halderman testified that he recently had moved and did not live in the trailer. He also testified that he received his mail at a different address. While he admitted to paying rent and some utilities for his girlfriend, Baker, he maintained that he did so to assist her because she had a small child. Because Halderman disavowed any possessory interest in the property, he has no standing to challenge the search. Id.

P11. Even if Halderman had standing to challenge the warrantless search, the Court finds that the trial court did not err in determining that the signed consent was valid to waive the warrant requirement under the Fourth Amendment. See, e.g., Moore v. State, 933 So.2d 910, 917-918 (PP18-25) (Miss. 2006). The two officers that explained the consent form to Halderman and witnessed his signing of the form testified that the form was completed prior to Halderman's signing and that Halderman consented to a search of the trailer. Halderman's statement that the form was blank when he signed it and that he agreed only to a search of his vehicle was the only testimony that contradicted the officer's testimony. Id. at 918 (P24) (citing Jones v. State, 607 So.2d 23 (Miss. 1991)). Accordingly, even if Halderman did have standing to challenge the search, he waived his right to do so when he signed the consent to search form.

Comment: Defense counsel: take note. A defendant can often be standingless yet still be held to be in possession. A standing inquiry should be used to either embrace standing and an expectation of privacy in the premises or to distance oneself as far as possible from the contraband. Sometimes it can be done, often not. This depends, at times, on appearances. After all, what is "apparent authority" but an appearance of authority? One could appear to the police to have authority at the time of the search but, on closer examination after the search, be found without it, and the police could still rely on his apparent authority to consent.

Officer's seeing the defendant in possession of drugs is probable cause [Duh!]. United States v. Lopez, 2007 U.S. Dist. LEXIS 2807 (D. P.R. January 12, 2007).*

A citizen informant identified a white Grand Prix as having an occupant with a gun. Officers stopped the car and found the gun, but the search should have been suppressed because possession of a gun in a car in Minnesota is not necessarily a crime because he could have had a carry permit. State v. Timberlake, 726 N.W.2d 509 (Minn. App. January 16, 2007):

At the inception of the stop, all that the officers knew was that an informant had witnessed a black male in possible possession of a handgun near a convenience store, and that the black male had left the convenience store heading east on Maryland in a white Pontiac Grand Prix driven by a black female. The officers were able to verify that a white Pontiac Grand Prix, being driven by a black female with a black male passenger, was heading east on Maryland approaching Arkwright.

Because the informant was an identifiable private citizen, and the officers were able to verify details of the informant's report before initiating the stop, it was reasonable for the officers to suspect that someone in the white Pontiac Grand Prix was in possession of a gun. But in Minnesota, possession of a firearm in a motor vehicle is lawful if the possessor has a permit. Minn. Stat. § 624.714, subd. 1a (Supp. 2003). Nevertheless, respondent contends that because possession of a gun in a public place is unlawful without a permit, the officers had reasonable suspicion to believe that appellant was committing a crime--i.e., that he did not have a permit. But it is equally plausible that appellant did have a permit. Accordingly, we conclude that mere suspicion that a person possesses a gun is insufficient to warrant a Terry stop, absent additional particular and objective facts which create a reasonable suspicion that the possessor does not have a permit or is otherwise about to commit a crime.

A search incident to an arrest includes the vehicle defendant was in, including containers found in the passenger compartment. Suppression order reversed. Commonwealth v. Rose, 2007 Ky. App. LEXIS 6 (January 12, 2007):

In this case, Rose was arrested prior to the search of the vehicle in which she had been an occupant. It is of no consequence that Danny gave permission to search the vehicle. If an officer has made a lawful arrest of an occupant of a vehicle, the officer can conduct a search of the passenger compartment of that vehicle and any containers therein, even if the suspect is detained in a police cruiser away from the vehicle.

Inmate survived the PLRA cut and defendants are required to answer his complaint that he was strip searched and forced to stand naked outside his cell in view of jailers of the opposite sex, citing Lee v. Downs, 641 F2d 1117 (4th Cir. 1982), where "[t]he Court stated that '[p]ersons in prison must surrender many rights of privacy which most people may claim in their private homes. Much of the life in prison is communal, and many prisoners must be housed in cells with openings through which they may be seen by guards. Most people, however, have a special sense of privacy in their genitals, and involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating. When not reasonably necessary, that sort of degradation is not to be visited upon those confined in our prisons.' Id. at 1119. The cases analyzed after the Lee opinion suggest that reasonable necessity is intertwined with penalogical interest. In other words, if an inmate's privacy can be maintained without compromising prison operations, then that privacy should be respected. Hickman v. Jackson, 2005 WL 186245 (E.D.Va.)." Azariah v. McCurry, 2007 U.S. Dist. LEXIS 2802 (W.D. N.C. January 12, 2007).

The Bush Administration has agreed today to allow the Foreign Intelligence Surveillance Court to do its job and monitor surveillence, according to the NYTimes.com, and posted within the last hour: White House Says Judiciary Will Monitor Spy Program:

The Bush administration, in what appears to be a concession to its critics, said today it will allow an independent court to monitor its warrantless electronic-eavesdropping program.

Attorney General Alberto Gonzales told the leaders of the Senate Judiciary Committee that the Foreign Intelligence Surveillance Court, created by the Foreign Intelligence Surveillance Act of 1978 to supervise anti-terrorism wiretapping within the United States, will supervise the eavesdropping operations from now on.

The attorney general sought to portray the administration’s change of posture as anything but grudging. “In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the administration began exploring options” for seeking such approval, he said.

An appellate prosecutor in the Arkansas Attorney General's Office who is also a part-time magistrate 45 miles from Little Rock is still a "neutral and detached magistrate" for issuing a search warrant, although the practice is disapproved. Davis v. State, 2006 Ark. LEXIS 671 (September 28, 2006), pet. for cert. pending 06-8552. [Ok, you got me: this is our cert petition referred to in the January 1st post. Question presented: "Whether a part-time Arkansas District Judge who issued a search warrant who was also a full time career Assistant Attorney General in the Criminal Division in the Executive Branch is a 'neutral and detached magistrate.'" My research revealed that there are two lines of authority: Fourth Amendment and due process. Here they meet.] Update: Cert. denied March 26, 2007.

Defendant allowed officers in while she retrieved her identification for them. While they were there they decided to get a consent to search. This was a nighttime entry, and the Arkansas Supreme Court had previously held that a nighttime knock and talk requires a warning of a right to refuse, and this case fit within that rule. Motion to suppress should have been granted. Burroughs v. State, 2006 Ark. App. LEXIS 880 (October 11, 2006).

A claim against a New York state wiretap not following state law is not cognizable in habeas because it is not a constitutional claim. Alternatively, the petitioner had a full and fair opportunity to litigate the claim in state court on the constitutional question, and the holding below is not an unreasonable application of federal law. Hickey v. Conway, 2005 U.S. Dist. LEXIS 44249 (N.D. N.Y. July 6, 2005).*

Defendant was stopped for DUI and requested a blood test. The officer attempted to get one, but, because of the weather and a high number of calls for the paramedics, time was running out. He then told the defendant that he would have to submit to a breath test or lose his license. "[T]he Supreme Court orders the suppression of the breath test results because they resulted from an invalid consent to search, due to the arresting officer's erroneous and coercive advice to Turbyne that he could lose his license by not submitting to a chemical test he had not selected." Turbyne v. People, 151 P.3d 563 (Colo. January 16, 2007).

Having stipulated to having moved out of an apartment where a murder occurred, the defendant abandoned it, and he had no expectation of privacy in it. State v. Russell, 2007 Ohio 137, 2007 Ohio App. LEXIS 129 (2d Dist. January 12, 2007).*

Defendant could be handcuffed during a reasonable suspicion stop without violating the Fourth Amendment. State v. Porche, 943 So. 2d 335 (La. November 29, 2006, released for Publication December 13, 2006).*

Officers had reasonable suspicion for frisk of defendant's person but not his vehicle. They asked for consent to search first and were denied. United States v. Spinner, 374 U.S. App. D.C. 347, 475 F.3d 356 (D.C. Cir. 2007).

Overbreadth in search warrant is remedied by suppresing that which was should not have been seized, not by suppressing the whole search. United States v. Alagic, 2007 U.S. Dist. LEXIS 2698 (E.D. Mo. January 12, 2007):

In any event, even if some portion of the search warrant were deemed to be overbroad, suppression would be limited only to those items seized pursuant to the overbroad portions of the warrant. See United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983) (en banc) (holding that despite seizure of firearms pursuant to invalid portion of warrant, evidence of participation in drug conspiracy admissible in accordance with sufficiently particularized portions of warrant); accord, United States v. Timley, 443 F.3d 615, 622 (8th Cir.) (holding that where warrant is invalid only in part, warrant is "severable," and items seized pursuant to valid portions need not be suppressed), cert. denied, 127 S.Ct. 299 (2006); United States v. Krasaway, 881 F.2d 550, 553 (8th Cir. 1989) (same). Here, Defendant has not identified any items seized pursuant to allegedly overbroad portions of the warrant. Indeed, the only item seized that was specifically identified at the hearing, was the $13,000 in currency, and currency was specifically listed in the warrant.

Defendant's wife was excluded from the defendant's property because of a domestic violence order of protection. Nevertheless, he permitted her on the premises, and there was no reason why the police could not reasonably believe her apparent authority to consent. United States v. Barefoot, 2007 U.S. Dist. LEXIS 2548 (E.D. N.C. January 7, 2007).

In a bizarre case out of the Ninth Circuit, a panel holds 2-1 in a § 1983 case that a 12 hour police standoff with a potentially drunk and armed suspect at some point required a warrant, something that I would not have expected. The exigency was not continuing. "On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events." Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. January 16, 2007) (case name is free link). This case is just too complicated to explain, but the gist is that Fisher was never quite seized because he would not come out of his house, despite the use of a throw telephone to communicate with him and lobbing in tear gas cannisters. At some point, it became necessary to get a warrant to enter because, after 12 hours, there was no longer any exigency. Fisher was charged with a felony for pointing a gun at police, but the jury deadlocked, and he pled to a misdemeanor and filed the § 1983 case. That jury found for the defendants, but the district court on a judgment NOV awarded nominal damages, which were sustained.

A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City alone, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court's ruling on appeal, as we agree that the failure to obtain a warrant under the unusual circumstances of this case constituted a constitutional violation as a matter of law.

The conclusion:

Standoffs with barricaded suspects present hard decision-making problems for police, often requiring split-second tactical determinations. The results can be tragic even when the police behavior is for the most part quite reasonable. See, e.g., Ewolski, 287 F.3d at 499 (involving the object of a standoff who shot himself and his son during the standoff). A warrant may not prevent such tragic occurrences. But interposing a neutral and detached magistrate between the police, who are "acting under the excitement that attends the capture of persons accused of crime," United States v. Lefkowitz, 285 U.S. 452, 464 (1932), and the citizen, who may or may not have committed a wrong, may, on occasion, bring a useful perspective to the situation. Id. ("[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests."); see also Johnson v. United States, 333 U.S. 10, 14 (1948) (noting that the Fourth Amendment's "protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime"). The warrant requirement's goal is to permit a third party to evaluate whether the police should be intervening into a situation at all. If not, police retreat can prevent an awkward situation from escalating into a dangerous one.

Here, it may well be that a timely application to a magistrate would have resulted in issuance of a warrant for Fisher's arrest and events would then have proceeded pretty much as they did. But that is not certain, and is in any event beside the point. The criminal jury hung on the felony count presented to it, so it is at least possible that a magistrate would have thought the police lacked probable cause on the charge for which he was arrested. More importantly, it is precisely to require the officers involved to articulate the grounds for arrest and to obtain the views of a dispassionate magistrate on the adequacy of those grounds that a warrant is required.

Here, there were plenty of police officers involved and there was plenty of time -- at least several hours -- to obtain such a warrant [even a telephonic warrant]. It was unconstitutional to fail to do so.

The collective knowledge doctrine does not require that the officers making the stop know why. Defendants' arguments that all officers must be part of a "coordinated criminal investigation" is rejected as unworkable and contrary to Supreme Court authority. United States v. Ramirez, 473 F.3d 1026 (9th Cir. January 16, 2007):

Moreover, there is good reason to reject such a proposed limitation:

"The accepted practice of modern law enforcement is that an officer often makes arrests at the direction of another law enforcement officer even though the arresting officer himself lacks actual, personal knowledge of the facts supporting probable cause. ... [¶] ... The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superior or associates."

Jensen, 425 F.3d at 704-05 (citations and internal quotation marks omitted). The Supreme Court has shared these concerns, specifically endorsing our view "'that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'" Hensley, 469 U.S. at 231 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)).

The Quarles public safety exception permitted officers to question a suspect about having a gun after an exigent circumstances entry into his motel room and then look for it after he admitted he had one. United States v. Newsome, 475 F.3d 1221 (11th Cir. January 16, 2007).

Probation officers conducted a home visit of a probationer, and he was being visited by defendant. When defendant left, he took a bag with him which the officers decided to search. Their authority extended only to the probationer and not his visitor, the suppression motion was properly granted. The officers could not seize defendant. Commonwealth v. Scott, 2007 PA Super 16, 916 A.2d 695 (2007):

[*P5] Further, unless there are exigent circumstances, none of which existed here, a search of [probationer] McDowell's residence must have been supported by reasonable suspicion that, "the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision." Searches by county probation and parole officers, supra. That is to say, if there had been evidence McDowell was under supervision for a drug offense, then perhaps the officers would have had reasonable suspicion for the search, but they still would have needed a supervisor's approval absent exigent circumstances. Here, no such suspicion existed; in fact, Officer Yasenchak testified his sole purpose for being at McDowell's residence was to conduct a routine home visit, and Officer Kerstetter testified he went along on the "spur of the moment." N.T. at 6, 44. Even if one were to concede the officers had the "right" to conduct a Terry stop, which this Court specifically denies, the officers had no reasonable basis (suspicion) upon which to detain appellee. Once the bag was removed from the premises by appellee, the officers had no authority to detain appellee, search the bag that he removed from McDowell's residence, or do anything other than perhaps call the police on McDowell's behalf, if they believed the bag was being stolen. No evidence was presented to suggest the officers believed appellee to be armed and dangerous, warranting a search for their protection. Suppression was properly granted.

Habeas petitioner did not file a suppression motion before trial, but he raised the issues on appeal, and the state appeals court reached the merits, denying relief. He had his fair opportunity to litigate the suppression issue under Stone v. Powell, and his certificate of appealability ("COA") is denied. Webster v. AG of Oklahoma, 213 Fed. Appx. 664 (10th Cir. 2007).* (Note: This opinion is the first I've encountered to attempt to comply with new F.R.A.P. 32.1. It does not say it is "unpublished," just not binding.)

Likewise, a 2255 petitioner who admitted that he consented to a search and then never pursued the search claim could not claim counsel was ineffective for not raising it. Lopez-Contreras v. United States, 2007 U.S. Dist. LEXIS 2357 (M.D. Fla. January 11, 2007).*

On the government's motion to reconsider, two informants independently provided information about the defendant that corroborated each other. This, coupled with defendant's actions, gave the officers at least reasonable suspicion of drug trafficking, and that permitted the officers to pat the defendant down for weapons when they stopped him. United States v. Maxfield, 2007 U.S. Dist. LEXIS 2364 (D. Utah January 11, 2007)* (Note: The court was concerned that this issue was not fully raised in the first response to the motion, but it gave the government an opportunity to argue it again, this time siding with the government.)

Plaintiff failed to respond to defendants' motion for summary judgment in a § 1983 action, which is deemed consent to granting the motion under local rule. Nevertheless, the court goes to the merits, and plaintiff loses because the officers' actions were reasonable in making a stop of a potentially stolen vehicle and his subsequent detention. Hudson v. City of North Las Vegas, 2007 U.S. Dist. LEXIS 2377 (D. Nev. January 4, 2007):

Hudson has neither alleged, nor is there any evidence to suggest that Defendants were not diligent in performing their investigation or that the scope of their investigation ventured into areas unrelated to their suspicion of a car theft. Although Defendants ultimately determined Hudson was not stealing the vehicle, that does not mean Defendants did not have reasonable suspicion to perform the stop. The Fourth Amendment accepts the risk that officers may stop innocent people. Gallegos, 308 F.3d at 992.

As the Devlin kidnapping case unfolds, one cannot yet tell from the news stories (see NYTimes.com and CNN.com) whether a search warrant was used for the entry into the apartment where the boys were found. The Times article talks about a "hunch," but the hunch was what led the officers to keep Devlin under surveillance. When they decided to confront Devlin as he was taking out the trash, his demeanor was at first friendly and cooperative and then turned "180 degrees." That would potentially be reasonable suspicion at the least. Devlin's vehicle matched the description of the kidnapper's vehicle. But, according to the news articles, they did not enter: they called the FBI which came out. Apparently the FBI made the entry.

