Archives for: March 2007


Permalink 06:13:34 am, by fourth, 1765 words, 2586 views   English (US)
Categories: General

Failure to timely assert attorney-client privilege after a search warrant may constitute waiver

Search warrant for business records potentially intruded into the attorney-client privilege. The defendants asserted privilege in a timely fashion as to some records while in the possession of the taint agent, and there was no waiver. As to those records where the defendant unreasonably delayed, there was a waiver. United States v. SDI Future Health, Inc., 2006 U.S. Dist. LEXIS 95794 (D. Nev. October 16, 2006):

The search warrant in this case, however, was directed at seizing non-privileged business records and tax returns and tax preparation documents. As stated, during the search, taint agents reviewed documents in offices identified by SDI as containing privileged documents. Given the scope of the seizure, it is not surprising that the taint agents may have allowed seizure of certain records that were potentially privileged, or that potentially privileged records were located in other offices not inspected by the taint agents or possibly on SDI's computers. Defendants have cited no authority, however, which holds that where the Government seizes voluminous business records, it must first employ a taint team to review all of the records to identify potentially privileged documents. On the other hand, SDI's counsel did timely notify the Government of certain seized files or documents that allegedly contained attorney-client privileged documents. SDI's counsel also informed the Government of the identities of law firms and attorneys who represented SDI so that the Government could identify potentially privileged documents and protect them from review by the case agents or prosecuting attorneys until a privilege determination was made. Other than the very general statements in the Government's Opposition and Ms. Damm's Declaration, the Government provides little or no information as to what steps were taken to segregate such allegedly privileged documents before they were reviewed by the case agents.

In sum, SDI had some arguably valid objections to the Government's taint procedures. The problem is that SDI waited more than three years after the search to raise those objections with the Court. That stated, the Court generally agrees with the statement by the court in United States v. Neill, supra, 952 F.Supp. at 841 that:

"Where the government chooses to take matters into its own hands rather than using more traditional alternatives of submitting disputed documents under seal for in camera review by a neutral and detached magistrate or by court-appointed special masters, (citations omitted), it bears the burden to rebut the presumption that tainted material was provided to the prosecution team. Briggs, 698 F.2d at 495, n.29 ('the government is, of course, free to rebut this presumption by showing for example, procedures in place to prevent such intragovernmental communications.')."

. . .

The Court agrees with the approach taken in United States v. Neill, supra, which involved similar circumstances. As to documents which Defendants identified and asserted claims of privilege in SDI counsel's letters dated February 5, 8 and 21, 2002, the Court finds that Defendants have not waived their attorney-client privilege. In so finding, the Court weighs and balances Defendants' failure to take earlier judicial action to enforce their privilege against the failure of the Government to timely notify Defendants of the privilege determinations made by the taint attorney, combined with the fact that in August-September 2005, the Government still recognized that some of the documents were potentially privileged.

In regard to other documents, including computer based records, as to which SDI never asserted specific attorney-client privileges, the record supports the conclusion that SDI waived its attorney-client privilege by failing to assert it or to take timely action to protect it. In their Reply (# 67), Defendants attempt to distinguish de la Jara and In re Grand Jury (Impounded) on the ground that those cases involved a single document and that Bowles v. National Ass'n of Home Builders involved a finite number of ascertainable documents. In contrast, Defendants argue that the Government seized hundreds of thousands of documents which it maintained in its sole control. This is not a sufficient basis for distinguishing those cases.

There is no evidence, nor is there any basis for believing that the hundreds of thousands of paper documents and computer records seized by the Government constituted potentially privileged attorney-client communications. Within days and weeks after the seizure of its documents, SDI was able to identify potentially privileged documents and files that had been seized by the Government. SDI's counsel also advised the Government that there might be other privileged documents contained in the seized records which could only be determined after SDI having an opportunity to review the seized records. At that point, the Court would agree that SDI had not waived its privileges because it had, as yet, no opportunity to inspect its files and identify additional privileged records. See In re Grand Jury Subpoenas 04-124-03 and 04-124-05, 454 F.3d at 515 (stating that movant could not be criticized for failing to provide a privilege log before he had an opportunity to review the records). See also Burlington Northern & Sante Fe Railway Co. v. District Court., 408 F.3d 1142 (9th Cir. 2005)(timeliness of privilege log is determined by the relevant circumstances including the ability of the party to review the documents and identify privileged materials). On the other hand, the Court does not agree that a mere generalized assertion that seized records may contain attorney-client privileged materials is, in and of itself, sufficient to preserve the defendant's privilege indefinitely. See United States v. Ary, 2005 WL 2367541 (D. Kans. 2005).

SDI counsel's February 21, 2002 letter to AUSA Myhre stated that the Government agreed to make certain SDI records available for copying on February 22, 2002, and "to allow SDI's representatives to use a scanner and laptop to copy all needed records, ZIP disks and CD ROMS." Defendants' Motion (# 39), Exhibit "5", pages 1-2. According to this letter, the Government also agreed to return other documents to SDI. No evidence has been presented that the Government subsequently refused to return records it agreed to return, or that the Government refused to permit SDI to copy the documents and computer records. AUSA Pomeranz's May 20, 2004 letter to SDI's counsel noted the "extraordinary access" that SDI was granted "to review the materials seized both during and after the execution of the search warrant." Government's Opposition (# 55), Exhibit "A-2." No evidence has been submitted by Defendants showing that they disputed the Government's assertion in this regard.

It appears that SDI was granted access to the seized records which it could have reviewed to identify additional privileged attorney-client communications. Therefore, it was unreasonable for SDI to fail to take steps to identify and assert its privilege regarding other documents within a reasonable time after it was granted access to the seized records. Assuming, for sake of argument, that the Government had refused to permit SDI to inspect and copy the seized records after February 21, 2002, it would have been incumbent on Defendants to timely pursue judicial action to obtain the records so that additional privileged documents could be identified and objections made to the Government's use of those records. The Court therefore finds that Defendants waived any attorney-client privilege regarding documents seized during the search of SDI's corporate headquarters and offsite storage facility on January 31, 2002 that the Defendants did not identify in SDI counsel's letters dated February 5, 8 and 21, 2002. Defendants therefore are not entitled to an evidentiary hearing regarding the Government's alleged improper intrusion into the Defendants' attorney-client privilege regarding those records as to which Defendants made no timely assertion of privilege.

Defendant's version of the police entry into his apartment at 5 a.m., corroborated in significant part by his neighbor who the police had awoken minutes earlier by knocking on her door too, was the more credible version of how the entry occurred. Also, the defendant did not impliedly consent to the police entering his apartment while he got his shoes. Once inside, an officer opened a container and found cocaine. United States v. Antone, 479 F. Supp. 2d 255 (D. R.I. 2007):

Simply put, the Court credits Antone's account because he was a credible witness with a believable story, and because his neighbor, Ms. Baker, who corroborated the critical segment of his account, was credible as well and appeared to be a disinterested witness. The Court does not make these findings lightly. Antone is after all a convicted felon fighting to stay out of prison for the rest of his life; and, strangely, he testified that he did not sign a consent form that appears to bear his signature. Also, Ms. Baker testified that Antone spoke clearly when -- as was patently obvious to the Court during the hearing -- he does not. In spite of these concerns, however, careful inspection of their respective testimony has convinced the Court that, in demeanor and inflection, Antone and Baker told a credible story. Swierk and Mitchell were generally credible as well, but the key difference is that their testimony lacks plausibility while Antone's and Baker's makes sense. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (observing, in the context of appellate court review for clear error, that "factors other than demeanor and inflection go into the decision whether or not to believe a witness. Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.").

Assuming for the moment that "come on" in these circumstances has the meaning the government ascribes to it (i.e., an invitation to enter the apartment as opposed to "you gotta be kidding me"), Antone's account that he said "hold on" makes far more sense in light of what he was asked to do. All parties agree that Det. Swierk did not ask Antone if they could enter his apartment; instead, he asked whether Antone would go to the police station after telling him they were investigating a sexual assault. To this request, Antone responded affirmatively. For Antone, on his own initiative, to have said "come on" in the sense that he was inviting the detectives into his apartment in response to the officer's request strains credulity. Of course, it is not impossible that a suspect would prefer to answer questions at home instead of the police station and so might parry the request to go to the police station with an invitation to come in and talk. But the disconnect here is that Antone agreed to go off to the police station by saying he had to get his "keys" or "shoes," thus implying that he did not prefer his apartment, or, at least, did not mind going to the police station.

Prison strip search was subjected to a "light" standard of reasonableness, and it was justified by penological interests. Rutland v. Louisiana Dep't of Pub. Safety & Corrections, 2007 U.S. Dist. LEXIS 22031 (W.D. La. February 6, 2007).*

Permalink 05:20:26 am, by fourth, 266 words, 532 views   English (US)
Categories: General

Excessive force claims after surrender survive summary judgment

Excessive force: (1) Plaintiff fled from officer after officer saw him talking with a known prostitute from his car. He fled on foot after stopping the car, and he pled that he was on the ground to surrender when he was unnecessarily struck with the officer's gun. That stated a claim. Tabb v. Veazey, 2007 U.S. Dist. LEXIS 22428 (N.D. Ga. March 28, 2007).* (2) And, while plaintiff had surrendered he sufficiently pled that a dog was sicced on him. Vickers v. Stoops, 2007 U.S. Dist. LEXIS 21990 (S.D. Ind. March 26, 2007).*

Defendant had no expectation of privacy in a box of clothes used by illegal aliens seized from a car they had been in. Another person was in control of the box and consented to a search and that person had directed the defendant to discard the box. United States v. Perez-Quirzola, 2007 U.S. Dist. LEXIS 22140 (D. P.R. March 27, 2007).*

While the third party consenter probably lacked actual authority to consent, the proof was "overwhelming" that the officer could reasonably rely on her apparent authority because she appeared to be living there and called the police on a domestic disturbance. United States v. McCurdy, 480 F. Supp. 2d 380 (D. Me. 2007).*

There was no Franks violation: "Mr. Zaldivar distinguishes between delivering drugs into the house and delivering drugs to the house. But the court does not believe the distinction is material, and the omission of the hotel information does not amount to a material omission." There was probable cause, and the good faith exception would save the search in any event. United States v. Zaldivar, 2007 U.S. Dist. LEXIS 22158 (D. Utah March 26, 2007).*


Permalink 05:13:44 am, by fourth, 533 words, 808 views   English (US)
Categories: General

Tribal police conducting searches on casino property are governed by the Fourth Amendment

A California Indian tribe running a casino used tribal police for security. They conducted an illegal search in the parking garage, and the superior court suppressed. The state appealed, and the court of appeals affirmed. Under the Indian Civil Rights Act, 25 U.S.C. § 1302(2), the tribal officers are governed by the Fourth Amendment. People v. Ramirez, 148 Cal. App. 4th 1464, 56 Cal. Rptr. 3d 631 (3d Dist. 2007):

Thus, by act of Congress, Indian tribal governments have no more power to conduct unreasonable searches and seizures than do the federal and state governments under the Fourth Amendment. n8 The question is whether in extending the Fourth Amendment's prohibition against unreasonable searches and seizures to Indian tribal governments through its enactment of section 1302(2), Congress also intended that the exclusionary rule which unquestionably applies to evidence obtained by federal and state law enforcement officers in violation of the Fourth and Fourteenth Amendments would likewise apply to evidence seized by tribal police officers in violation of section 1302(2).

Illegal stop led to officer running the defendant's name which produced a warrant for his arrest. The existence of the warrant attenuated the stop from the arrest. Falls v. State, 953 So. 2d 627 (Fla. App. 4th Dist. 2007).

A discretionary impoundment of defendant's vehicle by the officer was not a violation of the Fourth Amendment, and an inventory based on the impoundment was valid. "Less intrusive means" to the impoundment are not constitutionally required. City of Blue Ash v. Kavanagh, 113 Ohio St. 3d 67, 2007 Ohio 1103, 862 N.E.2d 810 (2007):

Defendant argues that he could have been permitted to call a tow truck himself as an alternative to impoundment. The Bertine court observed that although giving the defendant in that case an opportunity to make alternative arrangements for his vehicle would have been possible, "'[t]he reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative "less intrusive" means.'" [Bertine,] at 373-374, 107 S.Ct. 738, 93 L.Ed.2d 739, quoting Illinois v. Lafayette (1983), 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65.

Similarity between defendant and his brother led police to detain them while they sorted out which was which, and that led to a search of the one without a warrant producing paraphernalia. The search was valid because it was not unreasonable in these circumstances. Trial court's suppression order reversed. State v. Xiong, 154 P.3d 318 (2007):

Given the similarity in appearance between Kheng Xiong and Bee Xiong, the time necessary to clarify their initial identification, Bee Xiong's location at Kheng Xiong's home, the bulge in Bee Xiong's pocket, his reaction when an agent tried to touch it, and the officer's stated safety concerns, the agent was justified in frisking Bee Xiong's pocket. Based on the hardness and shape of the object, the agent was justified in pulling the object out. See State v. Hudson, 124 Wn.2d 107, 113, 874 P.2d 160 (1994) (if a pat-down search is inconclusive and the officer feels an object which might be a weapon, he is entitled to withdraw it for examination).

In sum, given the propriety of the initial stop and the stated need to dispel the agent's safety concerns during the ensuing investigation, the evidence seized incident to Bee Xiong's arrest was incorrectly suppressed under well established principles governing frisks during investigatory stops.


Permalink 08:49:32 pm, by fourth, 268 words, 481 views   English (US)
Categories: General

Defendant in a high speed chase who bailed out of the vehicle abandoned the contents

Defendant was parking his car, and he saw a police car, so he drove away, and the police car followed. He tried to get away and drove at high speed through a residential neighborhood and abandoned the car. His actions were hardly precipitated by unlawful police conduct, and his fleeing the car was an abandonment of the contents. United States v. Lawrence, 2007 U.S. Dist. LEXIS 21669 (E.D. Pa. March 16, 2007).*

Pro se complaint alleging that plaintiff was subjected to a false citizen's arrest did not state a claim under § 1983. Plaintiff goaded the defendant into calling the police by making himself a trespasser in plaintiff's store. Evans v. Valero Energy Corp., 2007 U.S. Dist. LEXIS 21402 (E.D. Cal. March 5, 2007).*

Ineffective assistance for pleading guilty without pursuing a motion to suppress was waived by his guilty plea because the petitioner failed to identify what witness would help him prove what. United States v. Rieland, 2007 U.S. Dist. LEXIS 21506 (D. Minn. March 23, 2007)*:

Petitioner first claims his attorney should have done more pretrial investigation and located a witness crucial to his defense who would refute the allegations made against him. A § 2255 petitioner is required to identify the witness who should have been called, what he or she would have testified to, and why that testimony likely would have affected the outcome of the case. Delgado v. United States, 162 F.3d 981, 983 (8th Cir. 1998). Petitioner gives none of these specifics.

After a traffic stop, defendant was arrested on warrants, and the search of the car was valid either by consent or search incident. United States v. Nguyen, 2007 U.S. Dist. LEXIS 21529 (D. Utah March 23, 2007).*

Permalink 08:25:50 pm, by fourth, 390 words, 790 views   English (US)
Categories: General

Jail suicide following alleged false arrest and striking with baton was not a Fourth Amendment claim

Plaintiff's decedent was allegedly arrested falsely and struck in the legs with police batons. He hung himself in jail after the arrest. The complaint was deficient on a Fourth Amendment claim as a matter of law, but plaintiff would be given a chance to replead. Powers-Bunce v. District of Columbia, 479 F. Supp. 2d 46 (D. D.C. 2007)*:

The Court recognizes, however, that, under the circumstances of this case, Plaintiff is at an informational disadvantage and must be given some leeway in stating a viable claim based on the alleged unconstitutional arrest and use of excessive force. See, e.g., Alston v. Parker, 363 F.3d 229, 233 n.6 (3d Cir. 2004) (noting that "civil rights plaintiffs ... often face informational disadvantages"). Therefore, the Court will dismiss the "unlawful stop, search, and detainment" and "excessive force" claims without prejudice.

Officers were able to link defendant to another name and a 1996 arrest warrant, and the search incident to that arrest was valid. United States v. Rosario, 2007 U.S. Dist. LEXIS 21637 (D. N.J. March 26, 2007).*

Defendants aroused officers' suspicions because of an unusual train itinerary. They consented to limited searches and then a search of a sleeping compartment on the train and what was in it. That included a backpack in plain sight that had cocaine in it. United States v. Freeman, 482 F.3d 829 (5th Cir. 2007).*

Defendant had no expectation of privacy in recorded jail calls or cellphone records of another person. United States v. Solomon, 2007 U.S. Dist. LEXIS 21434 (W.D. Pa. March 26, 2007).*

Detailed information from a named informant that ice would be coming from Washington State in a DHL package to a named person with a tracking number provided, coupled with a criminal history check of the recipient, was an adequate basis for a search warrant for the package, notwithstanding that the police dog did not alert on it. United States v. Wall, 2007 U.S. Dist. LEXIS 21674 (D. Guam March 23, 2007).*

Even those under the influence of drugs can consent to a search. United States v. Purcell, 2007 U.S. Dist. LEXIS 21620 (E.D. Ky. March 23, 2007):

That Crist ingested drugs and even that officers suspected as much does not automatically negate voluntariness of her consent. "Voluntary consent can be given even by a person under the influence of drugs, when that person is coherent and fails to exhibit any visible impairment." United States v. Griffin, 1997 WL 487325, at *2 (6th Cir. 1997).


Permalink 12:01:56 pm, by fourth, 235 words, 692 views   English (US)
Categories: General

Internet browser history and e-mails are evidence in NJ murder case

A search of a defendant's internet browser history and e-mails are evidence in a murder trial in New Jersey, as shown on Court TV's website, On nurse's computer, an Internet how-to for murder:

Jurors in the trial of a fertility nurse accused of killing her husband heard Tuesday about suspicious Internet research performed on the couple's home computer before the slaying, including one Google query for "how to commit murder."

The approximately 40 searches detailed by a forensic computer examiner called by the prosecution occurred on three occasions in the weeks leading up to William McGuire's disappearance. The topics searched related to poisons, guns and death. Among them were "instant undetectable poison," "toxic insulin levels," "how to commit suicide tips" and "how to purchase guns illegally," the expert said.

Prosecutors maintain Melanie McGuire, 34, used the Internet to plot her husband's 2004 slaying. A defense attorney told jurors in his opening statement last week that the 39-year-old victim, a computer analyst, was the primary user of the Hewlett-Packard and had conducted the searches in question.

Jennifer Seymour, a former analyst for the state police's digital technology unit, told jurors there was no way technologically to tell whether the defendant, the victim or someone else in their home had performed the searches.

But under questioning by a prosecutor, she noted that her examination of the same computer uncovered romantic e-mails between Melanie McGuire and her boss, a married physician.

Permalink 10:24:27 am, by fourth, 535 words, 587 views   English (US)
Categories: General

Social worker's entry was based on consent and exigent circumstances and view of drugs paraphernalia was valid

Foster care and social workers sought consent to enter defendant's premises to determine if the children were being properly cared for. The entry was based on consent. In that entry, defendant was found to have marijuana and drug paraphernalia in her bedroom and a valid warrant was obtained to search and seize it. Hallum v. Commonwealth, 219 S.W.3d 216 (Ky. App. 2007):

[I]n the present case, when Ms. Finnerty entered the closed bedroom to investigate the referral she had received, it was not unreasonable for the detective to enter the room because the visit was not criminal in nature. Thus, the detective did not need to receive Appellant's consent to enter the bedroom. Moreover, once Ms. Finnerty told Appellant that she was required to look in the bedroom, Appellant told her to go ahead and do so. He did not tell the detective that he could not go into the room with her.

Regardless, even if we were to assume, arguendo, that it was unreasonable for the detective to enter the bedroom and that he did so without Appellant's consent, exigent circumstances were present, so the entry was nevertheless proper. When exigent circumstances are present, such as the threat of imminent injury or the imminent destruction of evidence, police are permitted to enter a home without a search warrant.

A civil claim against a search implied the invalidity of plaintiff's conviction and was barred by Heck. Crawley v. Sirois, 2007 U.S. Dist. LEXIS 21195 (D. Conn. March 22, 2007):

A judgment in favor of the plaintiff as to the claims against defendant Amato would imply the invalidity of his conviction for possession of narcotics with intent to sell because plaintiff's racial profiling claim alleges that he was pulled over, he was searched, drugs were seized and he was arrested without probable cause. See Gibson v. Superintendent of N.J. Dep't of Law, 411 F.3d 427, 451-52 (3d Cir.2005) (stop based solely on pattern and practice of racial profiling, without any reasonable suspicion, is unlawful and evidence is excludable, and thus implies conviction was improper triggering Heck bar); Allen v. LaPorte, No. 02-CV-71361-DT, 2002 WL 1009563, at *1 (E.D. Mich. April 16, 2002) (holding Heck barred plaintiff's "racial profiling and Terry stop claims, inasmuch as those claims addresses the validity of his arrest and related state criminal proceedings."). The court concludes that the Bivens claims against defendant Amato are barred by Heck. The motion to dismiss is granted as to Bivens claims against defendant Amato in his individual capacity.

Defendant's responding to his name being called out was probable cause to detain him because of an arrest warrant for him. Search incident was valid. United States v. Thomas, 480 F.3d 878 (8th Cir. 2007).*

Plaintiffs' Franks claims were meager challenges to isolated facts that did nothing to undermine probable cause. Officers did not use excessive force in handcuffing plaintiffs. "Finally, and for all the reasons stated above, the court finds the use of handcuffs in this case to be the minimal force necessary to effectuate the safety of the officers and the occupants during the search. The use of force, in the form of handcuffs was reasonable in view of the governmental interests at stake." Bradley v. West, 2007 U.S. Dist. LEXIS 21009 (M.D. Ala. March 22, 2007).*

Permalink 07:23:52 am, by fourth, 293 words, 691 views   English (US)
Categories: General

Arbitrary penis swabbing for STDs at Cook County jail states a claim

The plaintiff alleged that the Cook County jail conducted arbitrary penis swabbings for STDs with sloppy record keeping that did not even allow them to determine who was tested. Neither side was entitled to summary judgment, but plaintiff will get a chance to prove his case. Jackson v. Sheriff of Cook County, 2007 U.S. Dist. LEXIS 21141 (N.D. Ill. March 23, 2007).

Evidence that defendant was told that she "had a lot to lose" as to her children if she did not consent was not coercion. The officer was civil toward her until he determined she was lying about harboring a fugitive. Not all references to children are coercive, although they can be, when, for example, the officer says that the defendant will never see her kids again unless she consents. United States v. Yates, 479 F. Supp. 2d 1212 (D. Kan. 2007).*

Issuing plaintiff a criminal citation and threatening jail if he declined to sign the citation is not a seizure under the Fourth Amendment. Martinez v. Carr, 2007 U.S. App. LEXIS 7074 (10th Cir. March 27, 2007).*

Officers had more than an inchoate and unparticularized suspicion that criminal activity occurred. Officers were investigating bank robberies. By the time they stopped defendant's vehicle, it had ripened into probable cause to search the vehicle, and a warrant was not required. United States v. Lindsey, 482 F.3d 1285 (11th Cir. 2007).*

The search warrant was issued on probable cause. "Defendant's criminal history includes a conviction and an arrest for possession of a controlled substance within the previous four years. This history, coupled with a high volume of short-term traffic at the residence to be searched, corroborated the informant's first-hand observation of defendant at that residence and in possession of drugs and a firearm." United States v. Collins, 2007 U.S. Dist. LEXIS 21021 (D. Minn. March 23, 2007).*


Permalink 02:14:44 pm, by fourth, 428 words, 1101 views   English (US)
Categories: General

Hot pursuit across state lines determined by law of the state of arrest

Hot pursuit across the stateline from Wyoming into Colorado by Wyoming officers is governed by the law of Colorado. The common law would invalidate such an arrest, but Colorado law permitted it. Also, the defendant does not have to know that officers are in pursuit for it to be hot pursuit. Doolittle v. State, 2007 WY 52, 154 P.3d 350 (2007):

Admittedly, the facts of the present case do not fit easily within the traditional sense of fresh pursuit where it is envisioned that an officer observes a crime and immediately begins chasing a fleeing suspect across a jurisdictional boundary line. However, when evaluated under the criteria set forth under Colorado law, we do not find Mr. Doolittle's arrest to be unlawful. Detectives immediately set up surveillance at the location where Mr. Doolittle agreed to meet Mr. Collins in furtherance of the ongoing conspiracy. Mr. Doolittle arrived as expected, but after driving into Wyoming, continued on a driveway which curved back over to the Colorado side of the border. The detectives followed Mr. Doolittle's vehicle across the border and apprehended him after he stepped out of the car. The police action in this case was without unnecessary delay and was continuous and uninterrupted. Mr. Doolittle was apprehended as close to the time the crime was committed as was reasonable under the circumstances. We find Mr. Doolittle's arrest was lawful.

Illegal entry into the backyard does not immunize what was lawfully observed in the front yard. Brocuglio v. Proulx, 478 F. Supp. 2d 309 (D. Conn. 2007):

Brocuglio's new trial motion, argues, in effect, that the defendants' illegal presence in the back yard immunized him from arrest, either for prior illegal conduct and even for any illegal conduct in the presence of the officers. That theory fails. The illegal entry does not vitiate the existence of probable cause for events in the front yard, nor does it permit Brocuglio to undertake illegal conduct in the back yard at will and without fear of arrest.

In the same case, there was no qualified immunity for violation of plaintiff's curtilage because the law was well settled. Brocuglio v. Proulx, 478 F. Supp. 2d 297 (D. Conn. 2007).*

Officers had reasonable suspicion for a probation search. "Given that both Brown and the Defendant affirmatively asserted that the lockbox, which was in plain view to the officers legally on the premises, belonged to a third party, the Defendant has no expectation of privacy in the box and as a result the Defendant has no standing to object to the legality of the search of the lockbox." Fenton v. State, 2007 WY 51, 2007 Wyo. LEXIS 54 (March 23, 2007).

Permalink 01:49:18 pm, by fourth, 231 words, 455 views   English (US)
Categories: General

Arrest warrant not required where there was probable cause and it occurred in a public place

An arrest warrant was not required for an arrest on probable cause on business premises, particularly when an employee came in yelling that the police were coming. United States v. Boomer, 2007 U.S. Dist. LEXIS 20815 (M.D. Pa. March 23, 2007):

At approximately 6:00 p.m., a detail of police proceeded to arrest at the business place. An employee apparently recognized their presence and entered the business premises yelling. The police pursued her through the open door and effected the arrest of the defendant. While there may have been time in the interim to secure an arrest warrant for the defendant, the probable cause to arrest remained. The police had every right to enter the business place through an open door in these circumstances. Under both federal and Pennsylvania law, the law enforcement officers did not need a warrant to arrest an individual in a public place, such as an ongoing business, so long as probable cause existed. United States v. McGlory, 968 F.2d 309, 342 (3d Cir. 1992).

Where Fourth Amendment claim would have failed as a matter of law based on reasonable suspicion, defense counsel was not ineffective for not raising the issue. Smith v. Jordan, 220 Fed. Appx. 793 (10th Cir. 2007)* (unpublished).

Man loitering with a pill bottle in his hand was approached by the police, and he discarded it. The patdown of the defendant was lawful. United States v. Ivy, 224 Fed. Appx. 461 (6th Cir. 2007)* (unpublished).


Permalink 04:24:56 am, by fourth, 771 words, 966 views   English (US)
Categories: General

Consent was attenuated from initial unlawful entry

Admittedly and unquestionably illegal police entry was followed by requests for consent. The initial entry revealed no evidence of crime. The court found the subsequent consents to be attenuated from the illegal entry, defendant's argument being the psychological impact of seeing the illegal entry which affected his actions thereafter, which the court rejected. State v. McBaine, 144 Idaho 130, 157 P.3d 1101 (2007)*:

Here, there were multiple entries into McBaine's home by officers. The first occurred when Deputy Santucci entered without permission and briefly spoke with McBaine's wife. This initial entry was unquestionably unlawful. Deputy Santucci entered without permission, and the State concedes on appeal that there is no exception to the warrant requirement that applies to this entry. The district court found that the later entries were made with McBaine's consent. A defendant's voluntary consent to a search relieves government agents of the warrant requirement. State v. Lafferty, 139 Idaho 336, 339, 79 P.3d 157, 160 (Ct. App. 2003); State v. Fee, 135 Idaho 857, 862, 26 P.3d 40, 45 (Ct. App. 2001). McBaine contends, however, that his oral and written consents to search the home were tainted by Deputy Santucci's earlier illegal entry, and therefore evidence found during the consent searches must be suppressed. We conclude that the evidence presented on McBaine's suppression motion shows no taint or causal link between Deputy Santucci's brief illegal entry and McBaine's subsequent consents, and therefore the unlawful intrusion does not require suppression of evidence found in the consent search.

. . .

In McBaine's case, before officers even knocked on his door they were informed by J.L. that there was a methamphetamine lab in the residence. No evidence of any kind was gained during Deputy Santucci's unlawful intrusion. He did not then see, hear, smell or otherwise detect any evidence of the methamphetamine lab. Nor did this intrusion even make Santucci aware of the presence of witnesses Quinton and K.Q., both of whom were visible through the open door before he entered. From an evidentiary standpoint, his unlawful entry yielded nothing. During the brief intrusion, Deputy Santucci did not search for contraband and did not act in a threatening or overbearing manner, but merely spoke to Quinton momentarily before exiting. Santucci's intrusion apparently had ended before consent to a search was requested of McBaine.

Even if it could be said that Santucci's interview of K.Q. was somehow tainted or suppressible merely because Santucci was inside the home when he asked K.Q. to exit with him, there is no evidence that the officers used information from K.Q. in order to induce McBaine's consent to a search. According to the testimony at the suppression hearing, the officers merely informed McBaine that they "had information" that there was a methamphetamine lab in his home. This was information that the officers had already received from J.L. before they interviewed K.Q. There is no evidence that Santucci's conversation with K.Q., or with McBaine's wife inside the residence, was somehow exploited to secure McBaine's subsequent consent to a search.

McBaine's appellate counsel argues that McBaine's consent should be deemed tainted by the psychological effect of having seen an officer enter his home without permission. According to the argument, this could have led McBaine to conclude there was no point in resisting the officer's requests that he consent to a full search. The defect in this argument is that it bears no support in the evidence. To the contrary, the evidence shows that McBaine resisted the initial requests for access to his bedroom where the incriminating evidence was ultimately found. It was only after Detective Bustos arrived and told McBaine that the officers would attempt to obtain a search warrant if he would not give them access to the bedroom that he ultimately consented. Moreover, McBaine's own testimony at the suppression hearing contradicts his counsel's argument, for McBaine testified that he never consented at all to a search of his home. He claimed that it was his understanding when he signed the consent form that he was agreeing only to a search of his vehicle. There is thus an absence of any evidence to support the theory on appeal that McBaine's consent was a direct or indirect fruit of Deputy Santucci's initial brief, but illegal, intrusion.

An officer near the University of North Dakota saw a couple arguing, so he stopped to see what was the problem, in case it was a domestic situation getting out of hand. He talked with the couple, smelled alcohol on their breath and determined they were under 21, so they were arrested for consumption by a minor. The initial stop was justified by the community caretaking function. State v. Olson, 2007 ND 40, 2007 N.D. LEXIS 39 (March 22, 2007).*


Permalink 09:12:04 am, by fourth, 925 words, 721 views   English (US)
Categories: General

Plaintiff gets partial summary judgment on liability in strip search case

The plaintiff in a strip search case in California is granted partial summary judgment on liability because the case is not materially distinguishable from a recent case in the Ninth Circuit. Craft v. County of San Bernardino, 2006 U.S. Dist.LEXIS 95756 (C.D. Cal. December 7, 2006).

"The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted."

[Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861 (1979).] This test has been applied by the Ninth Circuit most recently in Way v. County of Ventura, 445 F.3d 1157 (9th Cir. 2006) (finding unconstitutional a strip search of an arrestee, performed pursuant to a blanket policy, where the arrestee was arrested on charges of being under the influence of a controlled substance), cert. denied, U.S. , 2006 WL 2516530 (Nov. 27, 2006). Accordingly, the Court looks to the four factors of scope, place, manner, and justification to determine if the uncontroverted facts establish the constitutional violations advanced by plaintiffs.

As to the scope of the intrusion, the Ninth Circuit has justifiably recognized that the strip and/or visual body cavity search at issue in Way, and at issue here, is "frightening[ly] invasi[ve]" and "humiliating."

"The scope of the intrusion here is indisputably a frightening and humiliating invasion, even when conducted with all due courtesy. ... Its intrusiveness cannot be overstated. ... [T]he fact that a strip search is conducted reasonably, without touching and outside the view of all persons other than the party performing the search, does not negate the fact that a strip search is a significant intrusion on the person searched .... The feelings of humiliation and degradation associated with forcibly exposing one's nude body to strangers for visual inspection is beyond dispute."

Id. at 1160 (internal citations and quotation marks omitted). The factor regarding the intrusiveness of the search strongly favors plaintiffs.

As to the manner of the search, Defendants argue, in conclusory fashion, that "inmates ... are not subjected to a search that is excessive, vindictive, harassing, or unrelated to any legitimate penological interest." Opp. at 9. Here, however, it is undisputed that the searches are conducted in a group setting, with the individuals separated only by gender. Although defendants have presented evidence of some measures taken to preserve the privacy of those being searched, the evidence of record reveals that they have taken no steps to conduct the searches on an individual basis and have instead continued to conduct the searches en masse without any attempt to limit the humiliation occasioned by conducting the searches in full view of dozens of other individuals. In Way, although the Ninth Circuit ultimately found the blanket policy at issue to be unconstitutional, it looked favorably upon the fact that the search was conducted by one officer, with no one else present. Way, 445 F.3d at 1160-61; cf. Beard v. Whitmore Lake School Dist., 402 F.3d 598, 606 (6th Cir. 2005) (noting that "[t]he fact that the searches of the females did not occur in the presence of only school officials, but rather in the presence of other [female] students, further supports the conclusion that the searches were unreasonable"). Accordingly, the factor regarding the manner of the search also strongly favors plaintiffs.

