Archives for: April 2007

04/30/07

Permalink 01:00:55 pm, by fourth, 653 words, 799 views   English (US)
Categories: General

SCOTUS decides police car ramming fleeing suspect was reasonable

The Supreme Court decided Scott v. Harris today holding that a police officer ramming a fleeing suspect's car that left the suspect paralyzed was reasonable under Tennessee v. Garner. The opinions page on the Supreme Court's website includes a link to the police car video (also linked via NY Times article). The Westlaw cite for the opinion is 2007 WL 1237851. The opinion was 8-1, authored by Scalia, dissent by Stevens.

The Court's syllabus is here:

Deputy Timothy Scott, petitioner here, terminated a high-speed pursuit of respondent’s car by applying his push bumper to the rear of the vehicle, causing it to leave the road and crash. Respondent was rendered quadriplegic. He filed suit under 42 U.S.C. §1983 alleging, inter alia, the use of excessive force resulting in an unreasonable seizure under the Fourth Amendment. The District Court denied Scott’s summary judgment motion, which was based on qualified immunity. The Eleventh Circuit affirmed on interlocutory appeal, concluding, inter alia, that Scott’s actions could constitute “deadly force” under Tennessee v. Garner, 471 U.S. 1; that the use of such force in this context would violate respondent’s constitutional right to be free from excessive force during a seizure; and that a reasonable jury could so find.

Held: Because the car chase respondent initiated posed a substantial and immediate risk of serious physical injury to others, Scott’s attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment. Pp. 3-13.

(a) Qualified immunity requires resolution of a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U. S. 194, 201. Pp. 3-4.

(b) The record in this case includes a videotape capturing the events in question. Where, as here, the record blatantly contradicts the plaintiff’s version of events so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a summary judgment motion. Pp. 5-8.

(c) Viewing the facts in the light depicted by the videotape, it is clear that Deputy Scott did not violate the Fourth Amendment. Pp. 8-13.

(i) Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” The Court there simply applied the Fourth Amendment’s “reasonableness” test to the use of a particular type of force in a particular situation. That case has scant applicability to this one, which has vastly different facts. Whether or not Scott’s actions constituted “deadly force,” what matters is whether those actions were reasonable. Pp. 8-10.

(ii) In determining a seizure’s reasonableness, the Court balances the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests allegedly justifying the intrusion. United States v. Place, 462 U.S. 696, 703. In weighing the high likelihood of serious injury or death to respondent that Scott’s actions posed against the actual and imminent threat that respondent posed to the lives of others, the Court takes account of the number of lives at risk and the relative culpability of the parties involved. Respondent intentionally placed himself and the public in danger by unlawfully engaging in reckless, high-speed flight; those who might have been harmed had Scott not forced respondent off the road were entirely innocent. The Court concludes that it was reasonable for Scott to take the action he did. It rejects respondent’s argument that safety could have been assured if the police simply ceased their pursuit. The Court rules that a police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. Pp. 10-13.

Officer Scott's brief is here, and Harris's brief is here.

Permalink 07:28:51 am, by fourth, 436 words, 825 views   English (US)
Categories: General

Washington State: Bank and motel records are "private affairs" and not subject to a mere subpoena or police inspection

Washington finds a securities investigation subpoena governed by "Article I, section 7 of the Washington Constitution [which] requires that '[n]o person shall be disturbed in his private affairs ... without authority of law.'" State v. Miles, 160 Wn.2d 236, 156 P.3d 864 (2007).

The information sought here potentially reveals sensitive personal information. Private bank records may disclose what the citizen buys, how often, and from whom. They can disclose what political, recreational, and religious organizations a citizen supports. They potentially disclose where the citizen travels, their affiliations, reading materials, television viewing habits, financial condition, and more. Little doubt exists that banking records, because of the type of information contained, are within a person's private affairs.

We turn next to whether there was authority of law supporting the issuance of the subpoena to Miles' bank. The trial court held that the statute did not provide authority of law. We agree.

Washington State also holds that same day that a police officer's random check of a motel registry was an invasion of privacy. State v. Jorden, 160 Wn.2d 121, 156 P.3d 893 (2007).

Comment: These are valuable opinions if one's state constitution has the power that Washington's does. Their constitution protects "private affairs" and that can be a big difference.

Officer who validly stopped the defendant developed reasonable suspicion from contradictory answers from the occupants. United States v. Martinez, 230 Fed. Appx. 808 (10th Cir. 2007)* (unpublished).

Defendant's probation search was valid, and the probation officer developed reasonable suspicion defendant possessed a sword, a dangerous weapon. United States v. Klein, 228 Fed. Appx. 787 (9th Cir. 2007)* (unpublished).

Plaintiff nursing home was a closely regulated business subject to inspection, and it could not show that it was maliciously targeted for a search by the regulators. Golden Years Homestead Inc. v. Buckland, 466 F. Supp. 2d 1059 (S.D. Ind. 2006):

In light of our review of the arguments presented by both parties and the exhibits submitted by each side, while construing all facts in the light most favorable to Golden Years, we hold that a reasonable fact-finder could not find that the ISDH Defendants conducted their surveys in an unreasonable manner so as to give rise to a Fourth Amendment claim. As described above, Blue and Beverly hold that a nursing facility has, at most, a very attenuated expectation of privacy meriting Fourth Amendment protection, and that regulatory inspections ordinarily do not offend any existing right. Thus, a search would have to be unreasonable in manner or effect--that is, outside the statutory and regulatory guidelines--in order to support relief under the Fourth Amendment. See our Entry of March 30, 2004. We are unpersuaded that a reasonable jury could ever so find in this case.

Permalink 07:05:11 am, by fourth, 528 words, 814 views   English (US)
Categories: General

Oregon declines to find expectation of privacy in trash picked up for disposal

Oregon considers trash searches under its state constitution, and it declines to find a reasonable expectation of privacy. State v. Howard, 342 Ore. 635, 157 P.3d 1189 (2007):

We note, as an initial matter, that defendants do not argue on review that they retained either an ownership or a possessory interest in the garbage once the sanitation company picked it up. It follows that, if defendants had no ownership or possessory interest in the garbage once the sanitation company collected it, the officers did not seize the garbage in violation of defendants' Article I, section 9, rights; that is, the officers did not interfere, significantly or otherwise, with defendants' ownership or possessory interests. See Owens, 302 Ore. at 207 (explaining that a seizure occurs when government officials significantly interfere with a person's "possessory or ownership interests in property"). Rather, the sanitation company lawfully possessed the property once it collected it. See Haslem v. Lockwood, 37 Conn 500 (1871) (citizen who raked into piles horse manure abandoned on public thoroughfare lawfully possessed it as against other citizens). If any entity had a constitutionally protected possessory interest, it was the sanitation company but that company voluntarily turned the property over to the police.

Defendants focus on review solely on the question whether they retained a protected privacy interest in the garbage, the invasion of which would give rise to a "search." See Owens, 302 Ore. at 206 (defining a search as an invasion of a protected privacy interest). On that issue, as we noted above, defendants do not contend that they retained an ownership or possessory interest in the garbage once the sanitation company picked it up. Similarly, they have not identified any other subconstitutional right or relationship that would prohibit the sanitation company from doing what it did here. For instance, defendants have not claimed that their contract with the sanitation company limited what the company could do with the garbage once the company took possession of it.

Texas's exclusionary rule does not exclude evidence of a new crime. "Thus, the evidence that must be excluded under article 38.23 is evidence of the crime that was committed before the officer's unlawful search or seizure, not evidence of a crime that was committed thereafter." State v. Iduarte, 232 S.W.3d 133 (Tex. App. — Ft. Worth 2007).*

Defendant claimed she was detained for a dog sniff because she refused to consent, but the officer [barely] had reasonable suspicion based on the totality of circumstances [giving the officer every benefit of the doubt and the citizen none]. State v. Daniels, 221 S.W.3d 438 (Mo. App. S.D. 2007):

Considering the "totality of the circumstances" after drugs were found on one of the group, and taking "into account a police officer's trained instinctive judgment operating on a multitude of small gestures and actions impossible to reconstruct," the trial court could plausibly conclude the police had more than an "inchoate and unparticularized suspicion or hunch" that criminal activity was afoot, and a "minimal level of objective justification" to hold the two cars long enough to run the drug dog (arguably the quickest and least intrusive "search" possible) in aid of their investigation. Thus, the trial court did not err and the evidence was admissible. The judgment and conviction are affirmed.

Permalink 12:04:31 am, by fourth, 1129 words, 1108 views   English (US)
Categories: General

Defendant consented to patdown for weapons, and plain feel did not support search for a small bulge which was unidentifiable but clearly was not a weapon

Defendant consented only to a patdown for weapons, and the patdown revealed a small bulge in his pocket which was obviously not a weapon, so the plain feel exception did not apply. State v. Lee, 283 Kan. 771, 156 P.3d 1284 (2007):

In this case, the initial intrusion was the pat-down search for weapons. The pat-down search for weapons was lawful because Lee voluntarily consented to the search. However, we note that Lee did not consent to a general search. The officer specifically asked for permission to conduct a pat-down search for weapons and did not ask Lee to empty his pockets. Based on this evidence, the first requirement for the application of the plain feel exception has been met--the initial intrusion was lawful.

Likewise, the second requirement for the application of the plain feel exception was met. The discovery of the methamphetamine was inadvertent because the officer did not have any reason to believe that Lee would have methamphetamine in his pocket. The officers did not question Lee about drugs, and Lee did not behave as though he were under the influence of drugs.

Under the third requirement for the plain feel exception, the officer must have probable cause to believe that the object is evidence of a crime. However, the officer testified that he did not know what the object was when he felt it. The district court found that the officer could not reasonably have believed that the small, rolled-up plastic bag was a weapon. The State does not contest this finding, and it is supported by the evidence. The officer testified that weapons typically feel hard, and the small object in Lee's pocket just felt like a bulge. Because the officer did not have probable cause to believe that the small object in Lee's coin pocket was a weapon or evidence of a crime, the plain feel exception does not apply.

Lee consented to a pat-down search for weapons. However, the officer exceeded the scope of the search when he removed the plastic baggie containing methamphetamine from Lee's coin pocket. Because the plain feel exception does not apply, the methamphetamine in Lee's pocket was illegally seized in violation of Lee's Fourth Amendment rights. Likewise, the discovery of the marijuana residue in Lee's duffel bag was also illegal because it was a fruit of the illegal search of Lee's pocket. See State v. Morris, 276 Kan. 11, 25-26, 72 P.3d 570 (2003) (suppressing evidence that was discovered after the defendant was illegally seized).

Government discusses only voluntariness of consent and fails to discuss the relation to the illegal arrest, which the court finds taints the consent. Court gives a helpful analysis of a circuit split. United States v. Henderson, 2007 U.S. Dist. LEXIS 30991 (S.D. Ohio April 25, 2007):

The issue before a court considering the validity of a consent to search following an illegal arrest is whether the consent sufficiently satisfies both the voluntariness and causal connection tests. This issue splits the circuits. The Sixth Circuit requires that a consent to search following an illegal seizure pass both the voluntariness and causal connection tests before a court may find it valid. See, e.g., United States v. Lopez-Arias, 344 F.3d 623, 629-30 (6th Cir. 2003); United States v. Caicedo, 85 F.3d 1184, 1190 (6th Cir. 1996); United States v. Bradley, 922 F.2d 1290, 1296 (6th Cir. 1991); United States v. Richardson, 949 F.2d 851, 859 (6th Cir. 1991); United States v. Buchanan, 904 F.2d 349, 356 (6th Cir. 1990). As noted in one of the circuit's leading cases:

"Therefore, following Supreme Court precedent, we have repeatedly held that if a consent to search is given after an illegal seizure, evidence obtained pursuant to the consent to search must be suppressed, unless the consent is sufficiently attenuated from the illegal seizure such that the consent is the product of an intervening act of free will."

Lopez-Arias, 344 F.3d at 629 (citations omitted).

In assessing causal connection, the Sixth Circuit follows Brown and requires a court to apply attenuation factors to an otherwise voluntary consent following an illegal arrest. These factors include "the length of time between the illegal seizure and the consent, the presence of intervening circumstances, the purpose and flagrancy of the official misconduct, and whether the officers read the suspect his Miranda rights before he consented." Lopez-Arias, 344 F.3d at 630. No single factor is dispositive. Brown, 422 U.S. at 603-04. The government bears the burden of persuasion to establish attenuation. Kaupp v. Texas, 538 U.S. 626, 633 (2003).

Applying this law to the present facts, the Court first notes that, in its memorandum supporting its motion for reconsideration, the Government exclusively focuses its argument on establishing the voluntariness of Madden's post-arrest consent to search the Wynde Tree Residence. See Doc. 122. The Government's failure to address any causal connection between Madden's illegal arrest and her voluntary consent negates the Government's conclusion that Madden "validly consented" to the search of the Wynde Tree Residence. Consequently, as a matter of law, the Government's contention that Madden's voluntary consent validated the police's search of the Wynde Tree Residence fails.

By failing to address the Sixth Circuit's causal connection test, the Government cannot demonstrate clear error of law. Further, by misapplying the law, the Government fails the facts. As the Court discussed in its April 13, 2007 Opinion and Order regarding Madden, see Doc. 111, the police illegally seized Madden at the January 11, 2007 roadside stop. Without probable cause, Captain Heffernan put Madden in the back seat of his police car and then, upon orders of Special Agent Lucas and with Detective Clark, transported her to the parking lot of the Fourth District Station and, ultimately, to an interrogation room at the Justice Center. Id. Lucas testified that, throughout Madden's stay in Heffernan's police car and the interrogation room, she "was not free to go." Id. No event intervened between her illegal seizure and her eventual consent to search. See, e.g., Buchanan, 904 F.2d at 356 (noting that "[d]issipation of the taint resulting from an illegal entry ordinarily involves showing that there was some significant intervening time, space, or event") (internal quotation and citation omitted)). The police did not allow Madden to use a phone; she did not contact a lawyer. Id. Without an intervening event, the "taint" of Madden's illegal arrest did not dissipate before the police obtained her otherwise voluntary consent to search the Wynde Tree Residence.

Furthermore, as detailed in the April 13, 2007 Opinion and Order, the illegality of Madden's arrest was blatant. [Doc. 111.] Upon orders from Special Agent Lucas, Captain Heffernan and Detective Clark kept Madden in the back of Heffernan's police car for nearly four hours.

Nervousness alone is not reasonable suspicion, but it is pertinent. Add evasiveness, and it is reasonable suspicion. Camp v. State, 983 So. 2d 1141 (Ala. Crim. App. 2007).*

Fact that defendant was handcuffed before the search incident did not lessen that officer's ability to legally conduct it. Meister v. State, 864 N.E.2d 1137
(Ind. App. 2007).*

04/29/07

Permalink 09:36:14 am, by fourth, 247 words, 642 views   English (US)
Categories: General

Defendant's purse was lawfully searched under Belton when it was left in the car after the defendant had been removed from it. It matters not whether the purse is in hand or in the car if it is a valid search incident. State v. Mercier, 2007 Ohio 2017, 2007 Ohio App. LEXIS 1837 (1st Dist. April 27, 2007).*

Search warrant for defendant's property was lawfully issued after a chat between defendant and an investigator for PervertedJustice.com. The officer sought to and did corroborate who the screenname belonged to and its location by subpoenas to internet providers. State v. Andrews, 2007 Ohio 2013, 171 Ohio App. 3d 332, 870 N.E.2d 775 (1st Dist. 2007).*

Officers responded to a shots fired call at a Cleveland bar, which was a common occurrence on some weekend nights, and they found the defendant. An officer shined a flashlight into his car and found a gun. State v. McPherson, 2007 Ohio 1973, 2007 Ohio App. LEXIS 1827 (8th Dist. April 26, 2007).*

"The trial court stated '[e]ven if I believe Mr. Johnson, if he had his identification then, and he blurted out to the police officer, and "Guess what, guys, I've got a gun," ***.' (Tr. 67). This, the court reasoned, provided officers with reasonable suspicion that defendant was armed and dangerous. Id. ('you darn well bet the police officers are going to stop and frisk for their own protection under those circumstances;). The trial court then denied defendant's motion to suppress." The judgment was affirmed based on reasonable suspicion. State v. Johnson, 2007 Ohio 1983, 2007 Ohio App. LEXIS 1831 (8th Dist. April 26, 2007).*

Permalink 08:51:34 am, by fourth, 750 words, 883 views   English (US)
Categories: General

Flight provoked lawfully or unlawfully under Wardlaw

N.M. deals with the question of whether flight under Wardlow and Hodari D. was lawfully provoked or unprovoked. State v. Harbison, 2007 NMSC 16, 141 N.M. 392, 156 P.3d 30 (2007):

We recognize that the Wardlow analysis ultimately turns on whether the Defendant's flight was provoked or unprovoked. Id. at 124 (stating reasonable suspicion founded on the defendant's presence in high crime area combined with "unprovoked flight upon noticing the police"). The lack of provocation is critical. We agree with the position of the Eleventh Circuit Court of Appeals in United States v. Franklin, 323 F.3d 1298 (11th Cir. 2003), acknowledging that "officers cannot improperly provoke--for example, by fraud--a person into fleeing and use the flight to justify a stop." Id. at 1302 (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)); see also id. at 1305 (Pogue, J., dissenting) ("The police may not frighten an individual into fleeing, and then assert his flight as a justification for pursuing and stopping him."); People v. Thomas, 198 Ill. 2d 103, 759 N.E.2d 899, 905, 259 Ill. Dec. 838 (Ill. 2001) (upholding denial of suppression motion despite officer's lack of reasonable suspicion at the time of attempted seizure because the officer "did not act without reason or for the sole purpose of provoking the defendant's flight"). Thus, if police action at the moment of an attempted seizure is illegal and taken for the purpose of provoking flight, then flight in response to that action, being unlawfully provoked, may not be factored into the reasonable suspicion equation. To hold otherwise would create

"great opportunities for police mischief in the gulf lying between Wardlow and ... Hodari D. Hodari D. says that police pursuit, even when it makes apparent to the suspect a police intent to seize him, is not subject to Fourth Amendment limits. Surely it does not follow that such provocative activity may be deemed to provide the reasonable suspicion the police will need once they catch up with the suspect and take control of him."

4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(f), at 530-31 (2004) (footnote omitted); see also Thomas, 759 N.E.2d at 905 (agreeing that its holding was not to be construed as giving "a license to conduct investigatory stops in every case where a citizen ignores, or fails to heed, a baseless police order or show of authority").

In the case before us, however, the record does not support a conclusion that Defendant's flight was unlawfully provoked. There is no evidence in the record of fraudulent conduct on the part of the police or actions taken "without reason or for the sole purpose of provoking [Defendant's] flight." Thomas, 759 N.E.2d at 905. The officers were acting appropriately in attempting to investigate a crime that had just occurred. The officers were legitimately present at the scene with probable cause to arrest Clark, who was known to have just completed a drug transaction. When the officers got out of their cars, Defendant fled. Given Defendant's proximity to the crime scene combined with the officers' need to maintain the status quo pending a brief investigation, and especially given the lack of record evidence that the police acted unlawfully to provoke Defendant's flight so as to justify his seizure, we conclude, by applying Wardlow, that the police had reasonable suspicion to pursue Defendant and subject him to a brief investigatory stop. See generally 2 Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure § 3.8(b) (1999) (indicating that a brief investigatory stop is appropriate not only to prevent crime but to also help detect it and suggesting that, in the immediate aftermath of a crime, an officer may be entitled to freeze a situation for a short time to make inquiry and determine possible perpetrators).

From the testimony, officers lacked reasonable suspicion to stop a pedestrian, and his public intoxication conviction was reversed. The only thing he did was react to the police vehicle that drove in his direction making a U-turn. Rich v. State, 864 N.E.2d 1130 (Ind. App. 2007).*

Defendant's father had possession of real property and could consent to his son's vehicle parked on the property which had switched vehicle licenses. The vehicle contained potential evidence in a murder case. Ross v. State, 954 So. 2d 968 (Miss. 2007).*

N.Y. Town Justices recused themselves from issuing a search warrant for a police dispatcher's house. By the time a different justice was obtained, the warrant application was void, and it was also issued without jurisdiction. People v Alteri, 2007 NY Slip Op 27160, 16 Misc. 3d 167, 835 N.Y.S.2d 869 (New York Co. 2007).*

04/28/07

Permalink 06:24:38 pm, by fourth, 1427 words, 1105 views   English (US)
Categories: General

Hot pursuit of a DUI took police to defendant's door and justified arrest without a warrant

Officers followed defendant to her home suspecting her of DUI. When she answered the door and admitted driving the car, they had probable cause to arrest her, and, because DUI is a jailable offense, hot pursuit applied and they could go after her. The court surveys the cases and distinguishes Welsh. State v. Robinson, 144 Idaho 496, 163 P.3d 1208 (2007):

Accordingly, the misdemeanor driving under the influence (DUI) offense of which Robinson was suspected, which carries a penalty of up to six months jail time, I.C. § 18-8005, falls under the category of a jailable offense within the exigent circumstances doctrine. The distinction between felony and misdemeanor for purposes of the exigent circumstances doctrine no longer has a valid basis in state or federal law.

Justification for a warrantless entry hinges upon whether the intrusion was objectively reasonable under the circumstances. Brigham City, 126 S. Ct. at 1947. The magistrate found Robinson's person contained evidence that was evanescent in nature and would quickly dissipate if time were taken to seek a warrant. See Welsh, 466 U.S. at 753; Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (warrantless blood alcohol test reasonable where delay would cause loss of evidence); State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1212 (1989) ("destruction of the evidence by metabolism of alcohol in the blood provides an inherent exigency ...."). The magistrate further concluded, however, that the officers' actions exceeded the scope of the evidence preservation exigency.