Did they need a warrant to enter? Cases generally hold that officers may enter with probable cause but without a warrant where they are seeking to rescue a kidnapping victim. Wedgeworth v. State, 610 So. 2d 1244 (Ala. Crim. App. 1992); State v. Hatter, 342 N.W.2d 851 (Iowa 1983); Oliver v. United States, 656 A.2d 1159, 1167-68 (D.C. App. 1995):

Other jurisdictions have reflected these unique qualities of kidnapping in holding that kidnapping may create exigent or emergency circumstances, even without direct evidence of a threat of bodily harm to the victim. See People v. Thiret, 685 P.2d 193, 200 (Colo. 1984) (en banc) (finding exigent circumstance when a "three-year-old child had recently been abducted, her life could well have been in danger, and the Sheridan police were engaged in efforts to determine her whereabouts"); Benefiel v. State, 578 N.E.2d 338, 345 (Ind. 1991) (finding emergency situation when a 17 year-old kidnapping and rape victim's life is in danger), cert. denied, 504 U.S. 987, 112 S.Ct. 2971, 119 L. Ed. 2d 591 (1992); Johnson v. State, 554 P.2d 51, 54 (Okla. Crim. App.) (finding exigent circumstances in kidnapping case in "hopes of saving a human life" when police suspected that elderly man being held in a trunk of an automobile during cold days), cert. denied, 429 U.S. 943, 97 S. Ct. 364, 50 L. Ed. 2d 314 (1976); People v. Diaz, 170 A.D.2d 618, 566 N.Y.S.2d 391, 392 (N.Y. App. Div. 1991) (finding emergency situation when father allegedly kidnapped four-year-old son because the "safety of the child was potentially in jeopardy"), appeal denied, 588 N.E.2d 762 (1992).

A recent case in our neighboring jurisdiction involved a report that a man and woman had been missing for eighteen hours. Burks v. State, 96 Md. App. 173, 624 A.2d 1257 (Ct. Spec. App.), cert. denied, 332 Md. 381, 631 A.2d 451 (Md. 1993). An officer spotted the man's car outside a motel room and through a gap in the curtains saw a fully clothed man and woman lying on top of one bed and a third person lying face down on the other bed; all three appeared to be asleep. 624 A.2d at 1267. The trial judge acknowledged that "there was no blood on the scene. There were no signs of injury or struggle. The room was not ransacked from anything that [the officer] could tell, nor did he have any information as to the identity of the perpetrator, or as to whether this person was armed." 624 A.2d at 1270. Nevertheless the trial court ruled, and the appellate court affirmed, that for the officer "to have waited to get a warrant or to have called the room to say 'are you all right in there' would have been ill-advised, and may well have resulted in serious injury or escape." Id. Thus, the officer's warrantless entry was permissible under the exigent circumstances exception. Id.

When dealing with something as significant as a kidnapping victim inside, the quantum of probable cause for an entry effectively becomes a sliding scale: the greater the exigency, the easier it will be for any court to conclude there was probable cause. See Brinegar v. United States, 338 U.S. 160, 175 (1949) ("The standard of proof for [probable cause] is ... correlative to what must be proved.") which suggests this, and which Justice Jackson dissenting in Brinegar, at 183, admitted:

But if we are to make judicial exceptions to the Fourth Amendment for these reasons, it seems to me they should depend somewhat upon the gravity of the offense. If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Also, remember that, under Illinois v. Gates, 462 U.S. 213, 238 (1983), probable cause is a "fair probability" on the totality of the circumstances. It is not "more probable than not." Indeed, what would normally be "reasonable suspicion" might effectively become "probable cause" in a case like this; no matter that the question of probable cause for a warrantless entry is reviewed de novo on appeal. Orneleas v. United States, 517 U.S. 690 (1996).

The bottom line: Once this case is in court, all doubts will be resolved in favor of sustaining the entry.

Tuesday Update: The St. Louis Post-Dispatch reports today that Devlin refused consent to search.

Devlin refused to let officers check his apartment, which triggered surveillance that resulted in Devlin's arrest Friday and the subsequent rescue of the boys.

An article yesterday reports that the police found child porn on his computer.

Presumably they had a warrant for the computer. The emergency exception only allows them to enter to look for a missing child, not conduct a wholesale search.

The defendant's co-tenant could consent as long as there was no showing that the defendant's removal from the premises was not to prevent him from consenting, following United States v. Groves, 470 F.3d 311, 321(7th Cir. 2006). United States v. Ryerson, 2007 U.S. Dist. LEXIS 2279 (W.D. Wis. January 9, 2007).*

Owner of a tire shop in Memphis was arrested and he consented to a search of his business. Officers already had a conversation on a wire where one employee bragged that they had guns on the premises and one was an armed felon, and that gave reasonable suspicion to confront the employees with drawn weapons. Defendant was not an employee of the tire shop, but it was understood that he was to the officers when they entered. The initial detention was reasonable under Summers and the frisk of defendant was reasonable based on officer safety. United States v. Bearden, 213 Fed. Appx. 410 (6th Cir. 2007)* (unpublished).

After an anonymous tip of marijuana growing on defendant's property, police got a search warrant. "What is in dispute is the timing of the search vis-a-vis the issuance of the warrant." The trial court found the search followed issuance of the warrant, and that was not clearly erroneous. United States v. Hartman, 213 Fed. Appx. 396 (6th Cir. 2007)* (unpublished).

Excessive force claim during seizure for mental evaluation of reportedly suicidal citizen failed because the officer's conduct under all the circumstances was not unreasonable and did not shock the conscience. Clark v. Summit County, 508 F. Supp. 2d 929 (D. Utah 2007).*

Officers responded to three calls about teenagers drinking in the backyard of a house. They responded and pulled up in front. As one approached, two teenagers drinking beer from clear bottles yelled "Cops!" and ran to where the others were to warn them, and the people in the backyard scattered. The curtilage is implied consent to approach on the curtilage, but the officers could pursue the fleeing drinkers into the backyard. Robinson v. Commonwealth, 2007 Va. LEXIS 14 (January 12, 2007):

IMPLIED CONSENT

The Robinsons argue that the Court of Appeals erred in holding that Officer Cox did not exceed the scope of implied consent to enter the curtilage of their home. The Robinsons do not challenge the doctrine of implied consent but, instead, challenge the standards for its application articulated by the Court of Appeals.

Elisa maintains that a police officer's subjective intent at the moment of entry onto the curtilage of a dwelling is relevant in determining whether the officer acted within the scope of the officer's implied consent. Elisa contends that "[o]ne impliedly consents only to the approach to the front door to knock and make inquiry." Thus, she asserts, an officer has implied consent "to go to the entrance of the home only by the most direct route and only if he is acting in good faith to contact the owners of the property for a purpose such as asking questions of the occupants."

George concedes that Officer Cox had implied consent to enter the driveway. George argues, however, that once Officer Cox was on the property and "actively searching for evidence of a crime within a constitutionally protected area," Cox's "legitimate reason" for entering the property, to contact the Robinsons, was "revoked," thereby rendering Cox's presence unlawful. George further argues that implied consent could not extend beyond the point where the path to the front door intersected the driveway absent the development of "a new legitimate reason."

Both Elisa and George urge us to adopt a bright line rule that the scope of implied consent is limited to the most direct path to the front door of a dwelling to "knock and talk" with one of its residents. Elisa asserts that Officer Cox's failure to comply with this rule rendered his initial entry onto the curtilage unconstitutional. George argues that Officer Cox's actions became illegal when, after lawfully entering the property, he failed to proceed directly to the front door.

In resolving these issues, we first consider whether an officer's subjective intent is relevant to a determination of whether the officer's entry onto the curtilage of a dwelling was constitutional under the implied consent doctrine. Neither the United States Supreme Court nor this Court has addressed this question. We observe, however, that established jurisprudence concerning the constitutionality of police searches provides little, if any, support for application of a subjective standard in determining the constitutionality of an entry conducted pursuant to the doctrine of implied consent.

The United States Supreme Court has repeatedly rejected any consideration of the subjective motivation of a law enforcement officer in determining whether police searches were constitutionally infirm and, instead, has relied on an objective view of the facts and circumstances of each particular case. See, e.g., Arkansas v. Sullivan, 532 U.S. 769, 771-72 (2001) (reversing granting of motion to suppress based on officer's alleged "improper subjective motivation"); United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (rejecting argument that search was unlawful because officers' intent in boarding vessel was other than that contemplated by statute which authorized officers to board to examine vessel's documentation); Scott v. United States, 436 U.S. 128, 138 (1978) ("[T]he fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action").

We conclude that the holdings in the above cases, when considered collectively, counsel against consideration of a police officer's subjective intent in determining the legality of the officer's actions. Because a contrary interpretation of these holdings would directly conflict with the Supreme Court's recent guidance in Stuart, we hold that the Court of Appeals did not err in concluding that Officer Cox's subjective intent was irrelevant to a determination of whether he exceeded the scope of the implied consent in conducting the challenged search and seizures.

Comment: The issue was presented as first exceeding implied consent, but exigent circumstances was all the court really needed to talk about. This likely was the defense choice because the exigent circumstances issue was a sure loser, and the first argument at least gave a glimmer of hope. The court, however, could have just skipped the first issue and gone to the second.

The Virginia Supreme Court sustained an anticipatory search warrant that potentially failed to satisfy the second Grubbs prong. Since the second question was too difficult to decide, it just punted and went to the good faith exception, and, of course, found the search valid. Ward v. Commonwealth, 2007 Va. LEXIS 4 (January 12, 2007):

This probable cause determination, sufficient to authorize the issuance of an anticipatory search warrant, was then described by the Supreme Court as a two-pronged inquiry by the issuing magistrate:

"[F]or a conditioned anticipatory warrant to comply with the Fourth Amendment's requirement of probable cause, two prerequisites of probability must be satisfied. It must be true not only that if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place,' Gates, [462 U.S. at 238], but also that there is probable cause to believe the triggering condition will occur. The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination. See Garcia, [882 F.2d] at 703.

Grubbs, 126 S. Ct. at 1500.

In the present case, it appears self-evident that the first prong of the Grubbs inquiry, the probability that the package would be found at 129 South Old Church Street, was satisfied by the terms of Detective Riley's affidavit. The second prong of the Grubbs probable cause analysis, where the magistrate determines if "there is probable cause to believe the triggering condition will occur," is not so easily answered. Grubbs may limit the probable cause analysis only to that information before the magistrate at the time the decision to issue the warrant is made: "The supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination." If that is so, then events ex post the issuance of an anticipatory search warrant could not be used to satisfy the probable cause requirement.

However, it is unnecessary for us to resolve whether the Court of Appeals analysis meets the requirements of Grubbs because the Commonwealth's assignment of cross error is dispositive in this case. Accordingly, we will assume, but expressly do not decide, that the search warrant in this case failed to meet the second prong of the probable cause analysis in Grubbs and turn our attention to the assignment of cross error.

...

In the present case, the record does not reflect that the executing officers knew or should have reasonably known that their reliance on the warrant was objectively unreasonable. The address listed on the package was very similar to the address searched. Furthermore, the actions of the executing officers in this case were analogous to those described in Polston and Derr. In both cases, the defendant contended the affidavit relied upon by the magistrate lacked a substantial basis to find probable cause to issue the search warrant. Polston, 255 Va. at 502, 498 S.E.2d at 925; Derr, 242 Va. at 419-20, 410 S.E.2d at 665. Nonetheless, the Court held the evidence seized during the search conducted pursuant to the warrants was admissible under the good-faith exception because the officers "acted in good faith, reasonably, and under the authority of an apparently valid search warrant." Polston, 255 Va. at 504, 498 S.E.2d at 926; Derr, 242 Va. at 422-23, 410 S.E.2d at 667. The officers who conducted the search in the case at bar similarly acted in good faith, based on the authority of an apparently valid search warrant.

Lastly, the Supreme Court in Leon stated the good-faith exception will not apply where a warrant is "so facially deficient - i.e., in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid." Leon, 468 U.S. at 923 (citing Massachusetts v. Sheppard, 468 U.S. 981, 988-991 (1984)). Clearly, this exclusionary circumstance does not apply as the affidavit and search warrant in the case at bar were explicit as to the place to be searched and the items for which a search was to be conducted.

None of the circumstances described in Leon as exclusions to the application of the good-faith exception apply in this case. Moreover, exclusion of the evidence obtained by the search warrant would not further the purposes of the exclusionary rule.

Comment: Another example of the good faith exception causing the development of the law to become stifled. The Virginia Supreme Court practically wrote the second Grubbs requirement out of the law by saying "close enough for government work."

Anonymous tip was so deficient in information of bad acting by the defendant that it could not support a stop on reasonable suspicion. At best, all the police knew was that defendant was drinking a beer, but he had a drug arrest record so they decided to stop him. State v. Grimes, 2006 Wisc. App. LEXIS 1248 (December 27, 2006).*

Defendant consented to a search of his car, but he withdrew consent to a locked metal briefcase. He was first asked for the key and did not answer. Then he said it was not his and he could not consent to its search and seizure. The Washington Supreme Court found no abandonment of the expectation of privacy, reversing the court of appeals (but agreeing with the court of appeals that the defendant had standing). State v. Evans, 159 Wn.2d 402, 150 P.3d 105 (January 11, 2007), rev'g 129 Wn. App. 211, 221, 118 P.3d 419 (2005):

The Goodman and Zakel decisions suggest to us that a denial of ownership, by itself, did not divest Evans of his privacy interest in the briefcase. But as the Court of Appeals noted, "our courts have not analyzed whether one can disclaim property but still challenge a later search, where the disclaimed property remained in an area where one has a reasonable expectation of privacy." Evans, 129 Wn. App. at 222. As a result, we consider the guidance offered by Goodman and Zakel in the context of how courts in other jurisdictions have approached a disclaimer of ownership.

A survey of decisions from these other jurisdictions supports a recognition that Evans retained a privacy interest in the briefcase. These courts have concluded that a defendant's denial of ownership does not divest him or her of a privacy interest in that property, provided the search takes place in an area where the defendant had a privacy interest. For example, in State v. Huether, 453 N.W.2d 778 (N.D. 1990), the defendant denied ownership of a bag that was found stuffed under the front seat of his car. The court noted there that the defendant had not discarded the property in a public area, but rather that it was located in an area in which he retained a privacy interest, his car. The court said, as a result, "[t]here is little doubt that Huether had an expectation of privacy in his vehicle and in every container therein that concealed its contents from plain view." Id. at 781. Like Huether, Evans did not discard the briefcase and he retained a privacy interest in the car that was searched.

The holding in Huether is consistent with the rulings of other state courts. The Illinois Supreme Court, for example, has indicated that the court must look at "'the totality of the circumstances, but pay particular attention to explicit denials of ownership and to any physical relinquishment of the property.'" People v. Pitman, 211 Ill. 2d 502, 813 N.E.2d 93, 105, 286 Ill. Dec. 36 (2004) (quoting United States v. Basinski, 226 F.3d 829, 836-37 (7th Cir. 2000)). But when Illinois courts pay close attention to a disclaimer of ownership, the presence of one is not sufficient, by itself, to demonstrate voluntary abandonment. See, e.g., People v. Lee, 226 Ill. App. 3d 1084, 590 N.E.2d 1000, 1002, 169 Ill. Dec. 81 (1992) (confirming privacy interest for purposes of standing). For example, when a defendant denied ownership of a bag stuffed under the front seat of his car, it did not constitute voluntary abandonment. Id. New York's highest court has reached a similar conclusion, indicating that "[s]tanding alone, the surrender of control or disclaimer of ownership does not always establish a waiver." People v. Ramirez-Portoreal, 88 N.Y.2d 99, 666 N.E.2d 207, 213, 643 N.Y.S.2d 502 (1996) (citing 1 LAFAVE, supra, § 2.6(b)).

Holding the same is United States v. Felix, 2007 U.S. Dist. LEXIS 1957 (S.D. Cal. January 9, 2007), posted yesterday.

Two cases on mistake of law from Illinois and W.D. Pa. showing a split in the authorities making the issue cert worthy:

In Illinois, an officer stopped the defendant because a strand of beads was hanging off the rearview mirror, and he determined that it obstructed the driver's view in violation of Illinois law. The law required it materially obstruct the view, which this could not, so the stop was invalid. People v. Cole, 369 Ill. App. 3d 960, 874 N.E.2d 81, 314 Ill.
Dec. 171 (4th Dist. 2007).

Recognizing a circuit split, the W.D. Pa. holds that "the Court of Appeals for the Third Circuit distinguished the decisions of the 'sister circuits' which held that 'mistakes of law--even reasonable ones--can render a traffic stop "unreasonable" under the Fourth Amendment,' and held that mistakes of law are not per se unreasonable." Officer's reasonable mistake as to taillight law did not make stop unreasonable. United States v. Burks, 2007 U.S. Dist. LEXIS 2147 (W.D. Pa. January 11, 2007).*

False arrest and search claim is barred by Heck, absent successful appeal or post-conviction. Karboau v. Lawrence, 2007 U.S. Dist. LEXIS 2060 (D. Ore. January 8, 2007).*

Marijuana eradication helicopter flight passed over defendant's property enroute to another piece of land and they saw marijuana growing on defendant's land. Circling back to look, the helicopter descended to 100-200'. This was not an illegal search. The defendant's claim that the warrant was backdated was without any evidentiary support. Differ v. State, 2007 Ala. Crim. App. LEXIS 22 (January 12, 2007).