Where the plaintiff did not contend that the original seizure of his money was unlawful, the fact it took too long for plaintiff does not overcome qualified immunity. Gallo v. Pillow, 2007 U.S. Dist. LEXIS 20479 (E.D. Ark. March 20, 2007):

Gallo does not allege that the original seizure of the money was unreasonable. He maintains that, after his arrest, Defendants did not return it within a reasonable period of time. Holding onto property seized from a lawful search may violate the Fourth Amendment, but this conduct is not a clearly established violation. Because keeping property too long is not a clear violation of the Fourth Amendment -- to the extent that Pillow and Volner were arguably culpable -- they are entitled to qualified immunity.

Detention of 15-17 minutes was reasonable based on reasonable suspicion. United States v. Terry, 220 Fed. Appx. 961 (11th Cir. 2007)* (unpublished).

"The motions filed by defense counsel in this case are insufficient as they lack supporting detail as to what conduct by the officers they are challenging or even as to which search warrant they are objecting. Further, there are no facts or details offered to support the Defendants' conclusions that the searches were illegal or unreasonable. Accordingly, the Court will dismiss the motions without prejudice." Defendants also failed to show standing to challenge the search of the vehicles involved. One came back to a person with the same address as one defendant's driver's license, but that was not enough. United States v. Avila Rubio, 2007 U.S. Dist. LEXIS 20663 (D. Idaho March 21, 2007).*

In a case involving aggravated and sexual assault in Indian country, the court did not have to determine whether the Indian officer was qualified under Iowa law to investigate crimes to apply for a search warrant because any citizen could provide the same information in a search warrant as a citizen informant. United States v. Papakee, 2007 U.S. Dist. LEXIS 20680 (N.D. Iowa March 21, 2007).

Officer who approached a truck parked with the motor running in high crime area did not violate the Fourth Amendment by initiating contact. Reasonable suspicion developed from the conversation. State v. Henry, 2007 Tenn. Crim. App. LEXIS 263 (March 22, 2007).*


Permalink 08:48:30 am, by fourth, 654 words, 597 views   English (US)
Categories: General

Oklahoma states it is prepared to not follow Hudson, but it dodges the issue in the case before it

Oklahoma indicates that it would not follow Hudson under state statute, adopted at the time of statehood--a failure to properly knock and announce should lead to suppression of the evidence. In this case, however, the issue was deemed waived by trial counsel not renewing the issue at trial. Brumfield v. State, 2007 OK CR 10, 155 P.3d 826 (2007):

Hence the State argues, quite reasonably, that even if the execution of the warrant at Brumfield's home violated the Fourth Amendment's knock-and-announce requirement, the evidence obtained thereafter need not be suppressed, under the authority of Hudson.

Brumfield responds, however, also quite reasonably, that the decision in Hudson does not control this Court's interpretation of our own state statute, namely, 22 O.S.2001, § 1228. This provision authorizes the use of force in the execution of a search warrant on an occupied home only under two particular circumstances. First, it establishes criteria under which a "no-knock" warrant can be issued by a magistrate, thereby allowing a forceful entry without any warning, where there is reasonable cause to believe that one or more specific "exigent circumstances" exist. Otherwise, § 1228 does not allow the forceful entry into a home for the execution of a search warrant, unless "[t]he officer has been refused admittance after having first given notice of his authority and purpose." Although no-knock warrants were not legislatively authorized until 1990, Oklahoma's statutory requirement that before an officer can use force in the execution of a search warrant, he must (1) give notice of his authority and purpose, and (2) be refused admittance, dates back to statehood.

Furthermore, this Court has been excluding evidence obtained from searches following a violation of our § 1228 "notice of authority" and "refusal of admittance" requirements since at least as early as 1974-long before the Supreme Court's 1995 decision in Wilson held that "knock and announce" is constitutionally required. In Sears v. State, this Court held that the failure of officers who were executing a search warrant to comply with § 1228 necessitated reversal of the defendant's conviction for possession of marijuana with intent to distribute. The Sears Court noted the then-recent repeal of a federal statute authorizing no-knock warrants and commented as follows:

"We believe the Legislature of the State of Oklahoma displayed foresight and wisdom by refusing to cast out our announcement of authority and purpose requirement and implementing in its stead a once-popular, and now discredited, 'no knock' entrance procedure. In so doing, the Legislature stood fast by our traditional values and guarded the fundamental rights of all our citizens."

This Court's 1979 decision in Erickson v. State followed the approach of Sears. And neither party has offered evidence to suggest that this Court has wavered from this approach, i.e., of holding that evidence obtained in a search following a violation of § 1228, where there are no exigent circumstances, is not admissible against the homeowner. Hence this Court has a long history of enforcing § 1228 through the suppression of evidence quite apart from decisions of the United States Supreme Court regarding the requirements of the Fourth Amendment. In addition, Oklahoma remains free to interpret our own state constitution, with its own protection against "unreasonable searches or seizures," more broadly than the United States Supreme Court interprets the federal constitution.

Comment: While courts are often loathe to discuss academic questions, this issue apparently got serious attention from the Oklahoma court, despite the fact it was deemed waived. One judge dissented because the state constitutional provision was identical to the Fourth Amendment, but the majority was talking about statutory interpretation.

The Wisconsin Supreme Court upheld a decision of its Court of Appeals that the trial court's finding of reasonable suspicion was clearly erroneous. One factor alone could be enough in the right case, but this wasn't it; on the totality of circumstances, there was no reasonable suspicion, and the officer's claim of reasonable suspicion was a mere hunch. State v. Johnson, 2007 WI 32, 299 Wis. 2d 675, 729 N.W.2d 182 (2007), aff'g 2006 WI App 15, 288 Wis. 2d 718, 709 N.W.2d 491 (App. 2006).

Permalink 07:53:04 am, by fourth, 190 words, 572 views   English (US)
Categories: General

California medical marijuana law is a defense to prosecution but not to limited investigations with probable cause

"Following the denial of his motion to suppress, defendant Gabriel Reed Strasburg pleaded no contest to misdemeanor possession of more than 28.5 grams of marijuana (Health & Saf. Code, § 11357, subd. (c)). He contends that the sheriff's deputy who seized the marijuana lacked probable cause to search his car because defendant was allowed to possess marijuana under the Compassionate Use Act of 1996 (Health & Saf. Code, § 11362.5). We disagree because the Compassionate Use Act provides a limited defense against prosecution, but does not provide a shield against reasonable investigations and searches. Accordingly, we affirm." People v. Strasburg, 148 Cal. App. 4th 1052, 56 Cal. Rptr. 3d 306 (1st Dist. 2007).

Officer had probable cause to arrest defendant based on the totality of the circumstances, particularly where police officer personally observed the occurrence of the crime and also executed the arrest. Haley v. State, 398 Md. 106, 919 A.2d 1200 (2007).*

Officers had qualified immunity for detaining the plaintiff based on reasonable suspicion. Quirk v. Blocher, 2007 U.S. Dist. LEXIS 19733 (S.D. Ind. March 19, 2007).*

Plaintiff's cause of action accrued on his arrest, not when he received a videotape that supported the claim. Watts v. Epps, 2006 U.S. Dist. LEXIS 95731 (N.D. Ga. August 16, 2006).*

Permalink 07:36:52 am, by fourth, 482 words, 507 views   English (US)
Categories: General

NJ: Appearance of impropriety voided search warrant where judge was family attorney of defendant

In a long and well considered opinion, surveying authorities from many jurisdictions, a New Jersey appellate court held that the fact the issuing magistrate of a search warrant was considered the family attorney of the defendant's family was sufficient to show that the magistrate was not "neutral and detached." Because this issue is one of first impression, the ruling is prospective only, affording this defendant no relief, but the court made clear this is not harmless error analysis. State v. McCann, 391 N.J. Super. 542, 919 A.2d 136 (2007):

Based on these precepts, we agree with the motion judge that the Municipal Court judge should have recused himself from this warrant application proceeding. We assume, as we must, that he carefully reviewed the Grisso affidavit that revealed defendant's involvement and that he knew or should have known that this was his former client. Under these circumstances, there was an appearance of impropriety under R. 1:12-1(f). Nevertheless, in State v. Marshall, 148 N.J. 89, 279, 690 A.2d 1, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997), the Court made clear that while "the mere appearance of bias may require disqualification" pursuant to R. 1:12-1(f), "the belief that the proceedings were unfair must be objectively reasonable." Tested by that standard, we conclude that the appearance of partiality was objectively reasonable in this situation.

Having concluded that the Municipal Court judge should not have participated in the application proceeding, we come to the question of remedy. While we generally agree with the thoughtful opinion of the motion judge, we conclude that suppression is not appropriate in this case. Here, defendant makes no assertion of bias on the part of the judge who signed the warrant and the facts concerning the prior relationship suggest none. n4 More importantly, as we have noted, no case until today has expressly condemned the practice in question, which likely occurs only infrequently. As a result, our ruling shall be purely prospective. See State v. Knight, 145 N.J. 233, 249, 678 A.2d 642 (1996) (citing State v. Burstein, 85 N.J. 394, 402-03, 427 A.2d 525 (1981)).

Plaintiff was arrested on an arrest warrant that had been determined proper by two Commonwealth courts, but it declined to grant a motion to dismiss or treat the motion as one for summary judgment until more information was available. Torres-Lopez v. Olivo-Miranda, 478 F. Supp. 2d 182 (D. P.R. 2007).*

A prisoner has no expectation of privacy to be free from a urine test. Davies v. Valdes, 462 F. Supp. 2d 1086 (C.D. Cal. 2006).*

It could not be determined as a matter of law that plaintiff demonstrators were in a private or non-public area when they were arrested for trespassing, so summary judgment was denied. Genia v. Parker, 2007 U.S. Dist. LEXIS 19700 (E.D. N.Y. March 20, 2007).*

Plaintiff's arrests on various offenses were with probable cause, and the officer's investigation into other alleged offenses were also with arguable probable cause. Cvicker v. Meyer, 2007 U.S. Dist. LEXIS 19816 (E.D. Wisc. March 20, 2007).*

Permalink 06:34:11 am, by fourth, 711 words, 803 views   English (US)
Categories: General

Inspections under HUD regulations written into a lease were not an unreasonable search nor was it alleged that any inspections were unreasonably done

Brief inspections of housing units under HUD regulations written into a lease were not an unreasonable search nor was it alleged that any inspections were unreasonably done. Therefore, the Fourth Amendment was not violated. Echemendia v. Gene B. Glick Management Corporation, 2007 U.S. Dist. LEXIS 20118 (N.D. Ind. March 20, 2007).*

Defendant had no standing to challenge the seizure of a disposable camera from a vehicle that was not his and he was not around that was accidentally left there by his father. United States v. Fischer, 2007 U.S. Dist. LEXIS 20149 (D. Minn. March 20, 2007):

At the suppression hearing, Cruze testified that the disposable camera was on the floor of the Suburban's cargo area and had no markings to identify an owner. Defendant testified that he left the camera in an overnight bag in the Suburban and that he expected his father to take the bag home. It is undisputed that the camera belonged to defendant. Defendant argues that he had a possessory interest in the camera and an expectation of privacy in the undeveloped film because he purposefully left the camera in his father's Suburban. He claims that the warrantless search for the camera and the development of the film constituted violations of his Fourth Amendment right to be free from unlawful search and seizure. The magistrate judge rejected defendant's arguments and concluded that he does not have standing to challenge the seizure.

To have standing under the Fourth Amendment to challenge the lawfulness of a seizure, a defendant bears the burden to prove that he had a legitimate expectation of privacy that was violated by the challenged search. Rakas v. Illinois, 439 U.S. 128, 134 (1978); United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995). Specifically, a defendant must demonstrate that he had a subjective expectation of privacy that "society is prepared to recognize as objectively reasonable." Muhammad, 58 F.3d at 355. In rejecting defendant's argument, the magistrate judge considered the factors enunciated in United States v. Gomez, 16 F.3d 254 (8th Cir. 1994), and concluded that defendant lacked a subjective expectation of privacy because his "lack of possessory interest and failure to regulate access to the camera outweigh his ownership and historical use of the camera." (R&R at 8.) Nonetheless assuming a subjective possessory interest, the magistrate judge further concluded such a possessory interest is not one society would accept as objectively reasonable. The court agrees.

The unmarked, disposable camera was seized from a vehicle that did not belong to defendant, defendant was not present when it was seized and there is no evidence that he made any efforts to identify the camera as belonging to him or inform law enforcement officials that he was claiming ownership. There was no testimony that anyone present the night the Suburban was seized identified defendant as having been present or having a connection to any of the items located within the vehicle. Had defendant desired to stake a possessory interest in the camera, he had eight months to make an attempt to do so. The film was ultimately developed in preparation for the separate criminal trial of the owner of the vehicle, his father. Although defendant emphasizes his personal relationship with the vehicle's owner, even as a passenger "a person has no reasonable expectation of privacy in an automobile belonging to another." United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001). Therefore, the court adopts the magistrate judge's recommendation and denies defendant's motion to suppress evidence.

Defendant did not consent to his continued detention, but it was based on reasonable suspicion. United States v. Robinson, 221 Fed. Appx. 236 (4th Cir. 2007)* (unpublished).

Plaintiff showed sufficient facts to survive summary judgment that deadly force was not justified in killing plaintiff's decedent. Also, the factbound inquiry defeats defendants' qualified immunity claim. Estate of Smith v. City of Wilmington, 2007 U.S. Dist. LEXIS 20314 (D. Del. March 22, 2007).*

Defendant's staleness argument fails because the information in the affidavit showed a continuous pattern of behavior. The good faith exception would have saved the search anyway. Defendant's claim that the timestamp on the faxed copy of the warrant being 9 minutes earlier than the judge signed it doesn't seem to prove much. There was no indication that the judge did not review the information in support of the warrant. United States v. Anton, 2007 U.S. Dist. LEXIS 20420 (N.D. Fla. March 22, 2007).


Permalink 05:17:06 am, by fourth, 534 words, 879 views   English (US)
Categories: General

Fourth Amendment does not apply to ships in international waters without a U.S. flag

The Coast Guard boarded a ship in international waters, and defendant raised lack of reasonable suspicion for the stop. The Fourth Amendment, however, did not apply to non-Americans in international waters. United States v. Bravo, 2007 U.S. App. LEXIS 6618 (1st Cir. March 22, 2007):

The Fourth Amendment prohibits "unreasonable searches and seizures" whether or not the evidence is sought to be used in a criminal trial, and a violation of the Amendment is "fully accomplished" at the time of an unreasonable government intrusion. United States v. Calandra, 414 U.S. 338, 354 (1974); see also United States v. Leon, 468 U.S. 897, 906 (1984). For purposes of this case, therefore, if there was a constitutional violation of the Fourth Amendment, it occurred solely in international waters, where the search and seizure took place. But the Fourth Amendment does not apply to activities of the United States against aliens in international waters. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267 (1990). The Supreme Court's holding in Verdugo-Urquidez is clear that the actions of the United States directed against aliens in foreign territory or in international waters are not constrained by the Fourth Amendment. 494 U.S. at 267 ("There is ... no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters."); see also United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) ("In light of the Supreme Court's holding in Verdugo-Urquidez, it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters."). Accordingly, the district court was correct in denying Appellants' motion to suppress because the Fourth Amendment was inapplicable to the USCG's search of the vessel.

E.D. Mich. reverses itself under Wallace v. Kato and holds in a case where it previously held that the statute of limitations began when a conviction was reversed that the statute runs from the date of the search. Kucharski v. Leveille, 478 F. Supp. 2d 28 (E.D. Mich. 2007), prior opinion 2007 WL 522715, *8-9 (E.D. Mich. February 12, 2007). Wallace was decided February 21, and the plaintiff's case was dismissed.*

Plaintiff's behavior, observed by several people, showed that he was mentally unstable, and defendant had qualified immunity from taking him into custody for plaintiff's own good. Brown v. Catania, 2007 U.S. Dist. LEXIS 19927 (D. Conn. March 20, 2007).*

Arrest that was valid for some crime. "For the reasons stated above, defendants clearly had probable cause to arrest plaintiff. Moreover, because probable cause need only exist as to any crime that could have been charged under the circumstances, the arrest was valid, regardless of whether defendants had probable cause to believe that plaintiff was operating a vehicle under the influence of alcohol. See Bizier, 111 F.3d at 219. Accordingly, defendants are entitled to summary judgment on plaintiff's unlawful arrest claim." LaFrenier v. Kinirey, 478 F. Supp. 2d 126 (D. Mass. 2007).*

Officers had reasonable suspicion for defendant's detention based on his conduct prior to the stop based on his not speaking English, paying for a motel room with two new $50 bills, and giving an address which came up with a hit on an open investigation in the DEA's files. United States v. Verdugo, 2007 U.S. Dist. LEXIS 19776 (E.D. Mo. March 20, 2007).*


Permalink 08:48:33 am, by fourth, 298 words, 481 views   English (US)
Categories: General

Dog sniff after handing driver a warning ticket required reaonable suspicion, and it was present

Dog sniff after handing driver a warning ticket was based on reasonable suspicion. State v. Euceda-Valle, 182 N.C. App. 268, 641 S.E.2d 858 (2007):

Because the canine sniff occurred after defendant was handed the warning ticket, we analyze this case in accordance with McClendon. We hold that the trial court's findings of fact support its legal conclusion that law enforcement had a reasonable suspicion necessary to conduct the exterior canine sniff of the vehicle. Defendant was extremely nervous and refused to make eye contact with the officer. In addition, there was smell of air freshener coming from the vehicle, and the vehicle was not registered to the occupants. And there was disagreement between defendant and the passenger about the trip to Virginia. We conclude that these facts support a basis for a reasonable and cautious law enforcement officer to suspect that criminal activity is afoot. See McClendon, 350 N.C. at 637, 517 S.E.2d at 133 (initial confusion as to owner of the vehicle, extreme nervousness, refusal to make eye contact and other circumstances supported reasonable suspicion); see also Hernandez, 170 N.C. App. at 309, 612 S.E.2d at 426-27 (reasonable suspicion supported by nervousness and strong odor or air freshener in vehicle). This assignment of error is overruled.

Officers had probable cause to search defendant's car. The fact a drug dog did not alert did not dissipate the probable cause. United States v. Figueroa, 2007 U.S. Dist. LEXIS 19377 (D. Kan. March 1, 2007).

Protective sweep was justified because of reasonable suspicion to believe another person and a weapon were present, and those were sufficient exigent circumstances. Williams v. Commonwealth, 49 Va. App. 439, 642 S.E.2d 295 (2007) (citing Treatise).

Search warrant in a securities fraud investigation fairly authorized a search of defendant's office for records within a business. State v. LaCount, 2007 WI App 116, 301 Wis. 2d 472, 732 N.W.2d 29 (2007).*

Permalink 08:30:38 am, by fourth, 927 words, 1158 views   English (US)
Categories: General

Brandeis's Olmstead dissent does not provide an equitable ground to suppress

Defendant lacked standing to challenge the search of the vehicle of another parked outside the place searched under a search warrant. Brandeis's Olmstead dissent does not provide an equitable ground of relief. United States v. Babb, 2007 U.S. Dist. LEXIS 19173 (N.D. N.Y. March 19, 2007):

To overcome the hurdle posed by his lack of standing, defendant relies on the equitable principle that the government should not unfairly "profit from its lawless behavior." United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting). In support of his position, defendant further cites to the dissenting opinions written by Justices Brandeis and Holmes in Olmstead v. United States, 277 U.S. 438 (1928). Justice Brandeis opined that "[i]f the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself ...." Id. at 485. Justice Holmes echoed similar concerns when he added that "[i]f the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed." Olmstead, 277 U.S. at 470. Invoking fundamental fairness, defendant argues that the Court should not permit the government to circumvent the Fourth Amendment's exclusionary rule and profit from its lawlessness. See Dkt. No. 16, Mem. of Law at 14. Since the writing of these dissenting opinions, however, the Supreme Court has yet to have expanded the exclusionary rule's ambit and operation so as to permit a court to use its supervisory powers to circumvent settled Fourth Amendment law.

Consent to an interview of a child concerning paddling at school is not consent to a "beneath the clothes search," and a reasonable person had to know that. Michael C. v. Gresbach, 479 F. Supp. 2d 914 (E.D. Wis. 2007).

Liberally construing plaintiff's pro se complaint, she sufficiently alleged excessive force and sexual battery in an officer's attempt to remove her from her car during a traffic stop. Christian v. Anderson, 2007 U.S. Dist. LEXIS 19394 (D. N.H. March 15, 2007).*

Another plaintiff stated a sufficient claim to have a "triable issue" for kicking and beating him after he was tackled by the police. Gray v. City of Hayward Police Dep't, 2007 U.S. Dist. LEXIS 19280 (N.D. Cal. March 2, 2007):

The next area of disputed fact concerns the amount of force that was applied by the defendants and other officers. Plaintiff alleges that after he was tackled to the ground and handcuffed, Cristofani and Dorn "beat him," Carpenter kicked him in the back, these three officers dragged him to the stairs in handcuffs, defendant Hutchinson punched him in the face and hit him in the back, face and arms with a baton, Hutchinson pepper-sprayed him, Matthews threatened to shoot him while pointing a gun at his face, Matthews struck him in the face and on the top of the head with the scope of a rifle, "busting [his] head wide open," Hutchinson directed Divinagracia to release a police dog which bit plaintiff on the legs and wrist, and Olsen "slapped" him. Matthews states that after Dorn tackled plaintiff to the ground, he struck plaintiff once in the head with his weapon, but denies having heard any officer threaten to shoot plaintiff. (Matthews Decl. P 24). According to Dorn, after tackling plaintiff to the ground, he tried to pull at plaintiff's left arm, and attempted but did not complete a "Carotid restraint." (Dorn Decl. PP 14-15.) The declarations submitted do not address plaintiff's allegations of the use of force by the other defendants and officers present, but in their motion defendants concede "other officers" used "baton strikes, open hand strikes, and for a brief moment a K9" in the attempt to subdue plaintiff. n9

Assuming plaintiff's version of these events is true, as the Court must do at this stage of the proceedings, plaintiff has raised a triable issue of material fact, as he has alleged facts from which a finding could be made that the officers' actions were unreasonable under the circumstances. Certainly, the officers, at the outset, had reason to be concerned for their safety, as there is no dispute that plaintiff had a history of violence with the police, was wanted for violent crimes, and initially had run from his house to the deck. Plaintiff states, however, that once he was on the deck, he told the officers he was surrendering and showed them his hands, after which he was handcuffed. Thereafter, according to plaintiff, defendants and other officers participated in a beating in which they kicked him, dragged him, punched him in the face, hit him with a baton in the back, face and arms, pepper-sprayed him, pointed a gun at his face and threatened to shoot him, hit him in the face and the head with the scope of a rifle, and released a police dog who bit him on the legs and wrist. It is undisputed that at least seven police officers and a police dog were present, and there is no evidence plaintiff was armed. Further, it is undisputed plaintiff was injured and bleeding as a result of the altercation, and was immediately taken to a hospital by ambulance for treatment of his injuries. See Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2001) ("Headwaters") (holding that whether use of force poses risk of significant injury is factor considered in evaluating need for amount of force used), judgment vacated on other grounds, 534 U.S. 801 (2001).

Officers lacked probable cause to arrest the plaintiff, and no reasonable officer could have believed he did. Therefore, the defendants had no qualified immunity. Blankenship v. Cox, 2007 U.S. Dist. LEXIS 19425 (D. Nev. March 19, 2007).*

Permalink 04:40:51 am, by fourth, 724 words, 659 views   English (US)
Categories: General

Being "stalked" by the police is not a seizure

Alleged harassing activity by police of following the plaintiff around is not a seizure. Christensen v. County of Boone, 483 F.3d 454 (7th Cir. 2007):

In the present case, the plaintiffs allege that Deputy Krieger followed them in his squad car as they drove on Boone County roads and sat outside businesses that the couple patronized. This alleged behavior did not constitute a Fourth Amendment search. Driving on public streets is one of the activities during which a person does not enjoy a legitimate interest in privacy. United States v. Knotts, 460 U.S. 276, 281 (1983) ("A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."). Nor can individuals reasonably expect privacy in the parking lot of a business. See Dunkel, 900 F.2d at 107. In observing the couple's public movements, Deputy Krieger did not conduct a search in violation of the Fourth Amendment.

Nor were the plaintiffs ever "seized" within the meaning of the Fourth Amendment. We recognize that, in certain circumstances, a Fourth Amendment "seizure" may occur when police intentionally restrict the freedom of a person to move about in public. See Brower v. County of Inyo, 489 U.S. 593, 596 (1989). For example, if law enforcement officers attempt to stop a fleeing suspect by forcing his automobile off the road, they have conducted a seizure for purposes of the Fourth Amendment. Id. at 597. This type of seizure occurs, however, only if two conditions are met. First, the officer must, through physical force or a show of authority, "communicate[] to a reasonable person that he [is] not at liberty to ignore the police presence and go about his business." Florida v. Bostick, 501 U.S. 429, 437 (1991) (internal quotation marks omitted); see also United States v. Packer, 15 F.3d 654, 657 (7th Cir. 1994). Second, when the officer's encounter with the plaintiff is nonphysical, the plaintiff must have submitted to the show of authority to establish that a seizure has taken place. See California v. Hodari D., 499 U.S. 621, 626 (1991) ("An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority." (emphasis omitted)).

In light of these requirements, the theory that the plaintiffs were "seized" when Deputy Krieger followed them in his squad car is inconsistent with the allegations of the complaint. The alleged actions by Deputy Krieger were nonphysical. ...

Defendant's girlfriend's statement to the police that she could not consent to a search without conferring with her boyfriend first did not implicate Randolph. When he showed up, he freely consented. United States v. Wells, 231 Fed. Appx. 243 (4th Cir. 2007)* (unpublished).

Court probation officers who were separate from the state probation system still had the authority to conduct probation searches because their regulations were similar to Griffin's. United States v. Godsey, 224 Fed. Appx. 896 (11th Cir. 2007)* (unpublished).

Recognizing the "tension" in civil rights cases between a Franks challenge and the liberal pleading requirements of F.R.C.P. 8, the plaintiff was able to state a claim for relief and survive summary judgment on an allegation that there was an inadequate showing of probable cause for a search warrant. Carthage v. Sumpter Twp., 2007 U.S. Dist. LEXIS 19452 (E.D. Mich. March 20, 2007).*

Excessive force claim was stated for throwing plaintiff down and kneeing him in the back unnecessarily. Warren v. Township of Derry, 2007 U.S. Dist. LEXIS 19537 (M.D. Pa. March 20, 2007):

In the action sub judice, plaintiffs allege that Shank and other officers n10 pulled Samuel from his vehicle, threw him to the ground, and kneed him in the back. Plaintiffs further claim that the officers grabbed Olandis, forced him to the police car, and slammed his head against the hood. (See Doc. 40, Ex. A. at 32-37. While "[n]ot every push or shove ... is constitutionally unreasonable," Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)), there is sufficient record evidence to suggest that the force used was excessive. The record is devoid of evidence that plaintiffs posed a threat to officer safety or resisted arrest. See Gravely, 2007 WL 655290, at *2. Nor were plaintiffs suspected of a violent or serious crime. Id. Accordingly, in the context of the procedural posture of the case, see supra Part II, the court finds that plaintiffs have presented sufficient evidence to establish a prima facie claim of excessive force, and defendants' motion for summary judgment will be denied as to this claim.


Permalink 06:11:22 am, by fourth, 705 words, 959 views   English (US)
Categories: General

Patdown during a traffic stop was not justified

Defendant was stopped for a traffic offense, and the officer ordered him out of the car and frisked him. There were no safety concerns, and the frisk was invalid. Howard v. State, 862 N.E.2d 1208 (2007):

Assuming without deciding that Officer Kajmowicz's initial stop of Howard was reasonable, see Scott v. State, 855 N.E.2d 1068, 1073-74 (Ind. Ct. App. 2006), the officers were not permitted to order Howard from his car and conduct a Terry pat-down search. Prior to ordering Howard from his car, Officer Vantlin recognized that the driver was Howard, not Baker. He could see Howard's hands and the interior of the car, but he did not testify that either raised officer safety concerns. Neither officer testified that, when Howard exited his vehicle, they feared for officer safety or that they had any weapons drawn when they approached Howard. See id. (purpose of a Terry search is not to discover evidence of crime, but rather to allow an officer to pursue his investigation without fear of violence). Officer Vantlin testified that he knew Howard from prior drug arrests, but there is no evidence that Howard was armed on these prior occasions, resisted arrest, or otherwise presented concerns for officer safety. Perhaps creating the most significant concern regarding the legality of this search was the point that Officer Vantlin testified that he had previously told Howard he was going to search him every time he saw him. Tr. at 57. These circumstances did not warrant a pat-down search incident to a Terry stop. We conclude that the seizure of Howard's person and thereby his possessions was illegal. See Sanchez v. State, 803 N.E.2d 215, 221 (Ind. Ct. App. 2004), trans. denied (citing Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963) (the exclusionary rule, also known as the 'fruit of the poisonous tree' doctrine, bars from trial physical, tangible materials obtained during or as a direct result of an unlawful invasion)). As such, the trial court should have suppressed the evidence.

Collective knowledge showed cause for stop, and the fact that the officer making the stop did not know about it "is of no import." Commonwealth v. Quinn, 68 Mass. App. Ct. 476; 862 N.E.2d 769 (2007):

The judge concluded that Donahue acted on a hunch rather than a reasonable suspicion, as he received no report that a motor vehicle was involved in the break-in or seen near the vicinity of the gas station. It appears to us that stopping the only motor vehicle on the road, which was being driven from the direction of a crime, within minutes of that crime, was proper. Having to make a rapid decision, the officer acted permissibly. See Commonwealth v. Davis, 63 Mass. App. Ct. 88, 90-91 & n.3 (2005). See also Commonwealth v. Berment, 39 Mass. App. Ct. 522, 529-530 (1995) (Kass, J., dissenting) ("The Fourth Amendment is concerned with the right of 'the people to be secure in their persons ... against unreasonable searches and seizures'" [emphasis supplied]).

There is, however, even more here when the collective knowledge of the police officers is taken into consideration. "Where a cooperative effort is involved, facts within the knowledge of one police officer have been relied on to justify the conduct of another." Commonwealth v. Riggins, 366 Mass. 81, 88 (1974). Thus, the information discovered by Harvey -- that there were "fresh tire tracks ... pulling out from the side of the road next to the Texaco station ... heading towards Route 18" and footprints leading from the tire tracks to the gas station and back -- was imputed to Donahue. The officers were engaged in a cooperative effort to investigate the break-in at the gas station, so "it is unnecessary for the detaining officer to know all the information pertaining to the incident .... [T]he knowledge of one [police officer] ... [is] the knowledge of all." Commonwealth v. Zirpolo, 37 Mass. App. Ct. 307, 311 (1994), quoting from Commonwealth v. Lanoue, 356 Mass. 337, 340 (1969). See also Commonwealth v. Andrews, 34 Mass. App. Ct. 324, 327-328 (1993) (based on the collective knowledge doctrine, the officer had reasonable suspicion to conduct an investigatory stop). That this information was not heard by Donahue is of no import.

Circumstances of the stop were such that defendant would not have felt free to leave or terminate the encounter, so the trial court did not err in suppressing. State v. Dixon, 218 S.W.3d 14 (Mo. App. W.D. 2007).*

Permalink 05:40:00 am, by fourth, 1156 words, 641 views   English (US)
Categories: General

Having the keys and driving a car is not standing per se to challenge its stop and search

Merely being the driver of a car does not give standing to challenge its search. United States v. Vasquez, 2007 U.S. Dist. LEXIS 18882 (D. Utah March 15, 2007):

Notably, a defendant bears the burden of showing he satisfies the standing requirements. Allen, 235 F.3d at 489 ("[I]n order for a defendant to show such an expectation of privacy in an automobile, the defendant bears the burden at the suppression hearing to show a 'legitimate possessory interest in or [a] lawful control over the car.'") (quoting United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir 1998)). For vehicular searches, "[w]here the proponent of a motion to suppress is the car's driver but not the registered owner, mere possession of the car and its keys does not suffice to establish a legitimate possessory interest ...." United States v. Valdez Hocker, 333 F.3d 1206, 1209 (10th Cir. 2003). Although "a defendant need not submit legal documentation showing a chain of lawful custody from the registered owner to himself," id., he "must at least state that he gained possession from the owner or someone with authority to grant possession." United States v. Arango, 912 F.2d 441, 445 (10th Cir. 1990).

Courts consider three factors to determine if a defendant satisfied his burden. Namely, "(1) whether the defendant asserted ownership over the items seized from the vehicle; (2) whether the defendant testified to his expectation of privacy at the suppression hearing; and (3) whether the defendant presented any testimony at the suppression hearing that he had a legitimate possessory interest in the vehicle." Allen, 235 F.3d at 489. Under this standard, when a defendant "claim[s] that he personally obtained possession from the registered owner ... he would 'plainly ha[ve] a reasonable expectation of privacy in the vehicle and standing to challenge the search of the vehicle.'" Valdez Hocker, 333 F.3d at 1209 (quoting United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990)).

The first two factors cut strongly against Mr. Vasquez's standing to challenge the constitutionality of the search and seizure. He did not assert ownership of the narcotics seized or testify at the evidentiary hearing. n6 But Mr. Vasquez told the police that Ms. Shoup--his girlfriend--loaned him her car. Although not offered by the defense, this evidence shows Mr. Vasquez claimed a legitimate possessory interest in the car. And no evidence disputes Ms. Shoup as the legal owner or contradicts Mr. Vasquez's relationship with Ms. Shoup.

. . .

The court assumes, without deciding, that Mr. Vasquez has standing to challenge the search and seizure of the vehicle.

[And the defendant loses on the merits of the search.]