We apply an objective standard to determine whether the action taken was appropriate for a person of reasonable caution given the facts known to the official at the time of entry, along with reasonable inferences drawn therefrom. State v. Barrett, 138 Idaho 290, 293, 62 P.3d 214, 217 (Ct. App. 2003). The exigent circumstances exception does not apply where there is time to secure a warrant. See Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978); State v. Worthington, 138 Idaho 470, 472, 65 P.3d 211, 213 (Ct. App. 2002). In Welsh, the police arrested the defendant for DUI within a half-hour from his reported drunken driving incident. This made it unlikely that Welsh "could cast substantial doubt on the validity of a blood or breath test by consuming additional alcohol upon arriving at his home." Welsh, 466 U.S. at 763 (White, J., dissenting). In the case at hand, the officers arrived promptly at Robinson's home. Officer Moore arrived minutes later, and entered the home to arrest Robinson only after she refused either to come outside or to allow the officers to perform field sobriety tests inside the home. The officers further testified regarding the impracticability of obtaining a warrant at such a late night hour, saying it ordinarily took several hours. Compare Vale v. Louisiana, 399 U.S. 30, 35, 90 S. Ct. 1969, 26 L. Ed. 2d 409 (1970) (finding warrantless home entry unreasonable where practical to obtain warrant).

Officers came in with permission to look for a lead on a missing person (not likely dead, just missing). They had reason to believe defendant had marijuana, too. They looked under defendant's recliner with a flashlight while in his house looking for papers from the missing person, and found rolling papers and marijuana. They asked for consent which was refused. They got a search warrant based on the observation, and it was upheld. The minimal ruse was not constitutionally unacceptable. United States v. Trower, 2007 U.S. Dist. LEXIS 30890 (W.D. Mo. March 28, 2007):

Inasmuch as the incriminating nature of the marijuana plate was readily apparent, the critical issue is whether Officer Rorebeck was "'in a place where the officer ha[d] a right to be.'" United States v. Criswell, 696 F.2d 636, 640 (8th Cir.1983) (quoting Washington v. Chrisman, 455 U.S. 1, 5, 102 S.Ct. 812, 816 (1982)). Under the facts presented, the Court finds that Officer Rorebeck (and the other two law enforcement officers were voluntarily) invited by Trower into his house, in part, for the purpose of locating the letter left by Ms. Aguilar. At no time prior to the plain view discovery of the marijuana did Trower make any effort to limit the scope of his consent. As such, Officer Rorebeck had a right to be in the Trower living room and to look under the chair (where the letter could have been lying). Compare United States v. Johnson, 707 F.2d 317, 322 (8th Cir. 1983) ("[The defendant] seems to be arguing that the firearms were not in 'plain view' because they were hidden in and under the bed, and were not openly visible when the officers entered the room. However, the firearms can still fall within the plain view doctrine because they were discovered in a place where the officer ha[d] a right to be.").

The Court further concludes that the application of the plain view doctrine is permissible even though the law enforcement officers sought Trower's permission to enter his residence with some belief that they would find marijuana under the recliner in the living room. In United States v Wright, 641 F.2d 602 (8th Cir. 1981), the Eighth Circuit found that some "minimal deception" by law enforcement officers is acceptable. In Wright, undercover agents, during the course of their drug investigation, knocked on the defendant's motel door, pretending to have car trouble, asking to borrow some tools, and saw a white powdery substance and drug paraphernalia in plain view within the motel room. After employing the ruse, the agents obtained a search warrant, which was executed that night, and which yielded a shotgun, quantities of powdery substances, some pills, a cutting mirror and other drug paraphernalia, and a small notebook listing various drugs, their quantities, and prices. The court found that the undercover officers, by standing in the open door of the motel unit, like any member of the public, could see inside and observe various items in plain view. Although the undercover officers did not reveal their true identity or true purpose, and to that extent did lie, the Wright court said that it recognized the necessity for some kinds of undercover police activity; the officers did not engage in any conduct inconsistent with that expected or contemplated by the defendant when he opened the door. The fact that the officers approached the defendant with a lawful purpose, namely "fixing" their car, rather than an unlawful one, such as buying drugs, did not make their ruse unacceptable. Similarly, in this case, the officers' legitimate efforts in investigating the disappearance of Ms. Aguilar does not invalidate the plain view doctrine.

Officers responded to a noise complaint of teenagers running through back yards. At the defendant juvenile's house, they saw suspicious behavior which caused them to believe that perhaps a burglary was in progress and they came into the back yard, where defendant became belligerent and refused to cooperate and committed battery on a law enforcement officer. His motion to dismiss for the entry into the yard was dismissed and affirmed on appeal. P.B.P. v. State, 955 So. 2d 618 (Fla. 2d Dist. 2007):

The circumstances here compel a similar conclusion and support the trial court's denial of P.B.P.'s motion to dismiss. At 3:00 a.m., the police officers responded to a disturbance call involving juveniles running through backyards. As the officers tried to determine whether juveniles were in the open backyard area, they saw suspicious circumstances at P.B.P.'s house, including an open window with the screen to the side, someone "peeping through" a window then trying to hide, and someone trying to hide under a counter. At this point, the officers were standing between two homes, and it is unclear whether they had actually entered P.B.P.'s yard.

Officer Perrone went to the front door while Officer Bruce remained in the rear area between P.B.P.'s house and a neighbor's house. Although P.B.P. responded to the front door after a few minutes delay, he then went back into the house and to the rear door, where he called out to Officer Bruce using "colorful language." The officers still did not know P.B.P.'s identity, whether he had been involved in the earlier disturbance, or whether he was trespassing in or burglarizing the house. Officer Bruce approached P.B.P. at the rear only after P.B.P. called out. Neither Officer Bruce nor any of the officers tried to enter the house. Instead, when they tried to ascertain P.B.P.'s identity to determine whether he actually lived in the house, P.B.P. struck Officer Bruce. Under the totality of these circumstances, we conclude that the trial court did not err in determining that the officers were engaged in the lawful performance of their duties and in denying P.B.P.'s motion for judgment of dismissal.

Permalink 05:37:53 pm, by fourth, 503 words, 583 views   English (US)
Categories: General

LA "skid row" rousting injunction is extended based on continued violations

The case against the City of Los Angeles for rousting "skid row" denizens in violation of the Fourth Amendment is extended. It expired after three years. The District Court finds that, applying the summary judgment standard, to the factual allegations of continued violations of the original stipulated injunction, the plaintiffs have pled enough to go to trial. Fitzgerald v. City of Los Angeles, 485 F. Supp. 2d 1137 (C.D. Cal. 2007):

The settlement agreement constituted a stipulation to a permanent injunction as follows:

1. Officers will not conduct detentions or "Terry" stops without reasonable suspicion that a person is involved in criminal activity or has committed a crime or violated parole or probation. However, officers may continue to engage in consensual encounters with persons, parolees, probationers, or others residing in or otherwise present in the "Skid Row" area of Los Angeles.

2. Officers will not search the persons and/or possessions of those individuals stopped on the public streets and sidewalks of the "Skid Row" area of Los Angeles without probable cause and/or reasonable suspicion that the person has committed a crime or violated parole or probation. However, nothing shall prohibit officers from performing "pat-down" searches in accordance with the law.

3. Officers will not search residences of persons residing or otherwise present in the "Skid Row" area of Los Angeles except with a valid warrant, other legal justification, or with reasonable suspicion that they are on parole or probation and have violated the terms of their parole or probation.

“It matters not whether the defendant is arrested eventually for a crime other than that for which probable cause existed initially. All that matters is — as here — probable cause to arrest existed at the time the search was initiated.” United States v. Langel, 2007 U.S. Dist. LEXIS 30562 (D. Colo. April 25, 2007).

To show a private actor acted with a public actor under § 1983, it is required to allege that they had a common purpose to violate plaintiff’s constitutional rights. Here, plaintiff’s property was entered by a private process server to levy on a judgment assisted by a law enforcement officer. The process server was related to the plaintiff. The allegations of the complaint were insufficient. Rowell v. King, 2007 U.S. App. LEXIS 9576 (10th Cir. April 25, 2007)* (unpublished).

Nolle pros of state case overcomes Heck bar. Contorno v. McCann, 2007 U.S. Dist. LEXIS 30776 (N.D. Ill. April 25, 2007):

As noted, the unlawful possession of alcohol and obstruction charges were dismissed pursuant to a nolle prosequi, which is not a final disposition; rather it "is a procedure which restores the matter to the same state which existed before the Government initiated the prosecution." Id. at 557 (citation omitted). As such, the court denies the McCann Defendants' motion to dismiss these claims based on Heck.

Defendant’s late filing of a motion to withdraw his guilty plea was denied, and he waived his motion to suppress which was not filed, even though he claimed the police lied in his police reports. United States v. Keating, 2007 U.S. Dist. LEXIS 30516 (E.D. Mo. April 25, 2007).*

04/27/07

Permalink 02:55:30 pm, by fourth, 362 words, 481 views   English (US)
Categories: General

Officers lacked exigent circumstances for entry, but the defendant consented anyway

Officers entered upon defendant's porch with probable cause but the question of exigency was not adequately shown beyond maintaining the status quo. Defendant, however, consented to the entry. Gutierrez v. State, 221 S.W.3d 680 (Tex. Crim. App. 2007):

Here, the court of appeals found that probable cause and an exigent circumstance were both present when the police confronted the appellant on his porch. In finding sufficient probable cause, the court of appeals noted that the officers were aware that the appellant had possession of the stolen computer and marijuana, that he initially lied to them about his possession of the laptop, and that he had bloodshot eyes and was increasingly nervous. The court of appeals then observed:

"Where police have evidence of mari[j]uana and stolen property in a home, we cannot conclude they are required to stand by and allow that person to enter the home alone .... A reasonable police officer could believe that appellant was attempting to destroy the mari[j]uana or the computer or both, or even flee from the officers or engage in some action that might threaten officer safety."

We agree with this observation, insofar as it goes. Assuming the police indeed had probable cause, the exigency of the situation called for a measured police response to maintain the status quo. We disagree, however, that the exigency perceived by the court of appeals was such as reasonably to authorize a full-blown search of the appellant's home. The detectives' response of conducting a warrantless search of the entire home far exceeded the scope of the particular exigent circumstance they faced. When confronted with an urgency that requires immediate police action and does not allow for the procurement of a warrant, law enforcement is authorized to take reasonable steps to secure the status quo. But this exception to the warrant requirement does not grant police the unfettered discretion to take any course of action, however disporportionate it may be to the perceived exigency.

Appellate court's reliance on DWI videotape of his stop but its absence from that court's record required remand for the tape to be included and re-evaluated. Amador v. State, 221 S.W.3d 666 (Tex. Crim. App. 2007).*

Permalink 02:22:22 pm, by fourth, 706 words, 627 views   English (US)
Categories: General

Informant was considered reliable because of his track record and a lie to the officer would have adversely affected his own case

The confidential informant had a good track record with the officer, and he had every incentive to be truthful to the officer because he had a case pending of his own that would be adversely affected by a lie. Fleming v. United States, 923 A.2d 830 (D.C. App. 2007):

Here, not only was the unpaid informant known to Officer Wooden, but on two prior occasions his information had resulted in arrests. Moreover, the informant spoke from personal knowledge and direct observations, referring to the defendant by the name "Tray," specifying the precise place where he could be found, providing a detailed description, including type of clothes and shoes worn, racial identity, and describing his haircut. The informant was not paid and hence had no reason to lie to gain monetary payment. See Rutledge v. United States, 392 A.2d 1062, 1066 (D.C. 1978). Nor did he or she have incentive to lie to obtain drugs, because the informant did not use drugs. And, he or she understood that if false information were given to Officer Wooden, that could have an impact on his own sentencing in a pending criminal matter. Under these circumstances, we agree with the trial judge that the informant was reliable and the information he gave to Officer Wooden was sufficiently detailed to provide the police with reasonable articulable suspicion that criminal activity was unfolding, thus justifying an investigatory stop of Mr. Fleming under Terry v. Ohio, 392 U.S. 1 (1968); see also Wilson v. United States, 802 A.2d 367, 369 (D.C. 2002); Gomez v. United States, 597 A.2d 884, 888 (D.C. 1991).

Good track record of the informant was probable cause. McTaggart v. State, 285 Ga. App. 178, 645 S.E.2d 658 (2007):

McTaggart also claims the affidavit supporting the warrant contained insufficient facts to establish the reliability of the informant. However, the affidavit attached to the search warrant does set forth sufficient facts to establish the reliability of the informant. The affidavit states that the confidential informant "has given information in the past that has lead to at least 5 search warrants" and seven or eight arrests. Further, it states the informant "has been an informant for more than 10 years and has provided numerous amounts of intelligence information that has proven reliable in the past." These statements were sufficient to establish the reliability of the informant.

Flight from officers in a high crime area where there were apparent drug sales going on was reasonable suspicion. United States v. Adderly, 2007 U.S. Dist. LEXIS 30430 (E.D. Pa. April 24, 2007).*

Defense counsel's failure to assert a futile Fourth Amendment claim did not prejudice the defendant. Garvey v. State, 925 A.2d 503 (Del. 2007).*

Defendant was stopped and vehicle had several guns visible in it. After a search for officer safety, the defendant said something that made the officer believe that there was yet another gun, and that permitted a further search. State v. McManemy, 2007 Iowa App. LEXIS 518 (January 31, 2007):

Officer Woodley's initial observations while riding in his patrol car gave him reason to believe McManemy was violating weapons laws and posed a risk to public safety. After stopping his patrol vehicle to investigate, Woodley determined McManemy was carrying a loaded weapon. He took the weapon from the defendant and unloaded it. Woodley then observed a number of cased guns in the vehicle. He also observed an uncased weapon in the vehicle and cited both McManemy and Callan for violating weapons laws. After McManemy mentioned something about a pistol, the officer became concerned there might still be a handgun in the vehicle McManemy had exited. Officer Woodley was reasonably concerned for his safety. We conclude the facts just mentioned gave Officer Woodley probable cause to search the Suburban for further weapons.

McManemy claims the court erred in relying in part on his bizarre behavior of diving into the ditch with the green bag to justify overruling his motion to suppress. We find this contention is irrelevant to our consideration of the legality of the search. The probable cause requirement was satisfied by Officer Woodley's observation of an uncased weapon inside the vehicle and statements made by the defendant indicating another weapon might be found in the vehicle. These facts gave Officer Woodley probable cause to search the vehicle before the defendant dove into the snow bank in an attempt to hide his drugs.

Permalink 01:45:25 pm, by fourth, 972 words, 819 views   English (US)
Categories: General

Entry by ruse of officers claiming to be real estate investors did not permit them to feel a gun case; the good faith exception did not apply because the warrant had not issued

ATF agents, acting on the word of a concerned citizen that defendant was a felon in possession of a fiream, came to defendant's house acting as real estate investors, and they went through the house and found a gun case and felt it, feeling a gun. (1) The entry into the closet and feeling the gun was beyond the scope of consent and an unlawful search. (2) The good faith exception did not apply because the search warrant had not yet issued. (3) Stripped of the unlawful search, the affidavit for the search warrant still provided probable cause, so suppression was not warranted. United States v. Lord, 230 Fed. Appx. 511 (6th Cir. 2007) (unpublished):

The government responds that Agents Allen and Weaks "were invited to examine the residence and the closets by the defendant." Although this is an accurate factual description of the circumstances surrounding the June 8 search, nothing in the record supports the government's implication that Lord's consent to look inside his bedroom closet extended to the examination of the contents of a closed case inside the closet. Our court has held that, in ascertaining the scope of a consent to search, a reviewing court considers what "the typical reasonable person [would] have understood by the exchange between the officer and the suspect." United States v. Garrido-Santana, 360 F.3d 565, 576 (6th Cir. 2004). We think it unlikely that a reasonable person would understand Lord's consent to two men he believed to be prospective home buyers to encompass the "squeez[ing] and grab[bing]" of a closed case in his bedroom closet. We accordingly reject the government's suggestion that Lord's consent to examination of his closet extended to the handling of closed storage containers in the closet. Under Bond and Waller, Agent Weaks's actions in squeezing the case constituted an unlawful search, the fruits of which must be excluded unless some exception to the exclusionary rule applies.

The government contends that the district court properly admitted the evidence obtained as a result of Agent Weaks's actions under the good faith exception to the exclusionary rule. The government's invocation of the good faith exception is inappropriate here, as the search it seeks to justify occurred prior to the issuance of a warrant, and there was, therefore, no warrant on which the agents could have relied in searching Lord's home. See United States v. Leon, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (adopting good faith exception to exclusionary rule where police seize evidence in reasonable reliance on a warrant issued by a detached and neutral magistrate); United States v. Jenkins, 396 F.3d 751, 761 (6th Cir. 2005) (noting that government's reliance on good faith exception was "erroneous" where illegal search in question "occurred before the warrant was issued, and thus the [seized evidence] could not be admissible under a doctrine that requires reasonable reliance on a warrant").

The independent source doctrine is a more appropriate basis for the resolution of this case. Under that rule, the presence of unlawfully secured information in a search warrant affidavit does not necessarily make a subsequently obtained warrant invalid. See id. at 758. Instead, a court reviewing a request for the suppression of evidence seized during the execution of a warrant issued on the basis of an affidavit containing both (1) information acquired during an unlawful search and (2) lawfully obtained, "untainted" information must evaluate "the sufficiency of the untainted affidavit to see if probable cause exists without the tainted information." Id. at 760 (interpreting rule announced in Murray, 487 U.S. at 537-38). "If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry." Id. at 758 (internal quotation marks omitted).

We turn our attention, then, to the representations Agent Allen made in his July 15 affidavit, disregarding the affidavit's claim that, when Agent Weaks squeezed the case, he "felt a hard object that appeared to be a rifle or a shotgun." Stripped of that information, the affidavit consists of the reports provided by the "concerned citizen" to Agent Allen on February 23, 2004, and July 6, 2004, concerning Lord's possession of a firearm and Agent Weaks's observation of a "soft long-gun case" inside Lord's closet.

Defendant's traffic stop was valid, and he fled. His flight justified an arrest that further justified a search incident. United States v. Patrick, 2007 U.S. Dist. LEXIS 30347 (D. Mass. April 25, 2007).*

Plaintiff's allegation of excessive force was insufficient to put defendants on notice, so plaintiff allowed to amend complaint. Reed v. City of San Diego, 2007 U.S. Dist. LEXIS 30420 (S.D. Cal. April 24, 2007):

Because the Fourth Amendment test for reasonableness is inherently fact-specific, see Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (citing Reed v. Hoy, 909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes "mechanical application" and "requires careful attention to the facts and circumstances of each particular case." Graham, 490 U.S. at 396; Fikes v. Cleghorn, 47 F.3d 1011, 1014 (9th Cir. 1995). "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Graham, 490 U.S. at 396. In all, police officers are not required to use the least intrusive degree of force possible; they are required only to act within a reasonable range of conduct. See Forrester v. City of San Diego, 25 F.3d 804, 806 (9th Cir. 1994). In fact, the officer's right to make an arrest necessarily includes the right to use some degree of force. Graham, 490 U.S. at 396; Cunningham v. Gates, 229 F.3d 1271, 1290 (9th Cir. 2000) While Plaintiff need not allege evidentiary facts, she must at least allege, at a minimum, that excessive force was used on her, when, and by whom, if known. Absent such minimal allegations, County is unable to prepare an adequate answer and to investigate any alleged incident of excessive force.

04/26/07

Permalink 04:47:36 pm, by fourth, 367 words, 836 views   English (US)
Categories: General

Botched search warrant leading to death of 92 year old woman in Atlanta leads to police guilty pleas

Two police officers involved in the shooting death of 92 year old Kathryn Johnson pled guilty in Atlanta to manslaughter today in state court and federal civil rights charges in federal court, according to the Atlanta Journal-Constitution website this afternoon: Officers plea guilty in killing of elderly woman in her home / Murder charges dropped because men agree to help federal investigation of APD.

Two Atlanta police officers made a second appearance in court today to plead guilty to felonies in the fatal shooting of a 92-year-old woman in her home.

Officers Gregg Junnier and Jason R. Smith made their second stop Wednesday afternoon to plead guilty to violating the civil rights of Kathryn Johnston by killing her during a botched drug raid at her home Nov. 21. 2006.

Earlier in the day, the men were in Fulton Superior Court where they admitted to voluntary manslaughter charges along with several other state felony counts.

Sentencing in both courts has been deferred until later to allow the men to cooperate with a federal investigation into the Atlanta police department's narcotics unit. The men are expected to serve at least 10 years in prison on the federal charges alone.

Before the hearing before U.S. District Court Judge Julie Carnes the two officers sat side-by-side on a bench. Junnier stared ahead while Smith read silently from a Bible opened to the book of John.

Junnier was direct and spoke clearly as he answered Carnes' questions.

Smith, with a few tears, could barely be heard as he agree he was guilty to the federal charges.

Atlanta police chief Richard Pennington sat in the back corner of the courtroom watching his officers admit they had broken the law.

"Justice was served," Pennington said after the pleas. "We don't condone criminal misconduct. It's unfortunate any time you have a police officer [who feels] that they have to create false reports to enforce the law. It's a terrible day. And it's a sad day for them."

I posted several articles on this shooting incident on an innocent person's home, apparently based on false information to obtain a search warrant, and the last is here. To get the other eight posts, just search "www.ajc.com" in this website.

Permalink 04:16:14 pm, by fourth, 596 words, 880 views   English (US)
Categories: General

"I don't want you to but you're going to search anyway" is not voluntary consent

Defendant was stopped and was alleged to have consented to a search. The officer who allegedly received the consent was sitting in the courtroom at the suppression hearing and was not called by the government. The court finds that the consent was not validly given. There was, however, reasonable suspicion, and then a dog alerted and that gave probable cause. United States v. Dyson, 2007 U.S. Dist. LEXIS 30030 (S.D. Ohio April 24, 2007):

The testimony further shows that, subsequent to the canine sniff, when Lyons informed Defendant of the result and requested permission to search the Maxima, Defendant responded to the effect of "I don't want you to but you're going to search anyway." Such statement is akin to an expression of futility in resistance to authority, rather than a knowing, voluntary, and unequivocal consent, as required under United States v. Worley, 193 F.3d 380, 386 (6th Cir. 1999). The Court finds well-taken Defendant's position that at this point in time of the investigation, the government has failed to establish Defendant's consent to a search of his vehicle.