Multiple controlled buys showed timely nexus to defendant's premises. Commonwealth v. Gallagher, 68 Mass. App. Ct. 56, 859 N.E.2d 893 (January 12, 2007):

"The information in the affidavit must be adequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there." Commonwealth v. Eller, 66 Mass. App. Ct. 564, 565, 849 N.E.2d 859 (2006). "The connection between the items to be seized and the place to be searched does not have to be based on direct observations; it may be found by looking at the type of crime, nature of the items, the suspect's opportunity to conceal items, and inferences as to where the items are likely to be hidden." Commonwealth v. Olivares, 30 Mass. App. Ct. 596, 600, 571 N.E.2d 416 (1991).

Defendant shared a house with his mother and sister, and his girlfriend lived with him in a separate room. She validly consented to a search of the room they shared and the common areas. She could not, however, consent to a search of defendant's mother's room because the mother did not share it with her. United States v. Castaneda-Abrego, 2007 U.S. Dist. LEXIS 2043 (W.D. N.C. January 8, 2007).*

Police had a parole violation warrant, and it authorized them to enter defendant's premises after knocking and getting no answer (but they expected him to be inside). The parole conditions said "any time" and that allowed the search. United States v. Stewart, 193 Fed. Appx. 219 (7th Cir. January 12, 2007)* (unpublished).

Under the clearly erroneous standard of review, a police officer's testimony that a taillight was broken and that was justification for a stop did not have to be corroborated by photographs to be sustained on appeal. United States v. Kemp, 214 Fed. Appx. 127 (3d Cir. 2007)* (unpublished).

Immigration checkpoint stop led to consent within a minute of the car's arrival. A drug dog was brought out instead, and the dog's alert was probable cause. United States v. Rodriguez, 213 Fed. Appx. 327 (5th Cir. 2007)* (unpublished).

Wealth of probable cause to believe the defendants were involved in a meth operation justified a search incident of the car they were in when they were arrested. A probation search was conducted of one defendant's property, and then a search warrant was obtained. Even if the probation search had been invalid, removing all references to it from the consideration of the remainder of the affidavit still left probable cause to search. United States v. Fugate, 2007 U.S. Dist. LEXIS 2052 (W.D. Ky. January 10, 2007).*

The affidavit did not have to demonstrate that the officer independently attempted to corroborate the informant. It is sufficient that the affidavit as a whole shows that the informant was reliable. Here, the informant knew that a false statement would have repercussions with the police, and he saw a drug deal go down with the defendant [which is substantial basis of knowledge in every other case I've read]. United States v. Bronson, 2007 U.S. Dist. LEXIS 1867 (D. Kan. January 8, 2007).*

Officers had reasonable suspicion for a stop based on what was an apparent drug deal. "The definition of an investigatory stop utilized in these cases, a brief detention which gives officers a chance to verify (or dispel) well-founded suspicions that a person has been, is, or is about to be engaged in criminal activity, fits the facts of the case before us. The officers, as pointed out above, had well-founded suspicions that when the defendant met with Rocco for no more than a minute in Rocco's car, he received a quantity of heroin from him. [In what almost sounds like classic bootstrapping:] Their stop of the defendant's car was for the very purpose of attempting to verify those suspicions." [brackets mine] United States v. Murray, 2007 U.S. Dist. LEXIS 1705 (N.D. Ill. January 5, 2007):

Furthermore, the scope of the January 26, 2005 stop was reasonable given the circumstances. The police had a well-founded suspicion that they were stopping a narcotics dealer and they had observed him making movements with his hands around his waist and at the center console of the car as they approached and after they had instructed him to show his hands. This is more than enough justification to take the reasonable steps for their own protection that the officers took. In the course of protecting themselves, they observed the plastic bag which the defendant admitted contained heroin. At that point, there was probable cause to arrest and to seize the plastic bag containing the contraband. The officers' actions subsequent to stopping the defendant's automobile where reasonable and consistent with the limited objective of an investigatory stop. See United States v. Askew, 403 F.3d 496 (7th Cir. 2005) (holding that stop of defendant's car while he was driving through a parking lot on reasonable suspicion of engaging in a drug transaction was a permissible Terry stop); United States v. Fiasche, No. 05 CR 765, 2006 WL 695395, at *5-6 (N.D. Ill. Mar. 10, 2006) (holding that stop of defendant's automobile on reasonable suspicion of transporting drug proceeds based upon corroborated information from an informant was permissible under Terry). Because the stop of the defendant's car was a proper Terry stop based upon a well-founded suspicion that the defendant was engaged in criminal activity, the Daniels' motion to suppress his statements and the heroin recovered from his person is denied.

Officer's knowledge that "very often" temporary tags on vehicles were forged could not be a basis for a stop without any information pointing to whether the one at issue was forged. People v. Hernandez, 146 Cal. App. 4th 773, 53 Cal. Rptr. 3d 66 (3d Dist. December 18, 2006, ordered published January 11, 2007):

Here, the question is whether Deputy Paonessa's experience should lead to a different result. Deputy Paonessa testified that in his experience temporary operating permits are "very often" forged. We have no way of discerning the meaning of the statement, "very often," because Deputy Paonessa did not say how many times he had stopped a car with a temporary operating permit or how many times the permit was valid or invalid. Absent either additional facts justifying a reasonable suspicion of criminal activity, or specific experience Deputy Paonessa had to justify a suspicion that the particular operating permit displayed on defendant's truck was invalid, we cannot say the stop was reasonable. We are unwilling to conclude it is always reasonable to stop a car that does not have any license plates but has a temporary operating permit, because that would effectively mean it is always reasonable to suspect that a temporary operating permit is invalid. Accordingly, we conclude the traffic stop was invalid and thus the trial court erred in denying the motion to suppress.

Defendant next contends his convictions for resisting arrest must be reversed because Deputy Paonessa was not acting lawfully in the initial stop. Both parties agree that under California law a defendant cannot be convicted of resisting arrest if the officer was not acting lawfully at the time of the arrest. (People v. Simons (1996) 42 Cal.App.4th 1100, 1109 [50 Cal. Rptr. 2d 351].) Since we have already concluded the traffic stop was not justified and therefore unlawful, we agree the convictions for resisting arrest cannot stand.

A defendant can disavow knowledge of something yet still have standing to challenge its seizure. United States v. Felix, 2007 U.S. Dist. LEXIS 1957 (S.D. Cal. January 9, 2007):

The Government's second "hurdle" refers to Defendant's denial of knowledge of the pouch after his arrest. The Government appears to be arguing that Defendant cannot object to a search of a pouch that he expressly claims he knows nothing about, because he could have no legitimate expectation of privacy in an item of which he is unaware. However, the Ninth Circuit has held that the Government cannot rely upon a Defendant's disavowal of ownership to defeat standing, while simultaneously charging the Defendant with possession, without regard to the underlying facts. See United States v. Issacs, 708 F.2d 1365, 1367-68 (9th Cir. 1983). In this case, Defendant had a reasonable expectation of privacy in the bedroom in which he was an overnight guest that allows him to challenge the search of the entire bedroom, including a pouch found therein, regardless of his protestations of ignorance regarding the pouch itself. Accordingly, this argument is without merit.

While Iowa courts have not discussed whether reasonable suspicion is required for a probation search, the defendant's probation agreement did require it, and the court finds that reasonable suspicion existed for a probation search. United States v. Becker, 2007 U.S. Dist. LEXIS 1811 (N.D. Iowa January 9, 2007).*

Consent was found voluntary. "The Court finds that the testimony offered by defendant and his wife stretches the boundaries of believability and should not be credited. ... Defendant's wife testified to an equally implausible story, and the Court finds the evidence supports a conclusion that she did voluntarily consent to a search of the home." United States v. Hernandez-Espolina, 2007 U.S. Dist. LEXIS 1777 (N.D. Okla. January 9, 2007).*

A 911 call was made and the caller asked for "the intervention unit." The caller was asked by the operator whether the police or other assistance was needed, and the caller said no. Police were dispatched and they had knowledge that the plaintiff had weapons. When they arrived, they looked through a window and saw a broken dish. This was not exigent circumstances for an entry. Mayo v. City of York, 2007 U.S. Dist. LEXIS 1663 (M.D. Pa. January 9, 2007):

In this case, there is no evidence that Plaintiff had attempted suicide or engaged in self-mutilation. In the absence of such evidence, Defendants must have believed that there was a threat of serious bodily harm to others or that Plaintiff was unable to satisfy his own needs for care or safety. The evidence on this point is, however, in dispute. Defendant Veater was unaware of any other person living in the home, and he had been advised that Plaintiff's son was no longer present. (Doc. No. 61, Dep. of Veater, 56-7). Although certain of the Defendants testified that Plaintiff said he was going to "end it" (Doc. No. 61, Dep. of Veater, 69), or to go "get his guns" (Doc. No. 61, Dep. of Hansel, 49), Plaintiff testified that he stated only that he was "going to bed." (Doc. No. 61, Dep. of Mayo, 159). Resolving such conflicting testimony is reserved to the fact-finder.

In the shooting death of 92 year old Kathryn Johnson in Atlanta previously mentioned here, the Atlanta Journal-Constitution reported yesterday this story: Feds told officer's lie led to fatal drug bust:

An Atlanta police narcotics officer has told federal investigators at least one member of his unit lied about making a drug buy at the home of an elderly woman killed in a subsequent raid, according to a person close to the investigation.

In an affidavit to get a search warrant at the home Nov. 21, narcotics officer Jason R. Smith told a magistrate he and Officer Arthur Tesler had a confidential informant buy $50 worth of crack at 933 Neal St. from a man named "Sam."

But narcotics officer Gregg Junnier, who was wounded in the shootout, has since told federal investigators that did not happen, according to the person close to the investigation. Police got a no-knock warrant after claiming that "Sam" had surveillance cameras outside the Neal Street residence and they needed the element of surprise to capture him and the drugs.

Search "Atlanta" on this website for previous articles. The last article was December 3d.

The defendant's wife consented to a seizure of a computer rented by her but used primarily by her husband. She did not, however, have the alleged password to his files on the computer. The police could rely on her apparent authority to seize the computer. The forensic examination did not reveal any password protection, so the totality of circumstances showed she could consent. United States v. Buckner, 473 F.3d 551 (4th Cir. January 11, 2007):

Whether the officers reasonably believed that Michelle had authority to consent to a search of all the contents of the computer's hard drive, however, depends on viewing these facts in light of the totality of the circumstances known to the officers at the time of the search. At that time, the officers knew that the computer was located in a common living area of the Buckners' marital home, they observed that the computer was on and the screen lit despite the fact that Frank Buckner was not present, and they had been told that fraudulent activity had been conducted from that computer using accounts opened in Michelle's name. The officers also knew that the machine was leased solely in Michelle's name and that she had the ability to return the computer to the rental agency at any time, without Frank Buckner's knowledge or consent.

Furthermore, the officers did not have any indication from Michelle, or any of the attendant circumstances, that any files were password-protected. Cf. Trulock, 275 F.3d at 398 (noting that the searching officers were explicitly told that the computer contained password-protected files to which the consenting party did not have access). Even during the mirroring and forensic analysis processes, nothing the officers saw indicated that any computer files were encrypted or password-protected. Despite Michelle's suggestion that she lacked deep familiarity with the computer, the totality of the circumstances provided the officers with the basis for an objectively reasonable belief that Michelle had authority to consent to a search of the computer's hard drive. Therefore, the police were justified in relying on Michelle's consent to search the computer and all of its files, such that no search warrant was required.

Randolph does not require the police to first ask the target of a search whether he will consent. The police can arrest the target and then move to another with apparent authority and ask. United States v. Wilburn, 473 F.3d 742 (7th Cir. January 11, 2007):

Randolph holds that police violate the Fourth Amendment when they conduct a search, authorized by a person with apparent authority to consent, over the objection of a physically present potential defendant who shares the premises and declines to offer his consent. But Randolph is a rather narrow holding, and no matter how hard Wilburn wiggles--like the stepsisters trying to squeeze into Cinderella's glass slipper--he can't fit within its embrace.

. . .

In trying to wedge himself under Randolph, Wilburn says the police, knowing he would object to the search, deliberately kept him in the squad car away from Taylor while she was giving her consent. But even if the police were clairvoyant--Randolph was decided 2 years and 15 days after the search of the Taylor/Wilburn apartment--the police here were not doing an end run around its holding. Wilburn was validly arrested (even he admits this inconvenient truth) and he was lawfully kept in a place--the back seat of a squad car--where people under arrest are usually held. Given these facts, the police were not obligated to bring Wilburn to Taylor so he could be a party to the discussion regarding consent.

Knock and talk that occurred outside motel room was noncoercive, and officers, while armed, patiently waited while the occupants made up their mind and came outside. Then, one consensual produced a syringe. United States v. Crapser, 472 F.3d 1141 (9th Cir. January 10, 2007):

Here, similarly, there was a single, polite knock on the door. The police did not demand that Twilligear open the door; they asked, she nodded an affirmative response, and the police waited patiently and silently for her to decide that she (and Defendant, as it turned out) were ready to come outside about two minutes later. Although the officers were armed, they made no effort to draw Defendant's attention to their weapons, nor did they use any form of physical force. The police made no effort to enter the motel room. The encounter occurred in the middle of the day, on a sidewalk in public view. The entire event, up to the time Defendant produced the syringe, lasted about five minutes. Although there were four officers present, most of the time only two talked to Defendant, while two talked to Twilligear, and part of the time only Galloway was with Defendant. The police did not block Defendant or Twilligear, suggest that they could not leave or return to their room, give them orders, or affirmatively assert authority over their movements.

Border patrol had reasonable suspicion to stop defendant's vehicle near the border because of suspicious activity. Once stopped, the officers could smell the marijuana, and that gave probable cause. United States v. Delaney, 216 Fed. Appx. 674(9th Cir. 2007)* (unpublished):

The police officer had reasonable suspicion to stop the car based on: the location of the car very near the border; the timing of its travel in the border area during the period when border agents change shifts and are likely to be less attentive; the indications that the car had recently crossed the border at other than the designated border crossing; the fact that the vehicle -- an SUV with a large luggage carrier -- is of the type often used to smuggle narcotics; and the occupants' purported birdwatching accomplished by pointing opera glasses at the sky while driving at fifty miles per hour. These factors, taken together, provided the officer with a particularized and objective basis for suspecting legal wrongdoing. See United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 151 L. Ed. 2d 740 (9th Cir. 2002).

With regard to the search, we doubt that there was consent to search the locked luggage carrier that held the drugs. See United States v. Shaibu, 920 F.2d 1423, 1426 (9th Cir. 1990). Nonetheless, there was adequate probable cause to search the carrier due to the odor of marijuana and the alerting of the drug-detecting canine. See United States v. Barron, 472 F.2d 1215, 1216 (9th Cir. 1973). Probable cause was sufficient for the search under the automobile exception; a warrant was not necessary. California v. Acevedo, 500 U.S. 565, 579, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).

(Note: If birdwatching is your excuse, at least get real binoculars and stop once and awhile. Here, they only drew the officer's attention to themselves.)

More to follow in the afternoon. Many cases today, and some may even have to go over until tomorrow.

Named informant actually signed the search warrant, and it was based on personal information so probable cause was shown. Officers went to the defendant's premises and found him outside and arrested him. They did not have the search warrant in hand but it was coming. They used defendant's key to enter the house and look for confederates who might destroy the drugs being sought while waiting for the warrant to arrive, and this was lawful under Segura. People v Osorio, 2006 NY Slip Op 8457, 2006 N.Y. App. Div. LEXIS 15969 (4th Dept. November 17, 2006).

Officers heard defendant on a wire admit to possessing stolen property and wanting to trade it for meth and having guns. "Johnson and Lebo stated that the Defendant had made threats about killing the cops if they came out. Considering the totality of the circumstances, it was reasonable to believe that contraband and/or stolen property was at the Defendant's residence and that the circumstances required that they go to the mobile home without a warrant." [Note that the court says "to" not "into."] The police then went to his house and kicked the door to announce as a knock and talk. The defendant let them in [it seems to me more like they barged in when the door was opened]. The USMJ's R&R that defendant consented is adopted. United States v. Medley, 2007 U.S. Dist. LEXIS 1175 (E.D. Mo. January 5, 2007).*

Plaintiff consented to entry but claimed that she did not consent to search. Court finds implicit consent from failure to object and finds apparent authority to implicitly consent to the search of her daughter's room. Owens v. Town of Delhi, 469 F. Supp. 2d 403 (W.D. La. 2007)* (Note: This case proceeds entirely on the judge's and government's assumption that a person knows that they can object when an armed police officer is going through their stuff who essentially barged in. It is all implied consent from failure to object.)

Inmate's § 1983 action for harassing searches was barred under PLRA for lack of exhaustion. The state provided an ALJ process which was not taken advantage of. Hills v. Kershaw Correctional Inst. Officers, 2006 U.S. Dist. LEXIS 94541 (N.D. S.C. November 27, 2006).*

Officer's reasonable suspicion for a trash search as required under Litchfield was shown in the affidavit for probable cause that was used to get a search warrant for his premises. Eshelman v. State, 859 N.E.2d 744 (Ind. App. January 10, 2007).