Court finds that defendant's consent was voluntary based on his age and education, having an engineering degree. All the factors of voluntariness were found against him, including whether certain statements were made about getting a search warrant if he did not consent. United States v. Stierhoff, 477 F. Supp. 2d 423 (D. R.I. 2007).

Officer was not required to pursue the course of lesser intrusive means of determining whether defendant's driver's license was suspended. Officer had been told that earlier by defendant's parole officer, and he could rely on that in making the stop and then seeking confirmation. State v. Batts, 281 Conn. 682, 916 A.2d 788 (2007).*

Defendant clearly and unequivocally denied officers consent to enter, but they did anyway. The trial court's finding that defendant refused to consent was fully supported by the record. People v. Mikrut, 371 Ill. App. 3d 1148, 309 Ill. Dec. 717, 864 N.E.2d 958 (2d Dist. 2007).*

911 hearsay about a death was significantly corroborated to show probable cause. State v. Foy, 862 N.E.2d 1219 (2007):

The information provided by the 911 dispatcher derives from Jones's 911 call. Jones informed the 911 dispatcher that: she, Diane, and Foy were in the Foys' residence; she believed Diane was dead (although Diane had yet to be pronounced dead); Foy claimed he found Diane floating face-down in a nearby pond; Diane had bruises on her arm and a contusion on her head; and Foy had somehow harmed Diane. While the affidavit does not indicate whether Jones was a "professional informant" or known to the police before the investigation, the probable cause affidavit shows that her statements were corroborated by further police investigation, which demonstrates the trustworthiness of the information she provided. See State v. Spillers, 847 N.E.2d 949 (independent police investigation corroborates the informant's statements). Further, the basis for Jones's knowledge was her personal observation. See id. (some basis for the informant's knowledge is demonstrated). This hearsay, therefore, cannot be characterized as uncorroborated, and the trustworthiness of the hearsay was sufficiently established. See Soliz v. State, 832 N.E.2d 1022 (Ind. Ct. App. 2005) (probable cause existed for issuance of search warrant where first-time informant's statements were corroborated by police), trans. denied. Additionally, we note "[i]t is well settled that police officers may rely upon dispatches from their own and other departments." State v. Hornick, 540 N.E.2d 1256, 1258 (Ind. Ct. App. 1989).

McCord's affidavit is also based upon information provided to him by other officers, whom he refers to as "first responding officers" or "first responders". See, e.g., Appellant's Appendix at 21. Those officers informed McCord that, upon their arrival: "there existed a bloody cloth lying near or about [Diane], and that having last viewed [] Foy leaving the room, first responders noted the absence of that bloody cloth." Id. We first note that, although the "first responding officers" did not testify in front of the issuing magistrate, "the existence of probable cause to arrest is determined upon the basis of the collective information known to the law enforcement organization[.]" State v. Hornick, 540 N.E.2d at 1258. Additionally, the first responding officers personally observed Foy at the Foys' residence. This hearsay, therefore, was sufficiently trustworthy. See State v. Hornick, 540 N.E.2d 1256 (suppression of evidence clearly erroneous because officers' observations established probable cause).

Finally, McCord's affidavit is based in part upon statements made by emergency and ambulance personnel. Specifically, emergency and ambulance personnel informed McCord that: Foy had "a red substance" on his clothing and skin and "appeared to have abrasions on ... his hands[,]" Appellant's Appendix at 22; Diane's body and clothing were dry; and Diane's injuries were inconsistent with Foy's assertion regarding her cause of death (i.e., drowning) because Diane's lungs contained no water. The basis of the emergency and ambulance personnel's knowledge was their personal observations of Diane and conclusions drawn therefrom, which demonstrates trustworthiness and supports the finding of probable cause. See State v. Spillers, 847 N.E.2d 949 (some basis for the informant's knowledge is demonstrated).

This case is wholly dissimilar from those involving an anonymous or confidential, unnamed informant in which the reliability of hearsay information is often dubious or, at least, reasonably in doubt. To the contrary, the hearsay information in this case came from law enforcement officers, emergency and medical professionals, and someone in the alleged victim's home who called 911 seeking medical help rather than to report criminal activity. The information provided a sufficient basis of fact to permit a reasonably prudent person to believe a search of the Foys' residence would uncover evidence of a crime.


Permalink 06:12:04 am, by fourth, 1108 words, 721 views   English (US)
Categories: General

Reasonable suspicion did not support premature search of trunk, and inevitable discovery rejected: "Patience is not only a virtue; here, it was a legal requirement"

Reasonable suspicion did not justify officer's search of defendant's trunk. The search was premature, and inevitable discovery was not applied to save the search. United States v. Stevens, 2007 U.S. Dist. LEXIS 18690 (E.D. Pa. March 16, 2007):

The police plainly had reasonable suspicion sufficient to approach and temporarily detain Defendant; in other words, they were justified in conducting a brief investigatory stop because the officers had "a reasonable articulable suspicion that criminal activity [was] afoot." See United States v. Goodrich, 450 F.3d 552, 559 (citing Terry v. Ohio, 392 U.S. 1, 30 (1968), and Illinois v. Wardlow, 528 U.S. 119, 123 (2000)). The police had information from a victim suggesting that a man, who reasonably fit Defendant's description, committed a crime. Moreover, because the "articulable facts" may have led the police to believe that Defendant was in possession of a weapon, the police were justified in patting down Defendant as a matter of officer safety. Terry, 392 U.S. at 29-30 (police with reasonable grounds to believe suspect was armed and dangerous were justified in patting down suspect to discover weapons and quickly neutralize situation). Further, pursuant to Terry, the police were justified in approaching Defendant with drawn guns, see United States v. Edwards, 53 F.3d 616, 619-20 (3d Cir. 1995), and they could have detained Defendant for a limited period of time, in order to effectuate the purpose of their stop, United States v. Sharpe, 470 U.S. 675, 685 (1985). See also Florida v. Royer, 460 U.S. 491, 500, 75 L. Ed. 2d 229 (1983) (plurality opinion).

Nonetheless, while reasonable suspicion made the stop lawful and would have justified the detention of Defendant for a short period of time before Henderson arrived, it did not justify the search of Defendant's trunk. The police needed probable cause to search the trunk of the vehicle. See Burton, 288 F.3d at 100. After patting down Defendant and finding no weapons, a reasonable and prudent officer would not have believed that probable cause existed to search Defendant's trunk. The police knew, however, that Henderson was to arrive momentarily; upon his arrival, the police would have known whether Defendant was Henderson's alleged assailant. Once Henderson identified Defendant, the police would have had probable cause to believe that Defendant's trunk contained a weapon, and the constitutional safeguards would have been fulfilled. However, the police failed to wait that short period for Henderson to arrive, a period which the law afforded them, and as such, they lacked probable cause to search the trunk. In this case, while the officers' instincts may have been correct, their judgment was not.

. . .

The inevitable discovery doctrine does not apply in this case. Applying it in cases such as this would undermine the deterrence aspect of the exclusionary rule. The police officers should have known that probable cause did not exist to search the trunk. Moreover, they knew that a witness with the ability to establish (or undermine) the existence of probable cause would be arriving in a matter of moments. In a circumstance such as this, where it is obvious that probable cause is lacking and that the facts necessary to determine its existence, vel non, are imminently available, the only way to assure compliance with the probable cause requirement is to refuse to apply the inevitable discovery exception. In contrast to Nix, application of the inevitable discovery doctrine here would provide an incentive for police misconduct. See, e.g., United States v. Haddix, 239 F.3d 766, 768 (6th Cir. 2001) (citations omitted) (Applying the inevitable discovery doctrine to those instances where police had probable cause and could have obtained a warrant, but failed to do so, would obviate the warrant requirement altogether.); United States v Reilly, 224 F.3d 986, 994 (9th Cir. 2000) (citations omitted). In this case, the court finds that the public interest in deterrence far outweighs the interest in providing a jury with unlawfully-seized evidence. Patience is not only a virtue; here, it was a legal requirement. As such, the evidence seized from Defendant's car is suppressed.

Failure to file a motion to suppress that led to 404(b) evidence was not ineffective assistance because the issue was resolved on appeal and, in any event, the information that was admitted did not reasonably change the outcome. United States v. Huff, 2007 U.S. Dist. LEXIS 18604 (E.D. La. March 15, 2007).*

Plaintiff's § 1983 claims were, in effect, appeals from state court decisions on the same issues, and they were barred by the Booker-Feldman doctrine. Benjamin v. Abraham, 2007 U.S. Dist. LEXIS 18685 (E.D. Pa. March 15, 2007).*

Georgia assumes for sake of argument that a search that recovered a murder victim's purse was found with an invalid warrant, and it finds consent to search was attenuated. Spence v. State, 281 Ga. 697, 642 S.E.2d 856 (2007):

Analyzing the attenuation factors set forth in Brown to the present case, we turn first to the time factor. In this regard, Moore's consent to search occurred during the on-going, assumed illegal search of the apartment. Thus, there is effectively no lapse of time between the assumed illegal conduct and Moore's consent. The record, however, shows that the duration of the search had no bearing on Moore's consent.

As for intervening circumstances, the record shows that Moore executed a consent-to-search form that informed him that he had the right to refuse the consent to search; that he could revoke the consent to search at any time; that he had not been promised anything in exchange for his consent; and that he had not been threatened or compelled to give the consent. Moreover, the Supreme Court in Brown specified that the attenuation analysis must be "answered on the facts of each case" In the present case, a significant factor supporting a finding that Moore's consent was not a product of the illegal conduct, but was instead a product of his free will is that he was not the target of the officer's investigation.

As for the police misconduct in this case, even though we have assumed that the officer's affidavit given in support of the search warrant failed to establish probable cause that evidence of the crime would be found at Spence's residence, the illegality lacks any of the purposefulness or flagrancy that the Supreme Court weighed against the government in Brown. There, two police detectives, who acted without probable cause and a warrant, broke into Brown's apartment, conducted a search, pointed guns at Brown when he arrived home, and arrested him. Clearly, the degree of flagrant misconduct and coercion that was present in Brown is not present here.

Evaluating the foregoing attenuation factors, we conclude that Moore's consent to search was an act of free will that sufficiently attenuated the discovery of the purse from any assumed illegality of the officer's search. The trial court, accordingly, did not err in denying Spence's motion to suppress the purse.

Permalink 05:39:36 am, by fourth, 464 words, 2386 views   English (US)
Categories: General

Computer accessed remotely was not a search because the defendant allowed remote access of child porn

Defendant had child porn on a server, and it was downloaded by the FBI. This is not a search. "We further reject Genao's argument that the evidence seized from his home and computer should have been suppressed. With regard to the downloading of files from Genao's servers by the undercover agent, this did not constitute a warrantless search and seizure because Genao made these files available to the public." United States v. Genao, 2007 U.S. App. LEXIS 6276 (2d Cir. March 16, 2007)* (unpublished).

Officer's belief that defendant's live-in girlfriend had apparent authority was based on the officer's prior experience with them from a domestic disturbance call and her actions when she consented to the entry. "In sum, we conclude that a reasonable officer in the position of Officer McGee would have believed that Hays shared joint access to the home with Crabb, and thus possessed the authority to consent to the agents' entry into and search of the house." United States v. Crabb, 221 Fed. Appx. 722 (10th Cir. 2007)* (unpublished).

Execution of warrant did not unreasonably exceed the terms of the warrant to subject the officers executing it to civil liability. Gagliardi v. Fisher, 513 F. Supp. 2d 457 (W.D. Pa. 2007)*:

It cannot be said that the scope of the search at issue in this case, as defined in the warrant, exceeded reasonable bounds with respect to the objective of locating evidence related to the preparation or origin of a letter that was believed to have been forged. Id. at 84-85 ("Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase." (quoting Ross, 456 U.S. at 824)). So long as there exists "a nexus between the evidence to be seized and the alleged offenses," a warrant is not invalid merely because it authorizes a search for a large amount of documents and records. United States v. Yusuf, 461 F.3d 374, 394 (3d Cir. 2006) (quoting United States v. American Investors of Pitts., 879 F.2d 1087, 1105-06 (3d Cir. 1989). "The breadth of items to be searched depends upon the particular factual context of each case" and the "information available to the investigating agent that could limit the search at the time the warrant application is given to the magistrate." Id. at 395. Plaintiff's complaint, which includes extensive allegations of facts, even accepting those facts as true and drawing all reasonable inferences from those facts in favor of plaintiff, does not state a claim entitling plaintiff to relief under any viable legal theory relating to the scope of the search. Accordingly, the court must dismiss count 11 of the complaint, insofar as it alleges a violation of the Fourth Amendment, with prejudice.


Permalink 06:06:43 am, by fourth, 586 words, 461 views   English (US)
Categories: General

VT: Rejects Belton and holds that a backpack of a defendant handcuffed in the police car cannot be subjected to a search incident

Vermont rejects Belton and holds that a defendant who had been arrested and was handcuffed in the backseat of a police car was no longer capable of reaching his backpack in his car, so it could not be subjected to a search incident. The automobile exception was also rejected. State v. Bauder, 2007 VT 16, 181 Vt. 392, 924 A.2d 38 (2007):

Neither requirement was satisfied here. Despite the officer's suspicion that the car might have been stolen, he did not arrest defendant on that basis and identified no ground, much less probable cause, to believe that proof of ownership might be discovered behind or underneath the driver's seat, where the parking meter and glass jar containing marijuana were found. Even if it were assumed, however-as the dissent urges-that the inadequate proof of ownership established probable cause to believe that the car was stolen, the circumstances did not establish that element of urgency essential to the execution of a warrantless search. The officer readily acknowledged that he had no concerns about the possibility of evidence inside the vehicle being removed or destroyed. Indeed, prior to the search, the officers had not observed any evidence of a crime in the vehicle, let alone evidence that might conceivably be lost or destroyed.

Furthermore, defendant was under arrest, the car was not on a public highway but safely parked in a commercial lot, and the police had determined that it would be grounded, i.e, locked and kept there until they determined its ownership. Hence, there was no exigency compelling an immediate search rather than a subsequent warrant application. In Trudeau, the principal case on which the dissent relies, the police had observed evidence in plain view within the vehicle that related directly to the offense for which defendant was arrested. Indeed, we analyzed Trudeau as a plain-view case, not an automobile-exception case, emphasizing that the officers violated no privacy rights of the defendant when they observed an open beer can in plain view on the floor of the defendant's car before arresting him for DUI. 165 Vt. at 358, 683 A.2d at 727-28. Here, in contrast, the officers had no indication that defendant's vehicle contained any contraband or evidence of a crime. Furthermore, the record in Trudeau revealed the presence of two additional passengers in the vehicle who also appeared to be intoxicated and who had remained near the vehicle during the police encounter, although they had not been arrested. This was sufficient to suggest that they might have had not only the opportunity, but the incentive, to seek access to the vehicle to remove the evidence the police had observed therein, and thus established the exigency necessary to forgo a warrant. Trudeau, 165 Vt. at 357, 361, 683 A.2d at 726, 729. Neither circumstance was present here. The police had not observed any evidence of a crime in the vehicle, and there was nothing to indicate that the passenger, who had been questioned by the police and had departed, would have any reason to return to the vehicle or ability to remove its contents. Accordingly, we are not persuaded that the automobile exception provides a viable basis to uphold the trial court decision.

Knife seen on car console during a traffic stop justified a frisk of the car. United States v. Robinson, 222 Fed. Appx. 534 (8th Cir. 2007)* (unpublished).

District court's finding of voluntary consent was not clearly erroneous. United States v. Lyons, 220 Fed. Appx. 917 (11th Cir. 2007)* (unpublished).

Fact dispute on whether probable cause existed for arrest precluded summary judgment for defendants. Freeman v. Taghon, 2007 U.S. Dist. LEXIS 18537 (N.D. Ill. March 14, 2007).*

Permalink 05:57:23 am, by fourth, 419 words, 460 views   English (US)
Categories: General

KS: (1) Close questions of reasonable suspicion defer to the officer's experience, and (2) state cannot manipulate a knock and talk for plain view

Traffic stop was valid, and it was properly extended by reasonable suspicion and consent. Close questions of reasonable suspicion go to the officer's experience. State v. Moore, 154 P.3d 1 (Kan. 2007):

We emphasize that because whether reasonable suspicion exists depends upon the totality of the circumstances, a case-by-case evaluation is required. See DeMarco, 263 Kan. at 735. Accordingly, a broad reading of our opinion today is expressly discouraged. We do not advocate a total, or substantial, deference to law enforcement's opinion concerning the presence of reasonable suspicion. The officers may possess nothing more than an "inchoate and unparticularized suspicion" or "hunch" of criminal activity. See Illinois v. Wardlow, 528 U.S. 119, 123, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000). Such a level of deference would be an abdication of our role to make a de novo determination of reasonable suspicion. But, in this close case, we give appropriate deference to the opinions of a particular law enforcement officer on the scene who, with thousands of traffic stops, is highly experienced in roadside searches and seizures and determinations of reasonable suspicion.

The state cannot manipulate a knock-and-talk to enter rural premises and make a purported "plain view" seizure of a trash bag in the yard 100' from the road. State v. Fisher, 154 P.3d 455 (Kan. 2007):

We specifically disapprove of any State attempt to "piggyback," i.e., to observe an object in open view from off the premises, to use knock and-in these cases, unsuccessful-talk for justified entry onto the premises, and then assert plain view while on the premises as a legal basis to seize the identical object that had been observed earlier. Such piggybacking under these facts would smear the careful distinctions drawn by the Horton Court between the right to merely observe an object (here, from off the premises) and the right to seize that object (on the premises). From a practical standpoint, this piggyback practice would grant law enforcement the right to seize virtually any object initially observed from a distance and subsequently located within plain view of a residential doorway by an officer purposely looking for that identical object.

An additional reason for us to reject the State's request to apply the plain view doctrine for justification of the seizure is that Jager's premises search and seizure of the bag exceeded the scope of his justified intrusion. This rejection applies whether the State were to contend that the off-highway observation of the bag alone, the off-site smell of ether alone, the previous citizens' tips alone, or some combinations thereof, justified the knock and talk.


Permalink 09:30:05 am, by fourth, 523 words, 2873 views   English (US)
Categories: General

Texas applies Hudson and does not even consider the merits of a no-knock issue

Texas dodges the merits of a no-knock warrant issue and simply follows Hudson and holds that it would not suppress anyway. State v. Callaghan, 222 S.W.3d 610 (Tex. App. — Houston (14th Dist.) 2007).

Failure to controvert the state's response to a suppression motion with an affidavit means no hearing and it is denied. Matter of M.A.R., 2007 NY Slip Op 27108, 15 Misc. 3d 784, 832 N.Y.S.2d 794 (Nassau Co. 2007).*

There is no expectation of privacy in a call from a jail where both parties hear a recorded message that the call may be monitored. She talked about making meth "drops," and law enforcement was alerted and was waiting for her. State v. Dickey, 2007 Ohio 1180, 2007 Ohio App. LEXIS 1092 (2d Dist. March 16, 2007).*

There was cause for defendant's stop when he was speeding. When asked about drinking, he first said he had one beer then later said five, and there was an open beer can sitting in the back seat. State v. Marcinko, 2007 Ohio 1166, 2007 Ohio App. LEXIS 1113 (4th Dist. March 2, 2007).*

Officer pulled over defendant because he was known to have been with a burglary suspect earlier. When stopped, the defendant was excessively nervous and apparently under the influence. There was cause for continuation as a DUI stop. State v. Hogue, 2007 UT App 86, 157 P.3d 826, 573 Utah Adv. Rep. 15 (2007).*

Defendant was stopped for speeding and the officer discovered that his driver's license was suspended. He asked the defendant to get out of the car, and he did and locked it. He consented to a search (the officer said he was looking for an open container, since there was a shot glass on the console), and the officer saw child porn in the backseat. The search was legal. State v. Bons, 2007 WI App 124, 301 Wis. 2d 227, 731 N.W.2d 367 (2007).*

In that same case, the appellant's attorney was sanctioned for not providing in the appendix the trial court's rationale for the decision, thereby imposing on the appeals court panel the burden of looking it up. Id.* The concurring judges complain about finding out about these issues after dispersing to go home between sessions, thereby delaying resolution of the case, acting like there is no such thing at the court like fax machines or .pdf files and law clerks to look it up for them and fax or e-mail it. (Comment: In my state, they just default the issue and make the appellant pursue post-conviction relief against appellate counsel, which takes about two years from filing to decision on appeal. My view is that it is easier for an appellate judge to find default rather than do his or her job, even though it leads to great expense to the taxpayers and parties to relitigate the issue in post-conviction. They know I feel that way because I have put it in briefs before where I have to argue around a procedural default issue that it wastes everybody's time and money because judges are too lazy to walk down the hall and look at the record, a clear instance of form over matter. Is my honesty going to win me any friends on the court in pointing out their folly? I never had any.)

Permalink 09:06:03 am, by fourth, 991 words, 1137 views   English (US)
Categories: General

Indiana suppresses a pretextual traffic stop

Indiana finds a traffic stop pretextual and invalidates it under the state constitution (albeit reading exactly like the Fourth Amendment), including a videotaped confession occurring shortly thereafter. Turner v. State, 862 N.E.2d 695 (2007):

Pretextual stops are not, per se, unreasonable under the Indiana Constitution. However, this admittedly pretextual stop facilitated by a traffic violation of questionable validity was not reasonable in the light of the circumstances and violated Turner's rights under Article I, Section 11 of the Indiana Constitution.

Because the traffic stop was illegal under the Indiana Constitution, we must determine what evidence, if any, should be suppressed.

"[N]ot all evidence is the fruit of the poisonous tree because it is the result of an illegal search or seizure. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitations of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Evidence may be purged of the primary taint if the causal connection between the illegal police conduct and the procurement of the evidence is so attenuated as to dissipate the taint of the illegal action."

Quinn v. State, 792 N.E.2d 597, 600 (Ind. Ct. App. 2003) (internal citations omitted), trans. denied 804 N.E.2d 753 (Ind. 2003). Three factors for consideration in determining whether the causal chain is sufficiently attenuated are: "(1) the time elapsed between the illegality and the acquisition of the evidence; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct." Id. (citing Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). The important consideration in the third factor is whether the evidence came from "'the exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id. (quoting Wong Sun v. United States, 371 U.S. 471, 488 (1963)).

Maryland holds that refusal to submit to a search warrant for blood samples that defendant knew were in relation to a death was admissible as consciousness of guilt. [This is different from exercise of the right to refuse consent where no warrant is involved.] Thomas v. State, 397 Md. 557, 919 A.2d 49 (2007):

Despite Detective Knowlan's expanded testimony, petitioner argues that the trial court should still have found the consciousness of guilt evidence inadmissible. His argument rests primarily on the first inference we noted in Thomas I: "from his resistance to the blood test, a desire to conceal evidence." Petitioner claims that numerous other factors could have explained his reluctance to submit to the testing. He states that his reaction "would be the universal response" of anyone taken to a police interrogation room and told they would be required to provide a blood sample. Further, he posits that his reaction could have been due to religious objections or fear of needles, the sight of blood, pain, or possible infection. We find these arguments unconvincing.

We agree with the explication of the Court of Special Appeals, which stated as follows:

"Federal courts have also held that resistance to police requests for evidence could support an inference of consciousness of guilt. See United States v. Jackson, 886 F.2d 838, 846 (7th Cir. 1989) (stating that 'evidence of the defendant's refusal to furnish writing exemplars, like evidence of flight and concealment, is probative of consciousness of guilt'); United States v. Terry, 702 F.2d 299, 313-14 (2d Cir. 1983) (holding that evidence that defendants refused to permit investigators to obtain palm prints was admissible to show consciousness of guilt). Appellant courts in sister states have held that evidence of the refusal to provide a blood sample is admissible to support an inference of consciousness of guilt. [People v. Farnam, 28 Cal. 4th 107, 47 P.3d 988, 1022 (Cal. 2002)] (stating that evidence that the defendant initially resisted providing blood and hair samples, despite a court order that he do so, was admissible to show consciousness of guilt); [People v. Edwards, 241 Ill. App. 3d 839, 609 N.E.2d 962, 966, 182 Ill. Dec. 428 (Ill. App. Ct. 1993)] (stating that 'Defendant's initial refusal to submit to blood testing has some tendency to indicate a consciousness of guilt and is therefore relevant and generally admissible')."

Thomas, 168 Md. App. at 710, 899 A.2d at 186-87. So long as the proper foundation is laid, consciousness of guilt evidence may be relevant and admissible.

Simply because there is a possibility that there exists some innocent, or alternate, explanation for the conduct does not mean that the proffered evidence is per se inadmissible. If it was the position of petitioner that he feared needles, or that the drawing of blood violated some religious belief he held, or any other innocent explanation for his conduct, it was incumbent upon him to generate that issue. He had the opportunity at trial to offer alternative theories explaining his resistance to the blood test, and the record is completely devoid of any such evidence. See 2 JAMES H. CHADBOURN, WIGMORE ON EVIDENCE § 276(e), p. 130 (Chadbourn rev. 1979) (stating that "the accused may always endeavor to destroy the adverse significance of his conduct by facts which indicate it to be equally or more consistent with such other hypothesis than that of a consciousness of guilt"). The State is not required to anticipate any or all conceivable innocent explanations for a party's refusal to submit to a blood test, and its failure to do so is not a basis to exclude the evidence. See id. at § 276(b), p. 129 (stating that the "prosecution cannot be expected to negative beforehand all conceivable innocent explanations [for consciousness of guilt]").

Off-duty police officer working security at a bar was not acting as a governmental actor when he patted down the defendant for weapons on entering the bar. Also, the patrons were warned of the coming patdown. People v. Nadal, 48 V.I. 212, 2007 V.I. LEXIS 6 (V.I. Super. Ct. February 5, 2007).*

Search was suppressed because it was for "a dwelling" that was "white with a green roof" but three were searched and none had a green roof. People v. Trotman, 48 V.I. 156, 2006 V.I. LEXIS 31 (V.I. Super. Ct. December 14, 2006).*

Permalink 08:26:36 am, by fourth, 683 words, 537 views   English (US)
Categories: General

D. Utah credits defendant's version of consent and suppresses

After considering all the evidence at the suppression hearing, the court sides with the defense on the consent issue. United States v. Burr, 2007 U.S. Dist. LEXIS 18322 (D. Utah March 13, 2007)*:

Evaluating the voluntariness of Defendant's consent in this case presents a close question and hinges primarily on the credibility of the witnesses. At the evidentiary hearing, there was a significant amount of contradictory testimony between the agents on one hand and the Defendant and his parents on the other hand. According to the testimony of the arresting agents, this was a routine, casual and consensual encounter--similar to many of the visits that they perform on an almost daily basis. According to the agents, Defendant readily agreed to allow the search. In contrast, Defendant and his parents testified that this was a much more confrontational and coercive encounter, and that Defendant was left with no choice but to acquiesce to the agents' demands to search the bedroom.

After listening to the testimony, the court finds that the Defendant's testimony, along with the testimony of his parents, is more credible than that of the agents. The agents' admission that they believed they were entitled--in fact obliged--to search the room during their visit, along with Mrs. Burr's and Defendant's testimony that the agents did not politely request to see the room, but rather "demanded" several times to see the room, leads this court to conclude that the consent was not knowing, intelligent, and voluntary. This conclusion is also supported--but not dependent upon--Wayne Burr's testimony that, after the search, the agents told him that they did not need a search warrant.

It is undisputed that Defendant was not advised of his right to refuse consent. Indeed, the agents believed that they did not need his consent. In addition, considering the way in which the agents were dressed, the fact that there were two of them present, and the repeated "demands" to see Defendant's bedroom, the court finds that Defendant did not voluntarily consent to allow them to search his bedroom. Rather, he believed he did not have a choice.

The government has not met its burden in presenting "clear and positive testimony that consent was unequivocal and specific and freely and intelligently given" and that "consent was given without duress or coercion." United States v. Pena, 143 F.3d 1363, 1366 (10 Cir. 1998)(citations omitted). In evaluating the totality of the circumstances, the court finds that the consent to search the bedroom was not given voluntarily but that it was granted only in submission to coercion and a claim of lawful authority. Schneckloth v. Bustamonte, 412 U.S. 218, 249 (1973). Thus, based upon the totality of the circumstances, the court finds that the Defendant did not knowingly, intelligently, and voluntarily give consent to search. Therefore, the court finds that the search of Defendant's bedroom was unlawful, and the fruits of that search must be suppressed.

Defendant's warrantless arrest based on his picking up mail with drugs in it was justified. United States v. Muse, 2007 U.S. Dist. LEXIS 18326 (S.D. N.Y. March 16, 2007)*:

In this case, the arresting officer was aware that the two packages had been addressed to different names but the same mailbox number. He observed Jama go into the mail facility and sign for and pick up both packages. These facts, when combined with probable cause to believe that at least one of the packages contained cathinone, were sufficient to establish probable cause for Jama's arrest.

Generalized motion to suppress failed. United States v. Cruz, 2007 U.S. Dist. LEXIS 18312 (M.D. Ga. March 13, 2007)*:

Although Defendant recited some of the Fourth Amendment standards for determining whether a search and seizure are reasonable, Defendant failed to present any evidence or argument regarding why the evidence in this case should be suppressed. Nevertheless, the Court notes two important factors involved in this case that establish the motion to suppress has no merit: standing and abandonment of the drugs.

Even liberally construing a pro se 2255 petition, it still cannot allege vaguely and conclusorily ineffective assistance on a search issue. Law v. United States, 2007 U.S. Dist. LEXIS 18460 (D. Idaho March 13, 2007).*


Permalink 09:21:54 pm, by fourth, 1325 words, 485 views   English (US)
Categories: General

Consent was voluntary even though it was asked for 9 times

The defendant was asked for consent nine times due to his nonresponsiveness to the officer's questions. One could be interpreted by some as a command, but not on the totality. State v. Ry, 2007 211 Ore. App. 298, 154 P.3d 724 (2007):

Defendants contend, in related fashion, that Guinto's consent was coerced unlawfully because the sheer repetition of Bennett's request made it apparent that "this particular trooper did not intend to relent with his request or release the car or the defendants until the trooper had searched the car to his satisfaction." Certainly, Bennett showed dogged persistence in trying to obtain consent, and his testimony shows that he intended to remain at the door of the vehicle until defendants consented to a search or a backup officer arrived. Thus, the consent to search was obtained at a time when defendants were not free to leave.

That, however, is hardly dispositive of the voluntariness of consent, given that consent was obtained during the course of a lawful stop. n6 See, e.g., State v. Charlesworth/Parks, 151 Ore. App. 100, 114, 951 P.2d 153 (1997), rev den, 327 Ore. 82, 961 P.2d 216 (1998); State v. White, 130 Ore. App. 289, 291, 881 P.2d 169 (1994). In Charlesworth/Parks, we reversed a trial court's determination that the defendant's consent had been involuntary. There, the defendant consented to a search of his car after his car had been lawfully blocked in by a police car and he had been ordered from the car at gunpoint and handcuffed. In holding that the consent to search was voluntary, we noted that the defendant "had considerable experience with the criminal justice system" and that "he knew he had the right to refuse to consent to the search." Id. at 114.

. . .

Here, the circumstances, when viewed in their totality, were considerably less "coercive" than those in Charlesworth/Parks (where weapons were displayed and the defendant was in handcuffs), White (where the defendant was in handcuffs), and Bea (where the defendant was handcuffed and arrested). In contrast, Guinto consented to the search while sitting, unrestrained, in the car, less than five minutes into a lawful, albeit somewhat stressful, traffic stop. The encounter was beside a public highway during daylight hours, and Bennett's interaction with defendants was polite--he did not raise his voice, draw a weapon, or employ any threats or promises. He simply requested consent--and then radioed for backup.

. . .

Under the totality of the circumstances, Bennett's words--however persistent--and actions were not so coercive as to render Guinto's consent involuntary. We thus affirm the trial court's determination that the warrantless search of the car and its contents, including the luggage, did not violate Article I, section 9, of the Oregon Constitution [or the Fourth Amendment].

Consent to search defendant's premises was given by the owner, and there was no indiciation that the owner had no authority to consent to the search as he did. United States v. Mark, 2007 U.S. Dist. LEXIS 17878 (D. V.I. February 23, 2007).*

Officers clearly had probable cause for the search warrant. United States v. Ramos, 2006 U.S. Dist. LEXIS 95668 (D. P.R. August 25, 2006)*:

To mandate an evidentiary hearing, the defendant must submit more than conclusory averments and be supported by more than a mere desire to cross-examine the informant, as the motion to suppress herein attempts. Still, defendant arguments regarding hearsay information should fall on deaf ears since the affidavit in support of the state search warrant describes with detail the personal observations of the law enforcement agent as to activities personally conducted by defendant in front of the residence subject of the search, with particularity as to the dates, time and participants, as well as the activities observed.

Defendants lacked standing to a vehicle because of a lack of connection to it. United States v. Colon-Santiago, 2006 U.S. Dist. LEXIS 95664 (D. P.R. August 7, 2006)*:

As in Aguirre, the record of the suppression hearing in this case is devoid of any proof tending to show that co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez owned or leased the Suzuki Vitara, or that it was registered to them. There was no evidence that they even possessed keys to the vehicle or had used it on prior occasions. Thus, there is no evidence co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez "had exhibited the slightest subjective expectation of privacy vis-a-vis the vehicle." Aguirre, 839 F.2d at 856. In this case, co-defendants Garcia-Rios, Rivera-Lopez and Cedeno-Rodriguez had ample opportunity at the suppression hearing to demonstrate they enjoyed the requisite standing to savage the search of the car--but failed to do so. We note these defendants also failed to address the standing issue in their written briefs submitted after the evidentiary hearing.