Warrant for seizure of "electronic equipment" included a tape recorder and the tape in it. United States v. Freeman, 2007 U.S. Dist. LEXIS 29987 (D. Kan. April 23, 2007):

The court also finds that the seizure of the tape itself was authorized under the warrant because the tape bore a "reasonable relation to the item[s] named in the warrant." United States v. Gentry, 642 F.2d 385, 387 (10th Cir. 1981). "When a logical nexus exists between seized but unnamed items and those items listed in the warrant, the unnamed items are admissible." Id. at 387 (citing Mesmer v. United States, 405 F.2d 316 (10th Cir. 1969)) (further citations omitted). The warrant in this case specifically authorized the seizure of items which could contain records of drug transactions, namely: paperwork, tax records, computer hardware, software, storage components, disks, CD ROM, photos, and video tapes. Certainly there is a logical nexus, as described in Gentry, between these items and a microcassette tape, which is reasonably related to records of drug transactions.

Officer's hunch that something was amiss with the defendant parking his car near parking lot exit and hearing a thud which could have been a dropped weapon turned out to be right, but it was still a hunch that the defendant was up to no good. People v. Perrusquia, 150 Cal. App. 4th 228, 58 Cal. Rptr. 3d 485 (4th Dist. 2007):

The officer in this case had a hunch that something was amiss with defendant, and he turned out to be right. That he was right, however, cannot be used to retroactively justify a detention. As the trial court noted at the hearing's conclusion: "[T]his is why police work is difficult, complex and challenging[,] because it's difficult from a moral or practical standpoint to criticize the officer's actions." We agree, yet at the same time we also agree with the trial court that the facts did not meet the legal standard for a detention. The officer must have "specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity." (In re Tony C., supra, 21 Cal.3d at p. 893.)

Evidence supported trial court's conclusion that the defendant consented to officers' entry during a knock-and-talk. There was a plain view. While the officers conducted a protective sweep that was apparently unjustified, the protective sweep did not lead to the plain view, so it was not relevant. State v. Nicholas, 958 So. 2d 682 (La. App. 5th Cir. 2007), released for publication July 2, 2007.*

Permalink 07:26:06 am, by fourth, 463 words, 469 views   English (US)
Categories: General

10th Cir.: Elderly father who had no knowledge of computers had apparent authority to consent to search son's password protected computer

From a reader, a seriously troubling case from the Tenth Circuit not supplied by Lexis this morning:

The police conducted a knock-and-talk in a child porn case based on an investigation of a child porn website, and defendant's 91 year old father was the only person at home. A few leading questions later, nothing pertaining to equal access to the computer, the father was asked to consent to a search of his 51 year old son's bedroom where, with his government computer equipped with EnCase, the officer opened child porn pictures. The Tenth Circuit found the officers reasonably could rely on the father's apparent authority to consent to a search of his adult son's room, a finding that defies common sense (few 91 year olds know a thing about computers, and the record shows that this one did not). The son was contacted, and the police stopped the search and waited for him and then arrested him. The court noted that EnCase enables the officers to by-pass all passwords on the computer. This computer was password protected, but that did not bother the court. The majority of the court essentially puts the burden on the defendant to show that password protection of computers is common and shows an expectation of privacy like a locked container, and finds that he did not in this case. United States v. Andreas, 2007 WL 1207081, 483 F.3d 711 (10th Cir. 2007) (2-1).

Wife had common authority to consent to a search of the attic. United States v. George, 232 Fed. Appx. 392 (5th Cir. 2007)* (unpublished).

Search issue was outside the COA, so it would not be considered. Menendez v. United States, 228 Fed. Appx. 897 (11th Cir. 2007)* (unpublished).

Officers in near hot pursuit had exigent circumstances to enter plaintiff's house looking for a shooter just hours after the occurrence. Stoute v. Mink, 232 Fed. Appx. 881 (11th Cir. 2007)* (unpublished):

Here, Plaintiffs do not dispute that officers had probable cause to arrest Devon. n2 Therefore, the remaining issue is whether exigent circumstances justified the initial entry into Theola's home to complete the arrest. We conclude that exigent circumstances existed. Devon was suspected of attempted murder; and, because he was accused of shooting the victim just hours before his arrest, it was not unreasonable for officers to believe that Devon was armed and posed a danger to them and to the public. Officers had probable cause to believe that Devon committed the crime because the victim identified him by name and in a photograph line-up. In addition, the victim told officers that Devon was living at the address of Theola's house, which police research confirmed, and that he suspected Devon would attempt to flee. In the light of all of these circumstances, the district court did not err in concluding that exigent circumstances justified the initial entry into Theola's home to arrest Devon.

04/25/07

Permalink 08:23:47 am, by fourth, 985 words, 607 views   English (US)
Categories: General

Turning a vehicle over to a shipping company surrenders expectation of privacy in the interior of the vehicle

Defendant took his vehicle to a shipping company for transport. The shipping company, however, was already under DEA surveillance for another reason. Officers did a dog sniff on the vehicle, which was negative, and then the interior, which was positive. The officers then got a warrant for the car, removing panels, finding cocaine. The vehicle then was wired for surveillance, including electronic devices to signal when the panels were removed. By turning the vehicle over to the shipper, giving the shipper complete access to the vehicle, the defendant surrendered any expectation of privacy in it. United States v. Macias, 2007 U.S. Dist. LEXIS 29638 (N.D. Ill. April 19, 2007):

Although Macias has presented cases in which canine searches of car interiors constituted unreasonable searches, one crucial fact makes the instant search distinguishable--Macias had turned his car over to the shipping company before the search occurred. The bill of lading that Macias signed required him to provide the shipping company with the keys needed to access all areas of the van, advised him to remove all of his personal effects, disclaimed any liability for theft of items from the van, and advised Macias that other carriers or third-parties employed by the shipping company may be involved in transporting Macias' vehicle.

Based upon these circumstances, any expectation of privacy Macias had in the interior of his van was unreasonable. He had completely surrendered the van to the shipping company and gave the company the keys needed to access any area of the vehicle. Macias' agreement to do these things was much like the agreement signed by the defendants in United States v. Young, 350 F.3d 1302 (11th Cir. 2003), in which they gave Federal Express the right to inspect the package they had shipped. In light of Federal Express' right to inspect the package, the defendants in Young had given up their expectation of privacy, and agents' subsequent search of the package was not unlawful. Id. at 1307-08. Here, Macias gave more than just the right to inspect--he gave complete access not only to the shipping company but also to any other carrier or third-party they employed. As a result, like the defendants in Young, he gave up any reasonable expectation of privacy in the vehicle while under the shipping company's control. See also United States v. Ward, 144 F.3d 1024, 1033 (7th Cir. 1998) (passenger had no reasonable expectation of privacy in bag while it was being transported by Greyhound). Based upon the lack of any reasonable expectation of privacy, the agents' use of a dog to sniff the interior of his van was not an unlawful search.

Officers executing a search warrant for items useful in identity theft permitted a search intense enough to look anywhere in the house where they may be concealed. Looking in a gun case was reasonable. United States v. Armstrong, 2007 U.S. Dist. LEXIS 29539 (D. Minn. April 20, 2007).

Plaintiff's complaint that challenged the legality of her arrest was barred by Heck, the court taking judicial notice of the state conviction being on appeal, but Heck did not bar the part of the case dealing with alleged excessive force during the arrest. Olson v. Lemos, 2007 U.S. Dist. LEXIS 29679 (E.D. Cal. April 20, 2007).*

Pepper spraying that was justified did not support an excessive force claim where plaintiff was not in discomfort but for the pepper spraying itself. Davis v. Callaway, 2007 U.S. Dist. LEXIS 29468 (D. Conn. April 9, 2007):

Davis has not alleged that, aside from the immediate discomfort he felt, he was otherwise injured by the use of OC. Because Davis has not demonstrated any such further injury, he cannot, on this issue, sustain his action. See McLaurin, 373 F. Supp. 2d at 394 (holding that the allegation against the officer who sprayed the plaintiff with mace was not actionable "because [the] plaintiff has not alleged any injuries from being spayed with mace--aside from the immediate discomfort"). Consequently, with regard to Callaway's use of force in spraying Davis with OC, the defendants' motion for summary judgment is GRANTED.

Defendant claimed that the officers timed his arrest to conduct a search incident of his vehicle that otherwise could not have occurred. The court found the officers' actions objectively reasonable. Alternatively, inevitable discovery would have found the evidence in the vehicle because officers could seize and inventory it. United States v. Pannell, 2007 U.S. Dist. LEXIS 29464 (E.D. N.Y. March 26, 2007):

Nevertheless, defendant Pannell argues that the gun should be suppressed because the postal inspectors waited to arrest him in his car as a pretext to perform a search. Pannell's argument fails, however, since the Fourth Amendment is concerned only with the objective circumstances surrounding the agents' actions, not their subjective intent. See Whren v. United States, 517 U.S. 806, 813-14 (1996) ("the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent") (emphasis in original). "Subjective intent alone ... does not make otherwise lawful conduct illegal or unconstitutional." Scott v. United States, 436 U.S. 128, 138 (1978). The objective circumstance that justified Pannell's arrest was the warrant issued by Judge Reyes based on probable cause. Accordingly, because the agents stopped defendant's car pursuant to a valid arrest warrant, the arrest is permitted under the Fourth Amendment without regard to whether it was a pretext to search the car. See Whren, 517 U.S. at 813; United States v. Robinson, 414 U.S. 218, 221 & n.1 (1973) (traffic violation arrest not rendered invalid by fact that it was "a mere pretext for a narcotics search"); United States v. Dhinsa, 171 F.3d 721 (2d Cir. 1998) ("an officer's use of a traffic violation as a pretext to stop a car in order to obtain evidence for some more serious crime is of no constitutional significance"); United States v. Thompson, 29 F.3d 62, 65 (2d Cir. 1994) ("whether the stop was pretextual or not . . . is irrelevant to determining the arrest's validity"); United States v. Scopo, 19 F.3d 777, 782-84 (2d Cir. 1994) (arrest based on pretext to justify search for weapons is permitted under Fourth Amendment).

Permalink 07:36:40 am, by fourth, 501 words, 475 views   English (US)
Categories: General

Pointing gun at innocent persons in an arrest situation was not a seizure of them

It is not unreasonable under the Fourth Amendment for officers to draw and point their weapons at innocents while trying to diffuse a domestic violence situation. The plaintiffs' subjective motives are irrelevant ("Thus, just as we objectively examine a police officer's conduct under the Fourth Amendment, Brigham City, Utah v. Stuart, ___ U.S. ___, 126 S. Ct. 1943, 1948, 164 L. Ed. 2d 650 (2006), the Reeves' subjective motives behind their failure to submit are irrelevant."). Reeves v. Churchich, 484 F.3d 1244 (10th Cir. 2007).*

The officer had justification for the stop and then reasonable suspicion to patdown three people in a vehicle stopped at 2:30 a.m. for officer safety. The suppression order was reversed. United States v. Rice, 483 F.3d 1079 (10th Cir. 2007):

The record discloses a number of facts justifying the pat-down search:

(1) Rice was one of three people in a car driving around a high crime area of Tulsa at 2:30 on a Tuesday morning, a time when there were no other cars or people around;

(2) the car proceeded along two residential blocks, slowing intermittently in a manner that an observing officer thought consistent with preparing for a burglary or drive-by shooting;

(3) the car did not have a tag light, which in the observing officers' experience could indicate a desire to avoid identification;

(4) the passenger in the backseat had given Weakley what he, based on his experience, believed were false names intended to conceal her true identity;

(5) the computer check Weakley ran confirmed [*14] his suspicions about the back seat passenger when his search revealed no information on the names she gave;

(6) the computer check identified Rice as "known to be armed and dangerous";

(7) Rice had a lengthy and violent criminal record; and

(8) Rice immediately assumed the position for a weapons search upon exiting the car.

Taken together, these facts support Weakley's belief that a pat-down search was justified for his own safety.

In reaching a contrary conclusion, the district court's decision discounted the totality of the information known to the officers by focusing on the facts in isolation. For example, the court emphasized two aspects of the stop--Rice's criminal history and the car's "erratic driving in a high crime area"--in concluding that Officer Weakley acted without reasonable suspicion. The court found that suspicious movements in a high crime area by a person with a criminal history do not amount to reasonable suspicion sufficient to justify an investigative detention, relying on United States v. Davis, 94 F.3d 1465 (10th Cir. 1996).

"A Fourth Amendment claim is not cognizable in federal habeas proceedings if a petitioner has had a full and fair opportunity to litigate the claim in state court. Stone v. Powell, 428 U.S. 465, 481-82, 96 S. Ct. 3037, 3046-47 (1976). The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996)." Petitioner spent 48 pages of his habeas petition alleging the unconstitutionality of a search he did not challenge. Mancus v. Pope, 2007 U.S. Dist. LEXIS 29678 (E.D. Cal. April 20, 2007).*

04/24/07

Permalink 06:59:29 am, by fourth, 482 words, 928 views   English (US)
Categories: General

Background check of passenger was unjustified and impermissibly extended the stop

Defendant was a passenger in a car that was stopped, and the officer did a background check on the passenger, and that impermissibly extended the stop. People v. Andrews, 2007 Ill. App. LEXIS 381 (3d Dist. April 19, 2007):

In this case, no issue exists concerning the lawfulness of the initial stop. Rather, this appeal concerns the lawfulness of the officer's conduct following the initial stop. Officer York's initial questioning of the driver and request for identification was justified. Those queries were reasonably related to the initial purpose of the encounter; the investigation of a traffic violation. However, the background check of defendant was not related to the initial justification for the stop. Defendant was simply a passenger in the truck and was not implicated in the traffic violation. Further, the background check was not supported by any reasonable, articulable suspicion that defendant had committed or was about to commit a crime. Officer York neither saw nor suspected that defendant had committed any wrongdoing.

In the absence of a reasonable articulable suspicion, we must consider whether the check impermissibly prolonged the detention or changed the fundamental nature of the stop. The record does not resolve clearly how long the background check prolonged the detention. York testified that he returned to the squad car and ran a background check on both defendant and his son at the same time. York did not testify that the check performed on defendant was completed before the check on the driver. The background check on defendant could well have lengthened the duration of the detention if the officer had to wait for the results of the check.

Regardless of the duration of any extended detention, however, the background check was impermissible because it changed the fundamental nature of the traffic stop. The check converted the stop from a routine traffic stop into an inquiry into defendant's past misconduct. People v. Miles, 343 Ill. App. 3d 1026 (2003) (officers impermissibly prolonged stop and increased confrontational nature because questions asked of passenger were not related to purpose of the stop). People v. Jones, 346 Ill. App. 3d 1101 (2004).

Plaintiff sued under § 1983 over getting a traffic ticket when plaintiff pulled in behind the officer who had pulled over the person he was following. The officer could go back to talk to the plaintiff and that was a reasonable investigative detention, for officer safety if nothing else. Idahosa v. Creve Coeur Police Dep't, 2007 U.S. Dist. LEXIS 29284 (C.D. Ill. April 20, 2007).*

Probable cause to search a vehicle on the highway continues to a search that occurs instead at the stationhouse. United States v. Stelmach, 2007 U.S. Dist. LEXIS 29255 (D. Mass. April 20, 2007).*

Warrant was likely overbroad under state caselaw because it generically described illegal drugs as the thing to be seized, but the affidavit referred to crack cocaine and that was all that was seized, so the court declined to suppress. State v. Armstead, 2007 Ohio 1898, 2007 Ohio App. LEXIS 1751 (9th Dist. April 23, 2007).*

Permalink 06:44:29 am, by fourth, 517 words, 512 views   English (US)
Categories: General

Defendant's initial detention on mistaken belief he was a wanted man was valid, but the subsequent frisk was not because the officer then had reason to believe defendant was not the wanted man

Bailbondsman was the citizen informant on defendant's stop, but the bondsman mistook defendant for another person. The stop and detention was reasonable at its inception, but a frisk was not because the officer did not have sufficient reason to know that defendant was the wanted man. A search incident was not justified either because there was no probable cause for an arrest. State v. Baxter, 144 Idaho 672, 168 P.3d 1019 (2007):

The totality of the information available to the officer at the time he conducted the frisk raised a reasonable suspicion that the man he was detaining might be J.H and the subject of the outstanding warrant. We cannot conclude, however, that there was sufficient information for a reasonably prudent officer to believe that the man being detained was actually J.H. and that his arrest pursuant to the warrant was reasonable absent further investigation. Therefore, we conclude that probable cause to arrest Baxter did not exist prior to the frisk of his person, and the frisk cannot be justified as a search incident to arrest.

Excessive force claim against officers by plaintiff who was convicted of resisting was barred by Heck. Alternatively, the officers had qualified immunity. Plaintiff had a seizure disorder which led to them believing she was resisting, and she was convicted of a related offense. Ryan v. Hazel Park, 2007 U.S. Dist. LEXIS 29237 (E.D. Mich. April 20, 2007).*

Search warrant for premises authorized search of defendant's bedroom wihtin the premises. United States v. Harrison, 2007 U.S. Dist. LEXIS 29337 (W.D. Va. April 20, 2007)*:

Instead, the evidence before the court shows that the entire residence was rented by Harrison. There is no evidence that Harrison's access to the room used by St. Pierre was limited in any way. In particular, there was no evidence that the room had a separate entrance or that the door to the room had a lock, which allowed restricted access to the room. That being the case, I find that the Fourth Amendment was not violated by the search of St. Pierre's room because I find that the search warrant at issue described the place to be searched with the necessary particularity and was supported by a finding of probable cause. See United States v. Canestri, 518 F.2d 269, 273 (2nd Cir. 1975) (search warrant for a single-family residence cannot be frustrated by a declaration that one of the rooms belongs to a party not named in the warrant); United States v. Jordan, 349 F.2d 107, 109 (6th Cir. 1965) (search of entire residence pursuant to warrant reasonable where no indication that residence had been divided into more than one living unit and one person rented the entire residence); see also United States v. Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) (a search warrant for the entire premises of a single family residence is valid notwithstanding the fact that it was issued based on information regarding the alleged illegal activities of one of several occupants of the residence). Therefore, I recommend that the court deny the Motion insofar as it seeks to suppress any evidence seized from St. Pierre's bedroom in the search of 330 Lowry Drive pursuant to this search warrant.

04/23/07

Permalink 09:43:25 pm, by fourth, 37 words, 661 views   English (US)
Categories: General

The Smoking Gun: Strip Search 101

On Smoking Gun's website there are videos. For a prison post-visitation strip search, go to "Uncle Sam" and click on "Strip Search 101." It explains the why and where of strip searches.

I received this from TSG today.

Permalink 03:26:54 pm, by fourth, 33 words, 1062 views   English (US)
Categories: General

One case today

Defendant's lack of standing in the room searched meant that he would lose on the search issue so his counsel could not have been ineffective. Davis v. State, 2007 Tenn. Crim. App. LEXIS 320 (April 19, 2007).

Permalink 05:20:05 am, by fourth, 154 words, 623 views   English (US)
Categories: General

SCOTUS argument in Brendlin v. California today

Back on January 19th, SCOTUS granted cert in Brendlin v. California, posted here and docket here.

The question presented is: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop."

The petitioner's brief is here and the State of California's brief is here.

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

04/22/07

Permalink 08:28:33 am, by fourth, 638 words, 747 views   English (US)
Categories: General

Protective weapons search that admittedly was for drugs, too, was unreasonable

Terry weapons search was admitted by the officer to be for "drugs or weapons" so it was unreasonable. State v. Hackett, 2007 Ohio 1868, 171 Ohio App. 3d 235, 870 N.E.2d 235 (6th Dist. 2007):

... The rationale for a protective search, however, becomes attenuated with successive searches. See Jackson v. State (Ind. App. 2003), 785 N.E. 2d 615, 620. Police are not entitled to "unlimited bites of the apple." U.S. v. Davis (C.A. 6, 2005), 430 F.3d 345, 357.

Here, the detective testified that the purpose of the search was to "find drugs *** or weapons." A protective search for weapons during an investigative search is acceptable to a point. When the use of multiple protective searches exceeds the rationale behind a Terry-type investigation it becomes unreasonable. Jackson at 621. Officers exceeded the scope of a protective search under Terry when they conducted multiple warrantless searches of appellant.

Defendant was given her paperwork back after a traffic stop and had her hands on the steering wheel, which suggests that she knew she was free to leave, when the officer asked if he could ask some questions, and she stayed and answered them. Reasonable suspicion then developed. United States v. Loera, 2007 U.S. Dist. LEXIS 29112 (N.D. Ind. April 16, 2007):

He gave Bennett a warning ticket and turned away from the car. According to Carmin, Bennett had her hands on the wheel and was ready to leave, thus suggesting that she thought she was free to go. Carmin then asked for permission to ask some additional questions, and Bennett consented. The second round of questioning, although unrelated to the traffic stop, was permissible and did not unreasonably prolong the stop. More importantly, Bennett voluntarily consented to the further questioning after she believed she was free to leave. See United States v. Finke, 85 F.3d 1275, 1281 (7th Cir. 1996) (encounter becomes consensual when a reasonable person would have believed he was free to go thus permitting questions unrelated to traffic stop); United States v. Rivera, 906 F.2d 319, 323 (7th Cir. 1990) (finding consent was voluntary where defendant was given written warning, identification and cue to leave).

Comment: I've said this before, so I'll keep it short here: I cannot accept that it is objectively reasonable that a person can ignore a police officer talking to him or her during a stop, even if the paperwork has been returned. Our social convention is that we respond, not ignore the officer and drive off, because we would be in fear of either disrepecting the officer or committing a further violation. The blue lights are still on, albeit for safety reasons. No reasonable person could objectively feel free to leave. This is a legal fiction, and the courts might just as well admit it.