Defendant consented to a patdown, and continued stop was based on reasonable suspicion. "Officer Andrew Tischer testified at the suppression hearing that he stopped Lewer's car and that after the stop he asked Lewer for identification and that Lewer gave him either a driver's license or a state identification card, but that he was 'not a hundred percent sure which one.' Tischer told the trial court that Lewer 'wouldn't look me in the eyes[, his] hands were visibly shaking, and his voice stumbled as I spoke with him.' Tischer also testified that Lewer's 'right hand was making continued movements towards his right pants pocket and his right jacket pocket.' At this point, Tischer testified that he asked Lewer to get out of the car because he thought that Lewer might have a weapon. Tischer estimated that one to one and one-half minutes had passed from when he walked up to Lewer's car and when he asked Lewer to get out of the car." Heroin was validly found during the consensual patdown which defendant knew was for more than just weapons. State v. Lewer, 2006 Wisc. App. LEXIS 1223 (December 27, 2006).

Officers handcuffing of child during execution of a search warrant was potentially unreasonable because he was compliant and vastly outnumbered by police officers. The law was settled in this Circuit, and qualified immunity did not apply. Schafer v. El Dorado County, 2007 U.S. Dist. LEXIS 1336 (E.D. Cal. January 9, 2007).

The trucking industry is a closely regulated industry under Burger, and the stop of this truck was supported by the administrative scheme. Once stopped, the defendants were found to be in violation of the log book rules and driving without a license. That made the detention reasonable. After a safety inspection, during which the defendants acted a little suspicious, one defendant validly consented to a search that turn up 92 lbs. of cocaine. United States v. Delgado, 2007 U.S. Dist. LEXIS 1313 (S.D. Cal. January 5, 2007)* (Note: The stop was near Springfield, Missouri, so Missouri law was examined.).

Defendant consented to entry of dwelling for the purposes of children being gathered up and turned over to their mother. Drugs were found in plain view. Seizure was valid. United States v. White, 2007 U.S. Dist. LEXIS 1476 (W.D. Tex. January 8, 2007).*

Defendant waived search issues by his guilty plea, but he would have lost on the merits anyway. United States v. Sanchez-Polanco, 2007 U.S. Dist. LEXIS 1485 (S.D. Tex. January 8, 2007).*

In a habeas case, the petitioner claimed Stone v. Powell did not apply to harmless error analysis, but it was defaulted because it was not raised in the state PCR petition. Walker v. Miller-Stout, 2007 U.S. Dist. LEXIS 1351 (E.D. Wash. January 8, 2007).*

Qualified immunity defeated § 1983 action of alleged unreasonable search where plaintiffs did not show how it was unreasonable. Housley v. City of Edina, 2007 U.S. Dist. LEXIS 1502 (D. Minn. January 5, 2007).*

I haven't been keeping up with the comments, not that I do not care what the readers have to say. If I reported on your case and I missed something, e-mail me at ForHall@aol.com and I'll correct it. I did that a couple of times. Reading twenty cases a day in the short time I have sometimes leads to my missing something.

Anyway, my point: Spammers have recently been hitting the comments, and I spent precious time the last two days trying to clean most out, and I've added key words to the antispam filter provided with the software. I've gotten a fair amount of it back to November, and I don't have the time to go back any more than that. Few people read that far back unless they search.

So, somebody could have had something brilliant to say about a case, and a couple of dozen spams could be after it. While we try to figure out a way to head off the spammers in the comments, feel free to comment. I hope we don't have to end comments, but it may come to that just from lack of comments.

Defendants were stopped in their rental car for touching the white line. The officer issued a ticket and started to walk away, but then asked for consent. When they hesitated, he said that he would call for a drug dog if they did not consent and detain them for 40 minutes. This vitiated their consent. State v. Sund, 215 S.W.3d 719 (2007):

Here, too, considering the totality of the circumstances, a reasonable person in Ms. Sund's and Ms. Wolfe's position would not have felt free to leave at the time that they opened the trunk in response to the officer's demand that if they did not do so he would call the canine unit to come search. It was nearly 11:00 p.m. on a cold night in late February. The two women were traveling alone on an interstate highway running through a rural area of Missouri. Neither was from Missouri, and in fact, Ms. Sund was visiting the United States from Sweden. They had nowhere to go and would have had to abandon their rented car and their possessions if they did leave. The encounter was not consensual, but constituted a detention that was unreasonable because the officer did not have reasonable suspicion of criminal activity.

It was only through Ms. Sund's illegal detention that the officer was able to gain access to the trunk and its contents. The evidence found in the trunk must, therefore, be suppressed, for "evidence discovered and later found to be derivative of a Fourth Amendment violation must be excluded as fruit of the poisonous tree." State v. Miller, 894 S.W.2d 649, 654 (Mo. banc 1995). Accord, United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006) (passengers in a car illegally stopped can "seek to suppress the evidentiary fruits of that illegal seizure under the fruits of the poisonous tree doctrine"); United States v. Pulliam, 405 F.3d 782, 787 (9th Cir. 2005) (defendant has standing to seek to suppress evidence "that is in some sense the product of his unlawful detention"); United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001) (defendant lacked interest in car "that would enable him to directly challenge the search," but he could "seek to suppress evidence as the fruit of his illegal detention").

See Mo. Supreme Court overturns drug conviction of Swedish model.

Malfunctioning headlight stop led officer to ask about whether there were open containers in the vehicle, and defendant replied there weren't. There was a 12 pack in the backseat with some beer cans missing. The officer asked if he could look, and defendant consented. Meth was found. Trial court's suppression order reversed. People v. Barker, 369 Ill. App. 3d 670, 867 N.E.2d 1021 (4th Dist. 2007).*

New argument raised in the suppression hearing that was not in the motion was not considered by the trial court, and this was not an abuse of discretion. McKinney v. State, 2007 Tex. App. LEXIS 95 (Tex. App. — Dallas January 9, 2007).*

The officer made a traffic stop of defendants' truck and then asked them questions about their destination, which was somewhat inconsistent. The district court found the inconsistency, not followed up on, to not amount to reasonable suspicion to continue the detention and ask for consent. Nervousness added nothing. United States v. Robinson, 2006 U.S. Dist. LEXIS 94355 (S.D. Miss. December 29, 2006):

In this case, Deputy Redditt testified that the driver and passenger gave inconsistent answers to the deputies' questions: the driver claimed the passenger was his cousin, the passenger stated they were not related; the driver stated their destination was in Texas, the passenger said Louisiana. Redditt testified that he felt it was unusual for an 18-wheeler to be traveling without a load. (Transcript, p. 20). He also stated that the driver appeared to be nervous. (Transcript, p. 20).

In Jenson, the Fifth Circuit found that the government had not shown reasonable suspicion beyond the time it took the license checks to clear; thus, the extended stop was illegal. The reasons given by the government for the prolonged stop were "(1) It took an unusually long time for Jenson's van to pull over, (2) Jenson's excessive talkativeness indicated nervousness, and (3) Jenson and [his passenger] Cotton appeared to give inconsistent answers." 462 F.3d at 404. The court disregarded the inconsistent answers because they occurred after "the initial purpose of the stop [had] been fulfilled." Id. However, the court also found that the officer could have dispelled his suspicions by asking follow-up questions. Id. at 404 n.4 (citing Florida v. Royer, 460 U.S. 491, 500 (1983) (explaining that an officer should use "the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time")).

The remaining reasons were found by the Fifth Circuit to be "relatively weak by comparison to the facts in our relevant precedents." Id. at 405 (citing United States v. Jones, 234 F.3d 234, 242 (5th Cir. 2000) (no reasonable suspicion to search vehicle even though one occupant had a previous arrest on a crack cocaine charge); Santiago, 310 F.3d at 338-39 (search unreasonable even though defendant lied to officer about the identity of a passenger)). "More importantly," the court found, "the government [did] not present adequate evidence of a nexus between Jenson's allegedly suspicious behavior and any specific criminal activity." Jenson, 462 Fed.3d at 405. The Fifth Circuit concluded that because the officer "[had] not articulated any particular connection between the allegedly suspicious behavior and drug or weapons possession, beyond the fact the driver's hesitation in pulling over may have been the product of intent to conceal," the government had not shown reasonable suspicion to continue the traffic stop once Jenson's ID cleared. Id. at 406.

In the case at bar, the inconsistency concerning Thompson and Richardson's stated destination, Louisiana or Texas, becomes less glaring if one considers the further explanation that they were "looking for a load." At any rate, the officers apparently did not attempt to dispel their suspicions with further questions. The conflict concerning whether Thompson and Richardson were cousins or not is certainly no more suspicious than the lie about a passenger's identity in Santiago. Similarly, Thompson's nervousness, without more, does not create a reasonable suspicion. The officers failed to articulate reasonable suspicion sufficient to prolong the traffic stop past the time it took to clear the occupants' driver's licenses. See Jenson, 462 F.3d at 406.

Cracked windshield was grounds for a stop, even if it turned out that the cracked windshield was not illegal per se in Kentucky. United States v. Carter, 2007 U.S. Dist. LEXIS 696 (W.D. Ky. January 3, 2007).*

In a case with five search warrants in an environmental case involving a host of issues, defendant's staleness challenge was defeated by officer's reconfirmation of material ongoing facts the day before the affidavit was prepared. The affidavit also showed probable cause to search the defendant's computer in his residence as a records search because the officers were looking for records of a bypass system. In the ten years experience of the officer, recited in the warrant, even polluters keep records at home. United States v. Evans, 2006 U.S. Dist. LEXIS 94369 (M.D. Fla. July 14, 2006) (Note: The court also engaged in a detailed finding that the good faith exception would apply.). In a related case with one defendant, the same court found that officers looking in a building to determine whether it was a source of waste water could look in a black bag found in the building, rejecting the contention that looking in the black bag exceeded the scope of the warrant [which it did] by finding plain view [the bag was in plain view, but its contents were not]. United States v. Evans, 2006 U.S. Dist. LEXIS 94368 (M.D. Fla. July 12, 2006). (Note: I find the black bag search to be indefensible.)

Defendant was suspended from his job for thirty days and then resigned. He made no effort to recover all his personal property from the City's premises. Having resigned and not seeking recovery of his property, he had a reduced expectation of privacy in this workplace search. United States v. Venkataram, 2007 U.S. Dist. LEXIS 852 (S.D. N.Y. January 5, 2007):

Mr. Venkataram argues that he maintained a reasonable expectation of privacy in his offices at the time of the search on September 13, 2005, despite having already been suspended for thirty days and having resigned his position because, unlike the teacher in Shaul, he was not provided with an adequate opportunity to recover his personal property. (Def. Mem 15.) Specifically, Mr. Venkataram reads Shaul to require an affirmative invitation to recover personal property by a former employer before reasonable expectation of privacy is lost. (Def. Post-Hr'g Mem. 3, quoting Shaul, 363 F.3d at 183 ("'Taken together the demand [for his school keys] and the invitation [to remove personal belongings from his classroom] served as constructive notice that Shaul could have no reasonable expectation of privacy in anything that he did not remove from his former classroom after that date.'").) While undoubtedly a persuasive factor in Shaul for determining whether there was still a reasonable expectation of privacy, the case does not go so far as to require an employer to always provide an affirmative invitation in order for there to be sufficient notice that a privacy interest is being lost. The search in Shaul took place fifteen days after the teacher had been only suspended, while the search of Mr. Venkataram's Bellevue office took place more than thirty days after he had been suspended, as well as after he had officially resigned.

While a reasonable expectation of privacy may continue to exist following resignation if there is no opportunity at all to retrieve personal items, see Shaul, 363 F.3d at 183 (holding that the suspended schoolteacher forfeited his privacy interest in items left in his classroom by failing to retrieve them on the opportunities afforded), those facts are not present here. Mr. Venkataram had ample opportunity to inform DOI or OCME by himself or through his counsel that he needed to recover personal property from his former offices. He could have done so the night he was suspended; instead, Mr. Venkataram only requested permission to take two items, and that request was granted. He also could have made a request at any time during the thirty days of his suspension, in his resignation letter, or following his resignation. In the absence of a request for an opportunity to retrieve his other belongings until this motion was made, the Defendant Venkataram's motion to suppress physical evidence seized from his former OCME offices at Bellevue Hospital and 520 First Avenue is denied.

Habeas court in a § 2254 claim interestingly considers a Fourth Amendment claim under AEDPA's "reasonable application" of federal law rather than under Stone v. Powell, and the court finds the state court determination reasonable. Washington v. Rowley, 2007 U.S. Dist. LEXIS 855 (E.D. Mo. January 8, 2007):

As such, the court finds that the State appellate court's decision in regard to the issues raised in Petitioner's Ground 1 is not contrary to federal law and that it is a reasonable application of federal law. See Arvizu, 534 U.S. at 273; Terry, 392 U.S. at 9-10; Wipf, 397 F.3d at 683-84; Lewis, 183 F.3d at 794. For the reasons fully set forth above, the court further finds that the State appellate court reasonably applied federal law to the facts of Petitioner's case. As such, the court finds that Petitioner's Ground 1 is without merit and that it should be dismissed.

Two alleged Hell's Angels were stopped for speeding, and the officer photographed them as a part of the stop. The District Court found a triable issue on taking the photograph under a threat of arrest but granted the officer qualified immunity because no court has explained the scope of Atwater v. City of Lago Vista on a stop like this. Yezek v. Mitchell, 2007 U.S. Dist. LEXIS 778 (N.D. Cal. January 8, 2007).*

The District of Massachusetts, per Judge Young, yesterday held the Federal DNA collection act unconstitutional as applied to a mere probationer where a DNA sample can be taken by force if need be. United States v. Stewart, 468 F. Supp. 2d 261 (D. Mass. January 8, 2007) (case name is free link). This is a lengthy and important opinion, and still subject to review by the First Circuit, so I only quote from the introduction and the conclusion:

On a historical island between the looming skyscrapers and glass office buildings of the Boston financial district sits the Old State House -- a small but ornate brick building that was once the seat of the royal government in colonial Massachusetts. This building is perhaps best remembered for the white, second floor balcony where, on July 18, 1776, Colonel Thomas Crafts read to the people of Boston a copy of the newly signed Declaration of Independence. Yet, fifteen years earlier an event occurred in that building that a young John Adams witnessed and would describe as "the first scene of the first act of opposition to the arbitrary claims of Great Britain .... Then and there the child independence was born." David McCullough, John Adams 62 (Simon & Schuster 2001).

John Adams was referring to the eloquent five-hour speech James Otis gave against the Writs of Assistance -- the general warrants authorized by the British Crown to customs officials allowing them to conduct arbitrary searches for untaxed imported goods. Otis had argued that any statutory authority that purported to grant such a general writ violated common-law principles and was, as a result, null and void. The arguments made by Otis highlighted the colonists' aversion to arbitrary governmental action and were instrumental in the enactment of the Fourth Amendment to the United States Constitution.

Today, this Court is called upon to apply the principles that once resonated in the halls of the Old State House and in the minds of the Framers of our Constitution to a situation framed by technology, penological interests, and suspect statutory authority. James Stewart ("Stewart") brings this Motion to Modify Conditions of Probation [Doc. No. 16] seeking to preclude the United States Probation Department from obtaining a DNA n1 sample pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), codified at 42 U.S.C. §§ 14135-14135e and 10 U.S.C. § 1565, and in accordance with the special conditions of his probation. Stewart argues that the DNA Act, by compelling a collection of his DNA while on probation, violates his constitutional rights under the Fourth Amendment to the United States Constitution. This Court agrees and holds the DNA Act unconstitutional as applied to Stewart.

...

III. CONCLUSION

Today this Court faces the latest iteration in the growing tension between technology's ability to advance governmental purposes and the Fourth Amendment's protection of individual privacy. This tension is faced and resolved by balancing the government's purpose against the resulting intrusion on the individual. When conducting such a balancing test, the immediate and tangible imperatives of the governmental purpose often outshine and eclipse the more telescopic and inchoate value of personal privacy. The willingness to watch the erosion of such rights silently is most likely where the vanishing liberties are perceived as not our own. It is even more acute where the subjects are those who have derided and evaded, through criminal misconduct, the order and legal structure on which they now rely.

But the tapestry of constitutional protections that cover all Americans is woven with long threads, each section and each pattern revealing of the integrity of the whole. This holding seeks not to mend this fabric, but to preserve it. To preserve it, most directly, for the unsympathetic probationer who, despite a transgression against the law and against society, is now released to and embraced by that same law and that same society to the full extent reasonably possible. It is also preserved indirectly and with greater resonance for those who remain untouched by this individual invasion, but who suffer the collective erosion of their protection against arbitrary state action.

For this purpose, the Fourth Amendment must not be applied with myopic deference to an immediate governmental imperative. Instead, it must be applied cautiously and with broad vision both as to its historical purpose and to its future viability. As Justice Jackson said after his return from the Nuremberg trials, "one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police." Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). To this end, "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments." Byars v. United States, 273 U.S. 28, 32 (1927). These rights are not absolute, and the government, at times, may present public purposes significant enough to overcome such constitutional protections.

The government did not do so in this case.

Accordingly, Stewart's Motion to Modify Conditions of Probation [Docket No. 16] is ALLOWED, and the DNA Analysis Backlog Elimination Act of 2000 is held unconstitutional as applied to James Stewart.

Comment: I made this same argument and lost 2-1/2 years ago in Arkansas.