School officials had reasonable suspicion for a search of students for stolen money at a public school. Lindsey v. Caddo Parish School, 954 So. 2d 272 (2d Cir. 2007).*

Tennessee's Aguilar-Spinelli standard was not met. Basis of knowledge was shown, but reliability of the information was not. State v. Petty, 2007 Tenn. Crim. App. LEXIS 229 (March 8, 2007):

The state's failure to meet its "reliability" burden could still have been overcome by independent police corroboration. However, the police did not meet the applicable standard in this case. Our courts have held that "observations by police are sufficient if they provide an 'unusual and inviting explanation,' even though the observations are 'as consistent with innocent as with criminal activity.'" Moon, 841 S.W.2d at 341 (quoting Wayne R. LaFave, Search and Seizure, § 3.3(f) at 683 (2d ed. 1987)). Furthermore, the police must corroborate "more than a few minor elements of the informant's information ... especially if the elements relate to non-suspect behavior." Smotherman, 201 S.W.3d at 664 (citing Moon, 841 S.W.2d at 341)).

Many of the post-Jacumin drug cases in which police corroboration was held sufficient to justify a search warrant involved the police confirming, via one of the senses, drug manufacturing or sale taking place. See generally State v. Carter, 160 S.W.3d 526, 533-34 (Tenn. 2005) (prior to obtaining search warrant for house where methamphetamine was allegedly being made, officer walked [*16] past defendant's house and smelled burning chemicals and heard persons running around inside); State v. Mark Ray Delashmit, No. W2004-00946-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 592, 2005 WL 1388041 (Tenn. Crim. App. June 13, 2005) (informant wore a wire, which allowed police to hear defendant negotiating drug deal with informant). In the instant case, the police did not independently confirm that the defendant was in possession of drugs before obtaining the warrant; they did not see the defendant selling drugs, nor did they ask an informant to "wear a wire," as did the informant in Delashmit. The only information that the police were able to independently confirm was the address of the house and the fact that a red pickup truck containing lawn equipment was parked outside. Such information was of the "non-suspect" type that our courts have held insufficient for purposes of independent corroboration under the reliability prong of Aguilar-Spinelli. See generally Smotherman, 201 S.W.3d at 664 (prior to search warrant, police were only able to confirm that defendant resided at house to be searched; Tennessee Supreme Court held that this information "involves only one element of non-suspect behavior and offers little support to the credibility of the informant or the reliability of the informant's information regarding the occurrence of drug transactions at the defendant's residence."). As such, adequate police corroboration of the informant's information was not present in this case. Absent both police corroboration and a showing that the defendant or his information was reliable, the second prong of the Aguilar-Spinelli test failed in this case, and the search warrant for the defendant's home should not have been issued.


The affidavit in support of the search warrant in this case contained information that established the basis for the informant's knowledge. However, the second prong of the Aguilar-Spinelli test, which requires either a showing that the informant or his information is reliable or independent corroboration of the informant's information, was not satisfied. The trial court was correct in suppressing the evidence that resulted from the improperly-issued search warrant; therefore, the judgment of the trial court is affirmed.

Permalink 08:06:43 pm, by fourth, 1213 words, 536 views   English (US)
Categories: General

Defendant questioned in Trinidad U.S. Embassy by FBI was not in custody for Miranda

Defendant was questioned in Trinidad by the FBI for the hostage taking of a U.S. citizen there. He was not in custody for Miranda purposes. He came in as a witness and was getting money from the Trinidad Witness Protection Programme when the investigation turned to him. United States v. Suchit, 2007 U.S. Dist. LEXIS 18148 (D. D.C. March 15, 2007).

Applying these standards, the Court finds that the evidence readily establishes that defendant was not "in custody" at the time of either interview with Special Agent Clauss. The day before the October 4, 2005 interview, Suchit indicated to Neermal that he was eager to meet with the FBI--conduct that was consistent with his decision to meet twice with Constable Forbes only days earlier. Suchit was clearly aware of and interested in the Trinidad and U.S. reward money, and offered his knowledge of the Maharaj abduction based on that financial interest. He expressed strong interest in the reward money in his talks with Neermal and on multiple occasions with Special Agent Clauss. During the interview, Suchit was not restrained in any manner, and appeared calm, relaxed, and eager to provide information. After the interview was done, the Trinidad police drove him to his home. All of these circumstances indicate a consensual meeting, rather than the functional equivalent of an arrest.

Defendant contends that custody should nonetheless be found, based on the actions of the Trinidad police--that is, the use of handcuffs when the police arrived at Suchit's house the day before the interview and the length of time defendant spent at the Trinidad police station--roughly, 30 to 36 hours. Assuming arguendo that the FBI can be held accountable for the actions of the Trinidad police, n22 the Court finds that these circumstances do not establish that Suchit was in custody. As to the cuffing, defendant clearly feared that public disclosure of his cooperation could result in harm to his family, and would take efforts to hide his cooperation. Thus, when Forbes arrived at Suchit's home the morning of October 3, it is more likely than not that he placed Suchit in handcuffs to create the appearance that Suchit was under arrest, much like the January 2006 fake arrest at the Arouca police station in front of Doreen Alexander.

A false arrest claim is not cognizable as Fourth Amendment claim. Venable v. Hulse, 2007 U.S. Dist. LEXIS 18138 (C.D. Ill. March 15, 2007):

The defendants also maintain that the plaintiff has failed to state a violation of his Fourth Amendment rights based on false arrest. The defendants argue the plaintiff cannot demonstrate any injury because if his Fourth Amendment rights were violated, the injury would occur at the time of the plaintiff's arrest. "[A]n individual is entitled to recover only for injuries suffered from the time of arrest until his arraignment." Wallace v City of Chicago, 440 F.3d 421 (7th Cir. 2006). "[T]he interest in not being prosecuted groundlessly is not an interest that the Fourth Amendment protects." Gauger v Hendle, 349 F.3d 354, 363 (7th Cir. 2003).

Plaintiffs failed to overcome officers' qualified immunity defense where the officers noticed the address on the warrant was wrong and called for guidance from the prosecutor who told them they could execute it because the property was otherwise properly "described as a white single dwelling with a grey shingled roof and red brick base with a partial screened in porch facing north on the south east corner of the intersection of Fifth and South Street." Holloway v. City of Hot Springs, Arkansas, 2007 U.S. Dist. LEXIS 18071 (W.D. Ark. March 14, 2007).

Notice pleading is not sufficient when the defendant believes he would have an apparent qualified immunity defense. Therefore, a motion for a more definite statement of an alleged unlawful search claim was required to enable the defendant to plead intelligently. Mann v. Brenner, 2007 U.S. Dist. LEXIS 18178 (M.D. Pa. March 13, 2007):

However, while Plaintiff's complaint may afford Defendant Wentz the notice required under Rule 8 of the Federal Rules of Civil Procedure, it does not contain the factual allegations necessary for him to assert a qualified immunity defense by, for example, demonstrating that his actions were reasonable under the circumstances. "[T]o provide government officials the protections afforded by qualified immunity," the Third Circuit has directed that a "district court must avail itself of the procedures available under the Federal Rules to facilitate an early resolution of the qualified immunity issue." Thomas v. Independence Twp., 463 F.3d 285, 289, 300 (3d Cir. 2006). Where a complaint does not lend itself to a meaningful qualified immunity analysis, it is within a district court's authority to order the plaintiff produce a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. Id. at 289, 301; Fed. R. Civ. P. 12(e) (a more definite statement is appropriate where "a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading"). Because Plaintiff's complaint fails to provide sufficient factual information about the search and seizure allegedly committed by Defendant Wentz, Plaintiff will be instructed to file an amended complaint containing a more definite statement. In crafting his more definite statement, Plaintiff should address--in specific, non-conclusory factual allegations--the circumstances known to him surrounding the allegedly unlawful search and seizure.

Inevitable discovery supported seizure of guns hidden in defendant's unfinished basement despite defendant's statements allegedly in violation of Miranda. United States v. Domenico, 2007 U.S. Dist. LEXIS 17938 (D. Mont. March 6, 2007):

Officer Juhnke had already made the decision to search Domenico's residence for the firearms when he visited with Domenico at the Gallatin County Detention Center. He and Officer Evans were in fact on their way to conduct the search, stopping on the way to advise Domenico of their plan and to ask him how best to gain entry to the residence. The officers found the firearms precisely where Davis said they would be--behind insulation and between the studs in an unfinished room in the basement. Based on the foregoing credible testimony, this Court concludes the Government has met its burden of establishing by a preponderance of the evidence that the officers inevitably would have found the firearms, regardless of Domenico's illegally obtained statements. Evidence of the firearms is thus admissible under the inevitable discovery doctrine, and Domenico's motion to suppress should be denied.

In so concluding, this Court has accepted the credible testimony of Officers Juhnke and Evans over Davis's contradictory testimony. Even if this Court were to accept Davis's testimony in its entirety, however, Domenico's motion to suppress would nevertheless fail. Davis agreed that she spoke with Officer Juhnke about the location of Domenico's firearms, but denied telling him they were located behind insulation and between the studs in an unfinished room in the basement. She instead testified somewhat confusingly that she told him they were "under the stairs" in the "mechanical room," which she conceded is in the basement. Although the officers found the firearms in this so-called "mechanical room," it is Domenico's position that the officers would not have found the weapons without the information he provided at the jail. Domenico argues the weapons were not found "under the stairs," and claims the officers would not have known to look, or even been entitled to look, behind the insulation when conducting their search.

Permalink 07:35:32 pm, by fourth, 1189 words, 503 views   English (US)
Categories: General

State law on arrest does not govern reasonableness under the Fourth Amendment

A violation of state law does not make an arrest unreasonable per se. United States v. Laville, 48 V.I. 1012, 480 F.3d 187 (3d Cir. 2007):

Application of a per se rule could also lead to the creation of different standards governing arrests made by peace officers of different states for the same federal offense. Conceivably, fifty different constitutional standards of arrest, each one dictated by a respective state's positive and decisional law, could result. What would be reasonable and constitutional in one state could be unreasonable and unconstitutional in another. Meanwhile, federal courts of appeals would be compelled to recognize--and, indeed, to perpetuate--such disparities among the states and territories within their jurisdictions. If, for instance, we were to uphold the District Court's application of a per se rule here, we might nevertheless conclude, in some future case, that an otherwise identical arrest occurring in New Jersey is reasonable and constitutional. Such a patchwork of federal constitutional standards, arising as it were from the individual legislative enactments of the various states and territories, is inconsistent with our single federal constitution. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816) (noting "the importance, and even necessity of uniformity of decisions throughout the whole United States, upon all subjects within the purview of the constitution").

Moreover, a per se rule could well create disparity in the constitutionality of arrests performed by state and federal officers for the same offense within the same state or territory. It is easy to imagine a scenario in which officers of the VIPD and officers of the ICE, working on a joint law-enforcement detail, simultaneously approach a group of suspected illegal aliens under circumstances similar to those presented here. Acting on what they believe to be probable cause, a VIPD officer and an ICE officer make simultaneous, warrantless arrests. If we were to apply a per se rule, we would likely be compelled to find that the arrest made by the VIPD officer was unreasonable per se and, therefore, unconstitutional, whereas the identical arrest made by the ICE officer was reasonable and constitutional. The Fourth Amendment does not permit, much less require, any such thing.

By engrafting territorial procedural requirements onto the federal constitutional standards governing seizure, the District Court went beyond simply determining the reasonableness of Laville's arrest. Rather, the Court effectively required Santos to be certain that a misdemeanor had been committed, by virtue of having witnessed its commission, and to ensure that conviction was possible. A significant body of caselaw makes clear why any such requirements simply cannot be, and why a Fourth Amendment determination cannot turn on the exigencies of the law of a particular state or territory or an officer's knowledge of the elements of a particular offense and whether each element has been satisfied. "The test is one of federal law, neither enlarged by what one state may have countenanced nor diminished by what another may have colorably suppressed." Elkins v. United States, 364 U.S. 206, 223-24 (1960). As the Supreme Court emphasized in Draper v. United States, there is a "'difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.'" 358 U.S. 307, 311-12 (1959) (quoting Brinegar v. United States, 338 U.S. 160, 173 (1949)). And, as Judge Learned Hand recognized more than sixty years ago, the "'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties." United States v. Heitner, 149 F.2d 105, 106 (2d Cir. 1945) (quoted in Draper, 358 U.S. at 312 n.4); see also Graham v. Connor, 490 U.S. 386, 396, 104 L. Ed. 2d 443 (1989) (stating that in determining whether use of force violates the Fourth Amendment, "'reasonableness' ... must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight").

And it is reasonableness that is the central inquiry under the Fourth Amendment. United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). "[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment." Hill v. California, 401 U.S. 797, 804 (1971); see also Locke v. United States, 11 U.S. (7 Cranch) 339, 348, 3 L. Ed. 364 (1813) (recognizing that probable cause "means less than evidence which would justify condemnation"). Probable cause exists whenever reasonably trustworthy information or circumstances within an arresting officer's knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed by the person being arrested. Draper, 358 U.S. at 313; Myers, 308 F.3d at 255.

Reasonable suspicion was based on the defendant's drug history and apparent drug deals going on. Further detention for dog sniff was justified. United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007).*

Defendant on supervised release had the same rights of privacy in his girlfriend's house that he would have in his own house. He was subject to searches, and there was reasonable suspicion. United States v. Taylor, 482 F.3d 315 (5th Cir. 2007):

Taylor's rights while on supervised release are more limited than those of the average citizen. In United States v. Knights, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d 497 (2001), the Supreme Court considered the effect of a consent statement similar to the one here on the warrantless search of a probationer's home. The Court declined to decide "whether Knights' acceptance of the search condition constituted consent in the Schneckloth sense of a complete waiver of his Fourth Amendment rights," id. at 118, but instead determined that "the search of Knights was reasonable under [the] general Fourth Amendment approach of examining the totality of circumstances with the probation search condition being a salient circumstance." Id. (internal quotation marks and citation omitted). After weighing the effect of the probation condition on Knights's privacy interest, the Court concluded that the Fourth Amendment reasonableness inquiry "requires no more than reasonable suspicion to conduct a search of this probationer's house. The degree of individualized suspicion required of a search is a determination of when there is sufficiently high probability that criminal conduct is occurring to make the intrusion on the individual's privacy interest reasonable." Id. at 121.

Presuming that Taylor was a houseguest, he was entitled to the same Fourth Amendment protections in his girlfriend's apartment that he would have received in his own home. The question therefore, is whether there was a sufficiently high probability that criminal conduct was occurring. In this case, unlike in Knights, the police had a misdemeanor arrest warrant at the time they entered the house. They also had evidence suggesting that Taylor was in possession of a firearm and that he was in violation of the conditions of his parole. This evidence is sufficient to support a determination that the police had reasonable suspicion that Taylor may have been engaged in criminal conduct.

This analysis does not address the question whether the police's warrantless entry may have violated the Fourth Amendment rights of Katherine Johnson, who occupied the apartment as a resident. Taylor cannot, however, reasonably assert that his Fourth Amendment rights have been violated by this intrusion. Under the Knights test, the search would have been lawful, had it occurred in his home.


Permalink 03:08:58 pm, by fourth, 1487 words, 840 views   English (US)
Categories: General

Execution of warrant was proper and seizure of something else was in plain view

Officers executing an otherwise valid warrant brought along another officer, and that officer found something else in "plain view" during the search that was of evidentiary value. State v. Willock, 2007 Iowa App. LEXIS 278 (March 14, 2007):

Iowa law supports the district court's rulings on the motions to suppress. As our highest court has stated, the seizure of an object found in plain view is justified where (1) the intrusion of the police was lawful and (2) the incriminating nature of the object was immediately apparent. State v. Chrisman, 514 N.W.2d 57, 60 (Iowa 1994). There is no question that the presence of the Waterloo detective in Robert Willock's home was lawful and that the receipt was in plain view.

Our inquiry could end here, but both Willock and the State also cite federal authorities relating to pretextual searches. See United States v. Johnson, 707 F.2d 317, 320-21 (8th Cir. 1983); United States v. Wright, 641 F.2d 602, 605 (8th Cir. 1981); United States v. Sanchez, 509 F.2d 886, 889 (6th Cir. 1975). These opinions are inapposite. All relied on an articulation of the plain view exception to the warrant requirement that was rejected in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). There, the United States Supreme Court stated "inadvertence" was not a necessary predicate to application of the plain view exception. Horton, 496 U.S. at 130, 110 S. Ct. at 2304, 110 L. Ed. 2d at 118-19. The court specifically stated,

"[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement."

Id. at 138, 110 S. Ct. at 2309, 110 L. Ed. 2d. at 124. The court concluded, "if the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more." Id. at 140, 110 S. Ct. at 2310, 110 L. Ed. 2d at 125. This opinion clarifies that the focus is not on the officer's intent prior to executing the search. Instead, the focus is on the warrant requirement or a valid exception to the warrant requirement. Because the cited federal opinions have a broader focus, we find them unpersuasive.

In a § 1983 case over a no-knock warrant and entry, the court held that the entry was lawful so the city could not be held liable for its policy. Estate of Davis v. City of North Richland Hills, 2007 U.S. Dist. LEXIS 17648 (N.D. Tex. March 13, 2007):

General order 811.05 does not use the term "hazardous warrants" or "no-knock" warrants. Instead, that order provides,

"The Special Weapons and Tactics (S.W.A.T.) team will serve any search and arrest warrant that has a high potential for armed confrontation. These type of warrants may consist of kidnapping, mental patients, and known violent offenders." (Emphasis added.)

The official policy is that a special tactical team is to serve warrants when there is a high potential for armed confrontation. The policy goes on to illustrate examples of when there may be a high potential for armed confrontation. But those examples are not a part of the official policy. And it neither authorizes nor directs the blanket execution of warrants on a no-knock basis in circumstances where a high potential for armed confrontation may occur. Thus, on its face, the general order is not, itself, unconstitutional. Consequently, Plaintiffs have the burden of showing that the general order "was adopted or maintained ... with deliberate indifference as to its known or obvious consequences ...." Nacogdoches County, 379 F.3d at 309. Establishing deliberate indifference "generally requires that a plaintiff demonstrate at least a pattern of similar violations." Id. (internal quotations and citations omitted).

Here, Plaintiffs have not presented any evidence that the general order has been adopted or maintained with a deliberate indifference to Fourth Amendment constitutional rights. They present no evidence that the NRH police department developed a practice or custom of executing all narcotics warrants on a no-knock basis. In fact, the policy itself supports various implementations. The policy only requires that a special tactical team execute warrants where there is a high potential for armed confrontation. But that does not translate into an authorization for a no-knock entry in every instance. The special tactical team could decide, based on the circumstances of the particular situation, that although there is a potential for armed confrontation, knocking and announcing may be safer for the officers because it will give the suspects a chance to surrender before any armed confrontation ensues. The reality is that police officers are well aware that a surprise, unannounced entry of a dwelling poses its own dangers. The surprise in and of itself may cause the armed confrontation. It makes little sense that the NRH police department would have an official policy or practice of blanket no-knock entries in cases where there is a high potential for armed confrontation. The sensible policy and practice is to let the officers decide, on a case-by-case basis and after concluding that reasonable suspicion exists to forgo a knock-and-announce entry, whether the benefits of surprise outweigh its risks. This probably explains Plaintiffs' failure to present any evidence to support their claim that the NRH police department executes all narcotic warrants on a no-knock basis.

Nevertheless, even if Plaintiffs did present evidence that the NRH police department has a practice of executing all narcotics warrants on a no-knock basis, that fact would not be dispositive here. The fact that the NRH police department has a practice based on the implementation of an official policy of unconstitutionally forgoing the knock-and-announce requirement is irrelevant because the evidence here clearly establishes that the officers had a reasonable suspicion from the particular circumstances that justified their no-knock entry into the Davis residence. See Richards, 520 U.S. at 395 (holding blanket rule for no-knock unconstitutional but still upholding officers' no-knock entry because circumstances of case established officers had reasonable suspicion that evidence may be destroyed). The Court has already decided in its September 30 order that the evidence justified the officers' no-knock entry into the Davis home. Thus, the officers' no-knock entry was not a constitutional violation. Accordingly, Plaintiffs have failed to meet the third element to establish municipal liability.

Plaintiff's failure to show that his arresting officers lacked probable cause doomed his § 1983 claim. Dampier v. Donaglia, 2006 U.S. Dist. LEXIS 95656 (W.D. Wash. November 13, 2006).*

Reasonable suspicion existed for a stop but the scope of patdown became an issue and nothing was found. A remand was required. State v. Rollins, 922 A.2d 379 (Del. 2007):

Here, a similar situation occurred when the police patted Rollins down and did not find any indication of criminal activity. Then the police directly entered and searched Rollins' right pocket (the same pocket into which Rollins had inserted his hand earlier when police approached him in the courtyard). Their purpose was to obtain evidence. It is manifestly clear that the officers' interest in a more extensive search did not relate to protecting themselves. That said, the issue here is the import of the conversation between Rollins and the police after the Terry pat down. In the suppression hearing, it was not necessary for the Superior Court judge to determine whether Rollins consented to the second search because he found that the police did not have a reasonable articulable suspicion to stop Rollins and, therefore, had no need to explore whether Rollins voluntarily consented to a police probe directly into his pockets. While we hold that there was a reasonable articulable suspicion for the initial Terry stop, we nevertheless believe that the Superior Court must first decide whether Rollins voluntarily consented to an incursion into his pockets in order to determine whether the evidence seized as a result of that direct entry into his pockets should be admitted or suppressed. Therefore, we remand to the Superior Court with the following instructions: The Superior Court judge should find as a matter of fact whether Rollins voluntarily and knowingly consented to the officers' direct search of his pockets following the uneventful Terry stop and frisk.

"The initial stop of defendant for driving with a broken taillight was proper and was not contested. In addition, the officer did not violate the Fourth Amendment by asking defendant to exit his vehicle for safety reasons. The police pulled over defendant for a valid reason and then discovered another possible violation (a restricted driver's license) that provided a legitimate reason to detain and further investigate. The trial court found that the encounter turned into an investigatory stop. But, that did not prevent the police from asking defendant questions without giving Miranda warnings." [Lexis overview] State v. Olave, 948 So. 2d 995 (4th Dist. February 21, 2007, released for publication March 9, 2007).

Defense counsel was not ineffective for not objecting to officers' videotaping open fields before entry. Since it was open fields, there was nothing to object to. Jaeger v. Dubuque County, 2007 Iowa App. LEXIS 271 (March 14, 2007).*

Permalink 02:11:51 pm, by fourth, 884 words, 2034 views   English (US)
Categories: General

The Mansfield Amendment, 22 U.S.C. § 2291(c), prohibits U.S. officers from directing arrests in foreign countries, but the officers here did not direct the arrest

The Mansfield Amendment, 22 U.S.C. § 2291(c), prohibiting U.S. officers from directing arrests in foreign countries, was not violated where the defendant was arrested in El Savador by police there and flown back to the United States in a DEA airplane. United States v. Bourdet, 477 F. Supp. 2d 164 (D. D.C. 2007):

Defendants contend that their statements must be suppressed because they were the fruit of an arrest that violated the Mansfield Amendment, Pub. L. No. 94-329, § 504(b), 90 Stat. 729, 764 (1976) (codified as amended at 22 U.S.C. § 2291(c) (2000)). The Mansfield Amendment provides that "No officer or employee of the United States may directly effect an arrest in any foreign country as part of any foreign police action with respect to narcotics control efforts, notwithstanding any other provision of law." § 2291(c)(1). As the D.C. Circuit has emphasized, the Mansfield Amendment only prohibits United States officers from "directly effect[ing]" an arrest. United States v. Mejia, 448 F.3d 436,443 (D.C. Cir. 2006). Defendants' arrests were not directly effected by United States officers; rather, the Salvador-an police exercised complete control and authority over the direct police action in which defendants were taken into custody. The Mansfield Amendment simply does not apply.

Defendants concede that defendants' arrests were carried out by Salvador-an officials, but they argue that the Mansfield Amendment was nonetheless violated in two ways. First, they contend that United States officers directly effected the arrest of defendants when they took custody of defendants at the airport in El Salvador. Defendants acknowledge that the logical result of their argument would require any transfer of custody to occur either in the United States or in international territory. Regardless, their argument is foreclosed by Mejia, in which the defendants were arrested in Panama by Panamanian authorities and then transferred into DEA custody at an airport in Panama City. 448 F.3d at 439. The court of appeals held that the defendants' "claim that the Mansfield Amendment was violated fails on its face" because "the Panamanian authorities conducted the direct police action during which the defendants made a transition from liberty to custody." Id. at 443 (internal quotation marks omitted). It can therefore be inferred that the later transfer of the Mejia defendants from Panamanian to American custody did not implicate the Amendment. Accordingly, the post-arrest transfers of defendants in this case from Salvadoran to American custody did not constitute "directly effect[ed] arrest[s]" under the terms of the Mansfield Amendment.

The LA SWAT team entered defendant's house to execute an arrest warrant. After defendant was handcuffed and in custody, he consented to a search of the house, and the trial judge's ruling it was by consent was not clearly erroneous. United States v. Gonzalez, 222 Fed. Appx. 238 (4th Cir. 2007)* (unpublished).

Defendant was stopped for a traffic offense, and he volunteered a search of his vehicle. The officer lawfully could do a patdown of the defendant before the search of the vehicle. United States v. Oriach, 222 Fed. Appx. 312 (4th Cir. 2007)* (unpublished).

Defendant's claim that he was not "officially" on probation was unavailing because he was on probation and there was reasonable suspicion for a probation search under Knights. United States v. Albertson, 2007 U.S. Dist. LEXIS 17628 (M.D. Pa. March 14, 2007):

We find Albertson's argument, that he was not "officially" on probation as of September 18, 2005, unavailing. We so conclude because this Court is intimately familiar with Pennsylvania's probation system. Defendant is interposing an argument that assumes he must sign some type of receipt to be "officially" on probation. We suspect he knows better. In this case, Defendant was clearly informed, both in open court and by a written order of the Court of Common Pleas of Columbia County that issued on July 14, 2003, that his 24 month term of probation would begin upon his release from the incarceration term to which he was also sentenced that day. Because of his own parole violation, Defendant was not released from that prison term until his maximum date of December 7, 2004, and, consequently, his probation term commenced on said date.

Moreover, Defendant's violation of parole and resulting re-incarceration render unpersuasive Defendant's argument that he was not familiar with the terms and conditions surrounding probation and parole. Defendant would have been apprised thereof at the time of his parole, and, indeed, his violation of such terms and conditions provided practical experience with the application thereof. As a result, the contention that Defendant was unfamiliar with Pennsylvania's probation system and his responsibilities thereunder is again simply not credible.

Having concluded that Defendant was on probation at the time his residence was searched on September 18, 2005, we turn to consideration of whether the probation officers that conducted the search had reasonable suspicion to do so. As Albertson accurately notes, in determining whether reasonable suspicion exists, courts "consider the totality of the circumstances to determine whether the 'officer has a particularized and objective basis for suspecting legal wrongdoing.'" United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005) (quoting United States v. Arvizu, 534 U.S. 266, 122 S. Ct. 744, 151 L. Ed. 2d 740 (2002)). The Pennsylvania statute governing probation officers' searches also outlines eight different factors that may be taken into account. See 61 P.S. § 331.27b(d)(6). Those relevant to our determination include: "[i]nformation provided by others," "[t]he activities of the offender," "[t]he experience of the officers with the offender," "[t]he prior criminal and supervisory history of the offender."


Permalink 06:40:05 am, by fourth, 737 words, 780 views   English (US)
Categories: General

Alaska: Comment on refusal of an alternative DUI test is tantamount to a comment on exercise of a constitutional right in refusing consent

Alaska holds that a prosecutor's comment that the defendant refused a second test is tantamount to a comment on the defendant's right to refuse consent. Bluel v. State, 153 P.3d 982 (Alaska 2007):

In our view, the dilemma faced by the defendants in Elson, Padgett, and Bargas was functionally and legally indistinguishable from the dilemma Bluel faced here. As the state acknowledges, once Bluel submitted to the DataMaster test, Alaska's implied consent law entitled him to an independent test; under the law he could opt to arrange a test of his own choosing, ask for help in obtaining a test, or choose no test at all. In offering to help Bluel obtain an independent test, the state's standard "Notice of Right to an Independent Test" form expressly told him that if he did choose to have an independent test, the state could seek to obtain the evidence and use it against him. The state does not seem to dispute that the independent test would have required a physical intrusion sufficient to qualify as a search. Nor does the state dispute that the implied consent law required the state to honor Bluel's choice; in other words, that the law precluded the state from compelling Bluel to submit to another blood-alcohol test.

In terms of its practical consequences, then, Bluel's refusal to accept the state's offer to arrange an independent test is indistinguishable from a refusal to consent to a search. Moreover, the provisions of Alaska's implied consent laws that give Bluel the right to choose whether to obtain an independent test reflect the same "carefully balanced" consideration of policy interests that would have precluded Bluel from being ordered to submit to another test.

Finally, the statutory right to an independent test implicates concerns for fundamental fairness rooted in the due process right to effectively analyze and challenge the reliability of the state's compelled breath-test evidence. We have described this due process right as one that is "closely analogous, if not equivalent, to" the right of cross-examination, since it affords the defendant the opportunity to "bring out facts which will tend to discredit" the results of the mandatory test. n38 Just as a decision to bypass the opportunity for cross-examination creates no inference of guilt, a decision to bypass an independent test also cannot properly be seen as a "badge of guilt."

For all of these reasons, even if evidence of Bluel's right to refuse testing might not have directly violated any constitutional rights, we conclude that this evidence exposed him to essentially the same risk of unfair prejudice as commenting on his assertion of the constitutional right to refuse an unreasonable search. Thus, Bluel is entitled to a commensurate level of protection from such evidence; that is, he is entitled to insist that his exercise of the right to refuse independent testing not be chilled by the state's use of his refusal as a "badge of guilt."

Ordering a defendant from a vehicle so a consent search could occur is not unreasonable. State v. Boles, 952 So. 2d 586 (Fla. App. 4th Dist. 2007):

When a driver is lawfully stopped for a traffic violation, once the purpose of the initial stop and detention has been satisfied, absent a reasonable, articulable suspicion of illegal activity, the officer no longer has a legal basis to continue to detain the motorist. State v. Breed, 917 So. 2d 206, 208 (Fla. 5th DCA 2005). However, "[d]uring a valid traffic stop, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search." State v. Cromatie, 668 So. 2d 1075, 1077 (Fla. 2d DCA 1996). If a driver freely and voluntarily consents to a search of himself or the vehicle, the detention may continue, see State v. Johns, 920 So. 2d 1156, 1158 (Fla. 2d DCA 2006), and narcotics seized incident to that search will generally be shielded from suppression. State v. Kindle, 782 So. 2d 971, 973 (Fla. 5th DCA 2001).

Here, Boles agreed to the search of his vehicle. He contends, however, that the officer did not ask nor did he consent to his removal from his vehicle. We reject this reasoning. Instead, we conclude that the consent to search the vehicle necessarily includes the removal of any persons in the vehicle in order to facilitate the search. Of course, because the search is consensual, the person who has consented may withdraw his consent and refuse to exit the vehicle.

Permalink 06:26:12 am, by fourth, 924 words, 1039 views   English (US)
Categories: General

There is no per se domestic disturbance exigent circumstances exception

There is no per se rule on there being exigent circumstances in a domestic disturbance. This one involved a "commotion." United States v. Sikut, 488 F. Supp. 2d 291 (W.D. N.Y. 2007):

The Second Circuit has recognized the "combustible nature of domestic disputes," which provides "great latitude to an officer's belief that warrantless entry was justified by exigent circumstances when the officer had substantial reason to believe that one of the parties to the dispute was in danger." Tierney, 133 F.3d at 197. However, courts have held that domestic violence situations are not per se exigent, United States v. Najar, 451 F.3d 710, 719 (10th Cir. 2006), cert. denied, 127 S. Ct. 542, 166 L. Ed. 2d 401 (2006), and that "there is no domestic abuse exception to the Fourth Amendment, generally." United States v. Black, 466 F.3d 1143, 1147 (9th Cir. 2006). The Second Circuit has upheld an officer's determination that exigent circumstances, based on asserted domestic violence, were present where the anonymous call was made by the victim from the location to which police were responding. Anthony, 339 F.3d at 136-37. Specifically, in that case the court found that the substance of the 911 call created exigent circumstances because the caller expressed the belief that she faced "an immediate and deadly threat of harm." Id. Here, the 911 call was placed by a neighbor who refused to identify herself, not by the alleged victim, nor from a person within the potential victim's residence. Gov't Exh. 1; Tr.I 15; Tr.II 334-36.

Additionally, contrary to the facts in Anthony, supra, the information provided by the 911 caller in the instant case was not unambiguously indicative of a recent domestic dispute involving personal violence. Rather, the 911 caller stated that "some degree of commotion" daily transpires at the residence and asserted that the noise "sounds like a physical fight, you can hear people going at the walls, rumbling down the stairs ...." Gov't Exh. 1. When Stephens spoke with the neighbor, she described "family arguments" as occurring at the apartment. Tr.II 133. Although as described by the neighbor, such sounds may have been caused by "family argument[s]", they are also consistent with people noisily running up or down stairs, and loud and even offensive talking.

That it was objectively unreasonable for the investigating officers to conclude exigent circumstances justified their warrantless entry of the Sikut residence is tellingly supported by the relevant transcript of the 911 call which demonstrates, unequivocally, contrary to the Government's contention, that, upon arriving at the scene, Stephens did not believe that the elderly couple residing at the apartment were in imminent danger. Rather, according to his own statement to the dispatcher, Stephens believed, prior to the warrantless entry at issue, that the unidentified caller was probably incorrect in believing that a domestic disturbance at the Sikut apartment had occurred when she telephoned 911, on March 20, 2005, even stating to the 911 dispatcher that the elderly couple "should be alright." Gov't Exh. 1.