Officer's testimony that defendant admitted to having a gun in the car and that the officer could smell marijuana was credited over the occupants of the car, and that justified the search. United States v. Watson, 2007 U.S. Dist. LEXIS 29074 (D. Neb. April 17, 2007).*

Plaintiff was stopped on a train platform because she resembled a female suspect in an earlier robbery by five youths on a train. The officer making the stop had a still photo from a video of the robbery, and the plaintiff was being viewed on CCTV and was dressed like the female suspect, including a ponytail. She stated a claim for unreasonable detention that was factbound enough to defeat qualified immunity. Williams v. Rosentreter, 2007 U.S. Dist. LEXIS 29106 (D. Ore. April 16, 2007).*

Iowa drug tax administrative search warrant was void because it did not state why there was a need for a jeopardy assessment, following Adams v. State, 762 N.E.2d 737, 744 (Ind. 2002). The defendant succeeded in suppressing the search in the underlying criminal case, and the tax assessment followed. The court did not hold the statute unconstitutional because there was another possible interpretation to save it. State v. Carter, 733 N.W.2d 333 (Iowa Sup. 2007).*

Permalink 07:42:58 am, by fourth, 607 words, 460 views   English (US)
Categories: General

Plaintiff's suit against officer seizing money during traffic stop could proceed; ALJ ordered money returned, and the officer arranged for the IRS to seize it for a tax lien

Plaintiff was stopped in Tennessee for speeding. He was asked about whether he had various things in his car, including cash, and he said that he had "something over $9,000" to pay his employees. It was $9,400, and the officer found that was a discrepancy. A nearly same name came back on a criminal history check for importing marijuana 10 years earlier, but that person had a different FBI number, which would indicate it was a different person. The court held the video belied the officer's claim that the plaintiff was nervous. Plaintiff claimed he did not use banks because he had a running IRS dispute which was being handled. There was a dog alert, but nothing was present [presumably the dog alerted on cash, and cases have held for 20 years that a dog alert on cash alone is meaningless; I just researched that issue in January when I sued an officer over a seizure after a dog alert produced no drugs]. After the seizure, the state ALJ ordered return of the money, but the officer told the IRS so they could seize it. The plaintiff stated a claim for unlawful seizure of the cash under the Fourth Amendment and conversion, and the officer's claim of qualified immunity was denied. Ibarra v. Barrett, 2007 U.S. Dist. LEXIS 29143 (April 19, 2007).

Extending a valid traffic stop was not an unreasonable detention because it was based on reasonable suspicion based on what the officer observed during the stop. United States v. Sanchez, 225 Fed. Appx. 288 (5th Cir. 2007)* (unpublished):

Sanchez's arguments resemble those made in Brigham. There we rejected the notion that an officer's questioning "on a subject unrelated to the purpose of a routine traffic stop" was itself a Fourth Amendment violation, and held that the officer did not act unreasonably in extending the stop. 382 F.3d at 508 (emphasis omitted); see also id. ("[D]etention, not questioning, is the evil at which Terry's second prong is aimed." (quoting United States v. Shabazz, 993 F.2d 431, 436 (5th Cir. 1993))). The occupants of the vehicle in Brigham had aroused the officer's suspicion because the lessee was not present and they had appeared nervous, avoided eye contact, and answered questions indirectly. Id.

Assuming Turk extended the detention, he had reasonable suspicion based on articulable facts that Sanchez was involved in drug trafficking. Turk's suspicions were aroused by the "roaring noise" emanating from the dashboard; Sanchez's shaking hand and nervousness; the recently issued insurance certificate; the discrepancy between the addresses on Sanchez's license and the insurance certificate; Sanchez's averting his eyes when asked if he carried contraband; and the fact that Sanchez was driving a known drug-courier route.

Dog alert was not apparent to anybody but the handler, but the USMJ credited the handler's testimony that there was an alert, and the videotape apparently confirmed it. United States v. Willis, 2007 U.S. Dist. LEXIS 29077 (D. Neb. April 17, 2007).

As opposed to both Jacobs and Heir, Sergeant Van Buren testified that Rocky indicated to the presence of drug odor, n5 and Judge Thalken credited Sergeant Van Buren's testimony in that regard. That Rocky is a fast dog and a passive indicator, and that Sergeant Van Buren did not let Rocky go into a full sit, does not render Rocky's behavior ambiguous. An officer who is familiar with a dog's tendencies can testify to the behaviors that dog would exhibit to indicate to the presence of drug odor. I have reviewed the tape and, crediting Sergeant Van Buren's testimony concerning Rocky's behavior, I find objectively observable evidence that Rocky indicated to the presence of drug odor. I concur with Judge Thalken's findings, and accordingly I will adopt the Report and Recommendation in its entirety.

04/21/07

Permalink 11:35:39 am, by fourth, 144 words, 379 views   English (US)
Categories: General

Search exceeded reasonable suspicion to look in car for weapon and was suppressed

Defendant was stopped for a violation of a noise ordinance, and he provided all his paperwork. While the officers were running the paperwork, they obversed the defendant reach into the console. This was a furtive movement, and they were justified in looking there for a weapon, but no further. Officers unlawfully expanded their search beyond the reasonable suspicion to look for a weapon. People v Jones, 2007 NY Slip Op 3391, 39 A.D.3d 1169 (4th Dept. 2007).

Defendant failed to show standing in the place searched. In any event, the police had exigent circumstances. People v Washington, 2007 NY Slip Op 3460, 39 A.D.3d 1228 834 N.Y.S.2d 407 (4th Dept. 2007).*

Washington also sustains DNA testing of all felons under state constitution and Fourth Amendment. State v. Surge, 160 Wn.2d 65, 156 P.3d 208 (2007).* (No appellate court, save one that was reversed en banc, has held that DNA testing is unconstitutional.)

Permalink 10:58:08 am, by fourth, 456 words, 995 views   English (US)
Categories: General

"Accrual" under Wallace v. Kato explored

§ 1983 claim failed to state sufficient personal involvement by defendant that it had to be dismissed without prejudice to try again. In a footnote, the court helpfully attempts to explain the issue of accrual of the cause of action under Wallace v. Kato. Spencer v. City of Stamford, 2007 U.S. Dist. LEXIS 28809 n.1 (D. Conn. April 18, 2007):

Though the court addresses only two of the defendants' grounds for dismissing the Complaint, the court notes that Spencer's § 1983 claim may be completely barred by the three-year statute of limitations for filing such actions. See Williams v. Walsh, 558 F.2d 667, 670 (2d Cir. 1977). Federal law determines the accrual date of a § 1983 action. Wallace v. Kato, __ U.S. __, 127 S. Ct. 1091, 1095 (2007). Accrual generally occurs "when the plaintiff has a complete and present cause of action," id. (quotations and citations omitted), or, "when the plaintiff knows or has reason to know of the harm." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Spencer's complaint appears to challenge the legality of the search of his home on April 12, 2000. He filed this action nearly six years later, on July 28, 2006. Because it appears that Spencer's unreasonable search claim would not necessarily render his conviction invalid, see Heck v. Humphrey, 512 U.S. 477, 487 n.7, 129 L. Ed. 2d 383 (1994), it also appears that Spencer's harm occurred "by the invasion of his zone of privacy." Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir.1990).

Spencer argues that the applicable statute of limitations did not begin to accrue until April 27, 2004, when the Connecticut Supreme Court ruled that the cocaine found in his apartment should have been suppressed. Pl. Reply at 2. However, this would only be true if Spencer alleged wrongdoing analogous to malicious prosecution. See Wallace, 127 S. Ct. at 1097 (discussing Heck rule of delayed accrual for malicious prosecution claims).

The difficulty in resolving this matter is that Spencer's accrual argument and the ambiguity of his Complaint raise a doubt as to whether he actually intended to allege malicious prosecution, or if his Reply merely makes a legal error with respect to the accrual of his unreasonable search and/or seizure claim. Settling this matter is not necessary for the purposes of the instant motion, and the court will not attempt to do so at this time. Regardless, Spencer is advised that it would behoove him to clarify the nature of his Fourth Amendment claim should he file an amended complaint.

The fact plaintiff's state case is on appeal bars a civil claim under Heck. Olson v. Lemos, 2007 U.S. Dist. LEXIS 28893 (E.D. Cal. April 18, 2007).*

There was sufficient reliability of the informant shown for probable cause to arrest the defendant. Defendant asserted lack of consent for the first time on appeal, so that issue was waived. People v Carter, 2007 NY Slip Op 3458, 39 A.D.3d 1226 (4th Dept. 2007).*

Permalink 09:49:27 am, by fourth, 618 words, 832 views   English (US)
Categories: General

Court appointed receiver could consent to FBI search of records he possessed taken from defendant's business

The defendant's business was put into receivership. After collecting the books, the FBI sought access and the receiver consented. The receiver had the legal power to consent. United States v. Madison, 226 Fed. Appx. 535 (6th Cir. 2007) (unpublished):

The appointing court here ordered the receiver to "[t]ake exclusive custody, control and possession of all ... effects, books and records of account and other papers and property or interests owned or held by the [Cherokee Corporations] ... with full power to ... receive and take possession of such receivership properties." R.R. at 9. Thus, the receiver exercised Cherokee's own authority, and had the authority to consent to the FBI agent's search of 2771 Colony Park Drive. See Javitch v. First Union Sec., Inc., 315 F.3d 619, 626 (6th Cir. 2003).

The Bankruptcy Court for the D.N.J. held that the trustee was entitled to an order entering the debtor's property in the face of a Fourth Amendment challenge. In re Bursztyn, 2007 Bankr. LEXIS 1207 (D. N.J. Bankr. April 10, 2007).

[Without stating any facts for the reader,] The officer had reasonable suspicion to stop the defendant near the border, and the defendant's consent was voluntary. The defendant was not advised of a right to refuse, but all other factors favored voluntariness. United States v. Dubas, 228 Fed. Appx. 695 (9th Cir. 2007)* (unpublished).

The defendant got a Franks hearing but failed on the merits. The question was alleged information about the wrong apartment which was innocent or negligent at worst. United States v. Oung, 490 F. Supp. 2d 21 (D. Mass. 2007):

Hershey has fallen far short of his burden under Franks as to all three elements. The evidence does not support the inference that Agent Brackett intentionally lied or acted recklessly in procuring the affidavit. Any mistakes or inconsistencies in the affidavit were credibly explained by Agent Brackett by reference to the hurried circumstances of the evening, the inclusion of written portions of an affidavit drafted prior to that night, his exhaustion, and simple typographical error. See Tzannos, 460 F.3d at 136 ("'Allegations of negligence or innocent mistake are insufficient.'" (quoting Franks, 438 U.S. at 171)).

This conclusion as to Brackett's motives is reinforced by the existence of ample probable cause even with the errors cited by defendants removed from the affidavit. Based on surveillance and intercepted calls, the agents had reason to believe that either Unit 36 or 37 was the "Clubby Two" referenced over the wire. The initial mistaken entry into Unit 36, the identification of Unit 37 as Hershey's home by the neighbors outside Unit 40, and the discovery of the dark green Nissan in the garage at Unit 37 -- the offending omissions cited by defendants -- all shore up, rather than weaken, the agents' cause to believe that Unit 37 was the stash. Thus even if these omissions were deliberate (and I find that they were not) the warrant would survive. See, e.g., United States v. Legault, 323 F. Supp. 2d 217, 226 (D. Mass. 2004) ("A reviewing court should add any facts intentionally or recklessly omitted from the affidavit and determine whether the new information, if included, would have defeated the finding of probable cause." citing United States v. Cole, 807 F.2d 262, 267-268 (1st Cir. 1986))). Any errors or misleading statements occasioned by these omissions, such as the statement that probable cause was based on facts contained in the affidavit, do not undermine the agents' reasonable belief that Unit 37 was the likely location of the stash. See, e.g., Valente v. Wallace, 332 F.3d 30, 32 (1st Cir. 2003) (explaining that "centrally, the mercurial phrase 'probable cause' means a reasonable likelihood" (citing Illinois v. Gates, 462 U.S. 213, 235 (1983))).

State search and seizure claim that was ligitated to conclusion could not be reasserted in federal habeas. Swecker v. Brady, 2007 U.S. Dist. LEXIS 28947 (E.D. Wash. April 19, 2007)*; Allison v. Eberlin, 2007 U.S. Dist. LEXIS 28912 (N.D. Ohio April 17, 2007).*

Permalink 08:54:29 am, by fourth, 516 words, 446 views   English (US)
Categories: General

Failure to raise a Franks issue before District Court makes the issue subject to plain error analysis on appeal

Defendant's failure to raise his Franks challenge in the District Court made it subject to only plain error review on appeal. The single issue raised is whether some ambiguity in the timing of events was sufficient to raise a Franks issue, and it was not. United States v. Snow, 228 Fed. Appx. 203 (3d Cir. 2007)* (unpublished):

Snow did not argue in his motion to suppress that McCue's affidavit contained false statements or material omissions. Snow's counsel merely noted, after the District Court's denial of the suppression motion, that "there is some ambiguity as to the timing as to when some of the issues actually happened." App. at 13. This statement, made after the Court's ruling on the motion, is plainly insufficient to make a preliminary showing under Franks that the affiant included a false statement in the warrant affidavit.

Defendant was stopped for entering a federal parkway with a bow and arrows in the backseat, which is a violation of federal regulations. Once out of the car, he spontaneously admitted he had a hand gun, too. The search of the vehicle was with probable cause. United States v. Carrico, 2007 U.S. Dist. LEXIS 28672 (W.D. Va. April 10, 2007).*

N.J. recognizes racial profiling in stops by a lower threshold of proof, and, in this case, the defendant met that burden. After his stop things occurred with the vehicle occupants (flight, furtive movements, wrestling with police) which the state argued and trial court initially held broke the causal connection between the stop and search. Defendant at least gets a hearing on the profiling issue. State v. Lee, 190 N.J. 270, 920 A.2d 80 (2007).*

Police had cause and exigent circumstances to enter plaintiff's home without a warrant to look for his missing girlfriend, so they were entitled to qualified immunity. Colao v Mills, 2007 NY Slip Op 3230, 2007 N.Y. App. Div. LEXIS 4705 (3d Dept. April 19, 2007):

Here, defendants possessed information that Bergman was missing, she had been involved in a domestic disturbance with plaintiff, she feared that plaintiff would kill her, he had alcohol and weapons in his home and she intended to return there. It was objectively reasonable for police officers possessing this information to believe that Bergman could be inside plaintiff's house, she could be injured and they needed to find her quickly. Under the circumstances, defendants were justified in entering plaintiff's home and searching for Bergman (see People v Evans, 21 AD3d 1317, 1317-1318, 801 N.Y.S.2d 462 [2005], lv denied 6 N.Y.3d 775, 844 N.E.2d 797, 811 N.Y.S.2d 342 [2006]). It was reasonable for defendants to conduct the second search of every area inside the house where a person or body could be located, including the large gun safe, because the initial cursory search did not include all areas where a person could hide or be hidden, Bergman had still not been located and, after the initial search, defendants obtained additional information indicating that the domestic disturbance may have been violent (compare Tierney v Davidson, 133 F.3d 189, 197-199 [2d Cir 1998]). Hence, defendants' conduct in executing the two warrantless searches of plaintiff's house was permissible under the exigent circumstances exception and did not violate plaintiff's constitutional rights.

04/20/07

Permalink 09:25:04 am, by fourth, 1211 words, 934 views   English (US)
Categories: General

No qualified immunity to officer who entered a house without a warrant to break up an underage drinking party

I can't summarize this better than the judge did, and the court provides a good analysis of application of qualified immunity: Pribble v. Town of Winona Lake, 2007 U.S. Dist. LEXIS 28517 (N.D. Ind. April 17, 2007):

According to Plaintiff Charles J. Pribble, Jr., in the early morning hours of May 15, 2005, Officer Paul Heaton was driving around a neighborhood of Winona Lake looking for an underage drinking party that was rumored to be occurring. When he saw a bunch of cars parked outside the Pribble home and saw through a large window that young people were drinking inside, he believed he had found what he was looking for. He knocked on the door to investigate, but when the wily person who answered the door asked if Heaton had a warrant, he replied that he didn't need one. Heaton then forcibly entered the house and arrested everyone inside, including Pribble. This left Pribble's father unhappy and prompted him to file a lawsuit in state court against Officer Heaton, the town of Winona Lake, and an unknown private security officer who allegedly accompanied Heaton during the raid. Defendants then removed the case to this Court. Pribble alleges violations of his Fourth, Fifth, and Sixth Amendment rights and a common law claim of false arrest and imprisonment.

. . .

Defendants maintain that Plaintiff's claim of unreasonable search and seizure under the Fourth Amendment should be dismissed because Officer Heaton had probable cause to enter the home and make the arrest. The question of probable cause is typically "a proper issue for a jury if there is room for a difference of opinion concerning the facts or the reasonable inferences to be drawn from them." Maxwell v. City of Indianapolis, 998 F.2d 431, 434 (7th Cir. 1993). Defendants' own cases (most of which are Indiana state court cases, which do not control our interpretation of the federal Constitution) reflect this principle. See Earles v. Perkins, 788 N.E.2d 1260, 1264 (Ind. App. 2003) (reviewing grant of summary judgment; "The determination of probable cause is a mixed question of law and fact."); Miller v. City of Anderson, 77 N.E.2d 1100 (Ind. App. 2002) (affirming summary judgment; plaintiff's case must fail "if the record as a whole reflects probable cause for the arrest" (emphasis added)). Plaintiff's complaint alleges that "Heaton advises he allegedly observed an underage drinking party occurring by looking into the house from the road" (Compl. P 8 (emphasis added)), but the Court does not interpret that allegation to mean that Plaintiff admits Heaton's version of events or concedes that Heaton had probable cause.

More importantly, Defendants incorrectly assert that Heaton only needed probable cause in order to justify his entry into a private residence. That is plainly not the standard. In the absence of a warrant, a police officer needs both probable cause and the presence of exigent circumstances, such as a risk of physical harm or the imminent destruction of evidence, that make it reasonable for the officer to enter even though he does not have a warrant. United States v. Karo, 468 U.S. 705, 715 (1984) ("Searches and seizures inside a home without a warrant are presumptively unreasonable absent exigent circumstances."); Payton v. New York, 445 U.S. 573, 576, 590 (1980) (absent exigent circumstances, police officers may not enter an individual's home without consent in order to make a warrantless arrest for a felony, even if they have probable cause); Mincey v. Arizona, 437 U.S. 385, 393-94 (1978) ("[W]arrants are generally required to search a person's home or his person unless 'the exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.").

Taking the complaint on its face, Officer Heaton entered the house without a warrant because he saw some young people drinking inside, not because he perceived any particular danger or risk inside. Cf. Brigham City v. Stuart, 126 S.Ct. 1943, 1944 (2006) (exigent circumstances were present where officers, who had responded to a 3:00 a.m. call about loud party, heard an altercation as they approached the house, saw juveniles drinking in backyard, and upon looking through screen door and windows, saw an altercation in which a juvenile punched an adult, causing him to spit blood). Once inside, he began arresting people, including Plaintiff. The complaint does not indicate what Heaton saw when he entered the home, so it is unclear whether Heaton had probable cause to arrest Plaintiff once he was inside the house. The existence of both probable cause and exigent circumstances are issues that require the development of facts. See Jacobs v. City of Chicago, 215 F.3d 758, 770 (7th Cir. 2000) (dismissal was inappropriate where allegations in complaint gave no indication that exigent circumstances existed for warrantless search). For now, it is enough that Plaintiff has plainly stated a claim for relief under the Fourth Amendment.

Defendants insist, however, that Officer Heaton is entitled to qualified immunity for his actions. State officials occupying positions with discretionary authority and who are acting under color of state law may be immune from claims that he violated a plaintiff's constitutional rights. Siegert v. Gilley, 500 U.S. 226, 231 (1991). But the pleading stage of a case is not the appropriate time to raise qualified immunity. As the Seventh Circuit has noted, "a complaint is usually not dismissed under Rule 12(b)(6) on qualified immunity grounds." Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001). This is because qualified immunity is a defense. "Because an immunity defense usually depends on the facts of the case, dismissal at the pleading stage is inappropriate: '[T]he plaintiff is not required initially to plead factual allegations that anticipate and overcome a defense of qualified immunity.'" Id. at 651-52, quoting Jacobs, 215 F.3d at 765 n.3.

To evaluate a defense of qualified immunity, the Court must first determine whether Plaintiff has stated a violation of his constitutional rights, and then determine whether those rights were clearly established at the time that the violation allegedly occurred. Jacobs, 215 F.3d at 766. The first step has been satisfied; as discussed above, we have already determined that Plaintiff has stated a claim for violation of his Fourth Amendment rights. In order to satisfy the second step, the plaintiff must show that, in light of pre-existing law, a reasonable defendant would have known that his conduct was unlawful. Anderson v. Creighton, 433 U.S. 635, 60 (1987). It has been clearly established since the Supreme Court decided Coolidge v. New Hampshire in 1971 or Payton v. New York in 1980, that "a search and seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of 'exigent circumstances.'" Coolidge, 403 U.S. 443, 474-75 (1971). Because we don't know at this point what the circumstances were on the night in question, dismissal on qualified immunity grounds is plainly inappropriate.

A bailbondsman arresting under the authority of a state statute is acting under "color of law" for § 1983 purposes, especially when acting with a police officer. Evans v. City of Etowah, 2007 U.S. Dist. LEXIS 28408 (E.D. Tenn. April 17, 2007).*

Computer repair person reported child porn and officer requested expansion of the private search. The repair person had apparent authority to consent to the search, and the officer's reliance on the apparent authority to expand the search was reasonable. United States v. Anderson, 2007 U.S. Dist. LEXIS 28329 (N.D. Ind. April 16, 2007).