Copy of a search warrant for informant's premises was found in defendant's truck, and it was admissible as having been found in a search incident. Its relevance was to show that defendant had knowledge of the informant. United States v. Mooneyham, 473 F.3d 280 (6th Cir. January 9, 2007).*

Officers were on notice of Schmerber's requirement of exigent circumstances for a forced blood draw in a DUI case. Marshall v. Columbia Lea Regional Hosp., 2007 U.S. App. LEXIS 389 (10th Cir. January 9, 2007):

No one disputes that Mr. Marshall's refusal to submit to a blood test put him in violation of New Mexico's implied consent law and that his driver's license could be suspended as a result. As we discussed with regard to Schmerber, where, as here, police could and did use an alternative, less intrusive, means of testing blood-alcohol content, a blood test is not necessary and cannot be justified by exigent circumstances. The officers needed something more to justify a blood test after Mr. Marshall's voluntary submission to two breathalyzer tests. See Richerson, 535 P.2d at 648 (requiring that the officer be "confronted with an emergency"); Hammer v. Gross, 932 F.2d 842, 854 (9th Cir. 1991) ("If the government is going to use force to pin someone to a chair, stick a needle in his arm and drain blood from his vein, against his will and despite his acquiescence in an effective alternative [here, a breathalyzer test] it had better have a reason.") (Kozinski, J., concurring in part and dissenting in part).

. . .

Accordingly, we reject the officers' contention that they did not have "fair warning" that, at the time of the events in question, New Mexico's classification of a DUI offense as a misdemeanor would preclude the finding of exigent circumstances under Schmerber. Hope, 536 U.S. at 740.

The jury found that Mr. Marshall's actions in no way amounted to consent. As the district court concluded, it is difficult to imagine how a competent officer could think it could make sense or be reasonable to violate state law. Aplts' App. vol. I, at 167 ("I conclude that even if these officers mistakenly thought what they did was proper, it was objectively unreasonable for them to think they could lawfully give this blood test in the absence of Mr. Marshall's consent...."); Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271 (1986) ("As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law."); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396 (1982) (stating that "a reasonably competent public official should know the law governing his conduct"). Viewing the facts in the light most favorable to the jury's verdict, the district court correctly concluded that a reasonable officer, similarly situated, would understand that his or her conduct violated the rights clearly established in Schmerber.

Even if defendant's arrest was without probable cause, he was called over to the police to talk to them, and he discarded his cocaine before he came over. He was not seized per Hodari D. when called over by the officer. Therefore, it was abandoned. People v. McClain, 149 P.3d 787 (Colo. January 8, 2007) (more troubling to the court was the question of whether a seizure occurred because Colorado would more likely hold it did, but here it did not).

ATF had probable cause to search defendant's storage unit in Arizona based on information that he transferred firearms there in 1992 while a felon. [The opinion says nothing about staleness or whether it was even raised.] United States v. Segal, 216 Fed. Appx. 650 (9th Cir. 2007).*

Child dependency court child seizure order gave absolute immunity to all acting reasonably under the order. Haugen v. Fields, 2007 U.S. Dist. LEXIS 493 (E.D. Wash. January 5, 2007).*

It looked a little funky during the day, and I apologize, but it was the only way to stay up all day.

A criminal defense lawyer has a “different mission”FN1 in the justice system than lawyers in other legal proceedings.FN2 Sometimes prosecutors, police, and the public do not understand this different role. This is an effort to explain the defense lawyer’s duty as a whole in the context of suppression motions and hearings which are likely losing motions. As in determinations of guilt or innocence, that is not the lawyer's call. If the motion is remotely colorable, defense counsel has the option of filing and pursuing it if there is a benefit to be derived for the client.

Justice White concurring and dissenting in United States v. Wade, 388 U.S. 218, 256-58, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967), four decades ago brought into sharp focus the different role of defense counsel:

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution's case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Most criminal defense lawyers subscribe to the philosophy of criminal defense that the Sixth Amendment duty of defense counsel imposes on defense counsel the obligation to zealously assert any ground or course of action that defense counsel believes is in the client’s interest, even if it means litigating a suppression motion that will surely lose and even would be arguably frivolous on the merits. This is a duty that extends to the client and the system of criminal justice as a whole. Moreover, the constitutional duty to the client can, in some situations, actually subordinate the ethical rules under the Supremacy Clause.FN4

Most also adhere to the philosophy of client centered, rather than system centered, representation.FN5 The system has a right to expect certain things from the criminal defense lawyer, but the client’s best interest is paramount, consistent with the criminal defense lawyer not committing a crime or fraud on the court.FN6

The Ethical Rule

The ethics rules recognize the tension between the duty to not file frivolous motions and the duty to the client under the Sixth Amendment. Consider Rule 3.1 of the Model Rules of Professional Conduct:

Rule 3.1. Meritorious Claims and Contentions.

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.

Comment ¶ 3 to Rule 3.1 addresses this specific problem:

The lawyer’s obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.

Therefore, just as the criminal defense lawyer may put the state to its burden of proving guilt of the accused, the ethical rule recognizes that a criminal defense lawyer may file motions that put the government to its burden of proof on suppression motions. That includes, I submit, challenging searches and seizures or statements of the accused, particularly where the government has the burden of going forward and to sustain the search (as in all warrantless searches) or statement. Both warrantless searches and statements of the accused carry a presumption of invalidity. This is no different than the presumption of innocence. So, why should the rule as to motions be different than guilt?

The Duty to Investigate Defenses

Defense counsel has a duty to investigate potential defenses and interview witnesses.FN7 The Supreme Court has made this clear several times. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003):

In highlighting counsel's duty to investigate, and in referring to the ABA Standards for Criminal Justice as guides, we applied the same “clearly established” precedent of Strickland we apply today. Cf. 466 U.S., at 690-691 (establishing that “thorough investigation[s]” are “virtually unchallengeable” and underscoring that “counsel has a duty to make reasonable investigations”); see also id., at 688-689 (“Prevailing norms of practice as reflected in American Bar Association standards and the like ··· are guides to determining what is reasonable”).

In light of these standards, our principal concern in deciding whether Schlaich and Nethercott exercised “reasonable professional judgmen[t],” id., at 691, is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins' background was itself reasonable. Ibid. Cf. Williams v. Taylor, supra, at 415 (O'Connor, J., concurring) (noting counsel's duty to conduct the “requisite, diligent” investigation into his client's background). In assessing counsel's investigation, we must conduct an objective review of their performance, measured for “reasonableness under prevailing professional norms,” Strickland, 466 U.S., at 688, which includes a context-dependent consideration of the challenged conduct as seen “from counsel's perspective at the time,” id., at 689, (“[E]very effort [must] be made to eliminate the distorting effects of hindsight”).FN8

This duty can sometimes be fulfilled through filing motions that deal with the admissibility of evidence against the accused to commit the officers under oath as to what they know about the defendant and his alleged participation in the crime. The fact the police reports or even the defendant's version suggest that the motion will lose should not even be determinative, but they both carry weight in defense counsel's determination to go forward on a suppression motion.

The Constitutional Right and Duty to Present a Defense

Separate from the Sixth Amendment right to counsel is the due process right of the accused to be able to put on a complete defense. "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Thus, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Id., 410 U.S. at 302.

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Accordingly, it is held that “the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)); Holmes v. South Carolina, 126 S.Ct. 1727, 1729, 164 L.Ed.2d 503 (2006).

Thus, the duty to investigate plus the “meaningful opportunity to present a complete defense” means that defense counsel may choose to pursue motions that counsel believes will not win, just to test or better examine the prosecution’s evidence.

Pursuing the "Questionable" Suppression Motion

A criminal defense lawyer reads a case file, and, based on the police reports of a warrantless search, it appears that the search was justified. The client, however, provides a different factual scenario which, if true, casts doubt on the legality of the search. Moreover, consider that the search was warrantless which puts the burden of proof on the government to sustain it. Just because the police say it does not make it so. Some of us have been around long enough, and on the other side, to have had police officers caught in shading the truth. It happened to me as a prosecutor and I have caught police officers in "truth shading" in suppression motions. This hardly makes a motion "questionable," just because defense counsel thinks that he or she will lose the motion.

Similarly, consider a statement taken of the accused. As a lawyer, you know that the police will most certainly find a way to make the statement sound voluntary, even when the client says that it is not. The burden is always on the government to prove that a defendant’s statement is voluntary on the totality of the circumstances.

Consider also the likelihood of a defense ulterior motive: The defense wants the opportunity to examine the police officers about the circumstances of finding contraband when the issue of the defendant’s actual or constructive possession may be present.FN9

It is submitted that it is ethical in all these situations, and constitutionally required, for criminal defense lawyers to file a suppression motion and go to a hearing, even when defense counsel thinks that he or she will lose on the motion, and even when the motion is ulteriorly a discovery device. As long as the action is justified by avoiding an ineffectiveness claim, it is permissible.FN10 Any sanctions against criminal defense lawyers would chill zealous and creative advocacy. If, after the suppression hearing, it is obvious that the defendant should plead guilty, then so be it. If that is the outcome, then the prosecutor and court should be pleased that the suppression motion brought about a guilty plea rather than an uninformed trial that produces a worse result for the defendant. If the suppression motion reveals that the officer knows far more or less than the reports of the search or the affidavit for the search warrant, then the defense may have something to work with at trial. As always, the client’s best interest is the ultimate determiner of whether to go forward at all. PRCDP § 9:6.

Ultimately, either way, that purportedly frivolous or "questionable" motion served to do justice. When a criminal conviction and loss of liberty is the ultimate stake in the outcome, the threshold of purported “frivolousness” should be considerably lower for all in the criminal justice system.

Footnotes:

FN1 See, e.g., Harry I. Subin, The Criminal Lawyer’s “Different Mission; Reflections on the “Right” to Present a False Case, 1 Geo. J. Legal Ethics 125 (1987); John B. Mitchell, Reasonable Doubts are Where You Find Them: A Response to Professor Subin’s Position on the Criminal Defense Lawyer’s Different Mission, 1 Geo. J. Legal Ethics 339 (1987).

FN2 See John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice § 9:3 (3d ed. 2005) (PRCDP). See also www.LawofCriminalDefense.com.

FN3. The Sixth Amendment provides: "[i]n all criminal prosecutions, the accused shall ... have the Assistance of Counsel for his defence."

FN4. U.S. Const., Art. VI, cl. 2. My analysis of the criminal defense lawyer’s hierarchy of duties puts the Sixth Amendment first, other law (such as the criminal law) second, moral considerations third, and ethical rules fourth. PRCDP § 1:21.

FN5. PRCDP §§ 1:20-1:21 & 9:3.

FN6. PRCDP Chs. 3 & 9.

FN7. PRCDP § 9:19.

FN8 As to the duty to investigate potential defenses, see Alvord v. Wainwright, 469 U.S. 956, 959, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984) (“The question is whether counsel had a duty to investigate his client's case and make a minimal effort to persuade him to follow the only plausible defense. The question is not whether counsel has a duty to override his client's wishes, or pursue fruitless investigations, thereafter.”); Strickland v. Washington, 466 U.S. 668, 682, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (“Having outlined the standards for judging whether defense counsel fulfilled the duty to investigate, the Court of Appeals turned its attention to the question of the prejudice to the defense that must be shown before counsel's errors justify reversal of the judgment,” relying on Washington v. Strickland, 693 F.2d 1247, 1256-57 n. 23 (5th Cir. 1982) (on reasonable defense investigation) which it reversed). See also Rompilla v. Beard, 545 U.S. 374, 382-83, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005).

FN9. I have tried several losing suppression motions, knowing I would lose, solely for the purpose of learning exactly where the contraband was in relation to my client just because the police report was not clear on that point. At an NACDL meeting, I told a friend of mine that he had a case on Lexis that morning, and I told him the case name (it was the first he'd learned he'd lost). He allowed as how he filed the motion to smoke out a defense because the police reports were obtuse, and the suppression hearing, while a loser, gave him something to work with on the case.

Perhaps if law enforcement officers were more clear in their reports, they could prevent such a motion, but police officers and prosecutors think more alike than defense lawyers vís-a-vís prosecutors. I confess that, as a baby prosecutor, I did not fully understand defense counsel’s role. I had to be a defense lawyer for a while before I fully appreciated the weight of obligation that we carry. Prosecutors’ mistakes are remedied by the fact that the defendant, if a true criminal, will be arrested again and get his due (hopefully not committing a violent crime). Defense counsel’s mistakes end up in prison and filing IAC claims against the lawyer.

FN10. Restatement (Third) of the Law Governing Lawyers § 110 (2000), Comment f. See also Monroe H. Freedman & Abbe Smith, Understanding Lawyers' Ethics 101-02 (3d ed. 2004) (also noting the absense of caselaw sanctioning criminal defense counsel for allegedly frivolous litigation, quoting In Re Becraft, 885 F.2d 547, 550 (9th Cir. 1989), noting absence of sanctions against criminal defense lawyers).

Note: This will be new § 3:11A in PRCDP.

Under the standard that probable cause is present when a drug dog that is reliable alerts, unreliability is not shown by the absence of drugs when the dog alerts. Dogs alert on odor and not just presence of drugs. The dog's alerts in the past were not always false positives as defendant argued; instead, they were indications of the presence of drugs in the past. State v. Nguyen, 2007 SD 4, 726 N.W.2d 871 (January 3, 2007).

Because law in the circuit was unclear, the fact a city officer was outside of his jurisdiction when he stopped plaintiff is considered a factor in overall reasonableness of an arrest under the Fourth Amendment. Rose v. City of Mulberry, 2007 U.S. Dist. LEXIS 372 (W.D. Ark. January 4, 2007).*

Pringle supported an arrest of the defendants who were bar bouncers sitting at a table when cocaine was tossed below the table. There was a strong inference in the case that both defendants were dealing drugs in the bar and both knew about each other's activities. People v. Long, 308 Ill. Dec. 270, 861 N.E.2d 335 (2d Dist. January 3, 2007):

We recognize that the Court in Pringle distinguished the relatively small automobile that the defendant and his companions occupied from the public tavern in which the defendant in Ybarra was located. Pringle, 540 U.S. at 373, 157 L. Ed. 2d at 776-77, 124 S. Ct. at 801. In this case, however, it is important to note that an inference of common enterprise is not reached based on Vargas's and defendant's presence in a public tavern. Rather, the inference is based on their roles as bouncers, and the concomitant activities of bouncers, in a bar where the bouncers were known to deal cocaine.

While past cases in Tennessee have held that crossing the white line once is not reasonable suspicion, crossing three times is. State v. Gothard, 2006 Tenn. Crim. App. LEXIS 1028 (December 21, 2006).*

Late Chief Justice Rehnquist's FBI file was released more than a year after his death under FOIA, and there are a few surprises. See Law.com's Tony Mauro, Rehnquist FBI File Sheds New Light on Drug Dependence, Confirmation Battles:

The late Chief Justice William Rehnquist's Senate confirmation battles in 1971 and 1986 were more intense and political than previously known, according to a newly released FBI file that also offers dramatic new details about Rehnquist's 1981 hospitalization and dependence on a painkiller.

The FBI file on Rehnquist, released last week under the Freedom of Information Act, reveals that in 1971, as Rehnquist's confirmation hearings for associate justice approached, the Nixon Justice Department asked the FBI to run a criminal background check on at least two potential witnesses who were expected to testify against Rehnquist. Then-FBI Director J. Edgar Hoover approved the request.

As interesting, and as troubling in a different way, is the FBI investigation into Rehnquist's drug dependence from his back injury in anticipation of his 1986 confirmation as Chief Justice:

Also in 1986, the FBI conducted an intensive investigation into Rehnquist's dependence on Placidyl, a strong painkiller that he had taken since the early 1970s for insomnia and back pain. Rehnquist's bout with drug dependence had been made public in 1981, when he was hospitalized for his back pain and suffered withdrawal symptoms when he stopped taking the drug.

The FBI's 1986 report on Rehnquist's drug dependence was not released at the time of his confirmation, though some Democratic senators wanted it made public. But it is in Rehnquist's now-public file, and it contains new details about his behavior during his weeklong hospital stay in December 1981. One physician whose name is blocked out told the FBI that Rehnquist expressed "bizarre ideas and outrageous thoughts. He imagined, for example, that there was a CIA plot against him."

The doctor said Rehnquist "had also gone to the lobby in his pajamas in order to try to escape." The doctor said Rehnquist's delirium was consistent with him suddenly stopping his apparent daily dose of 1400 milligrams of the drug -- nearly three times higher than the 500-milligram maximum recommended by physicians. The doctor said, "Any physician who prescribed it was practicing very bad medicine, bordering on malpractice."

Such is the price one pays for asking for a high profile job in the government: The FBI Agent as proctologist, and even your doctors will violate confidentiality.

The defendant was in a car in a high crime area and he went to a drug house. That alone was not reason enough to stop him. More significantly, the officer's statement the area was a high crime area was conclusory. State v. Roberts, 947 So. 2d 167 (La. App. 4th Cir. December 13, 2006):

Had Captain Wiltz and Deputy Stolis articulated in their testimony the facts that supported their conclusions (1) that it was a known drug buyer whose car Mr. Roberts exited, (2) that it was a known drug seller whose trailer Mr. Roberts entered, and (3) that the area in which Mr. Roberts was seen was a high crime area, the record might have supported the assertion that Captain Wiltz had reasonable suspicion to conduct an investigatory stop. What we have, however, is a record that is devoid of the articulable facts from which Officer Wiltz could have drawn reasonable inferences that Mr. Roberts was involved in an illegal drug transaction. To justify an investigatory stop, the Dank case requires the articulation of the facts upon which the conclusions reached by Captain Wiltz and Deputy Stolis were based. The stop may have, in fact, been justified, but the State has the burden of proving that it was, and the State has not carried its burden of proof. La. C.Cr.P. art. 703(D).