Plaintiff's plea to a lesser offense precluded litigating the question of probable cause for his arrest for the greater offense, too. Corvin v. Bice, 2007 U.S. Dist. LEXIS 17314 (E.D. Tenn. March 9, 2007), all without citing Heck v. Humphrey:

[S]tate court proceeding is accorded preclusive effect in a later § 1983 suit in federal court so long as the state court proceeding met minimal standards of due process. Stemler, 126 F.3d at 871. Plaintiff has not presented any evidence he suffered a deprivation of due process in the state court criminal proceedings. Plaintiff's guilty plea in state court and the imposition of fines by that court estop his assertions in this Court that Defendant officers acted without probable cause and consequently, his Fourth Amendment claim of false arrest. Walker, 854 F.2d at 142; Smith v. Thornburg, 136 F.3d 1070, 1077 (6th Cir.1998); Stemler, 126 F.3d at 871; Donovan, 105 F.3d at 297-98; Coogan v. City of Wixom, 820 F.2d 170, 175 (6th Cir.1987)(abrogated on other grounds Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994)); Wilson v. Johnson, 2005 U.S. Dist. LEXIS 39311, 2005 WL 2417057 at *7-9. n12

The Court concludes it is bound by the state court decision that there was probable cause to arrest Plaintiff and consequently, his Fourth Amendment claims of false arrest and imprisonment are precluded. As noted above, the Court did not consider Plaintiff's response to Defendants' motion (Court File No. 23) since it was untimely filed. However, even if the Court had considered Plaintiff's response before making its ruling, it still would have granted Defendants' motion for summary judgment on these issues since Plaintiff admits the granting of summary judgment is proper concerning his false arrest and false imprisonment claims. Accordingly, Defendant's motion for summary judgment on these issues will be GRANTED and Plaintiff's 42 U.S.C. § 1983 false arrest and false imprisonment claims will be DISMISSED as to all Defendants.

Defendant's request for a Franks hearing failed because his moving papers attack the statements of two persons they believed were the unreliable confidential informations, but they were not the informants. The two informants provided significant corroborating information. United States v. Makki, 2007 U.S. Dist. LEXIS 17413 (E.D. Mich. March 13, 2007).*

Civil case over entry for alleged drinking of minors did not state a claim because there was probable cause. The plaintiffs did not challenge the statute was unconstitutional. "Whether or not a minor is in possession of an alcoholic beverage just by being in the house is a question for a court to decide. There is no indication that an arrest under such circumstances is without probable cause." Most of the plaintiffs do not have standing because they did not live in the house that was entered. Cooper v. City of Woodville, 2007 U.S. Dist. LEXIS 17199 (E.D. Tex. March 12, 2007).*


Permalink 08:50:41 am, by fourth, 122 words, 407 views   English (US)
Categories: General

DoJ's webpage and the National Security Letter probe of the DoJ IG

The U.S. Department of Justice website has links on its homepage, at least as of now, of its Inspector General's findings on abuse of National Security Letters not being used for national security purposes.

Attorney General's letter responding to IG

Attorney General's speech of March 9

FBI's letter responding to IG

DoJ's response

DoJ factsheet on NSLs

Did anybody, DoJ employees included, think that NSLs would not be confined to national security purposes only? Of course not. If history of the power to search and seize has proved anything, it is this: To just grant power to law enforcement insures that it will be exercised to the fullest extreme possible, so Congress in granting the power had to know what was coming.

Permalink 05:11:00 am, by fourth, 873 words, 3992 views   English (US)
Categories: General

UT: Odor of burning marijuana not a sufficient exigent circumstance for a warrantless entry into the home

The Utah Supreme Court holds that the mere smell of burning marijuana is not a sufficient exigent circumstance to justify a warrantless entry into the home even though it involves "destruction of evidence." State v. Duran, 2007 UT 23, 156 P.3d 795, 573 Utah Adv. Rep. 3 (2007):

We decline to pare back a fundamental constitutional guarantee where the commission of an offense--in this case, smoking marijuana--involves as its incidental but inevitable consequence the destruction of evidence. According to the testimony of the police officers who conducted the warrantless entry in this case, the marijuana was being "destroyed" by persons who were "in the very process of smokin' up the evidence." This is an odd departure, indeed, from the circumstances that typically attend destruction of evidence exigencies. In most instances, an exigency arises from the possibility that persons, alerted to the presence of law enforcement officials seeking to execute a search warrant, might understandably rid themselves of any trace of contraband. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (en banc) (holding that exigent circumstances were present where "the [law enforcement] agents could reasonably conclude from the defendants' hurried actions and furtive looks that [they] were either aware or afraid that someone was watching them [and] [d]estruction or removal of ... the narcotics was therefore a possibility" (footnote omitted)). The reverse is also true, as it is well-recognized that "[c]ircumstances are not normally considered exigent where the suspects are unaware of police surveillance." Id. at 1511; see, e.g., United States v. Elkins, 300 F.3d 638, 656-57 (6th Cir. 2002); United States v. Davis, 170 F. Supp. 2d 1234, 1239 (M.D. Fla. 2001).

Calling 911 where the caller, although not leaving her name, has to know that the number was captured and the telephone call recorded, is entitled to greater weight than an otherwise anonymous call. Commonwealth v. Costa, 448 Mass. 510, 862 N.E.2d 371 (March 13, 2007):

In this regard, it is important to recognize that citizens who report criminal activity justifiably may be concerned for their own safety if their identity becomes known to the persons subsequently investigated or arrested, and for this reason may wish to remain anonymous. This circumstance should not stand as an insurmountable impediment to a favorable assessment of their reliability in a case such as the one before us. In this respect, we agree with Justice Kennedy's observation that "a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action." Id. at 275. Some of those features might include "[i]nstant caller identification," "[v]oice recording of telephone tips [that might] be used by police to locate the caller," and "the ability of the police to trace the identity of anonymous telephone informants." Id. at 276.

By providing information to the police after knowing that her call was being recorded, and that the number she was calling from had been identified, we conclude that the caller placed her anonymity sufficiently at risk such that her reliability should have been accorded greater weight than that of an anonymous informant. Although at the end of the conversation the caller appeared anxious to terminate the telephone call, and did not leave her name, it is apparent from the tape recording of the conversation that she was principally concerned about the defendant (not the police) knowing her identity if she were to be observed on the cell phone.n11

n11 The caller was neither asked her name by the 911 operator nor did she say that she wanted to remain anonymous. Contrast Commonwealth v. Barros, 435 Mass. 171, 172 n.1, 755 N.E.2d 740 (2001).

Consent was not voluntary. People v. Gulla, 2007 N.Y. Misc. LEXIS 826, 237 N.Y.L.J. 41 (Rockland Co. February 15, 2007):

In this case, the defendant was clearly in custody. People v. Yukl, 25 N.Y.2d 585, 589, 256 N.E.2d 172, 307 N.Y.S.2d 857 (1969). Further, the "immediate events of an arrest, especially a resisted arrest, do, however, engender an atmosphere ordinarily contradictory of a capacity to exercise a free and unconstrained will." People v. Gonzalez, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 383 N.Y.S.2d 215 (1976). In this case, the testimony makes clear that the defendant resisted being handcuffed and resisted being placed in the police car. Additionally, the police displayed their weapons in effectuating the arrest.

At the time the consent was given, there was a large number of officers present in the vicinity of the defendant. Id. at 129. Further, the fact that the defendant was handcuffed at the time is significant. Id. Additionally, the defendant was not cooperative throughout the encounter with police.

Significantly, the defendant was agitated and intoxicated at the time the consent was allegedly given.

Prior to giving consent, the defendant was not Mirandized and not advised of his right to withhold his consent. Id. at 130. Although such warnings are not absolutely essential to establishing voluntary consent, failure to advise the defendant of his right to refuse is a factor to be considered. Id.

The only factor that does not weigh against a finding of voluntariness is the factor concerning the defendant's background. This factor favors neither side since no evidence was adduced at the hearing.

Accordingly, the People have not met their burden of establishing that the defendant's consent was voluntary.

Permalink 04:46:22 am, by fourth, 696 words, 708 views   English (US)
Categories: General

Hot pursuit does not require a "hue and cry" in the streets

Hot pursuit justified police entry into defendant's premises. Dorkoski v. Pensyl, 2007 U.S. Dist. LEXIS 17114 (M.D. Pa. March 9, 2007):

Hot pursuit involves following an individual from a public place into a private place. United States v. Santana, 427 U.S. 38, 42-43 (1976). The doctrine applies when the pursuit is immediate and fairly continuous from the scene of the crime. Welsh, 466 U.S. at 753. Although hot pursuit of a suspect must be fairly continuous, it is not necessary that the suspect be kept physically in view at all times. See e.g., U.S. v. Miller, 449 F.2d 974 (D.C. Cir. 1970); People v. Escudero, 592 P.2d 312 (Cal. 1979). In addition, a "hot pursuit" need not be "an extended hue and cry in and about [the] public streets." Santana, 427 U.S. at 42-43. Further, "it is not necessary under cases defining hot pursuit that each defendant be in flight in order to sustain warrantless arrests of persons in their homes by pursuing police officers." Jones v. Waters, 570 F.Supp. 1292, 1297 (E.D. Pa. 1983). Where police officers know where a suspect is, but decide that it would be dangerous to enter without reinforcements, the officers are justified in waiting to enter until reinforcements arrive. See U.S. v. Johnson, 256 F.3d 895, 908 (9th Cir. 2001)(comparing U.S. v. Linsey, 877 F.2d 777, 779 (9th Cir. 1989)). Under such circumstances, the "continuity" of the chase is delayed, but not broken. Id. (citing United States v. Lindsay, 506 F.2d 166, 173 (D.C. Cir. 1974)).

In this case, the court finds that exigent circumstances existed, which justified the defendants' warrantless entry into the plaintiff's property. To this extent, the record establishes that Kip had assaulted Mr. Gilligbauer, threatened to kill him, and brandished either a baseball bat or a pipe at the time. While the police were investigating the incident, Kip returned to the scene of the crime and taunted Mr. Gilligbauer and the officers. Kip was noted to have a red substance on his face, which was believed to be blood. When defendant Wolfe pursued Kip in his police cruiser with lights and siren activated, Kip led defendant Wolfe on a high speed chase through Shamokin and into neighboring Coal Township.

When the vehicle chase came to an end, Kip exhibited erratic behavior and charged at defendant Wolfe, asking "Why don't you just shoot me?" Afterwards, defendant Wolfe attempted to physically subdue Kip, at which time Kip attempted to strike defendant Wolfe. Kip was pepper sprayed. He then ran from defendant Wolfe and a foot chase ensued, which ultimately ended at the plaintiff's property.

Punitive damages claim in police shooting death case survived summary judgment based on allegations of wilfullness. Martin v. Davis, 2007 U.S. Dist. LEXIS 16975 (E.D. La. March 8, 2007).*

"Custody" for purposes of Miranda requires more than just being the target of an investigation. Custody must be communicated. United States v. Fred, 2006 U.S. Dist. LEXIS 95639 (D. N.M. August 11, 2006):

Pursuant to this understanding, both the Supreme Court and the United States Court of Appeals for the Tenth Circuit have held that an individual is not "in custody" for Miranda purposes simply because the individual is the target of an investigation or a suspect in a crime. See, e.g., Stansbury v. California, 511 U.S. at 319 ("We hold, not for the first time, that an officer's subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody."); United States v. Leach, 749 F.2d 592, 599-600 (10th Cir. 1984)(refusing to classify defendant as "in custody" merely because he was the target of a counterfeit note investigation). For an individual's status as a suspect to be relevant, the questioning officer must convey his knowledge or belief with regard to that status, by word or deed, in such a manner as to "affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action.'" Stansbury v. California, 511 U.S. at 325.

Officer's observation that the defendant's vehicle was proceeding in a straight line close to the lane divider markings did not provide an objectively reasonable and particularized suspicion that the driver was operating the vehicle while impaired. State v. Hess, 154 P.3d 557 (2006).*


Permalink 05:54:01 am, by fourth, 662 words, 565 views   English (US)
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Payton's reasonable belief arrestee is inside can be created by actions of others

For a "reasonable belief" under Payton, it is not required that officers actually see the suspect. Actions of others can create such a belief. United States v. Foutch, 219 Fed. Appx. 774 (10th Cir. 2007) (unpublished):

The first prong is satisfied because there is no dispute that the trailer was Mr. Foutch's home. The second prong is also satisfied because the deputies had a "reasonable belief" that Mr. Foutch was in the residence. Id. In Valdez, this court concluded that officers entering a suspect's dwelling with an arrest warrant need not have actual knowledge that he is home; rather, they must have an "objectively reasonable" belief that he is present. Id. The court emphasized that "actual viewing of the suspect on the premises is not required. Indeed, the officers may take into account the fact that a person involved in criminal activity may be attempting to conceal his whereabouts." Id. at 1226 (citation omitted).

Here, the district court found that Ms. Shatto's equivocating responses to the deputies' questions about Mr. Foutch's whereabouts gave them a reasonable basis to believe he was lurking in the trailer.

In a similar case, the C.D. Ill. holds that the standard for entry of a third person's home with a warrant is reasonable suspicion and not probable cause. Covington v. United States Department of Justice, 2007 U.S. Dist. LEXIS 16872 (C.D. Ill. March 8, 2007).

Prison search and strip search claims fail. Monroe v. Beard, 2007 U.S. Dist. LEXIS 16943 (E.D. Pa. March 7, 2007):

During the search of their cells, prison officers strip searched plaintiffs in their cells, ordered them to dress, handcuffed them and made them stand outside the cells while the officers searched inside. Plaintiff Collins states that an officer inserted a finger in his rectum during the search. These allegations do not violate the Eighth Amendment's prohibition against cruel and unusual punishment.

The Eighth Amendment forbids the unnecessary and wanton infliction of pain that is without penological justification. Hope v. Pelzer, 536 U.S. 730, 737-738 (2002) (citing Rhodes v. Chapman, 452 U.S. 337, 346 (1981)). Plaintiffs' pleadings do not establish that they were subjected to unnecessary pain during the August 4, 2005 search of their cells. The methods used by SCI-Graterford to conduct the search fall into well-established parameters. The Eighth Amendment excludes de minimus uses of physical force. Hudson v. McMillian, 503 U.S. 1, 9 (1992) (not "every malevolent touch by a prison guard gives rise to a federal cause of action."). The type of search conducted here--handcuffing a prisoner, removing him from his cell, and strip-searching him--is a de minimus intrusion that does not violate the Eighth Amendment. Ostrander v. Horn, 145 F. Supp. 2d 614, 618-19 (M.D. Pa. 2001) aff'd 49 Fed. Appx. 391 (3d Cir. 2002); see also Hill v. Blum, 916 F. Supp. 470, 473 (E.D. Pa. 1996) (pat search of the genital area does not implicate the Eighth Amendment).

Plaintiffs cannot claim any violation of their Fourth Amendment rights. The Supreme Court has determined that a prisoner does not have a legitimate expectation of privacy in his cell and therefore "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions." Hudson v. Palmer, 468 U.S. 517, 526 (1984). Searches of inmates and their cells are necessary to ensure the security of the prison and the safety of all inmates. Id. at 529. Accordingly, the Fourth Amendment does not protect an inmate from seizures of his property. Id. at 528-29. Nor does it protect inmates from visual cavity searches. Bell v. Wolfish, 441 U.S. 520, 558 (1979) (affirming the use of post-visitation body cavity searches that required male inmates to lift their genitals and bend over and spread their buttocks for visual inspection).

Off-duty California officers have the authority to arrest. United States v. Fay, 2007 U.S. Dist. LEXIS 16947 (E.D. Cal. February 23, 2007).

Informant may be corroborated by information that is not itself criminal. United States v. Quezada-Enriquez, 2007 U.S. Dist. LEXIS 16846 (D. N.M. February 5, 2007).


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9th Cir.: Probable cause can dissipate after an arrest, as it did here

The police stopped the defendant based on reasonable suspicion and a belief that he was the shooter in an incident. After the arrest, however, it became obvious that probable cause no longer existed to believe that defendant was the shooter, and the contination of the arrest became unlawful. Even the alternative theory of probable cause advanced by the government showed dissipation. United States v. Lopez, 482 F.3d 1067 (9th Cir. 2007):

The government’s analysis, however, overstates the significance of Lopez’s connection to the getaway car, insofar as it is contended that the connection shows Lopez was the attempted shooter. But cf. infra Part IV.C. And, more importantly, the government’s analysis fails to account for substantial, countering indicators. The effect of evidence which may support, or incline toward, a finding of probable cause can, of course, be vitiated by countervailing evidence. See Ortiz-Hernandez, 427 F.3d at 574. This was the case here, where there was substantial evidence known to the police tending to show that the defendant was not the person responsible for the earlier attempted shooting.

It is well established that a person’s mere presence or “mere propinquity to ... criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979) (holding that police lacked probable cause to search a person based solely on his presence in a tavern at a time when the police had reason to believe the bartender possessed heroin for sale). We have distinguished the “mere presence” doctrine from cases in which the “facts and circumstances ... support an inference that [an] individual is connected to the proximate criminal activity.” United States v. Buckner, 179 F.3d 834, 839 (9th Cir. 1999). Although the government argues that this is such a case, we find this case distinguishable from Buckner and the other cases cited by the government.

In Buckner, we concluded that the “attendant facts and circumstances support[ed] a fair probability” that the defendant—the sole passenger in a car carrying thirty-seven pounds of marijuana hidden in the dashboard and rear panels—“was linked to the crime of drug trafficking.” Id. We noted a number of relevant facts, including the following: the car belonged to neither occupant and was procured under suspicious circumstances, the car was entering the United States from a Mexican city known as a drug source, and officers considered it typical for drug traffickers to travel in pairs to deflect suspicion. Id. at 837, 839; see also Carranza, 289 F.3d at 640 (finding probable cause where inspectors knew that defendant was sole passenger in vehicle carrying commercial quantity of illegal drugs across the border; there was strong smell of gasoline coming from the vehicle, and gas tanks are frequently used to smuggle drugs; and driver of the vehicle made suspicious, false statements); United States v. Valencia-Amezcua, 278 F.3d 901, 906-08 (9th Cir. 2002) (finding probable cause based on defendant’s physical proximity to the crime scene-and suspicious conduct in helping to attempt to conceal a secret door).

[7] The instant case is unlike Buckner, Carranza, and Valencia-Amezcua in several respects. To begin, Lopez was not directly or immediately associated with the scene of the crime (the attempted shooting). The public parking lot to which he delivered Ms. Polish (approximately eight hours after the incident involving the Ford Focus driver and the law enforcement officers) was at least some distance away from the crime scene, and Lopez did not make direct contact with the getaway vehicle—Polish was the one to take possession of the Ford Focus. In Buckner and Carranza, by comparison, the arrested person was present in a car when it was found to be transporting illegal drugs—providing both temporal and physical proximity to the commission of a crime. See Buckner, 179 F.3d at 838; Carranza, 289 F.3d at 637-39; see also Valencia-Amezcua, 278 F.3d at 907-08 (noting defendant’s physical and temporal proximity to the crime scene).

[8] Moreover, we find that attendant facts gathered by the police tended to dissipate, rather than support, probable cause to believe Lopez was the attempted shooter. After he was stopped, Lopez was positively identified as Hosvaldo Lopez, the registered owner of the Ford Taurus he was driving. When the police removed Lopez’s driver’s license from his wallet, they could readily compare it with the information they had from the Department of Motor Vehicles regarding the owner of the Ford Focus and see that Lopez and Gamez had different names. The police were also in a position to observe that Lopez’s appearance did not match the Department of Motor Vehicles’ physical description of Gamez. It should then have been manifest that Lopez was not Gamez, the registered owner of the getaway car. Furthermore, police officers testified that “Lopez was actually very cooperative” and responded appropriately and “without hesitation” to all of the officers’ requests. Cf. United States v. Mills, 280 F.3d 915, 921 (9th Cir. 2002) (finding that defendant’s suspicious remarks to the police were a factor supporting probable cause).

[9] By the time Lopez was brought to the police station for questioning and to give consent to the search of his car, the police had observed and gathered a substantial amount of information. Given the totality of the facts the police had assembled by the time they commenced questioning Lopez at the police station, we conclude that the police did not then have probable cause to believe that Lopez was the attempted shooter.

Permalink 10:27:50 am, by fourth, 41 words, 599 views   English (US)
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8th Cir.: Prisoner's claim for damages stemming from an alleged miscalculation of his parole-eligibility date is barred under Heck

Prisoner's claim for damages stemming from an alleged miscalculation of his parole-eligibility date is barred under Heck v. Humphrey, 512 U.S. 477 (1994). Illegal sentence must be challenged in a habeas action. Robertson v. Sumner, 2007 U.S. App. LEXIS ___ (8th Cir. March 12, 2007) (unpbulished).

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State cannot relitigate search and forfeiture issue by a Rule 60 motion for relief of judgment after losing on appeal

In Ohio, the state lost an appeal of whether an illegal search occurred that led to a forfeiture. In the trial court, the state sought relief from the judgment under Rule 60, essentially rearguing the case, because the property sought return of (a vehicle and cash) was not contraband per se. State v. Loza-Gonzalez, 2007 Ohio 1044, 2007 Ohio App. LEXIS 970 (6th Dist. March 9, 2007):

[*P12] In the state's second assignment of error, it argues that the trial court exceeded its authority in ordering contraband returned to appellee. Contraband is any property, in and of itself illegal to possess, or property determined to be contraband based on its connection to a criminal offense. See R.C. 2901.01(A)(13)(a)-(k), 2933.43(C). There is nothing inherently illegal in possessing a vehicle or cash. See One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U.S. 693, 699 ("There is nothing even remotely criminal in possessing an automobile."); State v. Roberts (1995), 102 Ohio App.3d 514, 518 ("Mere possession of cash is not unlawful."). Thus, the property is not contraband per se.

[*P13] The property is also not derivative contraband because the state failed to demonstrate that the property had any connection to a criminal offense. See e.g. State v. Ali (1997), 119 Ohio App.3d 766, 770 ("Because the $ 15,000 was never linked to an underlying criminal offense, we cannot agree that the state proved by a preponderance of the evidence that the money was contraband."). Furthermore, the Fourth Amendment protections against illegal search and seizure extend to a forfeiture proceeding. See One 1958 Plymouth Sedan, 380 U.S. at 696.

[*P14] The state cannot circuitously use the illegally seized property to establish the underlying criminal act, in order to support forfeiture of the illegally seized property. In this case, the state offered no other evidence (independent of the illegal search) to link the property to a criminal act and support forfeiture. See contra United States v. Eighty-Eight Thousand, Five Hundred Dollars (C.A.8, 1982), 671 F.2d 293, 296-297 (upheld forfeiture of cash arising from an illegal search since the state established, through independent evidence, that the cash was used to commit a crime).

[*P15] Without independent evidence, the state alternatively argues that a vehicle, modified with a hidden storage compartment, is inherently criminal based on the prevalence of such modifications for use in the drug trade. However, the presence of a secret compartment, without more, does not make possession of the vehicle criminal. See e.g. United States v. Maltais (C.A.8, 2005), 403 F.3d 550, 554-555 (the secret compartment was just one fact among a "constellation of facts" providing the officer with reasonable, articulable suspicion to detain the driver); People v. Conception (1997), 655 N.Y.S.2d 921, 925-926 (the compartment, a recognized car trap which could only be opened by the performance of a complex protocol, could enhance the arresting officer's "predicate for arrest" where it was "supported by something more than mere guesswork").

Officer taking possession of a child from his parent under a guardianship order was entitled to qualified immunity because it was not clearly established that this action violated the constitution. Burch v. Moore, 2007 U.S. Dist. LEXIS 16832 (S.D. W.Va. March 8, 2007).*


Permalink 08:58:50 am, by fourth, 817 words, 527 views   English (US)
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Idaho: Searching bystander during a probation search also requires reasonable suspicion

When a probation search occurs, there must be reasonable suspicion to search a bystander on the premises with the probationer. If Summers requires that for a search warrant, it has to apply here as well. In this case, the bystander was outside at the time, and he posed no threat to the probation officers. State v. Reynolds, 143 Idaho 911, 155 P.3d 712 (2007).

Defendant's consent was shown to be voluntary on the totality after having evaluated his testimony and his criminal history. United States v. Simpson, 2007 U.S. Dist. LEXIS 16729 (M.D. Tenn. March 8, 2007):

Defendant is twenty-six years old and, while his educational background is unknown, he understands the English language and was articulate during the evidentiary hearing. He has an extensive criminal record, including convictions for being a felon in possession of a firearm and possession of cocaine. Based on his extensive encounters with law enforcement, there is little doubt he knew about his right to refuse to consent. This is further evidenced by the fact that he initially did not give consent to search.

Further, at the time of the consent, Defendant was not in handcuffs and there was no coercive conduct by the police. Defendant was not physically restrained or even touched prior to the consent, nor was Defendant verbally threatened in any way. The officers did not have their weapons drawn when they approached the Defendant, and the whole encounter until the time consent was given was only a couple of minutes.

While Defendant claims he did not consent to search, the Court does not credit his testimony. If Detective Stokes was making up the story about consent being given, it would be easier to have simply testified that Defendant consented as soon as he was asked, instead of testifying that Defendant initially questioned the propriety of a search since he "had done nothing wrong."

Since this Court credits the testimony of Detective Stokes and rejects the testimony of the Defendant, the Government has shown, by clear and convincing evidence, that Defendant knowingly and voluntarily consented to a search. Accordingly, Defendant's Motion to Suppress Evidence will be denied.

Defendant did not object to consent search at trial. On review for plain error, his argument that the officers failed to warn him of his right to refuse is foreclosed by Schneckloth. On the totality of circumstances, consent was voluntary. As to defendant's argument of alleged "baseless threats" to get a warrant if the defendant did not consent, they were hardly "baseless"--there was plenty of probable cause. United States v. Gutierrez, 221 Fed. Appx. 446 (7th Cir. 2007).*

Arkansas requires that a state's interlocutory appeal from a grant of a suppression motion be in the interest of the uniform application of the law, and a fact-based determination does not apply. State v. Jones, 369 Ark. 195, 242 S.W.3d 119 (2007):

As a matter of practice, this court has only taken appeals which are narrow in scope and involve the interpretation of law. See State v. Pittman, 360 Ark. 273, 200 S.W.3d 893 (2005). We do not permit State appeals merely to demonstrate the fact that the trial court erred. See id. Thus, where an appeal does not present an issue of interpretation of the criminal rules with widespread ramifications, this court has held that such an appeal does not involve the correct and uniform administration of the law. See id. Similarly, where the resolution of the issue on appeal turns on the facts unique to the case or involves a mixed question of law and fact, the appeal is not one requiring interpretation of our criminal rules with widespread ramification, and the matter is not appealable by the State. See id. Finally, where an appeal raises an issue of the application, not interpretation, of a criminal rule or statutory provision, it does not involve the correct and uniform administration of the criminal law and is not appealable by the State under Rule 3. See id.

Here, the State claims that the circuit court "applied a flawed interpretation of the law to suppress evidence seized pursuant to a search warrant." We hold that the resolution of the issues presented would necessarily require an intensive factual discussion. Therefore, this appeal is not one requiring interpretation of our criminal rules; instead, it raises issues involving the application of our rules to the facts of the case. Moreover, it is clear that the circuit court's determination necessarily turned on the circuit court's assessment of the witnesses' credibility. We have never wavered on our longstanding rule that it is in the province of the circuit court, not this court, to determine the credibility of witnesses. See State v. Nichols, supra. Nor would a review of this appeal have widespread ramifications on the interpretation of our criminal law. Accordingly, we hold that it does not involve the correct and uniform administration of the criminal law and does not fall within the confines of Ark. R. App. P.--Crim. 3. We, therefore, dismiss the appeal.


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Administrative search does not occur by sending undercover officer into massage establishment where illegal touching occurred

Alabama Board of Massage Therapy did not commit an illegal administrative search by sending into petitioner's massage business an undercover person whom he touched unlawfully. He had no reasonable expectation of privacy that the person would not report it. Knoblett v. Alabama Bd. of Massage Therapy, 963 So. 2d 640 (Ala. Civ. App. 2007), released for publication July 26, 2007:

T.D.'s alleged search consisted of her simply receiving a massage from Knoblett. Knoblett has not established that he had a reasonable expectation of privacy in conducting typical business with the public at his massage-therapy establishment. Like the defendant in Hoffa who invited the informant into his hotel room, Knoblett invited T.D. to receive a massage at his massage-therapy establishment. See Ex parte Kraatz, 775 So. 2d 801, 803 (Ala. 2000) (quoting Raspilair v. Bruno's Food Stores, Inc., 514 So. 2d 1022, 1023 (Ala. 1987)) ("'Generally, a patron of a business ... is an invitee.'"). Similarly, Knoblett had no legitimate expectation that whatever wrongdoing he perpetrated during the May 3, 2002, massage of T.D. would not be reported to the authorities by T.D. Although she was hired by the Board, T.D. received massages from Knoblett in the same manner as any other member of the general public might. "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351 (1967). Accordingly, we conclude that T.D.'s receiving a massage from Knoblett does not constitute a Fourth Amendment search.

Officer's observation of a hand-to-hand drug deal followed by defendant's flight was reasonable suspicion. State v. Fletcher, 2007 Ohio 989, 2007 Ohio App. LEXIS 917 (8th Dist. March 8, 2007).*

Officer stopped the defendant after a report from a city councilman that defendant was involved in drug trafficking. Defendant consented to a search then and nothing was found, but the vehicle had a temporary tag and the officer told the defendant to take care of getting the vehicle licensed. Days later, the vehicle was seen again parked with the window down in 20º weather which made the officer think that defendant was engaged in drug sales from his vehicle. The officer parked and approached, and, in plain view on the seat, was a rock of crack. The view was lawful and that was probable cause. State v. Biggs, 2007 Ohio 982, 2007 Ohio App. LEXIS 924 (8th Dist. March 8, 2007).*

Officer pulled over defendant's vehicle because the driver of the vehicle behind it was flashing her lights and waving. The stop was without reasonable suspicion that a crime was occurring. State v. Day, 2007 Tenn. Crim. App. LEXIS 212 (March 7, 2007):

In the instant case, the officer did not, at the time he pulled over the defendant's vehicle, possess enough information upon which an officer could reasonably suspect that the defendant had committed or was about to commit a criminal offense. Prior to pulling over the defendant's vehicle, the only communication between the officer and the other driver consisted of the driver's flashing her lights at the officer and gesturing toward the defendant's vehicle. At the time the officer pulled over the defendant, the officer knew nothing about either driver or about the nature of the citizen's concern regarding the defendant. Without speaking to the unknown citizen, the officer was unable to assess or establish her reliability or the basis for her knowledge of the defendant's supposed offense--or if the other driver even knew anything about the defendant. The two required elements to be established under Pulley were clearly missing in this case.

Had the officer spoken to the citizen before pulling over the defendant's vehicle, this court may well have reached a different decision. However, the officer did not speak to the citizen and gather the requisite information necessary to create a reasonable suspicion until after the officer pulled over the defendant's vehicle--a clear violation of the Pulley-Binette mandate that such reasonable suspicion be created before the officer switches on his blue lights.

Permalink 08:54:42 am, by fourth, 485 words, 604 views   English (US)
Categories: General

Shooting at plaintiff during a scuffle and arrest was not excessive force under the circumstances

In an excessive force claim, an officer's pointing a gun and shooting (without hitting) was not excessive force under all the circumstances because of the risk of violence by the plaintiff. Hendricks v. Governor's Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 16322 (E.D. Tenn. March 7, 2007):

Considering the totality of the circumstances, the Court does not believe that the force used against plaintiff by defendants Poore and Rodriguez was unreasonable. As noted by the Government Task Force defendants in their brief in support of their motion for summary judgment, the Supreme Court has held that it is not unconstitutionally unreasonable for a law enforcement officer to use deadly force where that officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others. Tennessee v. Garner, 471 U.S. 1, 11 (1985). Even viewing all of the facts in the light most favorable to plaintiff, defendant Rodriguez did not act unreasonably in using deadly force against him. Given that plaintiff had fired four shots in the air and brandished a .22-caliber rifle for the express purpose of "wanting to let them know that I was also armed," [Doc. 1 at 5], both defendants Poore and Rodriguez had probable cause to believe that plaintiff posed a threat of serious physical harm to them. As they admit in their brief in support of their motion for summary judgment, defendants Poore and Rodriguez "reasonably believed that plaintiff would shoot at them again." [Doc. 42 at 9.] All of the evidence suggests that defendant Rodriguez shot at plaintiff out of self-defense. See Garner, 471 U.S. at 11. Thus, because defendant Rodriguez's actions were motivated by a concern for protecting and preserving his own life and that of his fellow officers, the shot he fired at plaintiff was not unreasonable. Sargent v. City of Toledo Police Dept., 150 Fed. Appx. 470, 475 (6th Cir. 2005).

Petitioner's defense counsel was not ineffective for not filing a suppression motion that would have lost. Brown v. United States, 219 Fed. Appx. 917 (11th Cir. 2007)* (unpublished).

Defendant's stop and patdown was with reasonable suspicion where he was walking through a muddy lot with his hands in his pockets and continually looking back at a police car. He went up onto a porch and "odd[ly] pantomime[d]" knocking on the door. United States v. Harris, 218 Fed. Appx. 916 (7th Cir. 2007).*

In a § 1983 case challenging a drug stop, "[d]efendants' contention that they acted reasonably under the circumstances goes uncontradicted" in the summary judgment papers so plaintiff loses. Lee v. Matthews, 2007 U.S. Dist. LEXIS 16343 (E.D. Mich. March 8, 2007).*

Officers surveilled defendant from Chicago into Indiana where he dropped off a duffle bag and returned to Chicago, and the officers, based on experience, thought it was a drug deal. He was stopped back in Chicago, and he validly consented to a search of his backpack at his home. United States v. Dang, 2007 U.S. Dist. LEXIS 16642 (N.D. Ill. March 7, 2007).*


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Ohio and Texas wrongly hold that standing may be raised by the appeals court where the state failed to argue it

Ohio held three weeks ago, in a case received today, that standing may be raised by the appeals court where the state failed to argue it. Here, she was "merely a guest," but the result would be the same and she would lose on the merits. State v. Bugaj, 2007 Ohio 967, 2007 Ohio App. LEXIS 903 (7th Dist. February 14, 2007). Texas just did the same thing, again, yesterday in Velez v. State, 240 S.W.3d 261 (Tex. App. — Houston (1st Dist.) 2007):

The State may challenge a defendant's standing to contest a search for the first time on appeal. Kothe v. State, 152 S.W.3d 54, 60 (Tex. Crim. App. 2004). Here, the State did not challenge standing before the trial court, but instead stipulated that appellant had standing. Although the State did not challenge standing at the trial court, we address the State's appellate challenge to standing. See id.