Permalink 08:29:42 am, by fourth, 436 words, 711 views   English (US)
Categories: General

Order for writ of execution did not justify eviction; eviction violated the Fourth Amendment

Officer's eviction of plaintiff under a writ of execution, meaning only that the property was to be sold, was a Fourth Amendment violation. Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007):

Revis asserts, in addition to his due process claim, that his eviction violated the Fourth Amendment as an unreasonable seizure of his residence. In light of Soldal, 506 U.S. at 72, and Thomas, 304 F.3d at 576, Deputy Eaton's actions in physically taking possession of Revis's house by having the locks changed, retaining a key, and evicting Revis demonstrably effected a seizure within the meaning of the Fourth Amendment. See Soldal, 506 U.S. at 61 (holding that a seizure under the Fourth Amendment had occurred when police "unceremoniously dispossessed" a resident of his trailer home by authorizing its physical removal); cf. Thomas, 304 F.3d at 582 (questioning whether verbally ordering the tenants to leave and escorting them out was a seizure of the residence where the officers did not take physical possession of the property) (Gilman, J., writing for the court on this point separately from the lead opinion).

Deputy Eaton's reliance on dicta in Soldal is misplaced. There, the Court noted that "had the ejection in this case properly awaited the state court's judgment it is quite unlikely that the federal court would have bothered with a § 1983 claim alleging a Fourth Amendment violation." Soldal, 506 U.S. at 71. The "state court's judgment" that the Court advised waiting for in that case, however, referred to a judgment for possession pursuant to a state-court eviction proceeding pending at the time the trailer home was seized. Id. at 58. Thus, Soldal simply begs the question of whether the court's writ of execution in this case entitled Eaton to evict Revis.

You have to get hurt to make an excessive force claim: Plaintiff's excessive force claim failed. He was wrestled to the ground because he did not immediately stop his car and he did not reasonably respond to officer's orders when he was stopped. He required no medical treatment and complained of no discomfort. The entire occurrence was on the patrol car video. McGee v. City of Cincinnati Police Dept., 2007 U.S. Dist. LEXIS 28665 (S.D. Ohio April 18, 2007).

In a consent search of a vehicle, scarred screwheads gave cause to remove them. United States v. Ferrer-Montoya, 483 F.3d 565 (8th Cir. 2007).*

District court did not err in finding that third party had authority to consent to a search. She rented the apartment for one of the defendants but she made it clear to the manager that she could come and go at will. That gave her apparent authority. United States v. Garcia-Jaimes, 484 F.3d 1311 (11th Cir. 2007).*

04/19/07

Permalink 07:47:10 am, by fourth, 262 words, 457 views   English (US)
Categories: General

Defendant's prior arrests show familiarity with the system and weighs toward voluntariness of consent

Defendant's prior history of arrests shows familiarity with the criminal justice system, and it weighs in favor of the voluntariness of his consent to search. State v. Riels, 2007 Tenn. LEXIS 358 (March 1, 2007).*

Plaintiff's subjective belief that he was restrained was not the question; rather, what do the objective facts show. Monroe v. City of Charlottesville, 2007 U.S. Dist. LEXIS 28231 (W.D. Va. April 17, 2007).*

Classroom searches for stolen money was valid, but strip searches in bathrooms for the money were not. H.Y. v. Russell County Bd. Of Educ., 490 F. Supp. 2d 1174 (M.D. Ala. 2007).*

Plain view of crack after a traffic stop was valid. United States v. Gill, 2007 U.S. Dist. LEXIS 28019 (W.D. Mo. April 16, 2007).*

Defendant's conduct was more than mere nervousness and that was reasonable suspicion. United States v. Davis, 2007 U.S. Dist. LEXIS 27935 (E.D. La. April 13, 2007)*:

Beyond the mere nervousness and travel plan inconsistencies in Dortch, and the inconsistent statements and prior arrest in Jones, the present case involves a confluence of factors that, as in Gonzales and Powell, gave rise to reasonable suspicion and a proper tailored inquiry regarding possible drug trafficking activity. Based on the officer's knowledge and experience n9 and in light of the totality of the circumstances, the Court finds that the numerous facts articulated by Neihaus gave rise to a reasonable suspicion that Davis may have been involved in drug trafficking. While 40 minutes elapsed before the canine unit arrived, "There is ... no constitutional stopwatch on traffic stops." Brigham, 382 F.3d at 511. The Court concludes that Davis's continued detention did not violate the Fourth Amendment.

04/18/07

Permalink 05:10:55 pm, by fourth, 350 words, 482 views   English (US)
Categories: General

Neb. adopts community caretaking function for vehicles

Nebraska for the first time adopts the community caretaking function search. State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007):

The State asks this court to apply the community caretaking exception to the Fourth Amendment to Groves' actions. This exception is rooted in Cady v. Dombrowski, where the U.S. Supreme Court noted that

"b]ecause of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute."

Most jurisdictions which have considered the question of whether to adopt this exception have done so. In a few instances, courts have declined the invitation to adopt the exception based on the circumstances presented, generally concluding that on the facts before the court, the exception would not apply. This court has never had the occasion to apply this exception, though the Court of Appeals has done so.

In accordance with these other jurisdictions and the Court of Appeals, we hereby adopt the community caretaking exception to the Fourth Amendment. In so doing, we emphasize the narrow applicability of this exception. We agree with the other courts which have held that this exception should be narrowly and carefully applied in order to prevent its abuse.

Trial court's decision that permitted DNA collection from any defendant was overbroad, but it was permissible here because the defendant had already been convicted of a crime when it was taken, and that was certainly constitutional. State v. Mckinney, 273 Neb. 346, 730 N.W.2d 74 (2007).*

Permalink 04:30:29 pm, by fourth, 443 words, 523 views   English (US)
Categories: General

Officer's failure to investigate a defense before getting an arrest warrant is not a constitutional violation

Plaintiff contended that she was arrested without the police conducting an adequate investigation into possible defenses. This they were not required to do. Rubenstein v. Rubenstein, 2007 U.S. Dist. LEXIS 27699 (D. Conn. March 31, 2007):

As a general rule, moreover, an officer who has probable cause for an arrest is not required to refrain from seeking a warrant until he has investigated a possible defense of lack of specific intent. See Romagnano v. Town of Colchester, 354 F. Supp. 2d 129, 135-36 (D. Conn. 2004) (quoting Baker v. McCollan, 443, U.S. 137, 145-46, 99 S. Ct. 2689, 61 L. Ed. 2d 433 (1979)). Nothing in the record supports an exception to this rule. There is no evidence Lieutenant Munoz had reason to believe Bonnie was acting without the requisite criminal intent. In particular, there is no evidence he knew of child abuse by Jeffrey, or even a single allegation of such abuse, at the time he prepared his affidavit. As mentioned earlier, omitted information is relevant only if it was within the officer's knowledge. See Caldarola v. Calabrese, 298 F.3d 156, 167-68 (2d Cir. 2002).

Defendant's challenge that he was arrested on an arrest warrant from the Cuyahoga County Court of Common Pleas, but then transported to the Cleveland City Jail, did not state a constitutional violation. United States v. Henderson, 2007 U.S. Dist. LEXIS 27696 (N.D. Ohio April 13, 2007).*

It is not unconstitutional for a prosecutor to up a plea offer because the prosecutor was made to go through a suppression hearing. Not having a suppression hearing would have saved time and resources. State v. Thomas, 392 N.J. Super, 920 A.2d 142 (2007):

Although it is true that plea agreements are unacceptable if based on an illegal term or condition, Pressler, Current N.J. Court Rules, comment 4.3 on R. 3:9-3 at 822 (2007), we disagree with the proposition that an agreement to forego filing a motion to suppress constitutes such an illegal term or condition. The prosecutor's offer of a harsher sentence because defendant filed a motion cannot be deemed to have violated any of his rights. Under both the general rules applicable to plea agreements, R. 3:9-3(e), and the specific requirements for negotiated agreements in section 12, a court faced with a plea agreement that does not serve the interests of justice may vacate the plea or permit the defendant to withdraw from it. Under section 12, however, the court may not impose a lesser sentence than that negotiated between the parties. Here the court expressly found that the plea agreement served the interests of justice, and defendant himself never argued to the contrary.

Accordingly, we hold that the trial court erred in imposing a lesser sentence on defendant than the one negotiated between him and the prosecutor pursuant to N.J.S.A. 2C:35-12.

Permalink 03:53:25 pm, by fourth, 622 words, 817 views   English (US)
Categories: General

D.C. Cir. en banc: Search incident may precede formal arrest

The en banc D.C. Cir. holds that a search incident to an arrest may actually precede a formal arrest. United States v. Powell, 483 F.3d 836 (D.C. Cir. 2007), rev'g 451 F.3d 862 (D.C. Cir. 2006):

In Rawlings the Supreme Court held the police may search a suspect whom they have probable cause to arrest if the "formal arrest follow[s] quickly on the heels of the challenged search," 448 U.S. at 111. The Court was quite clear in stating that, assuming such proximity in time, it is not "particularly important that the search preceded the arrest rather than vice versa." Id. This court applied the Supreme Court's clear teaching in United States v. Riley, 359 U.S. App. D.C. 121, 351 F.3d 1265, 1269 (D.C. Cir. 2003) (where "police had probable cause to arrest" before search, it was "of no import that the search came before the actual arrest"). So, too, did the Ninth Circuit in United States v. Smith, 389 F.3d 944, 951 (9th Cir. 2004) ("So long as an arrest that follows a search is supported by probable cause independent of the fruits of the search, the precise timing of the search is not critical" (citations omitted)), and the Tenth Circuit in United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999) ("A legitimate 'search incident to arrest' need not take place after the arrest" (citation omitted)). Indeed, every circuit that has considered the question-save one-has concluded that a search incident to arrest may precede the arrest. See, e.g., United States v. Bizier, 111 F.3d 214, 217 (1st Cir. 1997); United States v. Donaldson, 793 F.2d 498, 503 (2d Cir. 1986); United States v. Currence, 446 F.3d 554, 557 (4th Cir. 2006); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir. 1987); United States v. Montgomery, 377 F.3d 582, 588 (6th Cir. 2004); United States v. Ilazi, 730 F.2d 1120, 1126-27 (8th Cir. 1984); Smith, 389 F.3d at 951; Lugo, 170 F.3d at 1003; United States v. Banshee, 91 F.3d 99, 102 (11th Cir. 1996). Only the Seventh Circuit has held that a Belton search may not precede a custodial arrest, but it did so in an opinion that, like the briefs then before it, betrayed no awareness of the Supreme Court's holding in Rawlings. See Ochana v. Flores, 347 F.3d 266, 270 (7th Cir. 2003).

Applying the teaching of Rawlings to the facts of this case, we must uphold Officer Jones's search of the car. Powell acknowledges the officers had probable cause to arrest him and his companion for urinating in public before they searched his car. See D.C. Code § 22-1321 (2001); Scott v. United States, 878 A.2d 486, 488 (D.C. 2005). Indeed, Officer Jones testified that the officers "detain[ed]" the two men because "they were going to be placed under arrest" for "[u]rinating in public." Immediately following the search, the two were indeed handcuffed and formally placed under arrest for public urination as well as for the firearms violation brought to light by the search. As in Rawlings, that is, "the formal arrest followed quickly on the heels of the challenged search." 448 U.S. at 111. Therefore, as in Riley, because "the police had probable cause to arrest [before the search], the search was valid as one incident to arrest." 351 F.3d at 1269.

Renting a storage unit in another's name and allowing the other to keep the keys gives the other apparent authority to consent to a search of the storage unit. United States v. Trotter, 483 F.3d 694 (10th Cir. 2007).*

Defendant was speeding, trying to elude roving surveillance, and he was finally stopped, and officers could smell burnt marijuana. That gave cause to search. United States v. Taylor, 2007 U.S. Dist. LEXIS 27692 (N.D. Ohio April 13, 2007).*

Officer had reasonable suspicion on the totality that defendant was about to engage in a drug transaction from his car, and that justified the stop. United States v. Madden, 2007 U.S. Dist. LEXIS 27694 (N.D. Ohio April 13, 2007).*

Permalink 03:26:29 pm, by fourth, 465 words, 420 views   English (US)
Categories: General

Consent to a "real quick" "check" of car was a limited consent that did not include removing a panel inside

Defendant was asked to consent to a "real quick" "check" of the car, and he agreed. That is a limited consent to search that did not include removing an inside panel. People v. Cantor, 149 Cal. App. 4th 961, 57 Cal. Rptr. 3d 478 (4th Dist. April 13, 2007):

We have reviewed the police videotape of the vehicle stop plus the transcript of its audio and conclude the search exceeded the scope of defendant's consent to Weizoerick's request for a "real quick" "check" of the car. After receiving defendant's consent, Weizoerick proceeded to methodically search the car's passenger compartment, its trunk, under its hood, and then its interior again several times. By then, almost 15 minutes had passed since defendant had given his consent and still Weizoerick had found nothing incriminating. At that point, if not sooner, the search should have ceased. A typically reasonable person would not have understood defendant's consent to a "real quick" search to extend beyond that point, much less to include authorization to unscrew the panel of a piece of equipment during a second search of the trunk while awaiting the arrival of a drug sniffing dog.

Reason for protective sweep made it unlawful: a deputy had reasoned that the sweep was necessary because "there may or may not have been a working meth lab in the home." State v. Gray, 285 Ga. App. 124, 645 S.E.2d 598 (2007).

Defendant fled into a third party's home trying to elude police, and the officer thought it was defendant's own home. He had no expectation of privacy as to the police entry. "Although Officer Schnapp was not aware at the time he observed the defendant push his way into the residence that he had witnessed the defendant commit the felony offense of unauthorized entry of an inhabited dwelling .... the defendant had no objectively reasonable and legitimate expectation of privacy when he fled into that home." State v. Walker, 953 So. 2d 786 (La. 2007).*

Nolo plea with a discharge did not bar a subsequent civil action under Heck. Jansma v. Grand, 2007 U.S. Dist. LEXIS 27508 (W.D. Mich. April 13, 2007):

There is legal precedent in finding a no contest plea can bar a subsequent § 1983 claim under Heck. See Cummings v. City of Akron, 418 F.3d 676 (6th Cir. 2005); Schreiber v. Moe, 445 F. Supp. 2d 799, 812-13 (W.D. Mich. 2006); Ramirez v. Dennis, 2002 U.S. Dist. LEXIS 10436, *11-13 (W.D. Mich. June 6, 2002) (listing authorities). However, none of these cases contemplate a no contest plea which is subsequently discharged without an adjudication of guilt at the end of the probationary period as is the present circumstance. If the probation period has expired and Jelta's charge has been discharged, there would not be a conviction such that Heck could be invoked. Therefore, where Jelta's plea has been expunged with no adjudication of guilt or a conviction, n6 Heck cannot bar his claim under § 1983.

04/17/07

Permalink 07:01:45 am, by fourth, 841 words, 721 views   English (US)
Categories: General

Prosecutor does not have absolute immunity for helping procure a search warrant

(More postings later today; I have a hearing to prepare for.)

Prosecutor did not have absolute immunity for procuring a search warrant for a prosecution under statute defining an unconstitutional crime. The target was being investigated for a possible violation of Colorado's criminal libel statute [which was patently unconstitutional; Arkansas thankfully repealed its many years ago after the criminal slander statute was held unconstitutional], and after the search, the target sued and obtained a preliminary injunction against the prosecution. The DA dropped the investigation, and the case on the merits of the statute became moot, but the search case did not. The District Court erred in dismissing the case for absolute immunity against the DA, and the 10th Cir. remanded for a determination of how qualified immunity will apply. Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007).

Federal law that requires even probationers convicted of non-violent crimes to be tested for DNA is constitutional. United States v. Amerson, 483 F.3d 73 (2d Cir. 2007).

Informant's report that defendant, a probationer, was one of several men passing around young girls for purposes of sexual abuse, led to a probation search. Defendant's probation search found defendant in his bedroom with two underage girls. Defendant argued that New York's probation law had been violated in the search, but the court found the search was with reasonable suspicion under the Fourth Amendment. United States v. Chirino, 483 F.3d 141 (2d Cir. 2007).*

The Ninth Circuit rejects en banc review of Sanchez v. County of San Diego, 464 F.3d 916 (9th Cir. 2006), originally posted here, that welfare home visits were constitutional under Wyman v. James. Sanchez v. County of San Diego, 483 F.3d 965 (9th Cir. 2007) (dissent from denial of rehearing en banc). Seven judges voted to grant rehearing en banc, contending that Wyman did not control and Fourth Amendment jurisprudence had changed enough over the intervening 36 years to require it be revisited under the facts of this case and the later developed "special needs" exception. In a separate heading, not included here, the dissenters call the case an "assault on the poor."

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. Chandler v. Miller, 520 U.S. 305, 308 (1997). Inexplicably, the majority opinion holds that highly intrusive, unannounced suspicionless home visits are not "searches" under the Fourth Amendment. Sanchez, 464 F.3d at 920. The Supreme Court has repeatedly held, however, that any conduct by a government agent that intrudes upon a person's reasonable expectation of privacy is a search or seizure under the Fourth Amendment. See, e.g., Katz v. United States, 389 U.S. 347, 359 (1967); Smith v. Maryland, 442 U.S. 735, 739-40 (1979); Kyllo v. United States, 533 U.S. 27,33 (2001). No matter how minor the intrusion, the conduct must still be scrutinized under the Fourth Amendment. A minor intrusion will militate toward a judicial finding of reasonableness under the Fourth Amendment, but it does not exempt the conduct from all scrutiny or remove the conduct from the definition of a "search." See Delaware v. Prouse, 440 U.S. 648, 653-54 (1979); United States v. Martinez-Fuerte, 428 U.S. 543, 555-56 (1976). Fourth Amendment searches occur when "the government violates a subjective expectation of privacy that society recognizes as reasonable." Kyllo, 533 U.S. at 33.

The majority relies on Wyman to hold that home visits related to welfare programs are never "searches." Under this rubric, we would not even need to determine whether the visits are reasonable or whether there is a special need for the enforcement as is required under a Fourth Amendment analysis (and thoroughly analyzed in Judge Fisher's dissent). Instead, the majority simply denies the plain fact that these highly intrusive home visits and walk-throughs looking for evidence of welfare fraud or other wrong doing are "searches." Sanchez, 464 F.3d at 920.

The majority couches its opinion in terms of upholding precedents, but it hits at the core of established Fourth Amendment protections. The Supreme Court has described such rights as "basic to a free society." Wolf v. Colorado, 338 U.S. 25, 27 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1981). In fact, the Court has specifically pointed to the fundamental right we all have to privacy in our own homes. Kyllo, 533 U.S. at 33; see also Payton v. New York, 445 U.S. 573, 586 (1980). An individual's home lies at the zenith of privacy interests. See, e.g., United States v. Scott, 450 F.3d 863, 871 (9th Cir, 2006) (as amended); Payton, 445 U.S. at 586 ("It is a 'basic principle of Fourth Amendment law' that searches and seizures inside a home without a warrant are presumptively unreasonable." (quoting Coolidge v. New Hampshire, 403 U.S. 443, 477 (1971)).

The majority makes much of the purportedly consensual nature of the Project 100% searches--asserting that they lower the plaintiffs' expectation of privacy and make the intrusive character of the "walk through" acceptable. Sanchez, 464 F.3d at 927. But there can be no true consent here. Applicants are not given notice of when the visit will occur; they are not informed of their right to withhold consent; they are told the visit is mandatory; and they are aware of the severe consequences of refusing the search.

04/16/07

Permalink 06:36:22 am, by fourth, 229 words, 786 views   English (US)
Categories: General

Truck inspection led to observation of apparent false compartment which was probable cause

Tractor trailer at a weigh station was pulled aside for inspection, and the officer noticed that the trucking company was on a DEA watchlist and the defendant's demeanor was sufficient to create reasonable cause. The smell of bondo was strong, and the officer located an apparent false compartment which was probable cause. United States v. Mercado-Nava, 486 F. Supp. 2d 1271 (D. Kan. 2007):

Even absent the regulatory justification for this search, Trooper Epperly had probable cause to believe that defendant was engaged in criminal activity, prior to the vehicle search. He knew defendant's trucking company was on a DEA watchlist of companies having prior drug involvement, and that it had a relatively high DOT number. He noticed that defendant was overly friendly, very talkative, and sweating. He saw that defendant was from Phoenix and his truck was from California, which he considered to be drug source areas. He smelled a strong odor of putty and paint inside the truck, and viewed an alteration to the undercarriage of the truck, which led him to believe that the floor of the cab had been dropped for purposes of concealing a compartment to be used for illegal activity. These factors collectively formed probable cause that defendant was engaged in criminal activity, sufficient to justify the search of the hidden compartment in which drugs were found. See United States v. Orrego-Fernandez, 78 F.3d 1497, 1502 -1505 (10th Cir. 1996).

04/15/07

Permalink 10:56:37 am, by fourth, 367 words, 646 views   English (US)
Categories: General

Officer's momentary possession of a driver's license to run a check by handheld radio was not a seizure

A police officer encountered defendant and asked for identification the information from which he called in and handed back to the defendant. That did not escalate the encounter into a seizure under the Fourth Amendment. State v. Adams, 2007 UT App 117, 158 P.3d 1134, 575 Utah Adv. Rep. 12 (2007):

The present case is similar to United States v. Analla, 975 F.2d 119 (4th Cir. 1992), in which the Fourth Circuit held that a defendant was not seized for purposes of the Fourth Amendment where the investigating officer did not take the license over to the squad car to run the warrants check. See id. at 124. Instead, the officer "stood beside the car, near where [the defendant] was standing, and used his walkie-talkie" to contact the dispatcher. Id. This circumstance, among others, resulted in the determination that the consensual encounter did not escalate into a level two seizure. See id. Thus, in this case, Patrick's momentary use of Adams's identification for a warrants check does not compel the conclusion that a level two seizure occurred, especially because Patrick did not hold onto the identification any longer than was necessary. Cf. Florida v. Royer, 460 U.S. 491, 501-02, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983) (plurality opinion) (holding that police acted permissibly in approaching airline traveler and asking for identification, but when police retained traveler's documentation while asking him to accompany them to a separate room for questioning, police illegally seized traveler); People v. Jackson, 39 P.3d 1174, 1188 (Colo. 2002) (collecting cases and noting that numerous federal and state courts have recognized that "whether an officer retains a defendant's identification is a critical factor in distinguishing, under the totality of the circumstances, a consensual encounter from an investigatory stop" (emphasis added)).