Without any factual basis to support the conclusion that Mr. Roberts was in a car and a trailer belonging to a known drug buyer and a known drug seller, respectively, there is nothing in the record to indicate that the parties were, in fact, what they were said to be. There is nothing in the record to evidence that either party had been arrested, charged, or convicted in connection with any illegal drug activity. Similarly, there was nothing in the record, other than the conclusory statement that Mr. Roberts had been in a high crime area, to evidence that the area was, in fact, a high crime area. There was nothing in the record to reflect what crimes had been committed in the area or even that there had been any arrests in the area.

When Captain Wiltz was asked why he conducted a "pat down" of Mr. Roberts, Captain Wiltz stated that he did so "[f]or the reason that he was in and out of a high crime area." He further said that "[h]e had given me a lie [about bumming a ride] basically about where he had been and why he was there." Although Captain Wiltz's testimony reflected that he was concerned for his safety, being in a "high crime area" without more does not lead to a reasonable suspicion sufficient to justify an investigatory stop. Additionally, an unverified statement likewise does not lead to such reasonable suspicion. (bracketed material added)

A South Carolinian was stopped in Georgia for an obscured license plate, and the officer had the driver get out to see. The defendant was a passenger in the vehicle. The driver consented to a search of the vehicle during the stop, and the defendant was unusually fumbling with his coat. The officers became suspicious of that, and it was confirmed by the videotape. They decided to patdown the occupants, and plain feel gave away the kilo. State v. Davis, 283 Ga. App. 200, 641 S.E.2d 205 (January 5, 2007).*

Defendant was stopped for speeding, and a records check revealed that defendant was the subject of two restraining orders for domestic violence. As officers approached the vehicle, they could see shotgun shells on the dashboard and shotguns visible in the back. When defendant was asked why he was speeding, he said it was because he had to get to a town in that direction because his nephew had been in an accident. The officer remembered a radio report of an injured boy, and the officer told the defendant that the injured boy had been released from the hospital. The defendant was excessively nervous and would make no eye contact. The first officer filling out the ticket asked the second officer to get the name of the nephew, and the defendant did not know it. At that point, they considered a frisk for officer safety, which the court found reasonable. "The pat-down in turn led to the discovery of the contraband on Yeomans' person, which, in turn, indisputably provided probable cause to arrest Yeomans. A thorough search of the car, as well as a further search of Yeomans' person at the jail, inevitably and properly followed." The motion to suppress was properly denied. (n.7: A motion to reconsider was filed after the codefendant succeeded in state court on his search issue, but it was denied.) United States v. Yeomans, 211 Fed. Appx. 753 (10th Cir. 2007)* (unpublished).

Plaintiff first sued under § 1983 in federal court and lost. He then refiled in state court and added state law claims. The state case was barred by res judicata. Parks v. City of Chattanooga, 2007 Tenn. App. LEXIS 5 (January 4, 2007)*:

The state law claims asserted in the present case certainly could have been asserted in the previous two lawsuits and they would have been decided by the federal district court given that the federal district court exercised its supplemental jurisdiction in both cases and did not decline to decide any of the state law issues. The state law claims in the previous lawsuits were given the federal district court's full attention and were decided on the merits. The federal district court had the power to afford the plaintiff the full relief sought by him in those previous cases and could have done so had the previous lawsuits contained the present state law claims. Therefore, there was no "formal barrier" preventing the plaintiff from bringing all of his claims together. The final judgments on the merits in the first two cases were rendered by a court of competent jurisdiction and involved the same defendants that are sued in the present case. All of the claims asserted in all three lawsuits arise out of the same series of events. We conclude that the claims in the present case fall squarely within the claim preclusion doctrine. Therefore, the trial court correctly dismissed the present case because the claims are barred by the doctrine of res judicata.

Because we conclude that all of the claims asserted by the plaintiff in the present lawsuit are barred by res judicata, we need not decide whether those claims were filed outside the statute of limitations period or whether a genuine issue of material fact had been created. Accordingly, the plaintiff's remaining two issues are pretermitted.

Florida's 5th DCA holds that the good faith exception applied to sustain a search without the court even attempting to analyze whether probable cause existed. The case apparently was close enough on probable cause that it was easier to go directly to the good faith exception, and gratuitously relied on the experience of the judge, the lack of evidence of corruption [well, Duh!], and the reliance of the police in finding the good faith exception applicable. State v. Watt, 946 So. 2d 108 (Fla. App. 5th Dist. January 5, 2007, released for publication January 24, 2007):

In this case, an experienced trial judge reviewed Agent Brannon's affidavit and determined that probable cause existed to justify the issuance of a search warrant. The police executed the search pursuant to the warrant issued by the judge. In order to reject the application of the good faith exception in this case, we would need to conclude that an objectively reasonable police officer would have a better understanding of the law of search and seizure and probable cause than did the trial judge who issued the warrant. We are not willing to do so.

No indication exists in the record that either the police officer or the trial judge was corrupt, dishonest, or acted in bad faith. Accordingly, this case is controlled by the principle we articulated in State v. Harris, 629 So. 2d 983 (Fla. 5th DCA 1993):

"The warrant was regular on its face and the affidavit upon which it was based was not so lacking in indicia of probable cause that the officer executing the warrant could not with reasonable objectivity rely in good faith on the magistrate's probable cause determination and on the technical sufficiency of the warrant."

Id. at 984.

Comment: I, for one, find such a cavalier attitude toward the good faith exception to be troublesome. This is an understatement, so let me rephrase: This opinion reads like an ad hominem judicial cop-out. Of course the judge was experienced. Does that imply that less experienced judges' paperwork is to be subjected to more or closer scrutiny? Hardly. I have seen experienced judges literally sign search warrant applications in chambers without even reading them. They would qualify as "experienced," if an old, worn rubberstamp for the police could be called "experienced." To say that there is no evidence of corruption of the judge is an extreme hypothetical situation which would rarely be made and even more rarely provable, barely hinted at in Leon on the lack of a neutral and detached magistrate issuing a search warrant, if one reads between Leon's lines. If being a shill for the police is a form of intellectual "corruption," most issuing judges will fall in that category because the good faith exception has given them an out--they don't have to read the paperwork as closely or even think about it because they well know that it doesn't even matter as much under Leon because the proof is in the affirmances. Worse yet, the police know it, too. It shows in suppression hearings where officers parrot the lines necessary to get in under Leon. Finally, the comment that the defendant here would expect the police to know the law better than the magistrate overlooks the fact that the police control the affidavit process because they prepare the affidavits, and, after 22 years of Leon, police officers watching judges sign off on search warrants without (or perfunctorily) reading them means that they have to know what they put in there no longer matters. This is a simple truth, and it was inevitable from Leon, but the Supreme Court was warned of its folly by the dissenters and amici and did not care. After reading this opinion, one is almost struck with a sense of the court's near desperation to sustain the search. Why could the court not just say "We have looked at the affidavit for the search warrant, and the question is too close to call. Anything near a tie goes to the state." Moreover, there are two questions when Leon is invoked: (1) Is there probable cause? (2) If not, does the good faith exception apply or does one of the four exceptions to the good faith exception apply? That is the gist of the good faith exception. Skipping the first question and going straight to the second only encourages judicial laziness, on all levels of the judiciary, which is evident on this court. When probable cause does not matter to the appellate courts, it does not matter to the trial courts, and it finally gets through to the police that it does not matter to them, either. This case is an embarrassment to the Florida judiciary. It could have been dealt with "more professional," as they say to us lawyers, or more judiciously, as judges would say. Leon is demeaned in any case, such as this one, where it is viewed as a judicial panacea thrown up to the defense as an impenetrable wall. It is not. Treating it as such devalues Leon, the court writing the opinion, and the law as a whole.

Defendant's 15 year old daughter reported capital sexual battery on her father, and the police came to investigate. At their strong suggestion, she entered defendant's bedroom to retrieve used condoms as evidence. The trial court found, and the appellate court agreed, that she was acting as an agent of the state when she made the entry on the officer's strong suggestion. The state's alternative argument of consent failed because there was no showing of equal access to the room. Suppression order affirmed. State v. Moninger, 957 So. 2d 2 (Fla. App. 2d Dist. 2007). (There is a case I read more than a year ago reaching opposite result on the child's apparent authority to go into the father's bedroom because that was where the sexual assaults occurred. I cannot remember the name, and the cases from more than a year ago are archived.)

California again decides that an officer has to know that the defendant is on probation before the state can rely on a post hoc rationalization of probation status as justifying an otherwise unlawful search. People v. Miller, 146 Cal. App. 4th 545, 52 Cal. Rptr. 3d 894 (4th Dist. January 4, 2007).

Stop never matured into a de facto arrest (although officers had developed probable cause in the meantime). Defendant was conversing with officer and minimizing his role in the suspected offense, and he was always free to go and not even obligated by the police to go with them to talk to them. He consented. United States v. Moss, 2007 U.S. Dist. LEXIS 293 (S.D. Fla. January 2, 2007).*

Officers collectively had probable cause to believe that defendant was transporting drugs when he drove off from their surveillance, and they called for a uniform officer to stop the defendant. The officers were not required to tell the officer making the stop what the probable cause was; all that is required is that there be probable cause. United States v. Covarrubias, 2007 U.S. Dist. LEXIS 199 (D. Ore. January 4, 2007):

All of these cases [cited by the defense], however, are distinguishable from this matter because they involved an assessment of probable cause or reasonable suspicion developing in the field under quickly evolving and uncertain circumstances. Here, on the other hand, it is undisputed that the JTF and DEA officers already had probable cause to stop and to search Defendant's vehicle and to arrest him when they called for the "walled off" stop of Defendant's vehicle. In addition, probable cause in this case grew out of a long-term, judicially supervised, multi-agency investigation instead of a quick assessment of rapidly evolving circumstances. Moreover, although the trial courts in each of these cases relied on by Defendant interpreted the collective-knowledge doctrine to require, at the least, communication of the existence of probable cause to the arresting officer, none of these interpretations of the collective-knowledge rule has been reviewed by an appellate court. Indeed, in the Ninth Circuit, it appears

"there is room in our precedent to conclude that the collective knowledge of law enforcement can support reasonable suspicion, even if the information known to others is not communicated to the detaining officer prior to a Terry stop, cf. United States v. Butler, 74 F.3d 916, 921 (9th Cir. 1996)(holding that "collective knowledge of police officers involved in an investigation, even if some of the information known to other officers is not communicated to the arresting officer" can establish probable cause)...."

United States v. Terry-Crespo, 356 F.3d 1170, 1177 (9th Cir. 2004).

Accordingly, in the absence of clear guidance from the Ninth Circuit, this Court does not find the reasoning of the decisions on which Defendant relies to be persuasive under these particular circumstances.

Evidence supported the USMJ's R&R conclusion that defendant abandoned his hotel room. He had packed up to leave, attached his companion, and fled the area. United States v. James, 2007 U.S. Dist. LEXIS 187 (D. Minn. January 3, 2007):

James also contends that Judge Graham erred in concluding that he abandoned his room at the Excel Inn. James relies primarily on United States v. Hoey, 983 F.2d 890, 893 (8th Cir. 1993), in which the court found that the defendant had abandoned her apartment because she was six weeks behind in paying rent, had held a moving sale, and was seen leaving. James points to differences between Hoey's situation and his situation -- such as the fact that he had reserved his hotel room through the following day -- and argues that these differences compel a finding that he had not abandoned his hotel room in the way that Hoey had abandoned her apartment.

In determining whether property was abandoned for Fourth Amendment purposes, courts consider all of the circumstances at the time of the alleged abandonment. Id. at 892. The facts of this case -- while indeed different from the facts in Hoey -- are more than sufficient to demonstrate that James had abandoned his room at the Excel Inn. Residence in a hotel room is almost by definition transient; in contrast, residence in an apartment is typically long-term. The type of evidence necessary to show that an individual has abandoned an apartment will thus differ from the type of evidence needed to establish that a hotel room has been abandoned. Even putting that difference aside, the evidence of abandonment here is at least as strong as that in Hoey. James had packed up his belongings and was in the process of leaving when he attacked his companion and fled the hotel. Based on this evidence, the Court finds that James had abandoned his room at the Excel Inn.

Two habeas cases from Michigan: Petitioner was afforded a full opportunity to litigate his Fourth Amendment claim because Michigan courts do not default search and seizure claims not made in the trial court. No motion was made here, but it was decided on the merits on appeal, and that satisfies Stone v. Powell. Mendoza v. Berghuis, 2007 U.S. Dist. LEXIS 164 (E.D. Mich. January 4, 2007).* "The relevant inquiry is whether a habeas petitioner had an opportunity to litigate his claims, not whether he in fact did so or even whether the Fourth Amendment claim was correctly decided. See Wynne v. Renico, 279 F. Supp. 2d 866, 892 (E.D. Mich. 2003)." Calicut v. Quigley, 2007 U.S. Dist. LEXIS 166 (E.D. Mich. January 3, 2007).*

Statute of limitations for unlawful search claim ran from the date the New York appellate courts reversed his conviction based on the search. After the charge was dismissed on remand, the statute of limitations began to run. The search was in 1994 and reversal came in 2001, and suit was filed a few months later. Perez v. City of New York, 2006 U.S. Dist. LEXIS 94211 (E.D. N.Y. December 29, 2006).

Removal: A Fourth Amendment claim brought in state court is removable to federal court because federal courts have jurisdiction over Fourth Amendment claims under 28 U.S.C. § 1331. Donaldson v. City of Walterboro Police Dep't., 466 F. Supp. 2d 677 (D. S.C. November 28, 2006).

Defendant who lived with a woman with whom he had a rocky relationship still had standing to challenge seizure of things from her property because he still retained an expectation of privacy in the premises. United States v. Brown, 2006 U.S. Dist. LEXIS 94224 (N.D. Ga. September 12, 2006):

Although a close question, the court finds that Defendant had a reasonable expectation of privacy in Ms. Moore's residence on October 7, 2005, which he had not abandoned at the time of the search. While it is evident that Defendant was not a fulltime resident at Ms. Moore's home, the court finds that she and Defendant had a long-term relationship which included having had a child together who also resided in the home. (Tr. at 15-16, 46, 110-11, 113-14, 112-23). And, while it appears that Ms. Moore's and Defendant's relationship was undergoing difficult times, as it had apparently in the past, the relationship obviously was not over as evidenced by the fact Ms. Moore had just leased a vehicle for Defendant's use. (Tr. at 16-17, 110). Defendant also had clothing and other items in the residence, which Ms. Moore, and not he, had begun to pack. (Tr. at 16, 21, 110-11, 122). Even assuming that Defendant's visits to the residence were more sparse than claimed by Ms. Moore and that he had not, contrary to her claims, spent the night before at the residence, Defendant had a sufficient relationship to the home and its occupants to assert a reasonable expectation of privacy therein.

Nor does the court find that Defendant had, at the time of the search, abandoned his expectation of privacy in the residence. In arguing that Defendant abandoned his property left in Ms. Moore's residence, the Government points to the facts that his relationship with Ms. Moore was breaking up, that she was packing up his belongings, that there was only a possibility that she would allow him to return, and that he was located months later with his girlfriend in North Carolina. [Doc. 27 at 12]. None of these factors demonstrate that on October 7, 2005, Defendant had abandoned his property or severed his relationship to the residence. In fact, Ms. Moore testified that if Defendant sought to return, there was a "big possibility" that she would allow him to do so. (Tr. at 111). Defendant's association with the residence followed the pattern, as Ms. Moore explained, of being there and then not being there. (Tr. at 16, 122). Although Ms. Moore was equivocal about her relationship with Defendant, she denied that he had moved out of the residence as of October 7, 2005. (Tr. at 110-11, 122-23).

As to the car defendant recently leased for his paramour, the defendant lacked standing in that vehicle. As to consent, the heat of the moment of the arrest had dissipated by the time consent was granted, so did the show of force and authority. Consent was valid. Id.

Defendant arrived at premises when a search warrant was being executed, and he asked to be able to retrieve his son. The officers ran his name and found a warrant for his arrest. The officers conducted a search incident, and they found a hard object which they thought was conceivably a weapon. It was a meth pipe. The search was valid. State v. Cooney, 2006 MT 318, 335 Mont. 55, 149 P.3d 554 (December 5, 2006).

Search warrant based on 45 day old information of a drug buy was stale, and search was suppressed. State v. Jendrusik, 2006 Ohio 7062, 2006 Ohio App. LEXIS 6983 (7th Dist. December 29, 2006).

Hudson excused state’s failure to properly knock and announce, so exclusionary rule did not apply. State v. Marcum, 2006 Ohio 7068, 2006 Ohio App. LEXIS 6995 (7th Dist. December 28, 2006).