Comment: The Arkansas Court of Appeals did a version of this to me in a case where the state never argued standing in the trial court, but it did on appeal, and I argued, to no avail, that the state cannot sandbag the defense and not contest standing and then argue lack of standing on appeal. See Steagald v. United States, 454 U.S. 204, 208-09 (1981), which prohibits the state from not challenging standing below then raising it on appeal:

The Government initially seeks to avert our consideration of the Fifth Circuit's decision by suggesting that petitioner may, regardless of the merits of that decision, lack an expectation of privacy in the house sufficient to prevail on his Fourth Amendment claim. This argument was never raised by the Government in the courts below. Moreover, in its brief in opposition to certiorari the Government represented to this Court that the house in question was "petitioner's residence" and was "occupied by petitioner, Gaultney, and Gaultney's wife." Brief in Opposition 1, 3. However, the Government now contends that the record does not clearly show that petitioner had a reasonable expectation of privacy in the house, and hence urges us to remand the case to the District Court for re-examination of this factual question.

We decline to follow the suggested disposition. Aside from arguing that a search warrant was not constitutionally required, the Government was initially entitled to defend against petitioner's charge of an unlawful search by asserting that petitioner lacked a reasonable expectation of privacy in the searched home, or that he consented to the search, or that exigent circumstances justified the entry. The Government, however, may lose its right to raise factual issues of this sort before this Court when it has made contrary assertions in the courts below, when it has acquiesced in contrary findings by those courts, or when it has failed to raise such questions in a timely fashion during the litigation.

In my case, the Arkansas Court of Appeals was perfectly content to let the state do this and reverse for lack of standing because it had not been shown below, despite the fact that the state did not put us on notice to defend against it. This is judicial dishonesty.

State failed in its burden to show that a protective sweep of the defendant's house was necessary after an arrest outside. Suppression order affirmed. State v. Pando, 284 Ga. App. 70, 643 S.E.2d 342 (2007):

Although Agent Massey testified that they entered the home and did the protective sweep because he believed "where there's drugs there's usually other people, and there's weapon[s] involved," there was simply no evidence of other people or weapons in this case. Agent Massey's generic concern, while not per se unreasonable, falls short of establishing specific, articulable facts that indicated someone else was inside Pando's house and posed a threat to the officers as they stood outside the house. See State v. Charles, 264 Ga. App. at 875-876 (1) (protective sweep of motel room was unjustified when there was no evidence that there was anyone inside the room). Moreover, the State has offered no explanation to show why, if the officers believed that they had enough evidence to secure a search warrant before entering the house and that there may have been other people waiting inside with weapons, they did not keep the defendants outside and secure the house from the outside while they obtained the search warrant, instead of choosing to enter the home and risk encountering a volatile and dangerous situation. See Illinois v. McArthur, 531 U. S. 326, 331-332 (II) (A) (121 S. Ct. 846, 148 LE2d 838) (2001) (given that officers had probable cause to believe that the defendant had drugs in his home, it was reasonable to detain the defendant outside his home for two hours while the officers secured a search warrant); see generally King v. State, 217 Ga. App. at 891 (an unnecessary, warrantless entry is not just illegal, but also unwise).

Accordingly, the evidence presented supports the trial court's finding that the warrantless entry into and protective sweep of Pando's home was not authorized under the circumstances and, therefore, violated the defendants' constitutional rights. The court's grant of the defendants' motion to suppress on that basis was not error. State v. Charles, 264 Ga. App. at 875-876 (1).

Arrested co-conspirator named the defendant as the person he was meeting for a drug deal. While the co-conspirator was not a "reliable, confidential informant," he was motivated to give accurate information because of his own predicament. The search warrant was based on probable cause. Massey v. State, 173 Md. App. 94, 917 A.2d 1175 (2007).

Missouri chooses to explain the difference between a motion to suppress and a motion in limine since one of them is interlocutorily appealable. State v. Whitwell, 215 S.W.3d 760 (Mo. App. S.D. 2007):

"The 'suppression' of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained." Id. "The in limine order which is sought to be appealed here is not an order 'suppressing' evidence or having that substantive effect." State v. Dwyer, 847 S.W.2d 102, 103 (Mo.App. 1992) (emphasis added). As an in limine order, the trial court's ruling had the substantive effect of excluding evidence, not suppressing evidence. "Section 547.200.1 was not intended to allow the appeal of this order in limine." Id. (emphasis added); see also State v. Holzschuh, 670 S.W.2d 184, 185 (Mo.App. 1984).

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Categories: General

Samson does not apply to Kansas parole searches, and refusal to consent is not reasonable suspicion

(Cases really late again today, and court all day.)

Samson does not apply to Kansas parole searches because Kansas law is different. Reasonable suspicion is required. And, "[r]efusal to consent to a search--even agitated refusal--is not grounds for reasonable suspicion." United States v. Freeman, 479 F.3d 743 (10th Cir. 2007):

In Samson v. California, 126 S. Ct. 2193 (2006), the Supreme Court extended the principle of Knights to uphold a warrantless search of a parolee even in the absence of reasonable suspicion, where the parolee had signed a parole agreement that allowed parole officers or other peace officers to search the parolee "with or without a search warrant and with or without cause." Id. at 2196. The Court noted "that some States and the Federal Government require a level of individualized suspicion," and strongly implied that in such jurisdictions a suspicionless search would remain impermissible. Id. at 2201. Parolee searches are therefore an example of the rare instance in which the contours of a federal constitutional right are determined, in part, by the content of state law.

We interpret the Griffin line of cases, based on "special need," as resting on the rehabilitative relationship between the parolee and the parole officer, and thus not extending to other law enforcement officers unless they are acting under the direction of the parole officer. We interpret the Knights-Samson line of cases as resting on the parolee's diminished expectation of privacy stemming from his own parole agreement and the state regulations applicable to his case. As we shall see, neither rationale justifies the search in this case.

Defendant was in a car with a wanted felon, and it was reasonable for the officers to order him out of the car at gunpoint and handcuff him. That was custody for Miranda purposes, but a request for consent was not an interrogation for Miranda purposes. A finding of consent under those circumstances here was not clearly erroneous. United States v. Curls, 219 Fed. Appx. 746 (10th Cir. 2007)* (unpublished):

We discern no such error here. Mr. Curls's argument amounts to the contention that the officers' drawing of weapons and the use of handcuffs, even if reasonable under the Fourth Amendment, renders any subsequent consent involuntary. However, a number of decisions have rejected that view. See United States v. Guiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (stating that "while we understand that the circumstances at the truck yard-law enforcement officers brandishing weapons, handcuffing [the defendant], and ordering him up against a wall-were unpleasant, there is nothing so inherently coercive about such tactics . . . to render subsequent cooperation involuntary") (internal quotation marks omitted); United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding that consent was voluntarily given even though the defendant had been "arrested by SWAT team members who broke into his home in the early morning, woke him, and forced him to the ground at gunpoint"); United States v. Espinosa-Orlando, 704 F.2d 507, 510, 513 (11th Cir. 1983) (concluding consent voluntarily given after four officers had drawn their weapons, asked the defendant to step away from his car, told him to lie on the grass, and asked for consent while he was on the ground and one officer still had his weapon drawn). Moreover, we note that Mr. Curls has cited no case law supporting his contention that the circumstances here were inherently coercive.

We therefore conclude that because Mr. Curls consented to the search of the car, the district court did not err in denying his motion to suppress.

Wildlife officers investigating a violation of the Migratory Bird Act did not enter the curtilage of defendant's home during the investigation. Assuming that there is a business curtilage, an issue not free from doubt, the court finds that his business curtilage was violated. The search, however, was not suppressed because enough was developed from the former search that there was probable cause and inevitable discovery. United States v. Zak, 476 F. Supp. 2d 29 (D. Mass. 2007).

A school locker search was justified by reasonable suspicion based on a tip from a named informant. Roy v. Fulton County School District, 509 F. Supp. 2d 1316 (N.D. Ga. 2007).*

Plaintiff stated a Franks issue for a § 1983 case. Taylor v. Payne, 2007 U.S. Dist. LEXIS 15824 (E.D. La. March 5, 2007)*:

After a review of the record, this Court finds a material discrepancy between the confidential informant's testimony, and defendant Payne's testimony. Defendant Payne's observations of the alleged drug transactions taking place outside of the tire shop are in relevant part disputed by the confidential informant in her most recent deposition. The discrepancy is material because these observations were relied on in order to obtain the search warrant.


Permalink 02:44:20 pm, by fourth, 743 words, 540 views   English (US)
Categories: General

Miss.: Use of a drug dog on a car is generally permissible

Use of a drug dog on a car is generally permissible in Mississippi. Jaramillo v. State, 950 So. 2d 1104 (Miss. App. 2007):

P7. Jaramillo's next contention, that the dog-sniff search was performed without probable cause in violation of the Constitution, is thwarted by the United States Supreme Court decision of Illinois v. Caballes, 543 U.S. 405 (2005). Even without reasonable, articulable suspicion, the performance of a dog sniff of the outside of a vehicle by a trained canine during a routine, valid traffic stop is not a violation of one's Fourth Amendment rights against unreasonable searches and seizures. Had the traffic stop been prolonged unreasonably for the purpose of a canine sniff, Jaramillo may have been able to challenge the constitutionality. But, Jaramillo does not contend that the Fourth Amendment violation against him occurred due to an extension of the time he was stopped. He contends, rather, that his rights were violated by the use of the drug detecting dogs in the search.

P8. The Supreme Court of the United States has spoken to the issue of the use of drug dogs during the course of a traffic stop. Caballes, 543 U.S. 405. The Supreme Court held that "the use of a well-trained narcotics-detection dog--one that 'does not expose noncontraband items that otherwise would remain hidden from public view'--during a lawful traffic stop, generally does not implicate legitimate privacy interests." Id. at 409 (quoting United States v. Place, 462 U.S. 696, 707 (1983)). Notwithstanding the uncontested fact that Jaramillo consented to the search of his vehicle during the traffic stop, we find that the use of narcotics-detection dogs during a stop based on probable cause did not violate the Fourth Amendment to the United States Constitution. We, therefore, uphold the decision of the trial court in denying Jaramillo's motion to suppress.

Officers raided defendant's next door neighbor's property after a drug sale, but the marked money disappeared. The officers came to defendant's property looking for it, plus they had information that defendant was involved in meth. His conversation with the officers was consensual at the time. That led to a consent search. Melton v. State, 950 So. 2d 1067 (Miss. App. 2007):

P16. The nature of his encounter with the deputy seems more properly characterized as a voluntary conversation. The investigation that was taking place was not directed at Melton personally but involved Melton because of the close proximity of his yard and the possibility that the drug money may be located on his property. Melton obviously knew he had the right to terminate the search, and exercised that authority in demanding the search end and not continue without a search warrant. Under these circumstances there was no illegal detention.

Private search conducted to aid police but with a motive to protect defendants' children from drugs was not a search instigated by the police; therefore, it was not subject to the Fourth Amendment. State v. Malkuch, 2007 MT 60, 336
Mont. 219, 154 P.3d 558 (2007).*

Defendant had no expectation of privacy in a vehicle abandoned in the woods. Maldonado v. State, 284
Ga. App. 26, 643 S.E.2d 316 (2007).*

Valid traffic stop led to reasonable suspicion with "red flag indicators" of the potential for illegal activity. Giles v. State, 284 Ga. App. 1, 642 S.E.2d 921 (2007).*

Under defendant's parole agreement, reasonable suspicion was not required for defendant to submit to a UA. State v. Pursley, 2007 SD 22, 729
N.W.2d 351 (2007):

[*P14] We conclude that a fair reading of the Agreement reveals that paragraph 5 is a general provision requiring reasonable suspicion for all parolee searches and seizures. The "Special Limitations" provisions of paragraph 13e list UAs and PBTs as specific exceptions to the reasonable suspicion requirement. Paragraph 13e unambiguously required Pursley to submit to UAs and PBTs as the checkbox provision covering those tests is marked and follows the clear, introductory language that states, "I will participate, cooperate and complete any programs as directed[.]" Moreover the checkbox provision expressly prefaces the tests as being random UAs and PBTs.

[*P15] Random is defined as "[l]acking aim or method, purposeless, not uniform, applies to that which occurs or is done without careful choice, aim, or plan." Webster's New World College Dictionary 1187 (4th ed 2001). This is clearly in contrast to reasonable suspicion that Black's Law Dictionary defines as "[a] particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity." Id. at 1273 (7th ed 1999). Under the provisions of the Agreement, requiring the parole agent to show reasonable suspicion before being able to request a random UA would create an inconsistent result.

Permalink 02:13:14 pm, by fourth, 1722 words, 1059 views   English (US)
Categories: General

Mass: DNA taken from items in defendant's trash was validly seized; N.C.: Taking discarded cigarette butt off curtilage was an unreasonable seizure

Two interesting DNA cases from Massachusetts and North Carolina:

The police obtained defendant's DNA from defendant's used cigarette butts and a water bottle abandoned in trash. This was a valid seizure. The defense characterization "that the police effectively performed an oral cavity search by preparing and deploying the cigarettes and water bottle" was unpersuasive [putting it mildly]. Commonwealth v. Bly, 448 Mass. 473 (March 7, 2007).

The police were talking to the defendant in his backyard and he shredded a cigarette butt and put it in his pocket saying that he watched "CSI." He smoked another cigarette and flicked the butt at a trash pile, but it rolled down near his feet. He forgot about it, and turned and left, and the officer took it. The seizure off the curtilage was invalid. State v. Reed, 641 S.E.2d 320 (N.C. App. 2007):

The fact that the cigarette butt was removed from the curtilage when one of the detectives kicked the butt off of the patio fails to defeat defendant's reasonable expectation of privacy. Additionally, the furtive nature of the seizure raises a suspicion that the detective was aware that defendant would not consent to his taking the butt and that the detective knew that a seizure of the butt would be illegal so long as it was on the patio. It is possible that had defendant placed the cigarette butt in the common area, he may have lost his reasonable expectation of privacy; the police may not, however, by removing evidence from the curtilage, proceed as if the evidence had been left open to the public by defendant.

A BOLO for "a brownish or maroonish Mercury Topaz, Ford Taurus" being driven by a white male with a baseball cap did not support stop of defendant. State v. Dias, 284 Ga. App. 10, 642 S.E.2d 925 (2007):

Although the State's brief contends the BOLO described the suspect as wearing a white cap and the trial court found that the suspect was described as wearing a baseball cap, neither officer who testified said that this information was in the BOLO. The only support that we have found for that contention is that during his testimony Dias stated that one officer said that he was pulled over because of the white hat he was wearing. Later, the officers asked him where the white hat was, and it appears that no white hat was found in Dias's car. In any event, the officer testified that when he was stopped Dias was wearing a "black do rag."

The trial court found that the car described in the BOLO, either a maroon Mercury Topaz or a Ford Taurus is not a particularized description because the cars are two different makes and models, that describing the driver as a white male in a baseball cap was insufficient to particularly identify a suspect, and that Dias was stopped two miles from the burglary.

Further, we note that the Ford Taurus was one of the most popular cars manufactured in this country and that from their testimony the descriptions provided to the officer were not as specific as the trial court credited to the State. The officer testified it was either a maroonish or a brownish Ford Taurus, or Ford Tempo, or Mercury Topaz, "or something like that, the caller was not real sure." (Emphasis supplied.) Further, the evidence is uncontradicted that Dias was not wearing a white baseball cap.

No year or body style, information about the condition, or number of doors was provided about the suspect car and no details were provided about the driver or his dress other than his skin color and gender and perhaps he was wearing a white baseball cap. The effect of the description was that the officers should look for some sort of brown or maroon automobile manufactured by the Ford Motor Company driven by a white male who might be wearing a baseball cap. This description would cover a staggering number of vehicles and drivers in the State of Georgia.

In his treatise on Search and Seizure, Professor LaFave identified six factors to be considered when courts determine whether reasonable suspicion to conduct an investigatory detention existed:

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

4 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (4 th ed.), § 9.5(g). In considering these factors we find (1) that for the reasons stated above the description of the vehicle and the suspect were inadequate. (2) We have no idea of the size of the area in which the offender might be found because no information was provided about the lapse of time between the crime occurring and Dias being stopped. We only know that the officer stopped Dias two minutes after he heard the BOLO, but we have no information about the time elapsed between the crime and the stop. (3) No information was provided about the number of persons about in the area. (4) The known or probable direction of the offender's flight was provided. (5) Dias was not engaged in any activity which would have otherwise authorized a traffic stop. (6) The officers had no knowledge or suspicion that the person or vehicle stopped had been involved in other criminality of the type presently under investigation. Therefore, even applying Professor LaFave's factors we find that no reasonable suspicion existed sufficient to warrant a stop and investigatory detention of Dias.

We find that the cases the State relies upon are distinguishable from this case because the descriptions contained more detailed information about the vehicles stopped. Compare, e.g., Thomason v. State, 268 Ga. 298, 301-302 (2) (a) (486 SE2d 861) (1997) (the officer "knew the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver's gender and race."); Burnham v. State, 277 Ga. App. 310, 311 (1) (626 SE2d 525) (2006) (the officer knew "the description, make and model of the car. He knew that it was suspected that Burnham would return to his house soon. And, he observed a car matching the description drive directly into the cul-de-sac and stop in front of the Burnham home."); Hestley v. State, 216 Ga. App. 573, 574 (1) (455 SE2d 333) (1995) (a white panel van that "didn't have a lot of windows," in the same general vicinity as reported by a concerned citizen.")

Accordingly, we find that the trial court did not err in granting Dias's motion to suppress.

A state search warrant issued for federal licensed firearms protected from self-incrimination under 26 U.S.C. § 5848 was suppressed and the good faith exception did not apply. People v. Sun, 148 Cal. App. 4th 374, 55 Cal. Rptr. 3d 696 (4th Dist. 2007):

The trial court also granted the defense motion to suppress all evidence seized under the warrant. It stated in its ruling that it found "suppression of the evidence obtained by the State of California is required by 26 U.S.C. section 5848. The search was based on evidence obtained from the defendant's compliance with the National Firearms Act [NFA]." The District Attorney appeals from this order, contending there was nothing in the affidavit lifted from any records Sun filed or kept as required by the NFA; and, even if there was such evidence, there is no authority that a warrant issued by a magistrate should be suppressed notwithstanding any arguable violation of title 26 United States Code section 5848(a). Lastly, the District Attorney contends, the fruits of an executed search warrant are admissible under the "good faith" exception of United States v. Leon (1984) 468 U.S. 897, irrespective of errors made prior to its issuance. Because suppression of evidence is only possible if mandated by federal law (see Cal. Const. art. I, § 28, subd. (d)), suppression was, he argues, unauthorized in this situation.

. . .

On the other hand, the officer's reliance in objective good faith is the crux of the rule. In People v. Jackson (2005) 129 Cal.App.4th 129, the fruits from the search permitted by warrant were suppressed because the information establishing probable cause for that warrant was obtained from an illegal wiretap. As the wiretap authority, 18 United States Code sections 2510 et seq., was established long before the judicially created "good faith exception," its bar was prevailing over the exception crafted by the Supreme Court after its passage. Moreover, Congress had never attempted to provide--although given the opportunity--such a loophole in the intervening years. "Moreover, the policy reasons that led to the adoption of a good faith exception to the judicial exclusionary rule in cases involving search warrants do not apply to the statutory exclusionary rule in cases involving wiretap orders. In a case involving a search warrant, the true check on law enforcement's abuse of power was 'the detached scrutiny of a neutral magistrate.' To obtain a wiretap, the person seeking the order must first obtain the approval for the wiretap from the United States Attorney General or an authorized designee. [Citation.] Hence, 'if an appellate court determines wiretap evidence was gathered under a legally erroneous order, the government cannot place the blame on the magistrate who issued the order.' [Citation.]" (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2006 Supp.) Illegally Obtained Evidence § 12, pp. 120-121 [italics added].)

By analogy, the same thing occurred here. Local law enforcement obtained information from another jurisdiction's law enforcement agent who under the authority which granted him the power to inspect, also was ordered to keep confidential and privileged all information obtained from the entity he inspected. Nonetheless, the local agents presented the information to a magistrate and then blanketed themselves under the sanitizing "robe" of that unknowing magistrate once the warrant was signed. Such manipulation of a magistrate will be repeated if we permit one police agency to use information that another police agency is barred from using. Police reliance cannot be deemed in "objective good faith" when the original agent is aware the incriminating information was obtained by less than legal means. As the state's reliance on the authority of the magistrate issuing the warrant was not in objective good faith, suppression of the fruits of the search was proper.

Permalink 10:10:45 am, by fourth, 827 words, 1239 views   English (US)
Categories: General

"Custody" for Fifth Amendment is different than a "seizure" under the Fourth Amendment

(Cases arrived after 8 a.m. again.)

"Custody" for Fifth Amendment is different than a "seizure" under the Fourth Amendment. Defendant was not seized, but he consented to go with the officers. United States v. Bowen, 2007 U.S. Dist. LEXIS 15744 n.5 (E.D. Pa. March 6, 2007):

Technically, Defendant argues that he was "in custody" when he consented to the search. However, it is apparent from Defendant's submission that he understands the Fifth Amendment concept of "custody" to be synonymous with the Fourth Amendment concept of "seizure." While the concepts of "custody" and "seizure" are similar, compare Steigler v. Anderson, 496 F.2d 793, 798-99 (3d Cir. 1974), with United States v. Mendenhall, 446 U.S. 544, 552 (1980), the legal significance of each is different. A person "in custody" can voluntarily consent to a search; custody is one factor in determining whether consent is voluntary. "[T]he fact of custody alone is never enough to demonstrate coerced consent." United States v. Forbes, 181 F.3d 1, 6 (1st Cir. 1999) (citing United States v. Watson, 423 U.S. 411, 424 (1976)). However, under the terms of the Fourth Amendment, if a defendant is seized and that seizure is unlawful, then evidence recovered thereafter may be excludable under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 486 (1963) (consent must constitute an intervening act of free will in order to overcome exclusion). Defendant in effect makes a species of this latter Wong Sun argument, by explaining, "[w]hen a person manifests his consent contemporaneously with an illegal seizure, 'the conduct of the person seized is not free from the taint of his unlawful detention and, thus, is insufficient to show consent.'" (Def.'s Supplemental Mem. of Law in Supp. of Mot. to Suppress Evidence at 22 (quoting United States v. Martel, 966 F. Supp. 317, 322 (D.N.J. 1997) (internal citations omitted)).)

Use of an ankle restraint move to subdue plaintiff broke his ankle, and he obtained a $301,000 verdict which was sustained on appeal. Jennings v. Jones, 479 F.3d 110 (1st Cir. 2007):

On appeal, Jennings challenges the court's determinations on his Fourth Amendment claim. After careful review, we conclude that the court erred in granting qualified immunity to Jones. First, viewing the evidence in the light most favorable to the jury verdict, we conclude that the record establishes that Jones violated Jennings' constitutional right to be free of excessive force. Second, we find that this right was clearly established at the time of Jennings' injury. Third, we conclude that a reasonable officer in Jones' position would have believed that his actions violated Jennings' constitutional right. Finally, because Jones failed to obtain a conditional ruling on his motions for a new trial and a remittitur before the district court and failed to raise these motions on appeal, we find that he has abandoned these motions. Consequently, we vacate the judgment of the district court and order reinstatement of the jury award.

Defendant's stop for a minor traffic offense in a national park was justified, notwithstanding that it was minor. The officer could then smell marijuana during the stop, and this was probable cause. United States v. Harvey, 2007 U.S. Dist. LEXIS 15791 (W.D. Va. March 6, 2007).*

Conclusory request for a Franks hearing was not a "substantial preliminary showing." United States v. Vallejo, 2007 U.S. Dist. LEXIS 15555 (E.D. Wis. March 5, 2007)*:

[T]he court finds that Mejia has failed to make the requisite substantial preliminary showing and therefore is not entitled to an evidentiary hearing. Mejia simply makes conclusory assertions about the reliability of the informants that are undeveloped and unsupported. The defendant implies that because the CI may not have been an eyewitness to related events, this makes the CI unreliable. Such conclusory assertions are insufficient. Additionally, suppression is appropriate only if the allegedly false information would have undermined the probable cause determination. Franks, 438 U.S. at 156. Even though the search warrant is contained [*10] in the discovery materials, neither party has provided this court with a copy. Thus, Mejia has failed in his burden of demonstrating that the allegedly false statements were necessary to the finding of probable cause. Therefore, the court shall deny Mejia's request for a Franks hearing. (Docket No. 767).

Plaintiff raised a sufficient fact issue that a traffic stop may have been invalid to overcome qualified immunity. Woods v. Hillin, 2007 U.S. Dist. LEXIS 15463 (D. Utah January 9, 2007)*:

Here, Plaintiff contends that he was not committing any traffic violations and that he was driving under the posted speed limit when he passed Deputy Hillin. Accordingly, Plaintiff asserts that the traffic stop, from its inception, was unreasonable under the Fourth Amendment. Viewing the facts in a light most favorable to Plaintiff, the court finds that Deputy Hillin's stop of Plaintiff's vehicle may have violated Plaintiff's clearly established right to be free from unreasonable seizure. Thus, Plaintiff has established both prongs of the qualified immunity analysis: (1) Deputy Hillin's conduct may have violated a constitutional right and (2) the right was clearly established at the time of the violation. Therefore, the court finds that Defendants are not entitled to qualified immunity.


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Categories: General

Warrantless entry was justified by exigent circumstances which are analyzed in detail

Warrantless entry into the home was based on exigent circumstances. Commonwealth v. McAliley, 2007 PA Super 55, 919 A.2d 272 (2007):

The factors identified in Walker are as follows:

"(1) the gravity of the offense; (2) whether there is a reasonable belief that the suspect is armed; (3) whether there is a clear showing of probable cause; (4) whether there is a strong showing that the suspect is within the premises to be searched; (5) whether there is a likelihood that the suspect will escape; (6) whether the entry was peaceable; (7) the time of the entry, i.e., day or night; (8) whether the officer was in hot pursuit of a fleeing felon; (9) whether there is a likelihood that evidence may be destroyed; and (10) whether there is a danger to police or others."

Id. (citation omitted).

[*P14] We will address these factors ad seriatim. With respect to the first factor, the police observed McAliley sell cocaine on two occasions outside his residence, which is a serious felony offense. See 35 PA.STAT. § 780-113(f)(1.1) (providing that possession with intent to deliver cocaine is a felony).

[*P15] The second factor, whether there was a reasonable belief that McAliley was armed, was not explored at the suppression hearing; however, it is reasonable to conclude that the officers may have expected McAliley to have been armed. See Commonwealth v. Lopez, 525 Pa. 185, 190, 579 A.2d 854, 856 (1990) (opinion in support of affirmance) (noting that second factor was not "investigated during the suppression hearing" but that "experienced narcotics officers may have expected that appellant, engaged as he was in observable drug selling, was indeed armed").

[*P16] We also find that there was a clear showing of probable cause. "[P]robable cause for a warrantless search exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime." Commonwealth v. Wright, 2005 PA Super 35, 867 A.2d 1265, 1267 (Pa. Super. 2005) (citation omitted), appeal denied, 583 Pa. 695, 879 A.2d 783 (2005), cert. denied, __ U.S. __, 126 S. Ct. 1047, 163 L. Ed. 2d 879 (2006). In the present case, the police officers observed McAliley engage in the sale of cocaine in two separate transactions. Thus, the third factor is easily established.

[*P17] We also find that the fourth factor is also easily met. The police observed McAliley enter the residence at 1319 West Jerome Street just after the cocaine sales, and did not see him leave thereafter. Thus, their observations established that McAliley was present in the premises which was to be searched.

[*P18] The fifth factor, whether there is a likelihood that the suspect will escape, was not established at the suppression hearing. As mentioned, the police officers had the residence under surveillance.

[*P19] With respect to the sixth factor, whether the entry was peaceable, the Commonwealth established at suppression hearing that the entry was peaceful. The police officers simply opened unlocked doors to enter the residence. See N.T., 7/20/05, at 36, 49-50.

[*P20] As for the seventh factor, the police officers entered the residence in the afternoon, not at nighttime. See, e.g., Commonwealth v. Roland, 535 Pa. 595, 600, 637 A.2d 269, 271 (1994) (noting that nighttime "is a particularly suspect time for searches to be conducted").

[*P21] The eighth factor, whether the police were in hot pursuit of a fleeing felon, is not a factor in this case.

[*P22] The ninth factor, whether there was a likelihood that evidence would be destroyed, was established at the suppression hearing. This Court has noted the ease with which narcotics can be destroyed. See Walker, 836 A.2d at 981. Furthermore, in the present case, the police officers observed that McAliley had what appeared to be a stash of contraband in his pants pocket when he finished his second narcotics deal. Immediately after the second deal, McAliley entered his residence. Subsequent thereto, McAliley reappeared in his doorway and stood there until he was alerted to the police presence, after which, he went into his residence. Thus, there is a reasonable inference that McAliley either had a stash of narcotics on his person or that a stash was in his residence. Therefore, when he was alerted to the police presence, there was a strong likelihood that he could have easily destroyed the narcotic contraband.

[*P23] The tenth factor, whether there is a danger to the police officers or other persons, was not established at the suppression hearing.

[*P24] Seven of the ten factors, as outlined above, weigh heavily in favor of finding that the warrantless search was based on appropriate exigent circumstances. Of course, not all of the factors must be present to justify a finding of exigent circumstances. See, e.g., Walker (finding that exigent circumstances existed to justify the warrantless search where seven of the ten factors were met). As such, we find that the warrantless search was lawful as exigent circumstances existed.

Officer had probable cause to arrest the plaintiff based on the complainant's statement that plaintiff pointed a gun. Plaintiff's search claim was dismissed because he did not name the officers who conducted the search as parties. Jacobson v. Pettersson, 2007 U.S. Dist. LEXIS 14952 (W.D. Wash. March 2, 2007).*

Pro se plaintiff did not respond to summary judgment motion against his § 1983 claim, so the court uses the requirement of liberal construction of pro se pleadings. Giving the plaintiff the benefit of the doubt, defendant must prevail because there was probable cause for a traffic stop and an impoundment of the car led to a valid inventory. Wolschlager v. Anderson, 2007 U.S. Dist. LEXIS 15178 (E.D. Mich. January 22, 2007).*

Civil case over a housing inspection entry was dismissed because it was evident that the occupant consented to the entry. Fox v. Bay City, 2007 U.S. Dist. LEXIS 15299 (E.D. Mich. January 3, 2007).*

(Cases were received after 8 a.m. again today.)


Permalink 01:59:37 pm, by fourth, 51 words, 388 views   English (US)
Categories: General

Postings are later in the day lately

Two reasons:

1. Lexis the last few days has been sending the cases after 8 a.m. CT, not the usual 4:45 a.m. Whether this is now a regular time, I do not know.

2. I am in court everyday for the next several weeks, so postings occur when I can get to them.

Permalink 10:41:38 am, by fourth, 961 words, 892 views   English (US)
Categories: General

TX: Community caretaking excuse for stop was unsupported and motion to suppress should have been granted

The state failed to prove that defendant's stop was required by the community caretaking function, and the motion to suppress should have been granted. Salinas v. State, 2007 Tex. App. LEXIS 1605 (Tex. App. — San Antonio February 28, 2007):

We engage in a two-step analysis to determine the propriety of a stop pursuant to the community caretaking function. First, we determine whether the police officer was motivated by a community caretaking purpose and second, we determine whether the police officer's belief that the individual needed help was reasonable. See Corbin, 85 S.W.3d at n2; see also Wright, 7 S.W.3d at 151. Here, the trial court, as fact-finder and the exclusive judge of credibility, could have determined DeHoyos was primarily motivated by community caretaking concerns. As to the second issue, when deciding whether an officer has an objectively reasonable belief someone needs help, we consider the following: "(1) the nature and level of distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance other than that offered by the officer; and (4) to what extent the individual, if not assisted, presented a danger to himself or others." Id.

1. Level of distress. The first factor is entitled to the greatest weight because "the purpose of the community caretaking exception is to allow an officer to 'seize' and assist an individual whom he reasonably believes is in need of help." Corbin, 85 S.W.3d at 277. "The greater the nature and level of distress exhibited, the more likely the police involvement will be a reasonable exercise of the community caretaking function." Id. The weight of the first factor alone will not always be dispositive; instead, the remaining three factors help to give more definition to the first factor. Id. "A particular level of exhibited distress may be seen as more or less serious depending on the presence or absence of the remaining three factors." Id.

According to DeHoyos, the only distress exhibited by Salinas was his moving through the intersection instead of immediately turning left or right, and finally making the turn when he was about five feet from the curb. DeHoyos asserted he could not understand why a driver would make the mistake Salinas made because the area was well-lit and any driver could see nothing was straight ahead except grass and the traffic light. However, DeHoyos admitted nothing else suggested the driver or anyone in the vehicle was in distress. Given the fact that DeHoyos observed no other problems with the driver's operation of the van and that the driver appeared to immediately respond to the use of the police emergency lights, we conclude the nature and level of distress exhibited to be very low.

2. Location. The second factor emphasizes the location of the individual. Through his testimony, DeHoyos indicated Highway 90 and Zarzamora are well-traveled roadways and DeHoyos described the area at the T-intersection as "well-lit." DeHoyos testified it was not "a very friendly area" because there were "a lot of courts" [sic] behind the Exxon station. However, the Exxon station was open for business. We conclude this factor weighs neither for nor against the stop.