Defendant's arrest was without probable cause because there was insufficient justification to connect him to drugs for even constructive possession. State v. Chavez, 138 Wn. App. 29, 156 P.3d 246 (2007).

Quality of CI's information was not argued to the trial court, so it could not be argued on appeal. Reyes v. State, 952 So. 2d 1262 (Fla. App. 2d Dist. 2007).*

Trial court erred in granting defendant's motion to suppress for stop after he "almost" hit an officer pulling away from the curb. The stop had justification and was reasonable. Lewis v. State, 398 Md. 349, 920 A.2d 1080 (2007).*

Permalink 10:48:51 am, by fourth, 1312 words, 1147 views   English (US)
Categories: General

Mass: Edgewater mass murder case affirmed and entry into defendant's home without a warrant to look for potential victims was reasonable and "records" in a warrant allows seizure of computers; the court also discussed the breadth of computer searches

Defendant was convicted in the Edgewater mass murder case where the defendant came to his work and shot co-workers. In the investigation, police entered his apartment without a warrant looking for possible other victims, did a quick walk through, and secured the apartment. A warrant was then obtained. Computers were seized during the search even though they were not named in the warrant. Commission of a crime does not translate into an automatic right to search the defendant's premises, but the police here showed a possible connection because his home would likely yield evidence of the crime. Also, specification in the warrant for "records" (in an effort to determine motive for the shootings) must be construed to include computers. Commonwealth v. McDermott, 448 Mass. 750, 864 N.E.2d 471 (2007):

Here, the information in the affidavit describing the shootings and the initial investigation (including the numerous firearms and large quantity of ammunition involved in the shootings), combined with the police observations of a firearms manual and ammunition during the warrantless search of the defendant's residence, provided a clear link between the defendant and the shooting deaths of his seven coworkers and suggested that the defendant's will, n19 and other evidence relevant to the investigation, could be found at the defendant's residence. As noted by the judge, in light of the arsenal of firearms and ammunition recovered at Edgewater, the magistrate had a sound basis reasonably to infer that the defendant did not hastily acquire the arsenal, but more likely amassed it over time, and had brought the weapons to work from another location large enough to store them, namely, his apartment. It follows that the magistrate could also reasonably infer that documents regarding the defendant's purchase of such firearms and ammunition, as well his legal right to carry firearms, are documents of a personal nature that would likely be kept in a secure location such as the defendant's apartment. Contrary to the defendant's contention, the fact that his identity, as the perpetrator, was not in question does not mean that police lacked probable cause to collect evidence confirming his identity and other relevant materials.

. . .

We reject the defendant's argument that the seizure of the computers and disks from his apartment was unlawful on the ground that the warrant did not specifically authorize the seizure of any "computer" or "disk." We join those courts adopting the approach that a warrant that authorizes a search for records (properly delineated in a warrant) permits the seizure of computers and disks that electronically may hide and store such records. See United States v. Musson, 650 F. Supp. 525, 531-532 (D. Colo. 1986) (warrant authorizing seizure of "any records or writings of whatsoever nature showing any business or financial transactions" permitted seizure of computer disks); People v. Gall, 30 P.3d 145, 148 n.4, 153 (Colo. 2001) (warrant authorizing seizure of "written or printed material" indicating intent to do physical harm to person or building, permitted seizure of computers because they were "reasonably likely to serve as 'containers' for writings"); Frasier v. State, 794 N.E.2d 449, 454, 460 (Ind. Ct. App. 2003) (warrant authorizing search of "notes and/or records" of marijuana sales allowed police to examine computer files).

. . .

We analogize the issue (as did the judge) to that of searches of containers. The authority justifying such an analogy is well established. [citations omitted]

While every court confronting the issue has not adopted this approach, [citation omitted] the approach is by far the more practical. The reasoning sensibly acknowledges that clairvoyance cannot be expected of police officers to know in what form a defendant may maintain his records; that there is no meaningful difference to a reader between records maintained electronically and those kept in hard copies; and that, in this age of modern technology, persons have increasingly become more reliant on computers not only to store information, but also to communicate with others. For these reasons, we conclude that the warrant authorized police to seize the electronic storage media (computers and disks) within which the documents listed in the warrant may have been stored.

. . .

In conducting the actual search of the computers and disks, considerable discretion must be afforded to the executing officers regarding how best to proceed with the search. See Commonwealth v. Garner, 423 Mass. 735, 740 (1996), quoting Dalia v. United States, 441 U.S. 238, 257 (1979). Advance approval for the particular methods to be used in the forensic examination of the computers and disks is not necessary. See United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999) ("The warrant process is primarily concerned with identifying what may be searched or seized -- not how ..." [emphasis in original]). Indeed, the judge or officer issuing the search warrant likely does not have the technical expertise to assess the propriety of a particular forensic analysis. In conducting the analysis, a cursory examination of a computer's files is permissible. See United States v. Gray, 78 F. Supp. 2d 524, 529 (E.D. Va. 1999) (holding that federal agent was "entitled to examine all of defendant's [computer] files to determine whether they contained items that fell within the scope of the warrant"). Cf. United States v. Giannetta, 909 F.2d 571, 577 (1st Cir. 1990) ("Courts have regularly held that in searches for papers, the police may look through notebooks, journals, briefcases, file cabinets, files and similar items and briefly peruse their contents to determine whether they are among the documentary items to be seized"). Just as "few people keep documents of their criminal transactions in a folder marked '[crime] records,'" United States v. Hunter, supra at 582, quoting United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990), "computer files can be misleadingly labeled, particularly if the owner of those files is trying to conceal illegal materials," United States v. Gray, supra at 527 n.5. However, if officers, in the course of conducting a lawful search, discover evidence in plain view, such evidence may be seized under the plain view exception to the warrant requirement. n24 See id. at 528. See also Commonwealth v. Hinds, 437 Mass. 54, 61 (2002) (applying plain view doctrine to computer search).

n24 Contrary to the defendant's contentions, the judge properly denied the suppression of the defendant's (1) Internet query, "how to fake mental illness"; (2) Amazon.com purchase of the book, Clinical Assessment of Malingering and Deception; and (3) downloading an article entitled, "Psychometric Detection of Malingering," because the evidence was discovered in plain view.

With these principles in mind, we add that care must be taken to minimize the intrusion of the search and the search conducted must be reasonable. Here, these safeguards were more than satisfied. A forensic duplicate was made of the defendant's computers' hard drives and storage media to preserve all original data. Further, the keyword search method resulted in a cursory inspection of only approximately 750 files out of the 100,000 files contained in the defendant's computer media, which amounted to less than one per cent of the defendant's files. We thus reject the defendant's assertion that the computer search was performed in an unreasonable manner.

Officers conducted a knock-and-talk on defendant's premises. The trial court found that the "No Trespassing" sign in photographs admitted into evidence by the defense were not taken until much later because of foliation of the trees and were not present at the time of the knock-and-talk. State v. Henry, 2007 Tenn. Crim. App. LEXIS 302 (April 11, 2007). (Comment: The moral here is that the defense needs to investigate the circumstances of the search as soon as possible after getting involved in the case. If "No Trespassing" signs are there, they should be photographed immediately just so the prosecution cannot argue that they were planted later. In digital photographs, the date follows the .jpg image and helps prove when the picture was taken.)

Plaintiff claimed he was arrested on a VA parking lot by a VA police officer, held in a jail cell for two hours without explanation, then given a citation and released. He filed an FTCA case against the government, and its motion for summary judgment was denied. Viera-Carrasquillo v. United States, 482 F. Supp. 2d 182 (D. P.R. 2006).*

Permalink 09:36:33 am, by fourth, 230 words, 799 views   English (US)
Categories: General

Arrest without jurisdiction is not a Fourth Amendment violation

Defendant called the Sheriff in Arkansas about a prowler and ended up getting arrested. His mailing address was in Arkansas, but he contended that his house was physically in Oklahoma. An arrest without statutory legal jurisdiction does not equate with a Fourth Amendment violation. Engleman v. Ferguson, 2007 U.S. Dist. LEXIS 27439 (W.D. Ark. March 5, 2007).

Without reason to believe that others are present who might pose a danger, a protective sweep is not permissible, particularly before the arrest. The officer could articulate no reason for the protective sweep. State v. Lemons, 37 Kan. App. 2d 641, 155 P.3d 732 (2007).

It was reasonable for officers to seize the defendant who had just left what police believed his house when they arrived with a search warrant. The defendant had sufficient connection with the premises to be detained under Summers. "In this regard, the record in the present case reflects that the police believed Williamson to be an occupant of the residence at 8016 Wynbrook Road. Detective Ward testified at the suppression hearing that he had witnessed Williamson entering and leaving the house several times during pre-warrant surveillance, and that a confidential informant had told him that Williamson lived at the house with Hubbard." Williamson v. State, 398 Md. 489, 921 A.2d 221 (2007).

Prisoner complaint stated a claim because his telephone calls were recorded in detention without any warnings. Tittle v. Carver, 2007 U.S. Dist. LEXIS 27452 (E.D. Wis. April 11, 2007).

Permalink 08:44:23 am, by fourth, 556 words, 768 views   English (US)
Categories: General

Failure to leave an inventory is not a suppression issue under Hudson

Assuming, without deciding, that defendant did not receive a copy of the inventory of the seizure (and the evidence tended to indicate that he did not), the court would not suppress the search under Hudson because this is not a constitutional defect that the exclusionary rule was designed for. United States v. Makki, 2007 U.S. Dist. LEXIS 27034 (E.D. Mich. April 12, 2007):

Here, as in Hudson, given that a valid search warrant entitled the agents to look for the items listed on Attachment A at the Medical Office and the Residence, "[r]esort[ing] to the massive remedy of suppressing evidence of guilt is unjustified." Hector, 474 F.3d at 1155 (quoting Hudson, 126 S. Ct. at 2168). Regardless of whether the agents had shown Defendant the search warrant, they would have executed it and found the items seized inside the Medical Office and the Residence. Therefore, "while the acquisition of the [evidence seized by the agents] was the product of a search pursuant to a warrant, it was not the 'fruit of the fact' that the [agents failed to provide Defendant with a list of items to be seized]." Hudson, 126 S. Ct. at 2169.

In addition, the causal connection between any failure to provide Defendant with a list of the items to be seized and the evidence actually seized is

"highly attenuated, indeed non-existent, in this case. ... [as] the only legitimate interest served by the presentation of [the list of items to be seized] ... is to head off breaches of the peace by dispelling any suspicion that the search is illegitimate. ... This interest does not implicate the seizure of evidence described [in the list of items to be seized] in the search warrant nor would it be vindicated by suppression of the evidence seized."

Hector, 474 F.3d at 1155.

Accordingly, in light of the rationale of the exclusionary rule and the considerations set out by the Supreme Court in Hudson, the Court concludes that suppression of the evidence in this case would not be an appropriate remedy.

Detention at gunpoint and with handcuffs does not per se turn a stop on reasonable suspicion into an arrest. United States v. Valenzuela, 231 Fed. Appx. 785 (10th Cir. 2007)* (unpublished):

The officer's conduct in this case did not exceed the scope of a Terry stop under the circumstances and was reasonable at all times. We have previously held a Terry stop does not necessarily become unreasonable because officers draw their weapons and point them at a subject. See United States v. Shareef, 100 F.3d 1491, 1506 (10th Cir. 1996); see also Neff, 300 F.3d at 1220. "[T]he use of guns in connection with a stop is permissible where the police reasonably believes the weapons are necessary for their protection." Perdue, 8 F.3d at 1462. In holding the use of firearms reasonable under certain circumstances, we noted that "[w]henever the police confront an individual reasonably believed to present a serious and imminent danger to the safety of the police and public, they are justified in taking reasonable steps to reduce the risk that anyone will get hurt." United States v. Merritt, 695 F.2d 1263, 1274 (10th Cir. 1982).

Defendant consented to entry of the officers, and he was arrested. A protective sweep was then justified. "Consequently, officers were constitutionally entitled to seize the incriminating evidence found in plain view during the protective sweep." United States v. James, 2007 U.S. Dist. LEXIS 27278 (D. Kan. April 11, 2007).*

04/14/07

Permalink 05:05:53 pm, by fourth, 2678 words, 1308 views   English (US)
Categories: General

Important S.D.N.Y. computer search case: Securities fraud warrant failed particularity because of its sweeping overbreadth, and no GFE, but the invalid part is severed; the court also discusses the application of the Fourth Amendment to electronic media

In the Amerindo securities fraud case, the search warrant was way overbroad ($25M in securities were at issue in a company that managed $1.2B), and all the records of the company fell within the warrant. Based on 2d Cir. authority, no reasonable officer could have relied upon the search warrant because of its defective overbreadth, and the good faith exception did not save it. The court did, however, sever the evidence seized under the invalid portions from the valid portions. United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (S.D. N.Y. April 4, 2007) (the S.D.N.Y.'s website has a link for special interest cases, but this case was not there when this was posted here; also note that this was not received by Lexis until the day before it was posted here):

Here, the challenged Warrant suffers from both of these deficiencies. To begin, nowhere does the Warrant indicate what specific acts of wrongdoing are being investigated. Paragraph 16 of the Warrant Rider contains an oblique reference to "participants in the fraud schemes," but this would have been unhelpful to the Inspectors executing the search, as the Warrant does not identify those participants or explain the referenced fraud schemes, nor does it identify the particular transactions and illicit activities upon which the Warrant was founded. Moreover, this omission cannot be cured by reference to the supporting warrant application. The Second Circuit has held that a "sufficiently specific affidavit will not itself cure an overbroad warrant ... [unless] it is incorporated by reference in the warrant itself and attached to it," neither of which occurred here. George, 975 F.2d at 76; see also Groh, 540 U.S. at 557-58, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (refusing to consider warrant application where the "warrant did not incorporate [the application] by reference, nor did . . . the application . . . accompany the warrant"); cf. United States v. Walker, No. 06 Crim. 48E, 2006 WL 3150977, at *4 (W.D.N.Y. Nov. 1, 2006) (reading warrant as including facts set forth in affidavit where warrant stated, "see attached Affidavit as to of [sic] Items to be Seized, all of which are fruits, evidence and instrumentalities of violations of 18 U.S.C. § 922(g)(1) all of which are more fully described in the affidavit filed in support of this warrant which is incorporated herein by reference" (emphasis added)).

The Warrant also contained a general, catch-all provision. As noted, paragraph one of the Rider authorizes the seizure of all "[c]orporate records" concerning any of the Amerindo entities, including Amerindo Cayman. Although the Warrant explains that this catch-all provision "includes" items such as "records concerning the formation of ... the Amerindo entities," "client lists, client files, investment brochures," and "correspondence," the Warrant explicitly states that the seizure power is "not limited to" such items. Indeed, nowhere is this catch-all provision in any way circumscribed, a problem that is amplified by the fact that other paragraphs in the Warrant do contain limitations -- for example, to documents related to the fraud schemes (paragraph 16) or to specific individuals (paragraph 6) -- which would indicate to a reasonable officer that paragraph one, lacking such explicit restrictions, is therefore unbounded. Moreover, this patent lack of particularity is only compounded by the absence of any date restriction on the items to be seized. See Roberts, 656 F. Supp. at 935 (noting the absence of a "limit as to the dates of the documents to be seized" in determining lack of particularity).

At bottom, the Warrant, most notably in the first paragraph of the Rider, provides for the seizure of a virtually unlimited body of documents. As such, it left unacceptably broad discretion to the officers executing the search. As the Roberts court held, "[w]ith no limit as to the owners of the documents, no limit as to the dates of the documents to be seized, and no restriction to any specific wrongful transaction to which the documents were related, the warrant in this case authorized a general, exploratory rummaging in a person's belongings." Roberts, 656 F. Supp. at 935 (internal citations and quotations omitted). The Court therefore finds that portions of the Warrant violated the particularity requirement of the Fourth Amendment.

3. Good Faith

A finding that the Warrant was invalid does not end the inquiry. If the executing officers conducted the search "in good faith and in objectively reasonable reliance on the warrant," the evidence produced by that search will not be suppressed. Buck, 813 F.2d at 592. This so-called "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Leon, 468 U.S. at 922 n.23. The "standard of reasonableness ... is an objective one, ... [that] requires officers to have a reasonable knowledge of what the law prohibits." George, 975 F.2d at 77 (quoting Leon, 468 U.S. at 919-20). In assessing the good-faith exception, "[t]he burden is on the government to demonstrate the objective reasonableness of the officers' good-faith reliance." United States v. Santa, 180 F.3d 20, 25 (2d Cir. 1999); accord George, 975 F.2d at 77.

. . .

In Buck, the Second Circuit addressed the application of the good-faith exception under circumstances similar to those here. There, the court invalidated a warrant for failure to meet the Fourth Amendment's particularity requirement. 813 F.2d at 591-92. Unlike the Warrant here, the warrant in Buck included a description of the crime; however, it also authorized the broad seizure of "any papers, things or property of any kind relating to the previously described crime." Id. at 590. The Second Circuit held that such a warrant "left it entirely to the discretion of the officials conducting the search to decide what items were to be seized, and thus was not permissible under the Fourth Amendment." Id. at 592. The Buck court then addressed the good-faith exception. Reasoning that the executing officers could not have "anticipate[d the court's] holding ... that the particularity clause of the Fourth Amendment prohibits the use of a catch-all description in a search warrant," the court applied the good-faith exception and did not suppress the evidence. Id. at 593. Relevant to the pending motion, however, the Buck court added the following words of guidance: "Of course, our decision today means that, with respect to searches conducted hereafter, police officers may no longer invoke the reasonable-reliance exception to the exclusionary rule when they attempt to introduce as evidence the fruits of searches undertaken on the basis of warrants containing only a catch-all description of the property to be seized." Id. at 593 n.2.

. . .

5. Severance

As a last line of defense, the Government argues that even if portions of the Warrant are unconstitutionally broad or otherwise insufficiently particularized, and even if the good-faith exception does not apply, the Court should, at most, sever the invalid portions of the Warrant and permit it to keep items seized pursuant to the valid portions. This the Court will do.

The Court also helpfully took it upon itself to explain the application of traditional Fourth Amendment analysis to electronic media:

A number of courts and academic commentators have suggested that searches of computers raise unique Fourth Amendment issues. See, e.g., United States v. Carey, 172 F.3d 1268 (10th Cir. 1999); United States v. Tamura, 694 F.2d 591 (9th Cir. 1982); [*112] Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531 (2005). For example, a single computer is capable of storing immense amounts of information: "Computer hard drives sold in 2005 generally have storage capacities of about eighty gigabytes, roughly the equivalent to forty million pages of text -- about the amount of information contained in the books on one floor of a typical academic library." Kerr, supra, at 542. Computers also often contain significant "intermingling" of relevant documents with "documents that the government has no probable cause to seize." In the Matter of the Search of: 3817 W. West End, First Floor Chicago, Illinois 60621, 321 F. Supp. 2d 953, 958 (N.D. Ill. 2004); see also Ralph Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994). Increasingly, even office computers are used as "postal services, playgrounds, jukeboxes, dating services, movie theaters, daily planners, shopping malls, personal secretaries, virtual diaries, and more," Kerr, supra, at 569, a phenomenon that is only compounded in a networked world, where a "single physical storage device can store the private files of thousands of different users." Id. at 556.

Another potential complication regarding computer searches is the fact that often, because of time restraints and insurmountable technical limitations, such searches cannot be carried out at the time the warrant is executed at the premises. See United States v. Hill, 459 F.3d 966, 974-75 (9th Cir. 2006) (observing that "there is a serious risk that the police might damage the storage medium or compromise the integrity of the evidence by attempting to access the data at the scene," and that taking the time needed to search a computer at the scene "would not only impose a significant and unjustified burden on police resources, it would also make the search more intrusive"). Instead, "it is frequently the case with computers that the normal sequence of 'search' and then selective 'seizure' is turned on its head," as computer hardware is seized from a suspect's premises before its content is known and then searched at a later time. 3817 W. West End, 321 F. Supp. 2d at 958; see also Hill, 459 F.3d at 974 (holding that "the police were not required to bring with them equipment capable of reading computer storage media and an officer competent to read it"). Moreover, as was the case here, computer searches are often not executed on a seized computer itself, but rather on a government computer that contains a "mirror-image" copy of a target machine, copies that can generally be made without exposing the underlying data to the eyes of government agents. See Kerr, supra, at 560. Thus, the fear of some is that law enforcement officers, unencumbered by the type of time pressures attendant to doing a search of a physical premises, might be tempted to rummage through a computer's files well beyond the scope of a warrant. See id. at 571 ("Many computers may contain a wealth of evidence of low-level crimes, and probable cause to believe a person has engaged in a minor offense may justify an exhaustive search of his hard drive that will expose a great deal to government observation.").

On the other hand, the computer has become the modern criminal's best friend. It is used to communicate to cohorts, ensnare victims, and generally to prepare and orchestrate criminal conduct. The computer facilitates the terrorist organization's ability to train its members, spread propaganda and case its targets, just as it helps the identity thief locate his victims, the pornographer to collect and view child pornography, and the fraudster to generate fake documents. And, it is precisely because computer files can be intermingled and encrypted that the computer is a useful criminal tool. Nefarious documents can be given innocuous names, or can be manipulated, hidden or deleted with great ease. See Hill, 459 F.3d at 978 ("Criminals will do all they can to conceal contraband, including the simple expedient of changing the names and extensions of files to disguise their content from the casual observer."); United States v. Hunter, 13 F. Supp. 2d 574, 583 (D. Vt. 1998) ("Computer records are extremely susceptible to tampering, hiding, or destruction, whether deliberate or inadvertent."). It therefore is unsurprising that some of the most important evidence of criminal conduct is often found buried in computers. As a result, it also should not be surprising that a person who uses a computer, or any electronic device, as an instrumentality of crime might discover that a magistrate judge would find probable cause to search that computer, just as it should not shock the user of a telephone that a judge would approve interceptions of calls over that telephone or the home owner that a judge would approve a search throughout a house believed to contain evidence of a crime. See United States v. Gray, 78 F. Supp. 2d 524, 528 (E.D. Va. 1999) (noting that "agents authorized by warrant to search a home or office for documents containing certain specified information are entitled to examine all files located at the site to look for the specified information").