Detention of a man who just left the premises to be searched was valid. Presence alone just before the warrant was executed is enough. United States v. Castro-Portillo, 211 Fed. Appx. 715 (10th Cir. 2007) (unpublished):

Applying Summers and Muehler to the case at hand, it is plain the search warrant in this case carried with it the limited authority to detain Mr. Castro-Portillo as an occupant during the search of the house. This alone was sufficient to detain him during the entirety of the search. The fact he was not observed committing a crime at the time of the stop, drove away from the house moments before the execution of the search warrant, and did not know about the search warrant did not prevent authorities from having the requisite suspicion to stop him, as further demonstrated by our decision in Ritchie. In that case, the defendant was stopped in his driveway and then detained in his yard ten minutes before execution of a search warrant on his residence. See 35 F.3d at 1479, 1483.

(Note: The 10th Cir. says this is unpublished, but F.R.A.P. 32.1 applies to all cases decided after January 1st making it binding authority.)

Record supported a finding of voluntariness of consent for a search and a Miranda waiver. Defendant was a Brazilian police officer, and Brazilian law recognized a right to remain silent as well, so he was aware of what was going on. United States v. Braiani, 2007 U.S. Dist. LEXIS 23 (D. Me. January 2, 2007).*

Officers were standing by to keep the peace during a litter removal action on residential property, and they ended up arresting plaintiff for obstructing official business and resisting arrest. The arrest was with cause and summary judgment is granted for the defendants. Helms v. City of Green, 2007 U.S. Dist. LEXIS 21 (N.D. Ohio January 2, 2007).*

(In court today. More posting later.)

This came to me by local e-mail last night, so I assume that it is floating around the internet and some of you may already have seen it: A classic piece from the Andy Griffith show entitled on YouTube as Andy Griffith vs. Patriot Act. (If you've never been to YouTube, you will have to register, but it is quick and painless and YouTube does not spam you.)

A doctor who prescribed medical marijuana whose patient records were searched under a search warrant sought by the DEA and IRS had no standing in those records as to himself, but he did have standing to assert patient privacy because nobody else could. Sterner v. United States Drug Enforcement Agency, 467 F. Supp. 2d 1017 (S.D. Cal. October 11, 2006):

A federal court's judicial power is limited to "cases" or "controversies." U.S. Const., Art. III § 2. A necessary element of Article III's "case" or "controversy" requirement is that a litigant must have "'standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471 (1982); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1152 (9th Cir. 2000). The "irreducible constitutional minimum" of Article III standing has three elements. LSO, 205 F.3d at 1152 (internal quotations omitted). First, plaintiff must have suffered "an injury in fact--an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations and quotations omitted). Second, plaintiff must show a causal connection between the injury and the conduct complained of; i.e., "the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Id. (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)) (alterations in original). Third, it must be "likely," and not merely "speculative," that the plaintiff's injury will be redressed by a favorable decision. Id. at 561.

The court's standing analysis, however, does not end here. The court can also impose "prudential limitations" on the class of persons seeking federal jurisdiction, including requiring that a litigant can only assert his own legal rights, and not the rights of a third party. See, e.g., United States v. Raines, 362 U.S. 17, 22-23 (1960); Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 862 (7th Cir. 1996). "This rule flows from a concern that third parties will not adequately represent the individuals whose rights they seek to vindicate." Retired Chicago Police Ass'n, 76 F.3d at 862. Thus, in determining whether a party can assert a cause of action on behalf of others, a reviewing court must ask two questions: 1) whether the litigants have suffered an injury in fact sufficient to rise to an Article III controversy; and 2) whether, as a prudential matter, the plaintiff properly represents the interest of any other individual in the complaint. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 n.3 (1989); Singleton v. Wulff, 428 U.S. 106, 112 (1976).

The complaint lists several allegations resulting from the seizure of Plaintiff Sterner's patient treatment history records. Cplt. at 16. Plaintiff Sterner alleges that, in violation of the search warrant, Defendant Toussaint seized entire patient files even when the medical files could be easily separated from payment records. Id. The complaint seeks injunctive relief barring Defendants from use or dissemination of "any patient information and/or patient identities" for violating Plaintiffs' first amendment rights (see Cplt. at 15), as well as "Plaintiff Sterner's patients clearly established right to privacy." See Cplt. at 21.

Plaintiff argues that the physician-patient privilege endows him with standing to pursue this action on behalf of his patients. Doc. No. 33 at 3. Although federal law does not recognize a physician-patient privilege, see Hutton v. Martinez, 219 F.R.D. 164, 166 (N.D. Cal. 2003), courts have consistently acknowledged the right of a physician, as a custodian of records, to assert the privacy rights of his patients. In In re Search Warrant, 810 F.2d 67 (3d Cir. 1987), physician plaintiff sought to assert his patient's rights to privacy when medical records were seized from his office pursuant to a search warrant issued as part of an insurance fraud investigation. Id. at 70. In finding a physician has standing to assert the privacy rights of his patients; the court first recognized that "'[a]s a practical matter, the absence of notice ... of the subpoena means that no other person other than [the movant] would be likely to raise the privacy claim,'" and therefore the physician would be the "proper proponent to assert this claim on behalf of his patients." Id. at 71, quoting United States v. Westinghouse Elec. Corp., 638 F.2d 570, 574 (3d Cir. 1980). The court also found, due to a substantial stake a physician has in the outcome, the level of adverseness high enough to overcome any prudential concerns. Id. at 71 n.3. In Pagano v. Oroville Hospital, 145 F.R.D. 683 (E.D. Cal. 1993) (overturned on other grounds), the court also recognized a physician's duty, as custodians of their patients' medical records, to assert the privacy rights of their patients. Id. at 696. Citing several California state cases, the court found that physicians "must be permitted to speak" for their absent patients where a physician's rights are coincident with their patients. Id., citing Wood v. Superior Court (Bd. of Medical Qual.), 166 Cal.App.3d 1138, 1145 (1985). This Court finds these cases persuasive, and therefore finds that a physician, as a custodian of his patient's records, has standing to assert privacy rights on behalf of his patients. Taking the facts asserted here as true, the information Plaintiffs seek to protect is highly personal and, in light of the Government's primary interest in financial matters and accounting, should outweigh any interest that the Government may have. Accordingly, this Court DENIES Defendant Toussaint's motion to dismiss based on the alleged lack of standing of Plaintiff to assert claims on behalf of his patients.

Officer lacked reasonable suspicion to detain the defendant based on a review of the videotape when he cited the defendant for driving on a suspended license for an unknown reason. The defendant was driving a rental car with an expired rental agreement but which defendant said had been extended which he had already noted on the rental agreement with the name of the person he talked to and the date. The officer asked for consent and defendant refused. The officer then brought the dog out, but the continuation of the detention was without reasonable suspicion. Enriquez v. State, 2006 Ark. App. LEXIS 864 (December 6, 2006).

Officers responded to an emergency call that there was a man slumped over the wheel of a car in a convenience store parking lot with the engine running. They opened the door, and defendant was not responsive. When they pulled him upright, in plain view was cocaine, which was validly seized. Vitale v. State, 946 So. 2d 1220 (Fla. App. 4th Dist. January 3, 2007, released for publication January 19, 2007).

Defendant did not preserve search issue for appeal with conditional plea, so the appellate court lacked jurisdiction on that issue. State v. McDougald, 638 S.E.2d 546 (N.C. App. 2007).*

Consent during a knock and talk, where defendant first refused consent but relented after being told that the officers would get a search warrant and he would be excluded from the apartment until the search was completed, was still voluntary. Durlock v. State, 2007 Tex. App. LEXIS 11 (Tex. App. — Dallas January 3, 2007) (there was no mention of whether the search warrant would actually issue, which should be fatal, but the defendant's "experience" with the criminal justice system seemed determinative):

The evidence shows appellant is an adult who has experienced previous encounters with law enforcement officials. He acknowledged that he agreed to allow the officers to search his apartment rather than wait for a search warrant. He was not in custody and there is no evidence of physical punishment. The trial court could have determined any initial misgivings appellant might have had about consenting to a search of his apartment were insufficient to vitiate his subsequent decision to consent to the search. "[M]ost confrontations with the police are uncomfortable--given the implicit difficulty in refusing any request from a peace officer who stands cloaked in the authority of law enforcement. ..." Carmouche, 10 S.W.3d at 333. "But the Constitution does not guarantee freedom from discomfort." State v. Velasquez, 994 S.W.2d 676, 679 (Tex. Crim. App. 1999). The Constitution "presumes that an actor is invested with a vibrant sense of his own constitutional rights and will assert those rights when they are implicated." Carmouche, 10 S.W.3d at 333. Looking at the totality of the circumstances, we conclude the record supports a finding by clear and convincing evidence that appellant's consent to search was free and voluntary. The trial court did not abuse its discretion when it denied appellant's motion to suppress. Appellant's first and second issues are overruled.

Not a search case, but interesting for prosecutors and defense lawyers alike is Valle v. State, 2006 Tex. App. LEXIS 11129 (Tex. App. — Amarillo December 29, 2006), holding that insufficient evidence of possession was shown as to the driver of a tractor trailer who consented to a search of the contents of the truck where drugs were found. This was distinguished from a drug courier in a smaller vehicle because of the way the contraband was packaged and hidden in the truck, and long haul truck drivers carry for third persons and seldom know exactly what they are hauling.

Again, appellant questioned the factual sufficiency of the evidence. And, as previously mentioned, addressing that issue obligates us to consider the entirety of the evidence in a neutral light. Thus, we need not ignore the fact that the officers were not qualified by the State as or otherwise shown to be experts on the matter of commercial trucking procedures or the conduct of commercial truckers. Nor must we ignore the fact that in commenting about the ability of charcoal and flour to absorb odors, the officers were again not shown to have any specialized training in the matter. Nor can it be forgotten that neither they nor the State explained what effect plastic wrapping had on the ability of charcoal and flour to absorb smells. Moreover, in reading the testimony of the officers, one is left with the unmistakable impression that whatever conduct a suspect engages in, they can interpret it as indicative of criminality. To that we add 1) the numerous links (discussed above) that weigh against there being a nexus between appellant and the contraband, 2) one officer's own testimony that he has seen reefers being used to haul cars, 3) another's testimony that a trucker may simply drive up to a loading dock, remain in the truck, have others load the goods, obtain whatever receipt is given him, and then drive off, 4) the inability of the officers to confirm whether or not the contact person named on the bill of lading and receipt worked for the companies at which the goods were received, 5) the lack of evidence suggesting that appellant had any experience in or history with the drug trade, 6) the absence of evidence contradicting appellant's version of how he came to acquire the limited cargo he had, and 7) the inability of one officer to place appellant inside the trailer and of the other to inform the jury of any indicia he thought was enough to show appellant knew of the drugs.

Into the mix we throw in another observation. The circumstances before us are unlike those involved in the usual drug stop. We do not have an individual simply operating a vehicle on a public roadway. We have a person whose job it is to transport, over long distances, property belonging to third parties. Moreover, if the officers at bar are to be believed, the property is most likely packaged by third parties, as opposed to the driver. This is a setting ripe for the unwitting carriage of illegal goods. Consequently, both jurors and the judiciary must tread cautiously to avoid convicting the unwitting.

In sum, while an abundance of information floats around in the record it means little when placed in context. It may be (as the officers suggested) the responsibility of a long-haul driver to exercise care over his cargo but not even the law of bailments equates the duty of care with a knowledge of content. To say otherwise would be to divine apples from oranges. And, that appears to be a general flaw running throughout the case. Tidbits of information were tossed before the jury but there lacked a cohesive thread tying them together. This is not to say that the State's effort was less than noteworthy. Rather, it connotes the difficulty in proving guilt in cases such as this.

So, from the totality of the evidence when considered in a neutral light, we can say that objective basis exists of record upon which to find "the evidence supporting conviction [to be] so weak that the verdict "seems 'clearly wrong and manifestly unjust[.]'" Evans v. State, supra. To the extent that the dissent disagrees, we note that the two cases it relies on, Menchaca v. State, 901 S.W.2d 640 (Tex. App.-El Paso 1995, pet. ref'd) and United States v. Garza, 990 F.2d 171, 174 (5th Cir. 1993), are inapposite. For instance, Menchaca involved drugs being transported within a car as opposed to being hidden within the cargo of a trailer hauled by a common carrier. Nor do we have here evidence of nervousness on the part of the driver or a document indicating how and where the drug deal would be completed, unlike the situation in Menchaca. As for Garza, the court also had before it indicia absent here. They included 1) nervousness and trembling on the part of the courier, 2) a false bill of lading hidden in the truck, 3) admission by the courier of falsification of his log book along with an implausible explanation, 4) suspicious circumstances involving Garza's delayed departure and 5) abandonment of his unlocked truck for a time. But, most importantly, neither opinion dealt with the factual, as opposed to legal, sufficiency of the evidence. This is of import because evidence that is legally sufficient to support a verdict does not ipso facto mean it is factually sufficient.

A defendant who had pled guilty and who had refused consent to search before the police sought consent from another was allowed to withdraw his plea based on Randolph being decided after the plea. United States v. Hughes, 2006 U.S. Dist. LEXIS 94138 (W.D. N.C. December 29, 2006). (Note: Randolph was decided March 22, 2006.)

§ 1983 claim filed by pretrial detainee over his arrest was dismissed on the merits of probable cause to arrest and under Heck's requirement that he have already prevailed on the search in state court. Hawthorne v. Sheriff of Broward County, 212 Fed. Appx. 943 (11th Cir. 2007):

Under Heck, a state prisoner may not bring a claim for damages under § 1983 "if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction." Heck, 512 U.S. at 487, 114 S. Ct. at 2372. Thus, unless the plaintiff-prisoner can demonstrate that the conviction or sentence has already been invalidated, the complaint must be dismissed. Id. Here, Hawthorne contends that the Officers falsely stated that he committed the offenses for which he is now incarcerated. To prevail on this claim, Hawthorne must necessarily establish that he did not commit the offenses for which he was convicted. Hence, a judgment in Hawthorne's favor on this claim would necessarily imply the invalidity of his underlying convictions. Because Hawthorne has not demonstrated that his convictions have already been invalidated, this claim is barred under Heck. See id. at 487, 114 S. Ct. at 2372.

Officers who were tailing a fugitive who had consent to enter to look for him handcuffed the plaintiff because he bore a resemblance to the fugitive. The officers swept the premises, did not find the fugitive, and determined that the plaintiff was not him, so they let him go. They were entitled to qualified immunity from suit. el Bey v. Roop, 2006 U.S. Dist. LEXIS 93995 (S.D. Ohio December 29, 2006).*

The use of a Taser on a student who was unruly during an arrest at school and refused to calm down before it was used, where the use of the Taser was within department policy, entitled the officers to qualified immunity. RT v. Cincinnati Pub. Schs., 2006 U.S. Dist. LEXIS 94004 (S.D. Ohio December 29, 2006).

Statement made to the Coast Guard Investigative Service was predicated on false information from CGIS, and that required that the statements be suppressed. United States v. Schroder, 2006 U.S. Dist. LEXIS 94070 (S.D. Ala. July 6, 2006):

In light of this concession and the evidence presented, the court finds that, whether deliberate or not, CGIS materially mislead defendant about the nature of the investigation on April 12, 2006. A letter of predication was issued on March 13, 2006, which unequivocally directed the CGIS to conduct a criminal investigation targeting defendant Schroder. Under the circumstances of this case, any involvement in the investigation by CGIS after the letter of predication was issued was related to CGIS' criminal investigation of defendant. Thus, the court finds that on April 12, 2006, whether Agent Lee responded that it was not a criminal investigation, or simply stated that they had expanded the investigation and were there to gather more facts, the statement was misleading. It is undisputed that defendant's attorney specifically asked whether this was a criminal investigation. Under either version, Lee's response was at least evasive and incomplete. There was clearly a criminal investigation of defendant at that time and the only truthful and accurate answer was an affirmative one. Whether or not Lee believed he was being truthful, his statement was misleading and inaccurate and resulted in the defendant providing information that he may not have provided otherwise. Thus, the court finds defendant's motion to suppress is due to be granted as to statements given on April 12, 2006.

§ 2255 petitioner loses on the merits of his search claim, so it is not possible that defense counsel was ineffective. United States v. Boyd, 2006 U.S. Dist. LEXIS 94166 (W.D. Tenn. December 29, 2006).*

The defendant was alleged to have stashed a bag of drugs between his screen door and the inside door. Because the door was unlocked, and it was not considered a perimeter door, he lacked an expectation of privacy there. Christian v. State, 172 Md. App. 212, 914 A.2d 151 (January 2, 2007):

The suppression court in this case recognized a difference in the way that the public uses the entry door that leads to the private quarters of the home and the screened door between such an entry door and the street. The suppression court found that the screen door in question was of the variety that would be accessible to strangers approaching the residence, stating:

"... I started thinking in terms of when deliveries are made to a home, when guests come into a house, what do they do[? T]hey open the [screen] door and knock. [¶] Oftentimes packages are placed within those two doors, and from a common sense perspective standpoint, that area between those doors does not or is not afforded that same level of protection as to the area beyond that wooden door where there is an expectation of privacy. [¶] * * * So I'm finding ... there was no reasonable expectation of privacy within that area, that this is basically from a common sense perspective, it is not protected because too much open use is made of that area, and too much unauthorized use is expected in that area, between the storm door and that interior door for there to be an expectation of privacy...."