3. Available assistance. The third factor analyzes whether the individual was alone or had assistance other than that offered by the police officer. DeHoyos said he could not see inside the van when he was stopped behind it at the red light and he did not know before the stop whether anyone other than the driver was inside the van. Although the Exxon station was in the immediate vicinity of the stop and the station was open, because DeHoyos could not determine if Salinas was alone or capable of seeking help, this factor weighs in favor of the stop.

4. Danger to himself or others. The extent to which an individual without assistance would present a danger to himself or others correlates to the nature and level of distress reasonably perceived. DeHoyos first observed Salinas when he saw the van stopped at a red light. Salinas did not begin to move until after the light turned green, at which point he proceeded straight ahead before making his turn. However, although Salinas initially proceeded straight through the intersection, he made his turn and then proceeded to the Exxon station after DeHoyos activated his overhead lights. DeHoyos failed to articulate any other action by Salinas that indicated he was a danger to himself or others. DeHoyos admitted there were no other vehicles on the road and Salinas did not impede any traffic. Thus, it appears that there is little objective evidence that Salinas posed danger to himself or others, and this factor weighs against the stop.

Defendant's bizarre behavior justified a stop and a patdown, but it was apparent that defendant did not have a weapon on him, and emptying his pockets was too intrusive. State v. Watson, 143 Idaho 840, 153 P.3d 1186 (2007):

Because the officer intentionally removed the items that could not have been weapons when it was unnecessary to do so in order to remove the toothpaste container, he acted unreasonably and not in a minimally intrusive fashion. We hold that the officer exceeded the scope of a pat-down search for weapons when he emptied Watson's pocket. If evidence is not seized pursuant to a recognized exception to the warrant requirement, the evidence discovered as a result of the illegal search must be excluded as the fruit of the poisonous tree. State v. Van Dorne, 139 Idaho 961, 963, 88 P.3d 780, 782 (Ct. App. 2004). The baggy of methamphetamine that the officer removed from Watson's pocket was therefore the fruit of an unreasonable search and should have been suppressed.

State § 1983 claim of excessive force fails on plaintiff's deposition that officers were professional and did not use excessive force. Thompson v. Faddis, 2007 Ohio 891, 2007 Ohio App. LEXIS 810 (11th Dist. March 2, 2007).*

Permalink 09:56:52 am, by fourth, 1893 words, 1099 views   English (US)
Categories: General

S.D. Fla.: Allegations of excessive force against protestors survive summary judgment

Some of plaintiffs' claims as to actions against protestors constituting allegations of herding by force, unreasonable use of tear gas and pepper spray, and shooting them with nonlethal projectiles while they were not doing anything unlawful except not moving survive defendants' motions for summary judgment. Rauen v. City of Miami, 2007 U.S. Dist. LEXIS 14931 (S.D. Fla. March 2, 2007):

This action arose from the events surrounding the Free Trade of the Americas ("FTAA") ministerial hearings, which took place in Miami, Florida in November 2003. Plaintiffs, Holly Rauen ("Rauen") and Nikki Hartman ("Hartman"), contend that a concerted effort by all Defendants to unlawfully limit protest at the FTAA resulted in multiple violations of Plaintiffs' constitutional rights by various law enforcement agencies and their officers. Plaintiffs also assert state common law tort claims for battery and negligence against the various law enforcement agencies.

. . .

Plaintiffs allege that each of the agencies that was part of the JLEC was instrumental in devising the policies that allegedly resulted in violations of Plaintiffs' constitutional rights and that those agencies, in essence, acted as a single entity, particularly in their agreed-upon use of force and arrest protocols. (See id. PP 8, 24). Through the implementation of the joint operational security plan, Plaintiffs allege, Defendants intentionally disrupted core political speech and other expressive activity "through the wrongful 'herding' of unarmed, peaceful demonstrators, and the systemic use of para-military tactics and offensive weapons." (Id. P 1). Plaintiffs allege that Defendants' activities resulted in egregious violations of their First and Fourth Amendment rights and that the implementation of the joint operational security plan resulted in a "de facto suspension of constitutional rights in Miami" during the FTAA meetings. (Id. P 1).

Although the TAC [Third Amended Complaint] alleges that the entire operational plan was unlawful, it primarily focuses upon the activities surrounding the "herding" of protestors and the unprovoked attack by law enforcement officers upon peaceful protestors on Biscayne Boulevard and near the Bayfront Amphitheater on November 20, 2003. Specifically, Plaintiffs allege that they were subjected to "herding," "political profiling," and unreasonable force, in violation of the First and Fourth Amendments, all without individualized suspicion. (Id. P 20).

. . .

C. Existence of Fourth Amendment "Seizure"

The [Third Amended Complaint] contains eleven counts predicated upon what Plaintiffs assert were actions by the Defendants that constituted "herding" of the Plaintiffs and the use of force and excessive force in violation of the Fourth Amendment's proscription against unreasonable seizure. The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . ." U.S. Const. amend. IV. The eleven counts are grouped into four categories: Monell liability against the Municipal Defendants, supervisory liability against specific Individual Defendants for directing acts that resulted in alleged violations of the Fourth Amendment, supervisory liability against specific Individual Defendants for failure to intervene to prevent alleged violations of the Fourth Amendment, and conspiracy by the Municipal Defendants to violate Plaintiffs' Fourth Amendment rights.

. . .

In Coles, plaintiffs were at an anti-war demonstration and alleged that Oakland police officers used excessive force without warning, firing projectiles, including wooden dowels, using, often at close range, "flexible batons" or bean bags, clubs, and sting ball grenades filled with rubber pellets and tear gas, and charging plaintiffs with motorcycles. See No. C03-2962 TEH at 2. The allegations stated that police herded plaintiffs from the port area to a station more than a mile away. See id. The court addressed whether plaintiffs had sufficiently alleged an "other seizure" sufficient to trigger Fourth Amendment protections. See id. at 4 (citing Graham v. Connor, 490 U.S. 386, 395 (1989) ("other seizure" to trigger the Fourth Amendment and its "reasonableness" standard) and County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998) (where there is no search or seizure, use of force is unconstitutional only if it "shocks the conscience" under the Fourteenth Amendment)).

In its review of applicable law, the court in Coles found persuasive the statement in Brower, 489 U.S. at 596-97, that a Fourth Amendment seizure occurs "only when there is a governmental termination of freedom of movement through means intentionally applied." In agreeing with the analysis employed by the court in Marbet, and consistent with the Brower definition of a seizure, the court in Coles found that defendants had allegedly terminated plaintiffs' freedom of movement through means intentionally applied. See No. C03-2962 TEH at 10-11. It was not fatal to the sufficiency of the Fourth Amendment claims that plaintiffs were not rendered completely immobile or forced to remain in one location; what was required was that a person's freedom of movement had been terminated, not that the person's movement itself had been terminated. See id. at 8.

Marbet and Coles present factual scenarios virtually indistinguishable from the allegations asserted by Plaintiffs here. The TAC alleges that Defendants employed a tactic of "herding" in which they created a large "encirclement perimeter" and used hundreds of heavily-armed, riot gear-clad officers in SWAT units and FTAA-specific "field forces" in a skirmish line to force demonstrators in a desired direction through use of intensely excessive force. (See TAC P 40). During the course of Defendants' activities, Hartman was allegedly engaged in a prayer vigil on the lawn on the east side of Biscayne Boulevard and was shot without reason on multiple occasions by law enforcement officers. (See id. P 6). Rauen was allegedly standing peacefully on the grass near the Bayfront Amphitheater when she was shot without reason by officers. (See id. P7).

The encirclement perimeter consisted of the following: on the southern boundary, the skirmish line formed from Biscayne Bay on the east to the buildings on Biscayne Boulevard on the west side, with a huge FTAA-specific security fence surrounding the Intercontinental Hotel to the rear of the skirmish line. (See id. P 41). The eastern boundary was Biscayne Bay near the Intercontinental Hotel, a little north of that the Bayfront Amphitheater was the eastern boundary, and north of the Amphitheater, several armored personnel carriers and the Hialeah Police Department field force blocked off access to Bayside and the port area to the east. (See id.). The western boundary of this encirclement perimeter was a line of riot police and bicycle response platoons blocking movement. (See id.). Finally, the northern boundary consisted of the Miami-Dade County Police Department blocking movement. (See id.).

In the process of herding the demonstrators, the officers used batons to beat them and sprayed pepper spray up and down the lines, while using bean bags, pepper spray balls, OC spray rounds, and tear gas. (See id. P 43). Hartman, who was praying while seated in the lotus position on the grass, was shot in the head, back and legs on multiple occasions. (See id.). Hartman submitted to the show of authority after being shot by moving northbound in an effort to retreat from the oncoming skirmish line. (See id.). An officer shot Rauen in the chest at close range with a projectile. (See id.). She, too, submitted to Defendants' show of authority by moving eastbound, closer to the Amphitheater, as police began shooting demonstrators and discharging chemical weapons. (See id.).

It can hardly be disputed that the TAC sufficiently alleges that Plaintiffs' freedom of movement was terminated by the deliberate use of force and skirmish lines to herd and then encircle Plaintiffs in an area in which they otherwise would not have been. Construing the allegations in the light most favorable to Plaintiffs, the undersigned finds that Plaintiffs have sufficiently alleged an unreasonable seizure within the meaning of the Fourth Amendment.

Defendant officers were entitled to qualified immunity from suit for detaining plaintiff under California Welfare & Institutions Code § 5150 where a 911 call from an interested third party alleged that plaintiff was a danger to herself. Officers picked her up and delivered her for a mental examination. Section 5150 has been on the books for 40 years, requires probable cause, and is presumptively constitutional, and plaintiff's claim it was unconstitutional was undeveloped and got nowhere. Duarte v. Begrin, 2007 U.S. Dist. LEXIS 14872 (N.D. Cal. March 1, 2007):

Additionally, plaintiff faults the officers for not making an independent evaluation of plaintiff's mental state once they arrived at her apartment. Specifically, plaintiff claims that she was calm in her home, that she denied being suicidal, and that the officers did not personally observe anything that would give rise to probable cause. Again, plaintiff mischaracterizes the applicable legal requirements. The officers acted reasonably in relying on Petrillo's emergency call. Section 5150 does not mandate that police officers second-guess the evaluation of a trained healthcare provider by verifying the provider's claims with their own independent assessment. See Peng v. Mei Chin Penghu, 335 F.3d 970,977-78 (9th Cir. 2003) ("[T]he business of policemen and firemen is to act, not to speculate or meditate on whether the report [of recent crime] is correct.") (internal quotations omitted).

In conclusion, the officers acted fully within the bounds of the law prescribed by Section 5150, and are entitled to qualified immunity for their detention of plaintiff.

B. Search

Plaintiff claims that the warrantless search of her purse and residence violated her constitutional rights. Having arrived at plaintiff's apartment on a showing of probable cause that plaintiff was suicidal, the officers performed a brief and limited search for weapons in order to protect plaintiff. This search was justified by the perceived exigency of the situation and was therefore reasonable as a matter of law. See United States v. Black, 466 F.3d 1143, 1145 (9th Cir. 2006) (where a warrantless "welfare search" was directed at rescue, rather than a search for evidence of a crime, the court would not "second-guess the officers [sic] objectively reasonable decision" in performing the search).

C. Excessive Force

In determining whether the application of force in effecting a seizure is excessive, "the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Graham v. Connor, 490 U.S. 386, 397 (1989). In making this determination, "the 'calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation.'" Robinson v. Solano County, 278 F.3d 1007, 1009 (9th Cir. 2002) (quoting Graham, 490 U.S. at 396-97). With respect to qualified immunity in the excessive force context, "the standard of reasonableness for purposes of qualified immunity is distinct from the standard of reasonableness embodied in the Fourth Amendment." Robinson, 278 F.3d at 1012 (9th Cir. 2002) (citing Saucier, 533 U.S. at 206). As with other qualified immunity cases, qualified immunity is vitiated only if the violated constitutional right was clearly established at the time of the violation.

Plaintiff's sole allegation of excessive force is that the officers "grabbed [her] by the arms and took [her] out of the apartment." Duarte Dec. P 16. Plaintiff's declaration indicates that this application of force was in response to some degree of resistance by plaintiff--plaintiff demanded, in Spanish, that the officers show her a warrant, asked them to leave, told them that she could drive herself to see the doctor and told them that she did not want to go with them. Id. P 14. In light of the officers' reasonable belief in the urgent need to get plaintiff to a medical facility where she could be evaluated, taking her by the arms into a police car in response to her resistance was not so unreasonable as to defeat qualified immunity, or amount to a constitutional violation.


Permalink 11:51:14 am, by fourth, 965 words, 810 views   English (US)
Categories: General

Customs stop leaving the country led to valid seizure of $171,000 in cash

The defendant was stopped before Canadian customs in the Detroit-Windsor tunnel and asked about whether defendant knew of the reporting requirement when taking more than $10,000 in cash without filing a report. Defendant said he was going to the Windsor casino and had only $300 on him. The officer told him again about the reporting requirement, and defendant again denied having more than $10,000 on him. The defendant's demeanor made the officer send him to secondary inspection, where $171,000 was found. The stop was valid. United States v. Alinj, 2007 U.S. Dist. LEXIS 14054 (E.D. Mich. January 30, 2007).

Smell of marijuana from passenger compartment after an uncorroborated BOLO and a valid traffic stop coupled with furtive movements gave cause to search the interior and the trunk. Kimball v. State, 951 So. 2d 35 (1st Dist. 2007).

Affidavit for search warrant justified a search of two residences owned by defendant next to each other for computers with child pornography on them. They were easily transportable and could have been in either or both buildings. State v. Samson, 2007 ME 33, 916 A.2d 977 (2007):

[*P18] Here, as the trial court observed, it would have been better practice had the detective clarified in the affidavit how the events were connected to each of Samson's residences, described why he believed the computers and other electronics might be found in both homes, and articulated that Samson had control over both residences. However, the evidence and instrumentalities sought were easily transportable, the residences to be searched were close enough to facilitate transfer of evidence from one place to the other, and the suspect was alleged to have owned both buildings. A common sense reading of the affidavit supports the inference that the police were likely to find evidence of the collection and production of sexually explicit images of minors in both buildings. Thus, when viewed under the totality of the circumstances, the affidavit sets forth sufficient probable cause to justify the searches of both residences. Therefore, we affirm the trial court's denial of Samson's first motion to suppress.

Defendant consented to a search after a traffic stop, and that consent permitted officer to remove a hidden panel he discovered. United States v. Dillon, 223 Fed. Appx. 687 (9th Cir. 2007)* (unpublished).

Prevailing officers in § 1983 jury trial over an alleged illegal search were not entitled to attorneys fees under 42 U.S.C. § 1988. Miller v. City of Tooele, 2007 U.S. Dist. LEXIS 14673 (D. Utah March 1, 2007):

Similarly, Defendant Hewitt's directed verdict does not justify awarding attorneys' fees. Joining Defendant Niesporek arguments, Defendant Hewitt has previously moved for summary judgment and the court denied the motions. (July 27, 2005 Order & Mem. Dec. (dkt. # 38); Aug. 14, 2006 Am. Order & Mem. Dec. (dkt. # 104).) During trial, the court granted Defendant Hewitt's motion for a directed verdict because Mr. Miller did not offer evidence that Defendant Hewitt personally violated the Fourth Amendment. But a directed verdict does not establish that Mr. Miller's claims qualify as "vexatious, frivolous, or brought to harass." Hensley, 461 U.S. at 429 n.2. The court finds that Defendant Hewitt does not satisfy the substantial burden to merit attorneys' fees.

The right to file a motion to reconsider does not give the parties the right to seek new grounds for relief. United States v. Loya, 2007 U.S. Dist. LEXIS 14704 (D. Neb. February 28, 2007):

My order denying the defendants' motion to suppress is not a final judgment, and therefore I am free to reconsider it. See, e.g., Thomas v. Arn, 474 U.S. 140, 154 (1985); United States v. Torres-Luna, No. 06-CR-72-LRR, 2006 WL 3254538, at *2 (N.D. Iowa 2006); Rouse v. United States, 359 F.2d 1014, 1015-16 (D.C. Cir. 1966) ("A pre-trial ruling on a motion to suppress does not bind the trial judge in all circumstances."). However, the fact that I have the authority to reconsider a motion to suppress does not mean that the parties have unfettered leave to raise untimely arguments concerning the motion. On the contrary, the Federal Rules of Criminal Procedure provide,

"A party waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides. For good cause, the court may grant relief from the waiver."

Fed. R. Crim. P. 12(e). See also Fed. R. Crim. P. 12(b)(3)(C) (listing "a motion to suppress evidence"); United States v. Looking, 156 F.3d 803, 809-10 (8th Cir. 1998) (holding that "the district court did not abuse its discretion in denying defendant's [untimely] motion to amend [his motion to suppress] and deem[ing] defendant's involuntariness argument waived"). Nor are parties given unlimited time to file objections to a magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) (providing that parties are given ten days to object to a magistrate judge's recommendation); NeCrimR. 57.3 (same); Fed. R. Crim. P. 59(b)(2) ("Failure to object in accordance with this rule waives a party's right to review."). In short, a party seeking to reopen argument on a motion to suppress must present me with a good reason for exercising my discretion to do so.

The scope of a warrantless search based on consent, express or implied, is controlled by the suspect. If the officers exceed the scope of the consent, that part is invalid. State v. Poulton, 37 Kan. App. 2d 299, 152 P.3d 678 (2007).

"[W]here an officer smells a strong odor of burnt marijuana coming from inside a stopped automobile; the driver admitted that his passenger had smoked marijuana in the car; and marijuana was found in the possession of the passenger, the officer had probable cause to search the driver for possession of drugs. When these facts are coupled with the exigencies of being alone with two suspects and confronted with the real possibility of the loss of evidence, the circumstances of this case support the warrantless search performed, and the district court properly denied the motion to suppress." [syllabus by the court] State v. Fewell, 37 Kan. App. 2d 283, 152 P.3d 1249 (2007).*

Permalink 10:39:50 am, by fourth, 573 words, 601 views   English (US)
Categories: General

FEMA required blood draws of firemen in a "wellness program" violates Fourth Amendment

Mandatory blood draws for a firemen's "wellness program" under FEMA auspices was a Fourth Amendment seizure because it was mandatory and they were subject to punishment for not agreeing. Anderson v. City of Taylor, 2005 U.S. Dist. LEXIS 44706 (E.D. Mich. August 11, 2005):

Defendants contend that all of Plaintiffs' cited cases involve some sort of punitive aspect to a seizure, i.e. in Chandler, a testing of urine was a prerequisite to qualify for state office. In other words, Defendants contend that there is no punitive aspect in the blood draw because it is used solely for the benefit of a health screening of Plaintiffs. It is correct that the results of the Plaintiffs' blood draws will not dictate a particular punishment upon the Plaintiffs. However, the Defendants miss the central aspect of the blood draws--they are mandatory. The United States Supreme Court has set forth that a blood draw itself is a search or seizure implicating the Fourth Amendment. Skinner at 616. Because the blood draws are mandatory, it follows that Plaintiffs would be subject to some form of punishment for refusing the constitutionally protected intrusion. In fact, Plaintiffs Pochron, Bell, and Lavender set forth in their affidavits that they would have been punished had they not participated in the blood draw. (Plaintiffs' Response, Exs. 3-6). Herein, lies the punitive aspect to the blood draws at issue in this case. The Court notes that the United States Supreme Court has not held there must be a punitive aspect tied to the results of a blood draw.

The Court finds that the mandatory blood draws instituted by Defendants, despite the fact that they were intended to benefit Plaintiffs, violates their personal privacy rights protected by the Fourth Amendment. As Justice Brandeis set forth in his landmark dissent in Olmstead v. United States, 277 U.S. 438 (1928), albeit addressing a more serious issue, "[e]xperience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficient." Id. at 485.

Defendant Marine's wife (an ex-Marine herself) had apparent authority to consent to a search of the defendant's briefcase when NCIS agents came to their house on base to inquire about a possible child sex offense and whether there were pictures of it. United States v. Gallagher, 65 M.J. 601 (N-M. Ct. App. 2007).*

The right to privacy in Hawai'i does not include prostitution or "blowjobs" and "handjobs" for consideration. State v. Romano, 114 Haw. 1, 155 P.3d 1102 (2007).*

After a rape suspect was excluded by a DNA test, the unknown sample was sent to CODIS, and it came back as belonging to the defendant. Defendant was on parole, and he was called in for a blood sample. He was never in custody and he was not entitled to a warning before consent was sought. The taking of the sample was purely consensual. State v. Bandy, 2007 Ohio 859, 2007 Ohio App. LEXIS 776 (7th Dist. February 22, 2007).*

Rearguing search issue affirmed on appeal via a § 2255 was improper. Also, other prongs of that argument were waived by not having appealed, and he had a full and fair opportunity to litigate the issue in the first instance. United States v. Ringgold, 2007 U.S. Dist. LEXIS 13983 (D. Nev. February 22, 2007).*

Heck's requirement that a conviction be set aside before a § 1983 case may be filed creates an element of the constitutional claim, so the statute of limitations begins to run from the date the last element occurs. Kucharski v. Leveille, 2007 U.S. Dist. LEXIS 14055 (E.D. Mich. February 12, 2007).*

Permalink 09:40:22 am, by fourth, 1105 words, 1038 views   English (US)
Categories: General

Probable cause was lacking, but the affidavit was not bare bones for good faith exception

Evidence of drug trafficking is likely to be found where a drug suspect resides, sufficient for probable cause for a search warrant. Here, however, there was insufficient evidence. The good faith exception, however, saves it because the affidavit was not bare bones. United States v. Davis, 2006 U.S. Dist. LEXIS 95532 (E.D. Mich. November 9, 2006):

Even if the affidavit contained more specific information regarding defendant's activities, it lacks sufficient information to create a nexus between those activities and 18196 Goldwin Street. As indicated in the affidavit, DEA-2 informed Agent Dosch that defendant lived on Goldwin Street in Southfield, Michigan, and that defendant drove a Corvette, a Dodge Charger, and a Chevrolet pickup. Agent Dosch stated that he and other agents conducted surveillance and observed vehicles matching the description provided by DEA-2 at 18196 Goldwin at "various times" over the course of "the past several weeks." It does not identify those vehicles as belonging to defendant. A search of property records revealed that the title owner of the property was an individual named Bridget Huddleston. Another informant, DEA-3, informed Agent Dosch that defendant's girlfriend was named Bridget, that she had no known source of legitimate income, and that defendant had provided the funds used to purchase the house.

In the court's view, these facts fall short of constituting verification that defendant actually resided at 18196 Goldwin Street at time the warrant was issued. The basis of DEA-3's knowledge regarding defendant's connection to the property is not set forth in the affidavit and, in any event, the fact that he might have furnished the funds for the purchase of the home at some unspecified time does not mean that defendant resided there when the warrant was issued. Only DEA-2 specifically stated that 18196 Goldwin Street was defendant's residence, and the affidavit lacks any information regarding the basis of DEA-2's knowledge. Further, no time frame is given for the information provided by DEA-2. The affidavit merely states that "[r]ecently, DEA-2 advised your affiant that [defendant] lived on Goldwin Street in Southfield, Michigan." n2 Moreover, DEA-2's tip regarding defendant's residence was corroborated only to the slightest degree. Agents conducted surveillance at 18196 Goldwin Street, but no agent appears to have personally observed defendant at the Goldwin Street address. Rather, they merely observed vehicles defendant purportedly drove parked at 18196 Goldwin Street. In addition, Agent Dosch provided no specific information as to when this surveillance occurred, stating only that the vehicles were observed "at various times" over the course of "the past several weeks." In sum, the affidavit lacks information showing that defendant actually resided at 18196 Goldwin Street at the time the warrant was issued.

For the reasons discussed above, the court concludes that the affidavit fails to establish probable cause to search 18196 Goldwin. It contains only vague references to defendant's drug trafficking activities, it lacks specific information indicating that defendant was actively engaged in drug trafficking activities at or near the time the warrant was issued, and it lacks sufficient averments to establish that defendant actually resided at 18196 Goldwin at that time. The court finds that it lacks both "verified allegations of drug trafficking" and "verification that said defendant lives at a particular residence," and is thus insufficient under the rule stated in Goward to give rise to probable cause to search the Goldwin Street address in the absence of evidence indicating that any illegal activity had occurred there. Goward, 2006 WL 1952282, at *3.

. . .

Agent Dosch's affidavit cannot be deemed a bare bones affidavit. . . .

. . .

For the reasons discussed above, the court concludes that the warrant was invalid, but that the agents' reliance thereon in conducting a search of 18196 Goldwin Street was objectively reasonable. As set forth in the affidavit, the agents conducted an extensive investigation, obtained information from reliable confidential informants that defendant was a long-time participant in a large scale drug trafficking operation, obtained information tying defendant to the Goldwin Street address, and partially corroborated the information provided by the informants. The affidavit, while lacking in the type of specific, corroborated information that might ordinarily be desired, is not "so lacking in indicia of probable cause" as to preclude application of the Leon good faith exception.

There is no due process claim in malicious prosecution. Castro v. Negron, 475 F. Supp. 2d 147 (D. P.R. 2007):

It is now clearly established that claims for malicious prosecution cannot serve as grounds for Due Process violations either in the procedural due process or substantive due process modes. Nieves v. McSweeney, 242 F.3d 46, 53 (1st Cir. 2001); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996). In Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), a plurality of the Supreme Court ruled that no substantive due process violation is available for criminal prosecutions instituted without probable cause. Further, because there is an adequate remedy at law available in Puerto Rico to indemnify victims of malicious prosecution there is no viable procedural due process claim either. See, Perez-Ruiz v. Crespo-Guillen, 25 F.3d 40, 43 (1st Cir. 1994)("availability of an adequate remedy for malicious prosecution under commonwealth law ... is fatal to appellants' procedural due process claim.").

Two sentence point in a suppression motion making a Franks challenge was insufficient to even get a hearing on the issue because there was "no substantial preliminary showing." United States v. Carlisle, 2007 U.S. Dist. LEXIS 14552 (N.D. Ind. February 28, 2007):

The Defendant's argument on this point is a mere two sentences long and reads "The Judge issuing the Search Warrant had nothing before him except the bare facts set forth in the Affidavit presented to him by the law enforcement officer. The law enforcement officer failed to address the reliability of the informant, as well as information provided by the Confidential Informant, that being CI 515." (Dfdt's Br. at 7).

The problem with Defendant's argument is that even assuming all the above is correct, it does not get the Defendant past the first hurdle in the Franks analysis, that is a preliminary showing that the affidavit contained erroneous information or omitted information material to the probable cause determination. Amerson, 185 F.3d at 687. Rather, Defendant's argument is not that the affidavit was incorrect or that Lt. Barile's affidavit contains untruths, but is, in essence, a complaint that the affidavit could not support probable cause because it didn't contain more information, namely, more information regarding the reliability of the informant.

Handcuffing was reasonable under the circumstances, and this handcuffing does not rise to the level of excessive force. Kim v. Barnes, 2007 U.S. Dist. LEXIS 14575 (S.D. Ind. February 28, 2007).*

Encounter between plaintiff and police officer was objectively consensual, so summary judgment granted for the defense. Greer v. City of Duluth, 2007 U.S. Dist. LEXIS 14601 (D. Minn. January 31, 2007).*


Permalink 07:10:58 am, by fourth, 3759 words, 1455 views   English (US)
Categories: General

W.Va.: Surreptitious recording of a suspect in his home by a wire on an informant violates state constitution; United States v. White rejected

W.Va. holds that surreptitious single party recording in the target's home violates the state constitution, overruling prior authority from 1986 that did not consider the state constitution, rejecting United States v. White on state constitutional grounds and adopting Justice Harlan's dissent, and analyzing cases from several states. State v. Mullens, 2007 W. Va. LEXIS 10 (February 28, 2007), an important and invaluable opinion on this court's views of the erosion of individual privacy as technology advances, giving meaning to the Katz doctrine that “Fourth Amendment protects people, and not places”:

In a six to three decision, the United States Supreme Court reversed the decision of the Court of Appeals. Thus, the judgment in White was rendered in a plurality opinion. The plurality opinion justified the Court's judgment as follows:

"No warrant to 'search and seize' is required ... when the Government sends to defendant's home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence.

". . .

"Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks."

White, 401 U.S. at 749-51, 91 S.Ct. at 1125-26, 28 L. Ed. 2d at 457-58 (internal citations omitted).

The decision in White stands for the proposition that a person does not have an expectation of privacy regarding conversations held in his/her home with a third party. Without such an expectation of privacy, under White the Fourth Amendment does not require the police to obtain judicial authorization to send an informant wearing an electronic surveillance device into the home of another person. See also United States v. Eschweiler, 745 F.2d 435 (7th Cir. 1984); (holding that informant's use of electronic surveillance device in defendant's home did not violate the Fourth Amendment); United States v. Hankins, 195 Fed. Appx. 295 (6th Cir. 2006) (same); United States v. Brathwaite, 458 F. 3d 376 (5th Cir. 2006) (same); United States v. Davis, 326 F.3d 361 (2nd Cir. 2003)(same).

Three Justices dissented from the majority's judgment in White. All three Justices believed that the Fourth Amendment required federal officials to obtain a warrant before attaching an electronic surveillance device to an informant, for the purpose of capturing conversations with a suspect, regardless of where the conversations were held. The position taken by the dissenters was articulated best in the dissenting opinion of Justice Harlan. In his dissent, Justice Harlan made the following observations:

"The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. ... The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.

"Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity--reflected in frivolous, impetuous, sacrilegious, and defiant discourse--that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener's inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.


"Finally, it is too easy to forget--and, hence, too often forgotten--that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its 'risk analysis' solely in terms of the expectations and risks that 'wrongdoers' or 'one contemplating illegal activities' ought to bear, the plurality opinion, I think, misses the mark entirely. ... The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that ... would prevent public officials from engaging in that [third-party bugging] practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest [the majority] fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield 'wrongdoers,' but to secure a measure of privacy and a sense of personal security throughout our society.

"The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society."

White, 401 U.S. at 787-90, 91 S. Ct. at 1143-45, 28 L. Ed. 2d at 478-80 (Harlan, J., dissenting) (internal citations omitted).

In addition to the dissenters in White, scholars have argued that the Fourth Amendment should require a warrant to be issued before the police send an informant into a suspect's home while wearing an electronic surveillance device. The following is a cursory review of the criticisms of White by some scholars:

"Justice Harlan's dissent in United States v. White warned against unsupervised use of government power to spy on the people. He urged that electronic and false-friend surveillance ... be permitted only under the warrant requirements of the Fourth Amendment, so that government intrusion is possible only if a magistrate agrees with the government that there is probable cause. Respect for the principles that underlie the Fourth Amendment and the rebellion that produced it, demands no less. ... By declaring that one has no reasonable expectation of privacy when speaking with another, the Court removes conversation from the protections of the Fourth Amendment, leaving government power unchecked. The Amendment becomes an empty, and mocking, promise. The Court has thus abdicated the judicial function in an area so sensitive that it lay at the heart of the revolution."

Donald L. Doernberg, “Can You Hear Me Now?": Expectations of Privacy, False Friends, and the Perils of Speaking under the Supreme Court's Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253, 306-08 (2006).

"Unless the White plurality truly is willing to saddle American society with the universal risk that every conversation may be electronically monitored, then the White plurality view is not only illogical and unreasonable--it is absurd. Moreover, it defies common sense as well as the common understanding of Americans who yet have some sensitivity to the 'qualitative difference' between electronic surveillance and conventional police investigation."

Mona R. Shokrai, Double-Trouble: The Underregulation of Surreptitious Video Surveillance in Conjunction with the Use of Snitches in Domestic Government Investigations, 13 Rich. J.L. & Tech. 3, 58 (2006) (quoting Tom P. Conom, Privacy and the Fourth Amendment in the Twenty-First Century, 19 Champion 13, 18 (1995)).

"The White plurality, without any discussion or analysis of the doctrinal shift announced in [Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] reaffirmed prior holdings that authorized unchecked surveillance of private conversations and unbridled invasions of private homes and offices whenever informants are available to gather information for the government. If the 'Fourth Amendment protects people, and not places,' as Katz insisted, then why is the Amendment inapplicable against government efforts to record conversations or infiltrate homes or offices using secret informants? If the Fourth Amendment restrains the discretion of the police to wiretap or 'bug' private conversations (conducted in telephone booths), it is not apparent why that same provision is inapplicable when the police monitor and record private conversations through the use of a secret informant deliberately position(ed) to hear those conversations. After all, a secret informant acts as a 'human bug' for the government."

Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-first Century, 72 Miss. L.J. 51, 76 (2002).

"It cannot be denied that one risks public revelation of private thoughts any time one takes on a confidante. Once again, however, the Court's assumption of the risk/implied consent analysis takes on an air of fantasy. ... The Court's analysis in its undercover cases is based on a dangerous premise: that we should expect no privacy from the government when we do not expect it from others. If this premise were taken seriously, the only sphere of privacy still protected from unnecessary government intrusion would be what we kept to ourselves. ...

"Furthermore, undercover activity is more likely than other types of searches to occasion prolonged insinuation into people's privacy. In the typical search and seizure scenario, the target can minimize the intrusion by consenting to particular actions or proving his or her innocence in some way. When the government proceeds covertly, however, these options are not available. Added to this denigration of individual interests is the damage undercover police work causes to the democratic state's objective of remaining legitimate. First, because it relies on fraud and deceit, covert investigation undermines trust in the government. More importantly, it increases distrust of everyone, since anyone could be a government agent. ...

"... Thus, undercover activity undercuts both the state's interest in maintaining the allegiance of its citizenry and its objective of nurturing an open, democratic society.

"Because of these possible effects, one might argue that undercover activity should be banned. ... At the least, judicial authorization should be obtained prior to any nonexigent undercover activity. ...

Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 103-05 (1991). See also Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 Wash. U. L.Q. 573, 617 (1996) (“[W]hen I open my front door to a friend, to an overnight delivery worker, or to a complete stranger, access is afforded only to those whom I knowingly admit. If the police want access to my home, they should follow lawful procedure. At times, stealthy entries may be necessary; but under the Constitution, the police cannot decide by themselves when they will enter a home.”).