The Second Circuit has yet to comprehensively address the unique issues raised by computer searches, and few district courts in this circuit have had occasion to address the topic. Nevertheless, some guiding precepts have emerged in this circuit and others. As an initial matter, although searches of computers present unique constitutional challenges, the ultimate Fourth Amendment standard is the same for both computer and hard-copy searches: reasonableness. See Hill, 459 F.3d at 974 ("As always under the Fourth Amendment, the standard is reasonableness."). At bottom, then, there is neither a heightened nor a reduced level of protection for information stored on computers, as there is "no justification for favoring those who are capable of storing their records on computer over those who keep hard copies of their records." Hunter, 13 F. Supp. 2d at 584; accord Gray, 78 F. Supp. 2d at 529.

The cases and commentary also draw a distinction between the electronic storage device itself and the information which that device contains. Thus, when the government seeks to seize the information stored on a computer, as opposed to the computer itself, that underlying information must be identified with particularity and its seizure independently supported by probable cause. See Carey, 172 F.3d at 1275 ("Officers [should] specify in a warrant which type of files are sought."); United States v. Riccardi, 405 F.3d 852, 862-63 (10th Cir. 2005) (holding that warrant which "permitted the officers to search for anything -- from child pornography to tax returns to private correspondence," was "precisely the kind of wide-ranging exploratory search that the Framers intended to prohibit" (internal quotations omitted)); Hunter, 13 F. Supp. 2d at 584-85 (invalidating a warrant for failure to identify with particularity the underlying information to be seized); In re Grand Jury Subpoena Duces Tecum Dated Nov. 15, 1993, 846 F. Supp. 11, 12 (S.D.N.Y. 1994) (holding, in the context of a grand jury subpoena, that specificity is required with respect to the categories of information requested, not merely the storage devices). This is consistent with the Government's own published practices, as set forth in a 2002 manual issued by the United States Department of Justice, Criminal Division. See Computer Crime and Intellectual Prop. Section, Crim. Div., U.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (2002), available at www.cybercrime.gov/s&smanual2002.htm, (hereinafter "DOJ Manual"). The DOJ Manual instructs agents that "[i]f the probable cause relates only to the information ... the warrant should describe the information, rather than the physical storage devices which happen to contain it." Id. at 42.

This is not a new rule, but merely an application of the traditional Fourth Amendment requirement that the Government establish that there is probable cause that the materials sought will contain evidence of crime, and then specify with reasonable particularity the materials to be seized. See United States v. Brooks, 427 F.3d 1246, 1253 (10th Cir. 2005) (upholding warrant "that authorized officers to search through computer files for particular items specifically related to child pornography"). In meeting this burden, the Government obviously will need to persuade an issuing magistrate judge that there is reason to believe that the target computer was used to facilitate the crime, or otherwise will contain evidence of that crime. See Hill, 459 F.3d at 975 ("Although computer technology may in theory justify blanket seizures for the reasons discussed above, the government must still demonstrate to the magistrate factually why such a broad search and seizure authority is reasonable in the case at hand."). However, this does not require the Government to establish that a majority of the computer files are related to the suspected criminal conduct, as long as what is to be seized is set forth with sufficient particularity. See Gray, 78 F. Supp. 2d at 528; Hunter, 13 F. Supp. 2d at 583. Indeed, given all the operating software and other basic files stored on most computers, it should not be expected that most files will be suspicious. See Hill, 459 F.3d at 974 (noting that "computers in common use run a variety of operating systems -- various versions of Windows, Mac OS and Linux, to name only the most common").

Permalink 03:45:08 pm, by fourth, 1001 words, 869 views   English (US)
Categories: General

Silent 911 hang up call does not provide reasonable suspicion to stop cars in area of call

The police received a silent 911 hangup call, and cars were dispatched to the area. Because no information was provided, there was no reasonable suspicion to stop cars in the area of the call, so the government failed in its burden of showing reasonable suspicion. The court also compares the quality and nature of information from 911 calls in the cases. United States v. Cohen, 481 F.3d 896 (6th Cir. 2007):

We believe that the 911 hang-up call, standing alone without follow-up calls by a dispatcher or other information, is most analogous to an anonymous tip. The Supreme Court has noted that "there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). For example, an anonymous tip that accurately predicts a subject's future behavior in detail can be credited with "a special familiarity with [the subject's] affairs" and thus bears sufficient indicia of reliability to provide reasonable suspicion. White, 496 U.S. at 332. However, the Supreme Court has made clear that an anonymous tip does not exhibit sufficient indicia of reliability merely because it provides "[a]n accurate description of a subject's readily observable location and appearance," J.L., 529 U.S. at 272, as such a tip "provide[s] no predictive information and therefore [leaves] the police without means to test the informant's knowledge or credibility," id. at 271. See also United States v. Patterson, 340 F.3d 368, 370-72 (6th Cir. 2003) (applying the holding of J.L. to similar circumstances); Feathers v. Aey, 319 F.3d 843, 849-50 (6th Cir. 2003) (same); Northrop v. Trippett, 265 F.3d 372, 381-83 (6th Cir. 2001) (same), cert. denied, 535 U.S. 955, 152 L. Ed. 2d 354 (2002). Such a tip is not irrelevant in evaluating the totality of the circumstances, but should be given little weight. See Caruthers, 458 F.3d at 465-66.

. . .

The silent 911 hang-up call also did not provide a description of Cohen or his car and thus did not identify any determinate person. The quick response of Officers Pender and Koenig made it possible to limit those potentially related to the silent 911 hang-up call to those people and vehicles within four minutes of the area surrounding Wooded Glen Court, and the early hour limited the number of people in that general area, but those limitations still fall short of identifying a determinate person. Cf. United States v. Brown, 448 F.3d 239, 247-52 (3d Cir. 2006) (concluding that police officers did not have reasonable suspicion to stop two men in the area of a robbery based solely on a general description provided by a robbery victim that the perpetrators were two black men of a particular age and height wearing hooded sweatshirts).

Some courts have concluded that an emergency 911 report is more reliable than an anonymous tip and may, by itself, supply reasonable suspicion to make an investigatory stop, at least when the caller identifies himself or herself. See United States v. Drake, 456 F.3d 771, 774-75 (7th Cir. 2006); United States v. Terry-Crespo, 356 F.3d 1170, 1174-77 (9th Cir. 2004); cf. Thacker v. City of Columbus, 328 F.3d 244, 253-55 (6th Cir. 2003) (concluding that an emergency 911 report combined with police officers' observations of a man bleeding, acting belligerently, and demanding assistance from paramedics justified warrantless entry into a home on the basis of exigent circumstances). Even if we were to assume that an anonymous 911 report is more reliable than other similar anonymous tips, however, we believe that the virtually complete lack of information conveyed by the silent 911 hang-up call and the total absence of corroborating evidence indicating that criminal activity was afoot requires us to give the 911 hang-up call little weight in evaluating the totality of the circumstances.

Validity of a traffic stop is not based on the factual accuracy of what the officer was relying on, but on the objective reasonableness of the belief that there was a traffic offense committed. United States v. Hampton, 2007 U.S. Dist. LEXIS 27159 (W.D. Pa. April 12, 2007):

Ultimately, the Delfin-Colina court concluded that "[t]aken together, then, Terry and Whren stand for the proposition that a traffic stop will be deemed a reasonable "seizure" when an objective review of the facts shows that an officer possessed specific, articulable facts that an individual was violating a traffic law at the time of the stop. In other words, an officer need not be factually accurate in her belief that a traffic law had been violated but, instead, need only produce facts establishing that she reasonably believed that a violation had taken place." Id. at 398.

Reasonable suspicion to stop led to a plain view that led to a vehicle search on probable cause. United States v. Naylor, 2007 U.S. Dist. LEXIS 27202 (E.D. Pa. April 12, 2007).*

Pro se motion to dismiss for outrageous police misconduct based on same grounds as suppression hearing already heard when defendant had counsel was rejected as "plow[ing] the same ground." United States v. Cochran, 2007 U.S. Dist. LEXIS 27093 (N.D. Ind. April 10, 2007).*

Franks challenge failed. It was clear that the Postal Inspector was confused by some of the questions put to her, and it did not rise to the level of a Franks challenge. The defense also overstated the issue and apparently lost credibility with the court. United States v. Vilar, 2007 U.S. Dist. LEXIS 26993 (S.D. N.Y. April 4, 2007):

That Inspector Fraterrigo was confused was both obvious and understandable given the nature and form of some of the questions asked of her. Moreover, the Defendants' notion that Inspector Fraterrigo freely admitted, under oath, that she lied to a magistrate judge and then executed what she knew to be a patently invalid warrant by seizing items that she had no basis to take is too fanciful even for a bad Hollywood courtroom drama. Thus, the Court rejects Defendants' claim that Inspector Fraterrigo, in open court, admitted to intentionally misleading a magistrate judge in order to obtain and execute an illegal warrant. She testified to just the opposite, and the Court found this testimony to be credible.

This same case appears in the later posting just above these for more issues.

Permalink 09:48:25 am, by fourth, 879 words, 451 views   English (US)
Categories: General

Fact that arresting officer did booking inventory did not make it unreasonable

Inventory of bag in defendant's possession at the time of booking was not unconstitutional. While the policy refers to jail personnel, it is not strictly applicable to them. The inventory search here was no different or intensive than that which would have been conducted by the jail personnel, and there was no showing that it was conducted with an investigatory motive. Indeed, the bag only came along because defendant requested it. United States v. Banks, 482 F.3d 733 (4th Cir. 2007):

The written policy reveals that the end result of an inventory search in the typical arrest scenario is that the arrestee's person and possessions are searched, with paper currency returned immediately to the arrestee, other personal property stored until the arrestee's release, and contraband seized and secured. Det. Gunn's search of the bags mirrored this routine practice. Just as the bags would have been searched and their contents confiscated and secured by booking personnel in a typical arrestee processing, they were searched, confiscated and secured by Det. Gunn.

Banks may only succeed in challenging the search of the bags, then, by showing that Det. Gunn's search was motivated by "an investigatory police motive," Opperman, 428 U.S. at 376. See id.; Brown, 787 F.2d at 932 (allowing searches "so long as the purpose of the inventory is ... not to gather incriminating evidence against the owner"). This second argument is fatally weakened, however, by the district court's finding that Det. Gunn's actions were "perfectly reasonable ... under the circumstances and do[] not betoken bad faith on his part." J.A. 259. This factual finding must be upheld on appeal unless clearly erroneous. Buckner, 473 F.3d at 553.

Banks presented no evidence that Det. Gunn initiated the search of the bags or conducted the inventory search because he suspected that he would find incriminating evidence therein. To be sure, Det. Gunn's decision to perform the inventory himself in his office, instead of following the usual procedures, was irregular. The irregularity was due in part, however, to the unusual circumstances of the arrest. The arresting officer, though he responded first to the Target, was only involved because of Det. Gunn's distance from the pharmacy at the time Eggleston and Banks arrived at the store. Furthermore, the bags were not in Banks's physical possession because they were procured by Det. Gunn, at Banks's specific request, after his arrest.

Officer was entitled to qualified immunity for warrantless entry into an apartment based on an apparent emergency. The search was not clearly unreasonable, and it was objectively justified. McTwigan-Evans v. Spaulding, 2007 U.S. Dist. LEXIS 27245 (D. Colo. April 12, 2007).*

A face-to-face CI is more reliable than an anonymous tipster. This one was corroborated, and the reasonable suspicion involved danger to the officer. United States v. Kent, 2007 U.S. Dist. LEXIS 27111 (E.D. Mo. April 12, 2007):

The court finds the officers had specific articulable facts providing reasonable suspicion to detain the defendant. Although the defendant argues that the CI had no track record. That is true. However, as the Second Circuit stated in United States v. Salazar, 945 F.2d 47, 50-51 (2nd Cir. 1991), "A face-to-face informant must, as a general matter, be thought more reliable than an anonymous tipster, for the former runs the greater risk that he may be held accountable if his information proves false." The CI was considered by Blakely to be sufficiently trustworthy to be signed up to be an informant. For tips there is no requirement that the informant even be known. Illinois v. Gates, 462 U.S. 213, 237-238, 103 S.Ct. 2317 (1983). The CI in this instance had offered firsthand knowledge of the person who had just been at the CI's residence. He was walking in an area known for crack cocaine trafficking. He was alleged to be carrying a concealed weapon, which is a crime in itself. Blakely remembered that there had been a controlled buy from TKO in 2003.

There was a danger and immediacy involved in this factual situation, which is not always present in an investigatory stop. The likelihood of finding weapons with one who has been involved in drug trafficking is alluded to in many cases. The person described as TKO, when informed of the officer's intent to pat him down for weapons, in effect, refused to be patted down and placed his hands in his pockets where a weapon might be located and was going to walk away, which under the circumstances, could reasonably be interpreted as an admission that he was the man they were looking for. The officers were faced with a situation such as the one described in Terry:

"We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives."

392 U.S. at 23-24, 88 S.Ct. at 1881.

04/13/07

Permalink 03:19:33 pm, by fourth, 354 words, 463 views   English (US)
Categories: General

Roadblock to gather information from potential witnesses to crime that had just occurred was valid

Local authorities set up a roadblock to ask motorists leaving the area if they knew anything about a burglary occurring 30 minutes earlier. The roadblock was valid under Lidster. State v. Gorneault, 2007 ME 49, 918 A.2d 1207 (2007):

The circumstances of the brief stop of Gorneault's vehicle and of his subsequent arrest are substantially similar to those in Lidster. Police set up a roadside inquiry of every vehicle passing through an area where a crime had recently been committed for the purpose of obtaining information about the crime and its perpetrator. The stop was of very brief duration and unlikely to cause alarm or anxiety, and the questions were limited to those related to the recently committed burglary. The purpose of the brief stop and the inquiry was not to determine if the drivers themselves committed a crime, nor to conduct general crime investigation, but rather was in response to a specific crime committed at a specific time and in a specific location. Gorneault's condition was observed during that brief stop. Accordingly, the Superior Court did not err in denying Gorneault's motion to suppress.

Separating co-tenants and asking one for consent was binding on both. Randolph does not apply to situations like this where co-tenants are separated to talk to them and one consents. There was no showing that the separation occurred because defendant might veto consent. McClelland v. State, 2007 WY 57, 155 P.3d 1013 (2007).*

Violation of Hurrican Ivan curfew led to a detention by a law enforcement officer which led to a frisk that revealed drugs. The curfew was validly adopted by the Governor and the city. State v. Severin, 958 So. 2d 21 (5th Cir. 2007), released for publication July 2, 2007.*

Officer had a factual basis for encountering the defendant about drug interdiction at the Albany NY bus station. Defendant was about to leave in a shared taxi ride. His denial of ownership of the bag was an abandonment. People v. Jennings, 2007 NY Slip Op 3028, 39 A.D.3d 970, 833 N.Y.S.2d 737 (3d Dept. 2007).*

Defendant's one-room apartment was shared with another, and that person could validly consent. People v Forino, 2007 NY Slip Op 3159, 39 A.D.3d 664, 833 N.Y.S.2d 603 (2d Dept. 2007).*

Permalink 02:46:22 pm, by fourth, 254 words, 443 views   English (US)
Categories: General

Asking about probationary status during brief detention is not unreasonable

Defendant was stopped for loitering, and he was asked about his probationary status, and this was reasonable. Miller v. State, 922 A.2d 1158 (Del. 2007):

During the initial lawful detention of Miller to enforce the loitering statute, Probation Officer Kelly asked Miller whether he was on probation. In Muehler v. Mena, the United States Supreme Court held that questioning someone who was being lawfully detained about her immigration status was not a Fourth Amendment violation even though her immigration status was not related to her detention:

"We have held repeatedly that mere police questioning does not constitute a seizure. Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search his or her luggage. As the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status."

Similarly, it was permissible for Officer Kelly to ask Miller if he was on probation, while Miller was lawfully detained initially to enforce the loitering statute.

Because a narcotics officer makes a valid traffic stop is not pretextual. Probable cause developed. United States v. Cruz-Rivera, 2006 U.S. Dist. LEXIS 95885 (D. P.R. September 13, 2006).*

Complusory blood draw when there is a vehicular homicide or aggravated DUI is reasonable. State v. Diaz, 144 Idaho 300, 160 P.3d 739 (2007).*

Permalink 02:25:56 pm, by fourth, 565 words, 741 views   English (US)
Categories: General

Silence in the face of a protective sweep is consent by acquiescence

Silence in the face of a protective sweep is consent by acquiescence. United States v. Pena-Baez, 2007 U.S. Dist. LEXIS 26554 (D. Kan. April 9, 2007). (Comment: Like a suspect would feel that he could object to cops wandering around in his house? The violation has already occurred by then.)

Various factors involving a tractor trailer amounted to reasonable suspicion to extend the stop. United States v. Lopez, 2007 U.S. Dist. LEXIS 26170 (E.D. Pa. March 26, 2007):

Once the truck was validly stopped, Gooding acted lawfully in requesting license, registration and other vehicle-related paperwork, and in questioning Santana and Garcia about details related to such paperwork. See, e.g., Givan, 320 F.3d at 459; Rosborough, 366 F.3d at 1148. Within a matter of minutes into the stop, Gooding's quick inspection of the truck and the paperwork revealed the following: both drivers were awake, religious disclaimers in the cab, high DOT number, unusual log book entries (especially given the nature of the perishable cargo involved), load's origination in Ontario, and that Santana had flown from Phoenix to Ontario to pick up the truck. These objective facts, viewed in light of Sgt. Gooding's extensive experience, amounted to the requisite "reasonable and articulable suspicion" of criminal activity sufficient to justify him expanding the scope of temporary stop. See United States v. Johnson, 285 F.3d 744, 749 (8th Cir. 2002) (finding reasonable suspicion for extended detention during routine safety stop based on incomplete log book entries and paperwork, driver's confusion as to final destination, that driver flew to pick up truck, truck's indirect route given that it carried produce, driver's evasive and strange behavior, and unusual locks on the trailer). Upon "escalation" of the stop, Gooding reasonably broadened his investigation in calling for a drug dog and in contacting EPIC to access their database.

Given the totality of the circumstances in this case, the Court concludes that the 20-minute delay in the canine's arrival, during which time Gooding continued his reasonable investigation by contacting EPIC and making inquiries of Garcia, was not unreasonably lengthy as to render the detention of the tractor-trailer unconstitutional. See Frost, 999 F.2d at 742 (80 minute delay between initial seizure and arrival of canine not unreasonable). This is especially the case where there is no indication that Gooding and Smart acted with anything less than the utmost diligence; indeed, Trooper Smart and Rita arrived at Gooding's location within a minute or so after Smart concluded his traffic stop, approximately 20 minutes after Gooding initially requested canine assistance.

Fact question remainded for trial based on plaintiff's version that excessive force was unjustified when it was used. Carey v. Maloney, 480 F. Supp. 2d 548 (D. Conn. 2007):

The Court finds that there are genuine issues of material fact regarding the conduct of Officers Maloney and Fox and the amount of resistance Carey offered. A reasonable jury could find that Carey was subjected to more force than necessary to secure his arrest, particularly given Carey's deposition testimony that Fox and Maloney failed to warn Carey before pushing him against the pick-up truck, that he did not resist arrest, and that he had only taken a couple of steps toward his father, as well as the short period of time before the pepper spray was used, and the number of times he was sprayed.

Officers had probable cause to arrest the plaintiff for public intox so his civil case fails. Nitsch v. City of El Paso, 482 F. Supp. 2d 820 (W.D. Tex. 2007).*

Permalink 08:02:14 am, by fourth, 979 words, 2138 views   English (US)
Categories: General

Prisoner had no reasonable expectation of privacy in his mail under published directive he was aware of

A prison inmate had no reasonable expectation of privacy in his incoming and outgoing mail based on the prison directives for security purposes. United States v. Solomon, 2007 U.S. Dist. LEXIS 26825 (W.D. Pa. April 11, 2007):

In Stroud v. United States, 251 U.S. 15, 21-22 (1919), the United States Supreme Court held that there was no violation of the Fourth Amendment when letters containing incriminating material written by a prisoner were intercepted by prison personnel and later introduced against him at trial. The Supreme Court noted that the letters came into the possession of prison officials under established practice, reasonably designed to promote institutional discipline. Id. at 21. Several circuit courts subsequent to Stroud have held that jail officials do not violate an inmate's Fourth Amendment rights by inspecting the inmate's mail. See, e.g., Stow v. Grimaldi, 993 F.2d 1002, 1004-05 (1st Cir. 1993) (holding that a New Hampshire State Prison practice of requiring nonprivileged outgoing mail to be submitted for inspection in unsealed envelopes does not violate prisoners' constitutional rights); Smith v. Delo, 995 F.2d 827, 830 (8th Cir. 1993) (prison officials are justified in screening outgoing nonlegal mail for escape plans, contraband, threats, or evidence of illegal activity); United States v. Whalen, 940 F.2d 1027, 1034-35 (7th Cir.), cert. denied, 502 U.S. 951 (1991) (holding that because prison officials are permitted to examine inmate mail to ensure that the mail does not interfere with the orderly running of the prison, contain threats, or facilitate criminal activity, there is no expectation of privacy in mail that inmates are required to leave unsealed); United States v. Kelton, 791 F.2d 101, 103 (8th Cir. 1986) (prisoner's Fourth Amendment rights were not violated when prison official inspected and copied prisoner's outgoing mail); Smith v. Shimp, 562 F.2d 423, 426-27 (7th Cir. 1977) (reasoning that when a pretrial detainee sends non-privileged mail, he knowingly exposes same to possible inspection by jail officials and consequently yields to reasonable search and seizure); United States v. Baumgarten, 517 F.2d 1020, 1028 (8th Cir.), cert. denied, 423 U.S. 878 (1975) (holding that, under circumstances where prisoner knew of official policy of reading prisoners' outgoing and unsealed mail, prisoner cannot say the state gained access to contents of a letter by unlawful search and seizure).