We agree. The suppression court's factual findings about the nature of the subject screen door are not clearly erroneous. Both the custom of public use of such doors and the visual permeability of screen doors support the suppression court's conclusions. A similar analysis was adopted by the court in United States v. Arellano-Ochoa, 461 F.3d 1142, 1145 (9th Cir. 2006), in a case in which the police officers were confronted with a screen door. The court stated:

"Whether opening a screen door breaches a reasonable expectation of privacy depends on the circumstances. During winter in a cold climate, people ordinarily keep the solid door shut. About the only way for mail and package delivery people, solicitors, missionaries, children funding school trips, and neighbors to knock on the door is to open the screen door and knock on the solid door. People understand that visitors will need to open the screen door, and have no expectation to the contrary. The reason why people do not feel that their privacy is breached by opening the screen door to knock is that it isn't; the solid door protects their privacy."

In the summer, when people leave their solid doors open for ventilation, the screen door is all that separates the inside from the outside. People can get a resident's attention by knocking on the screen door without opening it. Where the solid door is wide open, the screen door is what protects the privacy of the people inside -- not just their visual privacy, which it protects only partially, but also their privacy from undesired intrusion. Where the solid door is open so that the screen door is all that protects the privacy of the residents, opening the screen door infringes upon a reasonable and legitimate expectation of privacy.

The distinguishing factor is not whether the time of year is summer or winter, but whether the screen door is acting as the perimeter barrier to the residence. See State v. Kitchen, 1997 ND 241, 572 N.W.2d 106, 109 (N.D. 1997) ("When officers knock on a door where visitors logically would knock, while engaged in legitimate police activities, they have no less right to be there than any member of the public calling at that home."). See also Fitzgerald v. State, 153 Md. App. 601, 666-67, 837 A.2d 989 (2003) ("[T]he vestibule of the apartment house was no different than a public street or an open field. The police needed no justification for being there."), aff'd on other grounds, 384 Md. 484, 864 A.2d 1006 (2004).

In the present case, the suppression judge found that the solid door to the residence was closed, and that the screen door would have been opened by delivery men and others approaching the house. There was no evidence that the screen door was latched, or that a door knocker or door bell were located on the outside of the screen door. Under the circumstances, we agree with the suppression court's conclusion that appellant had no reasonable expectation of privacy in the space between the screen door and the solid entry door of the rowhouse.

The plaintiff had her social security and other identifying information placed on a court's website. The information was used in an identity theft. Posting the information was not an unconstitutional invasion of privacy. Lambert v. Hartmann, 2006 U.S. Dist. LEXIS 93926 (S.D. Ohio December 29, 2006):

In Kallstrom v. City of Columbus, the Sixth Circuit found that under the first step of the above analysis, the plaintiffs had a privacy interest in personal information of a constitutional dimension. 136 F.3d at 1062. The facts of Kallstrom are that the City of Columbus disclosed personal information contained in police officer personnel files to defense counsel during a criminal trial in which the officers testified against the defendants. Id. at 1058. The court noted that "[i]ndividuals have 'a clearly established right under the substantive component of the Due Process Clause to personal security and to bodily integrity,' and this right is fundamental where 'the magnitude of the liberty deprivation that [the] abuse inflicts upon the victim . . . strips the very essence of personhood.'" 136 F.3d at 1062-63, quoting Doe v. Claiborne County, 103 F.3d 495, 507 (6th Cir. 1996). The Court explained that "it goes without saying that an individual's 'interest in preserving her life is one of constitutional dimension.'" Id., quoting Nishiyama v. Dickson County, 814 F.2d 277, 280 (6th Cir. 1987) (en banc). The court concluded that the disclosure of the officers' addresses, phone numbers, and driver's licenses, as well as the personal information of their family members rose to a constitutional dimension because of the threat to the personal security and bodily integrity of the officers and their family members. Id. at 1063. The court therefore proceeded to the second step, and balanced the officers' interests against those of the city. Id. The court noted that Ohio's Public Records Act required the state to make available all public records to any person, and for purposes of the case before it, assumed that the interest in public access to these records rose to a compelling state interest. Id. at 1064-65. Nevertheless, the court found that the release of the officers' information was not narrowly tailored to serve these interests. Id. at 1065. The court explained: "[w]hile there may be situations in which the release of the this type of personal information might further the public's understanding of the workings of its law enforcement agencies, the facts as presented here do not support such a conclusion." Id.

In Bloch v. Ribar, the Sixth Circuit again found that the plaintiffs had an interest at stake which implicated either a fundamental right or one implicit in the concept of ordered liberty. 156 F.3d at 685. In Bloch, a rape victim and her husband claimed that the sheriff violated their constitutional rights by holding a press conference to release the confidential and highly personal details of the rape by an unknown assailant. Id. at 676. The court noted that "[t]he fact that the crime of rape occurred in this case implicates both a private and a public interest, but the details of the rape primarily implicate a private interest until such time as the public interest in prosecution predominates." Id. at 685-86. Therefore, the court concluded that "a rape victim has a fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details of the rape where no penalogical purpose is being served." Id. at 686. Moving to the second step of the analysis, the court explained that it appeared that there was no justification for disseminating the details of the rape at the time of the press conference. Id. Therefore, the court found that the plaintiffs had raised a cognizable privacy claim under section 1983. Id.

Unlike Kallstrom and Bloch, the Court determines that Plaintiff's alleged privacy interest in her name, signature, home address, birth date, driver's license number, and social security number do not implicate either a fundamental right or one implicit in the concept of ordered liberty. Plaintiff has only identified a risk of financial harm. While the Court is not unmindful of the problems which may result from the release of personal information, it nonetheless is beyond dispute that plaintiff's injury from the release of information in this case bears no equivalence to the potential and actual harm suffered by the Kallstrom and Bloch plaintiffs, respectively, which harm the Sixth Circuit has found to be protected by the Fourteenth Amendment. Therefore, the Court concludes that based upon the allegations in the Complaint, Plaintiff is not entitled to relief under section 1983. The Court finds that nothing within Plaintiff's proposed amendments to the Complaint would alter this conclusion.

Summary judgment was granted officers on alleged unreasonable detention during the execution of a search warrant. The officers said the detention was handcuffing for two hours while the search was completed. The plaintiffs said five hours. Under Summers, the detention was not unreasonable, even if it were five hours. Diaz v. City of New York, 2006 U.S. Dist. LEXIS 93923 (E.D. N.Y. December 29, 2006).*

NYPD Housing unit had reasonable suspicion to detain defendant for not belonging to the building he was hanging out in when he gave two versions of why he was there, and he claimed a friend in 7B, but nobody in 7B had that name or knew him. People v. Wigfall, 2005 N.Y. Misc. LEXIS 3493, 234 N.Y.L.J. 74 (Bronx Co. October 17, 2005).*

Officers walked from lunch to a convenience store to talk to the defendants waiting there whom they had observed from the restaurant as having come from California (a “source state”). A consensual encounter ensued with conversation about the car and travel plans. Officers were formulating reasonable suspicion. Some of the factors were innocuous, but some were not. On the totality, all the information supported the inference that this was a drug run. The defendants were detained while the officers held the paperwork to the car. The officers handed back the paperwork and said they were free to go. Then, one stopped and turned back and asked for consent to search the car which he got. The consent was valid. United States v. Guerrero, 472 F.3d 784(10th Cir. 2007). Comment: This case is interesting in how the court analyzed factors under Arvizu and concluded that individual, potentially innocuous, factors pointed toward reasonable suspicion on the totality for the brief detention. The court credits one officer’s testimony that the differing stories from the occupants were consistent with the likelihood that two people who previously did not know each other were put together to drive the car with the drugs, a common technique of drug trafficking on the highways.

(Court today; more later.)

In Pennsylvania, once a motorist is told that he is free to leave, despite the fact the officer has grounds for further inquiry, the motorist must be allowed to go unless something else justifies the continued detention. That is, there must be a break in the causal connection. Commonwealth v. Moyer, 2006 PA Super 379, 2006 Pa. Super. LEXIS 4648 (December 29, 2006):

[¶ 17] Finding that the second encounter constituted an investigatory detention, we must next evaluate its legality, as that inquiry directly impacts the voluntariness of Moyer's consent to search.

"To conduct an investigative detention, a law enforcement officer must harbor at least a reasonable suspicion that the person seized is then engaged in unlawful activity. Reasonable suspicion exists only where the officer is able to articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity. Therefore, the fundamental inquiry of a reviewing court must be an objective one, namely, whether the facts available to the officer at the moment of [intrusion] warrant a man of reasonable caution in the belief that the action taken was appropriate."

See Commonwealth v. Johnson, 833 A.2d 755, 762-63 (Pa. Super. 2003) (citations omitted). The second police/citizen interaction must be evaluated independently to determine if reasonable suspicion existed based on factors arising after the end of the initial stop. Id. at 763; Ortiz, 786 A.2d at 266 (“Without existence of a reasonable suspicion after the first encounter had ended, the second detention was unlawful.”). Thus, “even where a defendant's conduct during the initial stop ‘may have merited further inquiry,’ the ··· officer's instruction to the defendant that he was free to leave vitiated any grounds he had to hold the defendant further.” Johnson, 833 A.2d at 763 (quoting Ortiz, 786 A.2d at 266). Under such circumstances, “[a]bsent some new observation of suspicious circumstances, the defendant's continued detention [would be] illegal.” Id.

[¶ 18] The second detention in the instant case lacks the indicia of reasonable suspicion independent from observations made prior to the endpoint of the initial traffic stop, e.g., that Moyer had bloodshot eyes, was nervous and swaying, was making furtive movements. Accordingly, we conclude that the second investigatory detention was illegal, thereby tainting the voluntariness of Moyer's consent.

[¶ 19] Thus, in a final effort to establish that Moyer's consent was voluntary, the Commonwealth would have to demonstrate that there exists both a “sufficient break in the causal chain between the illegality and the seizure of evidence, thus assuring that the search is not an exploitation of the prior illegality, and ... voluntariness.” Strickler, 757 A.2d at 889. The Commonwealth has failed to do so.

[¶ 20] Although we could end our analysis here, it is worth noting that the trial court examined other factors that support its finding that Moyer's consent was not voluntary. In addition to the taint upon the consent stemming from the illegal second detention, these other factors include:

• the person's knowledge of the right to refuse to consent to the search;

• the maturity, sophistication and mental or emotional state of the defendant (including age, intelligence and capacity to exercise free will); and

• the presence or absence of physical contact or police direction of the subject's movements, the demeanor of the police officer, the manner of expression used by the officer in addressing the subject, the location of the encounter, and the content of the interrogatories or statements.

Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa. Super. 2005) (citing Strickler, 757 A.2d 884, 897-898, 901 (Pa. 2000)). The trial court's findings, which are supported by the record, include the fact that Moyer was unaware of his right to refuse consent, that Moyer had an eighth grade education, and that Moyer “appeared to the court to be somewhat ‘slow’ in terms of his intellectual capacity.” T.C.O. at 2. Additionally, as noted above, the location of the encounter (i.e., a dark rural road) and the content of Corporal Moyer's interrogatories (i.e., with regard to the prior marijuana violation), also favor the trial court's conclusion that Moyer's consent was not voluntary.

This is a personal reflection, something that this blog does not see much of. I am a reporter of what the courts do on search and seizure cases, and I've even criticized decisions that held, what I thought wrongly, that a search was bad. I try to be an objective observer, but, as this blog approaches its fourth birthday, anybody who has been here more than a few times has to know that I favor protecting civil liberties, except where the government's interest is objectively real and not merely hypothetical.

New Year's Day is just turning a page in a calendar to some of us. As a criminal defense lawyer, I have always found myself always looking ahead on the calendar, and New Year's Day becomes just another work day. Being an emptynester, I worked all day Christmas Eve and Christmas Day on a cert petition that was shipped December 27th. My associate and I have a four to six week trial starting February 19th. I had a four and a three day trial in December. After we agree to take a case, our lives are scheduled for us. I confess that I'm a workaholic, but I take my vacations when others do not. [As a friend, a retired public defender, once said: "All work and no play makes John a dead lawyer," which my late mother made into a needlepoint hanging in my home office. Thank you, Alison, for trying to keep me grounded and sane.]

What was 2006? It was the year of Hudson v. Michigan, 126 S.Ct. 2159 (June 15, 2006), the case that emasculated a case I argued and won as a sole practitioner, Wilson v. Arkansas, 514 U.S. 927 (1995), holding that the knock-and-announce rule was constitutionally mandated, by now holding that the exclusionary does not apply to violations of the rule. When I briefed Wilson, I had this fear in the back of my mind, and I was ready for it at oral argument. I imagined Justice Scalia asking during oral argument about whether inevitable discovery would apply. I even anticipated that questions would arise as to whether the exclusionary rule should apply. Thankfully, it never came up. But, I had the confidence during oral argument that they could not ask a question that I was not ready for. After all, I had spent twenty years getting ready for that oral argument.

Last Term, the Supreme Court decided four Fourth Amendment cases. Government 3, citizens 1. When a cert grant occurs in a Fourth Amendment case, I reflexibly cringe. Odds are that this is not going to be good. I used to write amicus briefs for NACDL on Fourth Amendment issues, and the citizens lost every one of them. Am I bad luck? Term before last, there was one Fourth Amendment case. I sat that one out.

I've gotten cert granted in two Fourth Amendment cases. The first was Arkansas v. Sanders, 442 U.S. 753 (1979), when I was a state prosecutor. The case came from our office. The Arkansas AG did not think it was cert worthy, but I did. I had to have them sign the brief. Once cert was granted, that was the last I saw of that case. I'm not even going to tell you about the one pending there now because talking about it would insure cert would be denied. No matter that it is a good issue--one never knows what the Supreme Court will take.

About once a year I try to get to the Court to watch the oral arguments in Fourth Amendment cases. With the argument calendar online, one can try to plan a day. Of all the arguments I've seen, there have been good and bad. In one case, the attorney arguing for the state was a hired gun of the "Supreme Court Bar," and it was obvious he knew the case, but he did not know the Fourth Amendment in the larger sense of how it fits into the fabric of criminal justice. Watching him fumble easy questions was painful, and I was rooting for the other side. That was before 1995, and I knew that I could have argued that case better than he did with about four hours notice.

Hey, I'm a hired gun too. Clients ask whether I will take their case, giving me flashbacks to Perry Mason where he had to be convinced the client was innocent to "accept the retainer" as lawyers used to say, and still say in the U.K. I'll be blunt: If you can afford my fee, yes, I will represent you. (In that sense, "retainer" means "agreement to represent" and not the money to be paid.)

"Sir, what kind of a woman do you take me for?"
"We've already established what you are, ma'am. Now we're just haggling over the price."
--George Bernard Shaw

I can't remake the facts, but I might be able to control the damage or even win. None of us has the luxury of representing only the innocent or prosecutors prosecuting only the guilty. We lose at trial. It is part of the job.

For nearly four years, I've gotten up before six and spent virtually every morning, except when in trial, summarizing the cases for posting on this website. Some days it takes over two hours. One case last week took an hour. According to the statistics of this website, the readership spikes between 8-9 am ET. So, work permitting, I try to get everything up before 8:30 am ET. The number of search and seizure cases is actually increasing (U.S. District Court cases are up 130% over last year), so it takes longer.

And what do I have to show for it? I already was a putative Fourth Amendment expert going in. Nevertheless, this daily exercise has enabled me to see patterns and depth that I had never appreciated before. But at what cost? It extends my work day up to two hours. On Thursday, I left work at 6 p.m., and I was tired.

"Of course you're tired, you moron. You had an eleven hour work day. You're not as young as you think you are."
--Me to me, Thursday

I need to take § 34:7 of my ethics book on lawyer burnout to heart. I'm not suffering burnout, but there is wear and tear. I still feel like a kid when I get my brain working on an interesting legal issue. As stated in my ethics book, § 1:1 n. 34, under our common law system lawyers make law, not judges. Without a lawyer making an a well crafted argument to a trial court, an appeals court never gets to see the issue.

I am proud to be a criminal defense lawyer and First Vice-President of the National Association of Criminal Defense Lawyers. And, I don't apologize for being a former prosecutor because that experience formed my view of the law. And I am even more proud to see myself as a "compleat lawyer" to always see the larger questions of criminal justice first and where the case at hand fits or doesn't fit. None of this means a damn thing to my clients, and we cannot explain it to them without talking over their head, but it matters to me, and it does to other lawyers.

On a final note, ThatLawyerDude named this website one of his favorites, and he visits everyday. Several other websites link to it. Every prosecutor and defense lawyer should visit at least twice a week. Indeed, I can see by the source coding information from visitors [nothing on the Internets is all that private, folks] that a certain big city prosecutor's office visits every day. I speculate that the content here becomes a part of an internal e-mail or newsletter on search and seizure law developments. If prosecutors are going there everyday, defense lawyers should, too. Telling the criminal bar here is like the tree falling in the woods. But, since this website changed to a blog format, the number of visitors tripled from August to December.

If I can get a few lawyers to better understand the fabric of search and seizure law and they become better lawyers and better serve justice, then this blog has been successful. Thank you for your readership.

Oh yeah, no cases today.