Notwithstanding the criticisms of White, the decision remains the law for Fourth Amendment purposes. Thus, insofar as the circuit court found that the Fourth Amendment was not violated by the conduct of the police in this case, that ruling was correct.

The court then analyzes the issue of single party conversation bugging under state statute and concludes that it was valid. But, then turning to the state constitution, it concludes that it was not.

2. One-party consent to electronic surveillance in the home of a suspect and the search and seizure provision of the West Virginia Constitution. Although we have concluded that the conduct complained of in the instant case was lawful under the [statute], we must now decide whether the search and seizure provision of our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. Article 3, § 6 of the West Virginia Constitution provides:

"The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized."

We have indicated that the purpose of article 3, § 6 “is to impose a standard of 'reasonableness' upon the exercise of discretion by government officials, including law enforcement officers, so as to safeguard the privacy and security of individuals against arbitrary invasions [by governmental officials].” State v. Legg, 207 W. Va. 686, 692, 536 S.E.2d 110, 116 (2000) (internal quotations and citations omitted). This Court has also held that “[t]he provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syl. pt. 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979). Therefore, the mere fact that the Fourth Amendment has been interpreted as allowing one-party consent electronic surveillance in the home of a suspect does not mean that this Court is required to interpret article III, § 6 in the same manner. “This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart.” State ex rel. Carper v. West Virginia Parole Bd., 203 W. Va. 583, 590 n.6, 509 S.E.2d 864, 871 n.6 (1998). In other words, we may “interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees.” Peters v. Narick, 165 W. Va. 622, 628 n.13, 270 S.E.2d 760, 764 n.13 (1980).

The order of the circuit court and the briefs of the parties failed to cite to any prior decision of this Court addressing the issue of whether our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. However, this Court has previously addressed the issue. The issue arose in a case that was decided approximately one year before the Act was created.

In State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), the police had information that the defendant was selling drugs. As a result of this information the police, without a warrant, placed a radio transmitter on the informant and sent him to the defendant's home. While in the defendant's home, the informant purchased drugs, and the transaction was monitored and recorded by the police. The defendant was subsequently prosecuted and found guilty of drug trafficking. One of the issues raised on appeal was that it was error to introduce the tape recording of the drug transaction. The defendant alleged that the tape recording was made in violation of article III, § 6 because the police did not obtain a warrant to have the informant enter his home with an electronic surveillance device. This Court disagreed. In doing so, this Court very briefly looked at its prior decision that involved one-party consent surveillance outside the home. Based upon that decision the Court tersely reasoned as follows:

"The Court also believes that the defendant's contention that the surveillance was made without a warrant and uninvited constituted an illegal search and seizure is without merit. ...

. . .

"Taking the [prior decision into consideration], it is clear that a warrantless electronic recording of a defendant's conversation made before his Sixth Amendment right to counsel has attached, and made with the consent of a participant to the conversation who, unknown to the defendant, is acting in concert with the police, does not violate the prohibition against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and by article III, section 6 of the West Virginia Constitution.

"Clearly the tape involved in the case presently before the Court was made with the knowledge and consent of [the informant]. At the time the defendant had neither been arrested nor indicted. ... We believe that the tape was admissible into evidence."

Thompson, 176 W. Va. at 305-06, 342 S.E.2d at 273-72.

We are troubled by the complete lack of any analysis in Thompson on the issue of the expectations of privacy in the home. In reaching the conclusion that article III, § 6 allows the police to invade the privacy of a citizen's home, through an informant wearing an electronic surveillance device without judicial authorization, the Thompson opinion did not provide one sentence discussing the privacy in the home that article III, § 6 is designed to protect. Thompson assumed, without discussion, that no difference existed between a person's reasonable expectations of privacy in his/her home, versus the privacy a person expects outside the home. See State v. Peacher, 167 W. Va. 540, 567-68, 280 S.E.2d 559, 578 (1981) (“A person's expectation of privacy in his automobile is less than that which he would have in his home[.]”). This assumption by Thompson guts article III, § 6 and makes it a hollow constitutional protection from unreasonable searches and seizures in the home.

“There is no question ... that activities which take place within the sanctity of the home merit the most exacting [article III, § 6] protection.” State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726 (1996). This Court has long held that article III, § 6 “protect[s] the rights of citizens from unreasonable searches and seizures in their houses.” State v. McNeal, 162 W. Va. 550, 555, 251 S.E.2d 484, 488 (1979). For this reason, the jurisprudence of this Court addressing article III, § 6 has “drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” State v. Craft, 165 W. Va. 741, 755, 272 S.E.2d 46, 55 (1980) (internal quotations and citation omitted). That is, with limited exceptions, “any search of a person['s] ... dwelling on mere suspicion and the seizure of any article found as a result thereof, without ... a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.” Syl. pt. 1, in part, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972). See also State v. Slat, 98 W. Va. 448, 449, 127 S.E. 191, 192 (1925) (“Any search of a person's house without a valid search warrant is an unreasonable search, under section 6, art. 3, [of the] Constitution of West Virginia[.]”). We underscored the significance of the expectations of privacy in the home in State v. W. J. B., 166 W. Va. 602, 612, 276 S.E.2d 550, 556 (1981):

"[T]here is still basic vitality to the ancient English rule that a man's home is his castle, and he has the right to expect some privacy and security within its confines. This rule arises from a societal recognition that the home shelters and is a physical refuge for the basic unit of society[,] the family. In the criminal law there is a marked recognition of this fact, as shown by the difference in the right to arrest a criminal without a warrant[,] as between his home and a public place."

W. J. B., 166 W. Va. at 612, 276 S.E.2d at 556.

This Court's long history of protecting the sanctity of the home from warrantless searches and seizures counsels against allowing Thompson to stand. In Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), this Court held:

"An appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law."

Our decision to depart from stare decisis is based upon a “serious judicial error” in the Thompson opinion. That error was the complete obliteration of the bright line this Court has historically drawn between searches and seizures in the home, versus searches and seizures outside the home. Thompson failed to acknowledge the existence of this distinction. Consequently, we now hold that it is a violation of West Virginia Constitution article III, § 6 for the police to invade the privacy and sanctity of a person's home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person's home without first obtaining a duly authorized court order pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.

We are mindful that, in addition to Thompson, the wording of the state's electronic surveillance Act permits an informant to enter the home of a suspect with a recording device without judicial authorization. However, our rejection of the Thompson decision does not require invalidation of the one-party consent provision of the Act. It is a longstanding fundamental principle of law that “[w]herever an act of the Legislature can be so construed and applied as to avoid a conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts.” Syl. pt. 3, Slack v. Jacob, 8 W. Va. 612 (1875). See State v. Siers, 103 W. Va. 34, 36, 136 S.E. 504, 505 (1927) (“[I]t is a rule of constitutional interpretation that, when two constructions may be placed upon a statute, one of which renders it constitutional and the other unconstitutional, it is the duty of the courts to so limit the statute as to make it comply with constitutional requirements.”). Our ruling today merely limits the one-party consent provision of the Act from being used to send an informant into the home of a suspect to record communications therein without having obtained a search warrant authorizing such conduct. Therefore we hold that, Article III, § 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one-party consent to electronic surveillance provisions of W. Va. Code § 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005).

Turning to the facts of this case, there is no dispute. The police failed to obtain judicial authorization to send the informant into Mr. Mullens' home while the informant was wearing an electronic surveillance device. Consequently, the trial court should have granted Mr. Mullens' motion to suppress the electronic surveillance recordings obtained in his home by the informant. Insofar as Mr. Mullens entered a conditional plea of guilty, on remand he may exercise his right to withdraw the guilty plea and let a jury decide his fate.

(Dissenting opinion filed April 13, 2007)


Permalink 08:51:54 am, by fourth, 631 words, 548 views   English (US)
Categories: General

Officer's belief developed over time that person arrested was mistaken for another precluded defense summary judgment on strip search claim

Plaintiff was arrested under a mistaken belief that she was a person wanted on a warrant for domestic battery: her name was the same as the other person's alias. Before the strip search, however, officers had subjective information that she was not the same person, and this precluded summary judgment for the defense. Archuleta v. Wagner, 2007 U.S. Dist. LEXIS 14261 (D. Colo. February 27, 2007).

Fellow officer shot during an arrest of a suspect stated no Fourth Amendment claim because he was an unintended victim. Small v. City of Philadelphia, 2007 U.S. Dist. LEXIS 14323 (E.D. Pa. February 26, 2007):

Plaintiff asks us to extend the definition of a Fourth Amendment seizure to encompass the foreseeable, but unintended, victims of deadly force directed toward others. Plaintiff has not identified any authority which supports the proposition that the Fourth Amendment protects individuals who are foreseeable victims of deadly force intentionally used against others and we have found none. Cf. Schultz v. Braga, 455 F.3d 470, 482 (4th Cir. 2006) (noting that "the Fourth Amendment does not protect persons who were merely 'reasonably foreseeable victims' of excessive force inflicted upon another"). Indeed, the Third Circuit has explained that, unlike the situation where the police intentionally shoot a person who is mistakenly believed to be a criminal, there is no Fourth Amendment seizure where the police mistakenly shoot an innocent bystander while attempting to shoot a criminal:

"if a police officer fires his gun at a fleeing robbery suspect and the bullet inadvertently strikes an innocent bystander, there has been no Fourth Amendment seizure. If, on the other hand, the officer fires his gun directly at the innocent bystander in the mistaken belief that the bystander is the robber, then a Fourth Amendment seizure has occurred."

Berg v. County of Allegheny, 219 F.3d 261, 269 (3d Cir. 2000) (citing Medeiros v. O'Connell, 150 F.3d 164, 168-69 (2d Cir. 1998); Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991); Landol-Rivera v. Cruz Cosme, 906 F.2d 791, 795 (1st Cir.1990); Brower, 489 U.S. at 596). We find, accordingly, that because Plaintiff was not the intended target of Redanauer's gunshot, he was not subject to a Fourth Amendment seizure. Defendants' Motion for Summary Judgment is, accordingly, granted with respect to Plaintiff's Section 1983 claim for violation of his Fourth Amendment rights.

Officer stopped defendant for swerving slightly, and, during the conversation, the defendant offered consent to look in the back of his truck. The officer, however, did not look at that time, and he kept talking to the suspects and reasonable suspicion was building to continue the stop. Ultimately, he found that interior screws were missing, and then he used a drug dog to sniff and drugs and a gun were found hidden there. United States v. Grant, 2007 U.S. Dist. LEXIS 14221 (S.D. Tex. February 28, 2007).*

§ 1983 case was defeated by plaintiff's admission there was probable cause for arrest. Cox v. Pate, 2007 U.S. Dist. LEXIS 14419 (W.D. Pa. February 27, 2007).*

Defense counsel had no duty to argue every conceivable permutation of his suppression position developed in 20/20 hindsight. United States v. Ringgold, 2007 U.S. Dist. LEXIS 13960 (D. Nev. February 22, 2007):

Finally, Mr. Valladares states in his affidavit that he kept Movant aware of all stages of the criminal proceeding concerning the motion to suppress, especially what issues were going to be raised in the motion, and that Movant agreed that this was the most fruitful course of action. Movant never disputes this. Rather, with 20/20 hindsight, Movant argues that counsel should have raised every conceivable argument, no matter how tenuous, the failure of which allegedly renders counsel's representation unreasonable. Contrary to Movant's conclusory arguments, counsel's performance was reasonable. The Sixth Amendment does not require counsel to raise every conceivable argument during a hearing or in a motion. Here, counsel raised what appeared at the time to be the most fruitful issues well within the confines of the Sixth Amendment.

Permalink 08:15:45 am, by fourth, 419 words, 908 views   English (US)
Categories: General

6th Cir.: Good faith exception does not apply to Title III wiretaps

The Sixth Circuit holds that the good faith exception does not apply to Title III wiretaps. United States v. Rice, 478 F.3d 704 (6th Cir. 2007).

Defendant can deny ownership and still have standing. United States v. Dilley, 480 F.3d 747 (5th Cir. 2007):

If a reasonable officer could believe that Dilley had authority to consent to a search of the storage unit, the search was reasonable under the Fourth Amendment. At the time he consented, police had received a tip that he maintained storage unit number sixteen, they had observed him driving into the storage facility, and they had found a receipt and keys for the unit in his possession. With this evidence, a reasonable officer could believe that Dilley had authority to consent to a search, despite his bald denial of ownership.

Dilley maintains that United States v. Vega, 221 F.3d 789 (5th Cir. 2000), compels a different result. There, in response to police questioning, the defendant denied residing at a particular house. We noted that Fourth Amendment rights are not lost by one's refusal to give incriminating answers to police questioning. Id. at 797. "One does not lose the legitimate expectation of privacy in a residence merely by denying an interest therein. Indeed, a misleading response to an officer's question is a far cry from consent to search." Id. (citations omitted).

Vega is not determinative, however, because Dilley's consent was not gleaned from his denial of ownership, but from his statement, "You can search any of them over there. You are not going to find anything." Dilley maintained the expectation of privacy in his storage unit even after denying his ownership, then he exercised his property rights by consenting to a search of the location. Vega does not compel a contrary result.

Informant's tip was sufficient to provide reasonable suspicion for a parolee search. United States v. Foley, 218 Fed. Appx. 139 (3d Cir. 2007)* (unpublished).

Excessive force during an arrest would not make an otherwise valid search of defendant's briefcase during the arrest invalid, so defense counsel was not ineffective. Dillard v. United States, 2007 U.S. Dist. LEXIS 14293 (N.D. Ohio March 1, 2007).*

Habeas petitioner could not raise claim that his conversations with his brother during jail visitation were unlawfully recorded. Edelbacher v. Galaza, 2007 U.S. Dist. LEXIS 14273 (E.D. Cal. February 28, 2007).*

Defense counsel's untimely filing of motion to suppress for a failure to knock and announce under 18 U.S.C. § 3109 was not prejudicial because petitioner cannot show that it would have been granted. Langdon v. United States, 2007 U.S. Dist. LEXIS 13935 (M.D. Fla. February 28, 2007).*


Permalink 07:02:13 am, by fourth, 1584 words, 941 views   English (US)
Categories: General

IN: Failure to file affidavit before search warrant is executed in violation of statute voids search

Indiana holds, based on a 1921 case, that the failure of the officer to file the search warrant affidavit with the magistrate before the issuance of the warrant voids the warrant under state law. State v. Rucker, 861 N.E.2d 1240 (2007):

Furthermore, in State v. Mason, 829 N.E.2d 1010 (Ind. Ct. App. 2005), the detective failed to file the affidavit for twenty-eight days after the issuance of the search warrant. There we stated, "the delay was unnecessary, especially given the clarity the General Assembly employed in the statutory requirement to provide a copy of the search warrant and probable cause affidavit to the judge at the time these documents are presented for approval and signing." Id. at 1021. Although the statements made in Mason were dicta, we will follow the pronouncement of that case and in doing so, the intent of the General Assembly. Thus, due to Sergeant Ewing's failure to file the affidavit and warrant before conducting the search, "the warrant was not supported by 'oath or affirmation,' as required by the constitutional provision against unreasonable search and seizure, and was illegal." Id. (quoting Thompson, 130 N.E. at 413).

Indiana reiterates that inventory searches are better conducted at the impound lot rather than at the scene. Widduck v. State, 2007 Ind. App. LEXIS 355 (February 28, 2007):

Thus, impoundment of the Durango was proper, and we believe, under the circumstances, would have been preferable. Moreover, as this court has previously noted, inventory searches conducted at the impound lot by an officer assigned to such duties are greatly preferred to searches conducted at the scene, without a warrant, by the arresting officer. See Edwards v. State, 762 N.E.2d 128, 134 (Ind. Ct. App. 2002), aff'd on reh'g by 768 N.E.2d 506, trans. denied.

However, the touchstone of Fourth Amendment analysis is "reasonableness." See, e.g., Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). While we believe this case to be a "close call," the record before us is devoid of any indicia of pretext or subterfuge for general rummaging. Under the particular facts and circumstances of this case, we cannot conclude Officer Stargel's subsequent decision to allow the driver to leave with the vehicle renders the initial inventory search unreasonable. Therefore, we conclude that the trial court did not abuse its discretion when it admitted the crack pipe into evidence.

Failure to use a turn signal is a valid basis for a stop. State v. Sneed, 2007 Ohio 853, 2007 Ohio App. LEXIS 744 (4th Dist. February 26, 2007).*

In the context of a "trespass" at a fire scene at defendant's home by crossing a police line of the proverbial yellow tape, the defendant was shown to have been dispossessed by consent and then entered without appropriate permission. The court viewed it as a search issue, as well. State v. White, 211 Ore. App. 210, 154 P.3d 124 (2007)*:

We conclude that, viewing the evidence in the light most favorable to the state and giving the state the benefit of all reasonable inferences, the factfinder could reasonably find from the circumstances that the scope of defendant's consent included exclusion from his property. First, the evidence indicates that the purpose of the consent form was to allow the police to conduct a fire investigation. A reasonable person could find that defendant understood that, when the police are investigating a fire, it is important to keep contamination of the scene to a minimum, which requires that persons other than the police must stay off the property. Additionally, at the time defendant signed the form, the crime-scene investigation tape explicitly stating, "FIRE LINE DO NOT CROSS," had been secured around defendant's residence, providing a further indication that the investigation to which defendant was consenting would involve barring unauthorized persons from the residence. Finally, the investigator had already explained to defendant that, once the investigation was underway and the tape was secured, he would not be allowed onto the property. Accordingly, in light of the particular circumstances of this case, it is reasonable to infer that the scope of defendant's consent included exclusion from his property.

There may be other reasonable inferences that would support a finding that defendant's scope of consent did not encompass dispossession. However, when at least one inference supports a verdict against a defendant, as is the case here, it is for the factfinder to choose between the competing inferences, and a motion for a judgment of acquittal should be denied. State v. Derry, 200 Ore. App. 587, 591, 116 P.3d 248 (2005), rev den, 340 Ore. 34 (2006).

Finally, defendant argues that, even if he had consented to dispossession, he revoked that consent when he entered his property. We disagree. The investigator testified that the form defendant signed outlined the procedure by which to revoke consent, indicating that, in order to revoke, defendant needed to tell the police that he wanted them out of his house. There is no evidence in the record that defendant made any such statement to anyone when he entered his property in violation of the officer's direction to stop. Accordingly, the trial court correctly denied defendant's motion for judgment of acquittal.

In an ineffectiveness claim for not filing a motion to suppress, defense counsel has a duty to file any arguable motion to suppress, but defendant still has to show prejudice by the failure to do so. State v. Montgomery, 2007 Tenn. Crim. App. LEXIS 168 (February 26, 2007)*:

This Court has stated that, if arguable grounds exist to suppress incriminating evidence, then an attorney, as a zealous advocate for the client, should move to suppress that evidence. See Robert C. Bellafant v. State, No. 01C01-9705-CC-00183, 1998 Tenn. Crim. App. LEXIS 554, 1998 WL 242449, at *6 (Tenn. Crim. App., at Nashville, May 15, 1998), no Tenn. R. App. P. 11 application filed. However, even if the seizure of the evidence provided arguable grounds for a motion to suppress, and his attorney's failure to file the motion was deficient performance, the Petitioner must demonstrate that he was prejudiced by the deficiency. In order to demonstrate prejudice, the Petitioner would have to prove that the evidence was inadmissible by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f) (2003).

Wildlife officer had reasonable suspicion for stopping a vehicle on a hunting road near the entrance to a hunting area where the occupants of the vehicle were wearing hunting clothes when stopped. He was found to be DUI. Schlegel v. State Dep't of Licensing, 153 P.3d 244 (2007).*

From March 8, 2006 post, a case affirmed on appeal to the state supreme court on the same grounds: State v. Bruski, 2007 WI 25, 727 N.W.2d 503 (February 22, 2007). The prior post:

Defendant found nodding off in car behind a store who did not know the name of the registered owner lacked standing. State v. Bruski, 2006 WI App 53, 289 Wis. 2d 704, 711 N.W.2d 679 (App. February 7, 2006) ("Bruski has failed to show that he had an objectively reasonable expectation of privacy in the car. The evidence only shows that he was found in a vehicle he did not own. He offered no evidence as to why he was in the vehicle, or that he had authorization to be in the vehicle. Bruski could not even fully identify the person from whom he had allegedly obtained the vehicle, and he certainly did not have the registered owner's permission to use the car." (consent of true owner was not even addressed)).

Affirming, the Wisconsin Supreme Court said:

Related to the vehicle, we conclude that Bruski did not have a reasonable expectation of privacy. His conduct indicates that he did not have an actual expectation of privacy. In his initial conversation with Officer Olson, he indicated that he did not know how he had gotten to his current location. After Ms. Smith and Officer Olson had asked Bruski about the whereabouts of the keys, and Officer Beauchamp entered Ms. Smith's vehicle to search for the keys, Bruski did nothing to indicate that he expected privacy related to the vehicle. There is not any indication from his conduct that he had an actual expectation of privacy in the vehicle.

Even if Bruski did have an actual expectation of privacy, he still would not have a Fourth Amendment claim. The totality of the circumstances does not support Bruski having a legitimate or justifiable expectation of privacy in Ms. Smith's vehicle.

First, Bruski had no property interest in the vehicle. His only connections to the vehicle were that he passed out in it and claimed to know the owner's daughter. The fact that he did not even know Ms. Smith's daughter's last name suggests that he did not have any relationship with the owner of the vehicle that would support a conclusion that he had a property interest in Ms. Smith's vehicle.

Second, Bruski took no precautions customarily associated with those seeking privacy. He did not even know how he had gotten to his current location, let alone taken steps to retain his privacy. Although he argues that parking the car behind a residence constitutes an effort to retain his privacy, this lacks persuasiveness given that he did not even acknowledge being the person to drive the vehicle to that location.

Third, Bruski lacked the right to exclude others from the vehicle. He did not own the vehicle. He did not establish any possessory interest in the vehicle. As mentioned above, but also relevant to this factor, his only connections to the vehicle were that he passed out in it and claimed to know the owner's daughter. His lack of knowledge about how he got to his current location also undermines his authority to exclude others from the vehicle.

Finally, Bruski's claim of privacy in Ms. Smith's vehicle is not consistent with historical notions of privacy. ...

Permalink 05:39:37 am, by fourth, 1222 words, 896 views   English (US)
Categories: General

9th Cir. analyzes force during an arrest under Graham that led to a broken neck

Plaintiff refused a pocket search after being arrested in a casino for being in the wrong place reading a magazine. He was handcuffed and in casino holding. The defendant LVMPD officer showed up and attempted to search his pockets, and that led to a shoving and pulling match. The officer spun him around and slammed him into the wall breaking the sheet rock. They went down to the floor, and the plaintiff finally stopped resisting, and he was taken to the jail and then to the hospital where it was discovered that plaintiff's neck was broken. Davis v. City of Las Vegas, 2007 U.S. App. LEXIS 4580 (9th Cir. February 28, 2007); quoted at length because it is a good analysis of how "force" turns into unconstitutional "excessive force" under Graham:

Here, as in Smith, an assessment of the facts in the light most favorable to Davis shows that his Fourth Amendment rights were violated. We start our analysis by assessing the quantum of force used against Davis. We do so because the "factors articulated in Graham, and other factors bearing on the reasonableness of a particular application of force are not to be considered in a vacuum but only in relation to the amount of force used to effect a particular seizure." Id. at 701 (quoting Chew v. Gates, 27 F.3d 1432, 1441 (9th Cir. 1994)). Looking at the facts in the light we must for purposes of this appeal, Officer Miller's use of force was extremely severe. After Davis refused to consent to being searched, Miller forcefully slammed him head-first against a wall, and then swung him into another wall, also head-first, thereby breaking his neck. Officer Miller then threw Davis face-down onto the floor, placed his knee on his back, and then turned him over and punched him in the face.

Next, we must assess the governmental interest that might justify the use of such force under the Graham factors, starting with an assessment of "the severity [*15] of the crime at issue." Graham, 490 U.S. at 396. Trespassing and obstructing a police officer, as those offenses were committed by Davis, are by no means such serious offenses as to provide an officer with a reasonable basis for subduing a person by the means employed by Officer Miller. Indeed, these offenses are much less serious than the domestic violence offense at issue in Smith, which we held did not "warrant the conclusion that [the plaintiff] was a particularly dangerous criminal or that his offense was especially egregious." Id. at 702-03. Here, too, "the nature of the crime[s] at issue provide[] little, if any, basis for the officer[']s[] use of physical force." Id. at 703.

Second, we assess "whether the suspect pose[d] an immediate threat to the safety of the officer[] or others." Graham, 490 U.S. at 396. Here, Davis posed no immediate threat to Officer Miller or to anyone else. Davis was unarmed, in handcuffs, and never attempted to harm Miller or anyone else in any way. Indeed, even if Davis had wanted to harm Miller, it would have been difficult for him to do so given that he was in handcuffs, was confined within a small area, and was surrounded by security guards. Thus, nothing in the record suggests that Davis posed an immediate threat to Miller's safety or to that of anyone else.

Next we consider whether Davis was "actively resisting arrest or attempting to evade arrest by flight." Graham, 490 U.S. at 396. Although Davis was somewhat uncooperative and resisted Officer Miller's attempts to search his pockets, at no point during the encounter did he attempt to flee, nor could he have done so in light of the fact that he was in handcuffs, surrounded by security guards, and confined in a small holding area. Thus, Davis was neither actively resisting arrest nor attempting to flee.

Finally, we consider whether Miller could have used other methods to accomplish the search of Davis's pocket, Smith, 394 F.3d at 703; Chew, 27 F.3d at 1441 n. 5, assuming that he had lawful cause to do so. Viewing the facts in the light most favorable to Davis, it is clear that other, less abusive methods of conducting the search were available. Miller could have attempted to persuade Davis to submit to the search, could have obtained the assistance of the security guards who were present, could have used less force than he did in seeking to attain his objective, or, having already conducted a pat-down, could have simply waited to conduct the search until he had delivered Davis to the jail. Indeed, Miller was reprimanded by the Police Department because he "did not use the minimal amount of force necessary and had options other than punching the suspect in the face who was on the ground in handcuffs to gain compliance."

In sum, the force used by Officer Miller was severe, the crime Davis had committed was minor, the danger to Officer Miller was minimal as was any risk of flight, and there were many less abusive means through which Miller could have accomplished his objective. Thus, weighing the severity of the force used against the governmental interests at stake, we have no difficulty in concluding that the facts here at issue, viewed in the light most favorable to Davis, demonstrate that Officer Miller's actions were unreasonable and that Davis's Fourth Amendment rights were violated.

Summary judgment denied an officer on use of excessive force during arrest because a question of fact remained. Lawler v. City of Taylor, 2007 U.S. Dist. LEXIS 13637 (E.D. Mich. February 28, 2007)*:

Here, neither party has addressed whether Toro perceived Plaintiff as a threat to his safety. Plaintiff was in custody at the police station, and his apprehension and transport to the station occurred without incident. The crime giving rise to Plaintiff's arrest was not serious, and although Plaintiff became verbally combative, his resistence to Toro's order appears more a function of his intoxication than a threat to Toro. Based on these facts and the video of the incident, the Court cannot say as a matter of law that Toro's conduct was objectively reasonable. The circumstances facing Toro at the time he made his initial decision to use force were not particularly "tense," or "uncertain." See Graham, 490 U.S. at 396-97. Plaintiff admits that he was told repeatedly by Toro to keep his hands on the counter, and the video shows that Plaintiff failed to follow Toro's instructions. Plaintiff kept turning toward Toro with arms raised. The video also shows that when Toro physically moved Plaintiff's arm to the counter, Plaintiff did not cooperate. Only after Toro forcefully put Plaintiff on the ground, did Plaintiff's resistance become aggressive.

Moreover, the record shows that Toro was disciplined for his conduct; and that a commander at the police department testified at Toro's disciplinary hearing that excessive force was used. Therefore, the Court cannot say as a matter of law that no reasonable person could find that the force was excessive.

Officers in constant communication with confidential informant gave probable cause for stop of the defendant's vehicle as defendant was doing a drug deal. United States v. Traxler, 477 F.3d 1243 (10th Cir. 2007).*

Showing how unforgiving the law can be, a Fourth Amendment § 1983 claim in Due Process clothing is dismissed without prejudice for not being brought under the Fourth Amendment. Thomas v. City of Detroit, 2007 U.S. Dist. LEXIS 13520 (E.D. Mich. February 28, 2007).*


Permalink 07:03:56 am, by fourth, 506 words, 667 views   English (US)
Categories: General

Minors' use of alcohol not an exigency permitting warrantless entry into a home

Officers standing at a convenience store heard loud party at a nearby mobile home, so they drove over there to "head off" a noise complaint. As they approached, everybody ran inside. Standing outside, they could smell alcohol and there were young people around. That did not create sufficient exigency to enter without a warrant. State v. Ealum, 283 Ga.
App. 799, 643 S.E.2d 262 (2007).

Police got a search warrant for premises, but the warrant did not permit searches of persons associated with the premises. When they arrived, they found people in the front yard talking. They were rounded up and searched, too, but this was outside the warrant. Norton v. State, 283 Ga. App. 790, 643 S.E.2d 278 (2007).

Collateral estoppel barred retrying a suppression motion that was fully litigated in another county years earlier and was the same as the one defendant wanted to try here. People v. Vogel, 148 Cal. App. 4th 131, 55 Cal. Rptr. 3d 403 (3d Dist. 2007):

The circumstances of this case, however, justify a different result. Defendant does not deny that the Siskiyou County case was a fair adversary proceeding in which he had the opportunity to fully present his case on the question of whether Sergeant Wiley had probable cause to arrest him for annoying or molesting a minor. Moreover, not only did defendant get a full and fair chance to litigate that issue before the superior court, he got a full and fair chance to litigate the issue before this court. Thus, there is no need to allow defendant to relitigate the issue in this case to vindicate his right to a fair adversary proceeding in which he can fully present his case on the probable cause issue. Defendant has had that opportunity already. Under these circumstances, the need to limit litigation must prevail. This result promotes judicial economy, prevents the possibility of an inconsistent determination that would undermine the integrity of the judicial system, and provides repose to the People.

Six days between a sale of heroin and a search warrant for defendant's house was not stale. Prince v. State, 920 A.2d 400 (Del. 2007).*

Defendant was free to walk away from an officer questioning him because the officer lacked reasonable suspicion. Greeno v. State, 861 N.E.2d 1232 (Ind. App. February 27, 2007):

Bobby Greeno appeals the denial of his motion to suppress the evidence collected from his person. In this interlocutory appeal, he asserts the warrantless search to which he was subjected was unconstitutional. The Fourth Amendment permits a police officer, without any reasonable suspicion of any wrongdoing, to approach a citizen to ask questions; however, that citizen remains free to ignore the questions and walk away. Accordingly, when a citizen in such a circumstance walks away from the officer, the officer must have reasonable suspicion a crime is, was, or is about to occur prior to yelling "stop" and chasing the citizen. Because the officer had no reasonable suspicion when he yelled for Greeno to stop and then chased after Greeno, his warrantless search of Greeno was improper. We therefore reverse the denial of Greeno's motion to suppress.

Permalink 06:35:24 am, by fourth, 552 words, 658 views   English (US)
Categories: General

911 caller not anonymous tipster when police call her back to get more information

A person who calls 911 and can be identified by her telephone number, identifies herself as a neighbor's daughter, and police were able to call her back was not an anonymous tipster because she made herself responsible for the veracity of the information. United States v. Thompson, 2007 U.S. Dist. LEXIS 13183 (N.D. Okla. February 26, 2007):

n1 Defendant refers to this female caller as an anonymous tipster. The Court finds that, although the female caller's name is unknown, she is not an anonymous tipster. The female caller identified herself as the daughter of the woman who lived at 4686 North Main Street. Further, she appears to have provided the police with her phone number (or at least the police had a record of her phone number) because they were able to contact her after the initial call. While the police did not know the female caller's name, they had sufficient information to determine her identity. In this way, the caller was not anonymous and could be held responsible if her allegations turned out to be fabricated. See Florida v. J.L., 529 U.S. 266, 270 (2000)("Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to fabricated, ... an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity.").

Congress's authority to establish post offices does not provide exclusive federal authority over search of mail such that state regulators over untaxed tobacco cannot search mail shipments of tobacco products to a federally recognized Indian tribe. Keweenaw Bay Indian Community v. Rising, 477 F.3d 881(6th Cir. February 28, 2007).

Search incident of bag on which defendant was lying before arrest was valid although he was handcuffed and moved to another part of the room at the time of the search. United States v. Derrick, 2007 U.S. App. LEXIS 4398 (11th Cir. February 27, 2007)* (unpublished).

Dispute of fact on excessive force in throwing plaintiff to the ground during an arrest or nudging him to get down precluded summary judgment. David v. Hageman, 2007 U.S. Dist. LEXIS 13358 (C.D. Ill. February 27, 2007).*

Abandoning a firearm while fleeing arrest is not the product of a seizure under Hodari D. United States v. Billups, 2007 U.S. Dist. LEXIS 13311 (N.D. N.Y. February 26, 2007). Here, guilt is another question:

Applying Hodari D. and Swindle to the facts of this case leads to the inescapable conclusion that Defendant was not seized for purposes of the Fourth Amendment until the police officers tackled him. Thus, the firearm, which Defendant abandoned before the officers tackled him, is not a product of a Fourth Amendment seizure. Accordingly, the Court denies Defendant's motion to suppress the gun which the K-9 search uncovered beneath a plastic garbage bag. n2

n2 The Court notes, however, that, based upon the facts adduced at the suppression hearing, in particular the fact that the firearm was not swabbed for prints and, therefore, there is no evidence that Defendant ever handled the firearm, and the fact that none of the witnesses were able to explain how the firearm, which Defendant allegedly tossed as he was running, ended up beneath a garbage bag, the Court has some reservations about whether the Government will be able to prove, beyond a reasonable doubt, that this gun was in Defendant's possession at the time of the incidents in question.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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