The record undeniably demonstrates that the Department of Corrections has a written policy which informs all prisoners that their mail, both incoming and outgoing, may be inspected; that Defendant Solomon had received a copy of the DOC Inmate Handbook, which reflected this policy; and that Detective Heberle had requested the monitoring of Defendant Solomon's mail as part of an investigation into the homicide of Frank Helisek. When a prisoner is made aware that his nonlegal mail may be subjected to official scrutiny, pursuant to institutional policies, the inmate's constitutional rights are not violated by the subsequent examination of such mail because he or she has no reasonable expectation of privacy in it.

The plaintiff failed to state a claim against a city's SWAT teams dynamic entry policy even though it was used on two $20 buys. Estate of Brutsche v. City of Federal Way, 2007 U.S. Dist. LEXIS 26855 (W.D. Wash. April 11, 2007):

The Court need not resolve this dispute. The Court's task on summary judgment is to determine whether there is any evidence that the SWAT team's Dynamic Warrant Service policy caused the alleged unreasonable use of force against Jim Brutsche, not to determine whether the SWAT team's deployment was reasonable. Plaintiffs have failed to provide any evidence that Jim Brutsche was injured by any reason specific to the SWAT team's policies and procedures. Because the Dynamic Service Warrant policy, which was used to decide to deploy the SWAT team in this case, cannot be considered the cause of, or the moving force behind, Jim Brutsche's injuries, the Court GRANTS IN PART the Cities' and the Port's motion for summary judgment, and DISMISSES with prejudice the Sixth Cause of Action to the extent that it is based on the VSRT's Dynamic Warrant Service policy.

An anonymous tip that the defendant had a gun and was planning on using it on someone was sufficient for a frisk when defendant was found where it was said he would be plus his furtive movement. Because the furtive movement occurred in a car, the frisk could extend to the car under Long. United States v. Graham, 483 F.3d 431 (6th Cir. 2007).

Reliance on an arrest warrant justified the arrest. The fact the officer had to use binoculars to better see the defendant did not mean that he lacked probable cause. It was reasonable for the defendant to be ordered out of the car. United States v. Helton, 232 Fed. Appx. 747 (10th Cir. 2007)* (unpublished).

While the question was close, the court finds reasonable suspicion based on the defendant's presence in a high crime area coupled with likely hand-to-hand transactions. United States v. Crawford, 2007 U.S. Dist. LEXIS 26642 (E.D. Ark. April 10, 2007):

The circumstances in the instant case are more indicative of specific criminal activity than the circumstances in Cornelius. Like the defendant in Cornelius, Crawford was observed in a high-crime area and was recognized as an individual with a criminal history. While Crawford's conduct in exchanging something with another person could have been an innocent act, such conduct is also consistent with drug transactions. Moreover, the exchange took place at night, not during daylight hours. The Court recognizes that the defendant in Cornelius walked in another direction upon seeing the patrol car, and Crawford engaged in no such evasive action. The Eighth Circuit did not discuss this aspect of the defendant's behavior in its analysis, however, focusing instead on the fact that the defendant put his hand in his pocket. See id. (citing United States v. Davis, 202 F.3d 1060, 1063 (8th Cir. 2000), and noting that the suspect in Davis "nervously plac[ed] hand in jacket pocket"). Making an exchange in a parking lot at night is at least as suspicious as placing one's hand in one's pocket while walking down the street in broad daylight.

04/12/07

Permalink 12:08:40 pm, by fourth, 657 words, 1028 views   English (US)
Categories: General

IP address sufficient basis for issuance of search warrant for the physical address where it is assigned

The defendant was believed to have sent child porn to an unwilling recipient who reported it to the authorities. A subpoena to Yahoo! revealed the owner of the IP address associated with the user account. This was sufficient justification for issuance of a search warrant for the physical address, notwithstanding the fact that others could have been using wireless at that address. The place to be searched was also a multiple occupancy unit, and the officers complied with Garrison. United States v. Perez, 2007 U.S. App. LEXIS 8366 (5th Cir. April 12, 2007):

In this case it is clear that there was a substantial basis to conclude that evidence of criminal activity would be found at 7608 Scenic Brook Drive. The affidavit presented to the magistrate included the information that the child pornography viewed by the witness in New York had been transmitted over the IP address 24.27.21.6, and that this IP address was assigned to Javier Perez, residing at 7608 Scenic Brook Drive, Austin, Texas 78736.

Perez argues that the association of an IP address with a physical address does not give rise to probable cause to search that address. He argues that if he “used an unsecure wireless connection, then neighbors would have been able to easily use [Perez’s] internet access to make the transmissions.” But though it was possible that the transmissions originated outside of the residence to which the IP address was assigned, it remained likely that the source of the transmissions was inside that residence. See United States v. Grant, 218 F.3d 72, 73 (1st Cir. 2000) (stating that “even discounting for the possibility that an individual other than [defendant] may have been using his account, there was a fair probability that [defendant] was the user and that evidence of the user’s illegal activities would be found in [defendant’s] home”) (emphasis in original). “[P]robable cause does not require proof beyond a reasonable doubt.” Brown, 941 F.2d at 1302. Perez also argues that evidence that illicit transmissions were made does not give rise to probable cause that physical evidence would be located at the residence. However, the New York witness stated that the images she observed appeared to be videos played on a television screen transmitted via a web cam. There was therefore a basis to believe that the suspect would have such videos in his residence. Moreover, Britt stated in his affidavit that, in his experience, persons interested in child pornography typically retain numerous images of child pornography as well as “material documenting the arrangements, the introduction, and tasks to consummate the acquisition of child pornography.” Based on this information, there was probable cause to believe that physical evidence of violations of the child pornography laws would be located at 7608 Scenic Brook Drive.

Search warrant was validly issued on the co-conspirator's statement that she saw meth ingredients in defendant's house. United States v. McAtee, No. 06-1698 (8th Cir. April 12, 2007):

The affidavit exhibits several indicia of reliability. First, it is notable that the information did not come from an anonymous or confidential informant. See Reivich, 793 F.2d at 959. Second, Jodie had just been observed purchasing large quantities of pseudoephedrine, thus, "the question was not whether a crime was being committed, but only where and by whom." Id. Third, the statements by Jodie that she had been given methamphetamine and that illegal activity was most likely occurring in her home are statements against her own penal interest, which lends credibility to her statements. See United States v. Harris, 403 U.S. 573, 583-84 (1971). Fourth, Jodie's statements consisted of detailed and specific allegations regarding materials she had seen in her home as well as actions by McAtee. As the Supreme Court has noted, the "explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed firsthand, entitles [the] tip to greater weight than might otherwise be the case." Gates, 462 U.S. at 234.

Considering all of the circumstances regarding Jodie's statements to the police, there was probable cause for searching her home.

Permalink 07:34:08, by fourth, 250 szó, 772 views   Hungarian (HU)
Kategóriák: General

SDI Future Health search warrant suppression upheld by District Judge

The District Judge in the SDI Future Health case upheld the Magistrate Judge's suppression of the search under a warrant. The individual major stockholders had standing to contest the search, the warrant failed particularity in several areas, and the good faith exception did not apply to those failures. United States v. SDI Future Health, Inc., 491 F. Supp. 2d 975 (D. Nev. 2007). (Note: Defense counsel provided me the order by e-mail a few days ago, but the District Court's order did not make Lexis until today.)

Defendants were validly stopped for a traffic offense, but the government failed in its burden of showing the detention was reasonable. Objective evidence of radio logs showed that the defendants were not shown to have warrants for their arrest for over an hour, and an hour's detention was unjustified by the purpose of the original stop. United States v. Marks, 2007 U.S. Dist. LEXIS 26226 (W.D. Tex. March 28, 2007).*

If the plaintiff was not convicted of a crime, Heck does not bar the action. McClish v. Nugent, 2007 U.S. App. LEXIS 8294 (11th Cir. April 11, 2007).*

Plaintiff's pro se complaint against housing inspectors who had probable cause to enter was dismissed on summary judgment. Marcello v. Maine, 489 F. Supp. 2d 70 (D. Maine 2007).*

Plaintiff stated enough to stay in court on arrest without probable cause and lack of qualified immunity. The defendants offered alternate theories of cause for arrest that were never raised in the ancillary state court proceeding. Sykes v. Wicomico County, 2007 U.S. Dist. LEXIS 26197 (D. Md. March 30, 2007).*

04/11/07

Permalink 09:36:48 am, by fourth, 299 words, 1689 views   English (US)
Categories: General

While interrogation violated Miranda, taking of bucal swab was not a Fourth Amendment violation

The police reinitiated interrogation after the right to counsel was invoked, so the trial court properly suppressed the defendant's statement. The trial court erred, however, in suppressing a bucal swab taken from the defendant at the time because it was not fruit of the poisonous tree of a Fifth Amendment violation. People v. Bradshaw, 156 P.3d 452 (Colo. 2007):

Fruit of the poisonous tree describes evidence gathered with the aid of information obtained unconstitutionally. Oregon v. Elstad, 470 U.S. 298, 304, 105 S. Ct. 1285, 84 L. Ed. 2d 222 (1985); see also Brown v. Illinois, 422 U.S. 590, 601-02, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975). Although the fruit of the poisonous tree doctrine applies to Fourth Amendment violations, the United States Supreme Court has imported the poisonous tree doctrine into Fifth Amendment violations in the limited circumstance where coerced statements made during interrogation directly produce additional evidence. Elstad, 470 U.S. at 310. The Court differentiated between coerced statements and statements made after a Miranda violation. Id. It held that "actual coercion" means the accused has been "compelled ... to be a witness against himself" in violation of the Fifth Amendment. U.S. Const. amend. V. Conversely, a failure to adhere to Miranda does not rise to a Fifth Amendment violation. New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Instead, a Miranda violation presumes only that "the privilege against compulsory self-incrimination has not been intelligently exercised." Elstad, 470 U.S. at 310. Thus, because Miranda violations do not rise to actual coercion in violation of the Fifth Amendment, the fruit of the poisonous tree doctrine does not apply. Id. at 304.

"All persons on the premises" at the time of the search in a drug search warrant is reasonable. The defendant arrived just before the search warrant arrived, but after it was issued. State v. McClendon, 2007 Ohio 1656, 2007 Ohio App. LEXIS1504 (12th Dist. April 9, 2007).

Permalink 09:22:59 am, by fourth, 287 words, 750 views   English (US)
Categories: General

Defendant's refusal of consent and drug past was not reasonable suspicion to detain for a drug dog

Defendant was stopped for not having a license place light. Because a license check revealed that defendant had a drug arrest in the past, the officer asked for consent which was refused. The defendant was detained for a drug dog. The officer did not have grounds for detaining defendant after issuing him a citation for not having a tag light. The only reasonable suspicion articulated by the officer was that another officer had told him that defendant had been previously associated with drugs. The officer acknowledged that at the time of the traffic stop he had no belief that defendant was involved in criminal activity. The detention was without reasonable suspicion. Smith v. State, 2006 Ala. Crim. App. LEXIS 192 (September 29, 2006, released for publication March 23, 2007).

Defendant who handed off a baggie of cocaine when he knew he was about to be confronted by a police officer had no standing to challenge the search of the other person. State v. Davis, 2006 Ala. Crim. App. LEXIS 116 (June 30, 2006, released for publication March 23, 2007).*

Where the defendant abandoned property linking him to a murder, he could not show that defense counsel was ineffective for not challenging a search issue that he would surely lose. Gipson v. Quarterman, 2007 U.S. Dist. LEXIS 26128 (S.D. Tex. April 5, 2007).*

Law enforcement officers "were executing a facially valid warrant, [so] plaintiff's Fourth Amendment claim fails to state a claim upon which relief may be granted." Hann v. Michigan, 2007 U.S. Dist. LEXIS 25902 (E.D. Mich. March 2, 2007).*

Defendant's consent to search his apartment included a bag of puppy food where drugs were found. Defendant's argument that his dog was not a puppy did not make the search exceed the scope of his consent. S.T.E. v. State, 954 So. 2d 604 (2006).*

Permalink 08:37:30 am, by fourth, 482 words, 703 views   English (US)
Categories: General

Affidavit for search warrant need not specify the crime, as long as some crime is shown

Affidavit for search warrant that did not specify the crime that allegedly occurred for which the warrant was issued was not constitutionally difficient. The investigation started out as a solicitation for videotaped sex with a retarded young man, and yielded child porn. United States v. Summage, 481 F.3d 1075 (8th Cir. 2007):

The district court faulted the affidavit for its lack of specificity in describing the offense giving rise to the request for the warrant. We disagree. It is not necessary for an affidavit to include the name of the specific crime alleged. United States v. Koyomejian, 970 F.2d 536, 548 (9th Cir. 1992) (Kozinski, J., concurring); 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 3.1, at 9 n.28 (4th ed. 2004) ("It need not be certain precisely what crime was committed."). Rather, "'only a probability of criminal conduct need be shown.'" United States v. Koonce, 485 F.2d 374, 380 (8th Cir. 1973) (quoting McCreary v. Sigler, 406 F.2d 1264, 1268 (8th Cir. 1969)); Gates, 462 U.S. at 235 ("It is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969))). Although the affidavit did not specifically name the crime that had been committed, the alleged facts support a finding of probable cause to believe that Summage's actions constituted criminal conduct--specifically the solicitation of prostitution or pandering--given the fact that Summage had offered money in exchange for Doe's services in a sex act.

Defendant was driving his pimped out 1968 Electra up to the Detroit-Windsor Tunnel border area, and he looked for a parking space. The car drew the attention of Customs and Border Patrol officers and it was noticed that the defendant was smoking a blunt. The search was justified as occurring within the border area, even though he said he was not crossing the border, or plain view. United States v. Humphries, 2007 U.S. Dist. LEXIS 26015 (E.D. Mich. April 9, 2007).

The confidential informant was corroborated and the police were in constant communication with him. The original place of the drug deal had moved, and the informant told the police. United States v. Traxler, 2007 U.S. App. LEXIS 8211 (10th Cir. April 9, 2007).*

Defense counsel was not ineffective for not exploring the basis for his search where the defendant agreed with a statement of facts that included defendant consented to the search. Wilkins v. United States, 2007 U.S. Dist. LEXIS 25998 (E.D. Tenn. April 6, 2007).*

Magistrate recommended dismissal of a § 1983 case because it did not mention the Fourth Amendment. District Court disagrees under F.R.C.P. 8: "While we find that the plaintiff's complaint falls far short of the standard for ideal legal drafting, we agree that the complaint provides fair notice to the defendant of plaintiff's allegation that the breathalyzer tests administered to him violated his Fourth Amendment rights." Majewski v. Luzerne County, 2007 U.S. Dist. LEXIS 26056 (M.D. Pa. April 5, 2007).*

04/10/07

Permalink 05:51:02 am, by fourth, 772 words, 1312 views   English (US)
Categories: General

"Constructive entry" into premises explained

"Constructive entry" explained and rejected on these facts. United States v. Grayer, 232 Fed. Appx. 446, 2007 FED App. 0255N (6th Cir. 2007)* (unpublished):

In United States v. Morgan, 743 F.2d 1158 (6th Cir. 1984), we explained that a "constructive entry" may occur when a suspect emerges from a house "in response to coercive police conduct." Id. at 1166; accord United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005) (explaining that a constructive entry occurs "when the police, while not entering the house, deploy overbearing tactics that essentially force the individual out of the home"). Coercive police conduct is "such a show of authority that [the] Defendant reasonably believed he had no choice but to comply." United States v. Saari, 272 F.3d 804, 809 (6th Cir. 2001). There is nothing, however, preventing the police from knocking on a home's door and questioning a suspect or an individual with information about an investigation. See, e.g., Thomas, 430 F.3d at 277 (citing, among others, Ewolski v. City of Brunswick, 287 F.3d 492, 504-05 (6th Cir. 2002) (approving of "knock and talk" investigations)). And if, during the course of this questioning, the suspect willingly and voluntarily acquiesces to noncoercive police requests to leave the protection of the house, then, absent a show of force that would provide a basis for a reasonable person to believe he was compelled to leave the house, a subsequent outside-the-home seizure does not offend Payton. See id.

Grayer argues that it was reasonable for him to believe that he was under arrest once the officers knocked on his door and, therefore, the officers constructively entered the residence without a warrant. Grayer points out that the house was surrounded by four police officers, a K-9 unit was present, and three police cars (along with an unmarked Chevrolet Suburban) were parked on the street outside the house.

Even assuming these facts as true, Grayer's argument fails. The officers' show of force did not rise to the level of a constructive entry. None of the hallmarks of constructive entry were present: (1) drawn weapons; (2) raised voices; (3) coercive demands; or (4) a large number of officers in plain sight. See, e.g., Saari, 272 F.3d at 808-09 (constructive entry where police knocked forcefully and where one officer had a twelve-gauge, pump-action shotgun in the "ready position" and the other officers had their service weapons drawn); Morgan, 743 F.2d at 1161 (constructive entry where ten officers surrounded the house, blocked the suspect's car, "flooded the house with spotlights[,] and summoned [the suspect] from his mother's home with the blaring call of a bullhorn"); accord Sharrar v. Felsing, 128 F.3d 810, 819 (3d Cir. 1997) (constructive entry where police surrounded the house, pointed machine guns at the windows, and ordered the occupants out); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir. 1985) (constructive entry where "the police had completely surrounded [suspect's] trailer with their weapons drawn and ordered him through a bullhorn to leave the trailer and drop to his knees").

The record reflects that only two officers approached the front door of the residence. The other two officers were stationed to the side and back of the house and were not visible from the front door. Likewise, according to Officer Cunningham's testimony, the three police squad cars and unmarked police Suburban were parked in a manner blocked from Grayer's view from the front door. Further, neither officer at the door had his gun drawn. Those two officers simply knocked on the door, asked the man who answered the door if he was Grayer, and asked him to step outside. Indeed, Grayer testified that he complied with that request willingly. Without more, this does not amount to a constructive entry. See Thomas, 430 F.3d at 278 (near-identical facts).

It cannot be said that officers acted unreasonably in their use of force against plaintiff when his car backed up after they saw a gun in the car. Plaintiffs seized on one clause in a deposition of the defendants that was contrary to the video of the stop, so qualified immunity applies. Webster v. Beary, 228 Fed. Appx. 844 (11th Cir. 2007)* (unpublished).

Traffic stop that led to questions about citizenship and running the names was not unreasonable. United States v. Cantu, 227 Fed. Appx. 783 (11th Cir. 2007)* (unpublished).

Occupants of a motel room that was rented by another who were waiting for a drug deal to go down did not have standing under Carter. United States v. Domenech, 2007 U.S. Dist. LEXIS 25758 (W.D. Mich. April 6, 2007).

Only excessive force allegation survives summary judgment against NYPD which started from a 911 call with a hang up, and calls back that led to profanity toward the police saying they could not enter without a warrant. Younger v. City of New York, 480 F. Supp. 2d 723 (S.D. N.Y. 2007).*

04/09/07

Permalink 06:32:37 am, by fourth, 798 words, 646 views   English (US)
Categories: General

Vermont rejects Patane and suppresses evidence holding that following it would encourge Miranda violations

Defendant pulled up next to a police car and asked a question. The officer could smell burnt marijuana. That led to questioning and whether the officer could search his car and house, and defendant permitted it. Under United States v. Patane (2004), the search after the statement would not be suppressed. The Vermont Supreme Court determines that the Vermont Constitution required suppression of the evidence. State v. Peterson, 2007 VT 24, 181 Vt. 436, 923 A.2d 585 (2007):

[*P17] In examining whether we should follow Patane under the Vermont Constitution, we start with the context of our decision. The right against self-incrimination is guaranteed in the Fifth Amendment to the United States Constitution, which prohibits compelling a criminal defendant to "be a witness against himself." U.S. Const. amend. V. Equivalently, Article 10 of the Vermont Constitution prohibits compelling a person "to give evidence against oneself." Vt. Const. ch.1, art. 10. We have held, with respect to adults, that "the Article 10 privilege against self-incrimination and that contained in the Fifth Amendment are synonymous." State v. Rheaume, 2004 VT 35, P18, 176 Vt. 413, 853 A.2d 1259; see State v. Ely, 167 Vt. 323, 330-31, 708 A.2d 1332, 1336 (1997) (declining to find significance in textual distinction between the two provisions). Consistent with this view, we have held that evidence gathered in violation of the prophylactic rules established in Miranda is also a violation of Article 10. State v. Brunelle, 148 Vt. 347, 355 n.11, 534 A.2d 198, 204 n.11 (1987); see also Rheaume, 2004 VT 35, P15. We have not, however, gone beyond Miranda and found a violation of the principles of that decision where the United States Supreme Court has not done so. Rheaume, 2004 VT 35, P15.

[*P18] If this case involved the substance of Miranda, for example, the nature of the warnings or the circumstances under which that must be given, the State would have a strong argument that our precedents require that we not go beyond the limits in the decisions of the United States Supreme Court. This, however, is a case in which the district court found a violation of Miranda under accepted principles and defendant made a confession to an additional crime under custodial interrogation, a confession that is inadmissible under Miranda. The issue is the scope of the remedy for the Miranda violation, and on this point our precedents take a different view from that of the United States Supreme Court. See State v. Oakes, 157 Vt. 171, 174-75, 598 A.2d 119, 121-22 (1991) (noting that the United States Supreme Court describes the federal exclusionary rule for Fourth Amendment violations as "a judicially created remedy rather than a constitutional right").

. . .

[*P24] We would have to make a fundamental departure from our exclusionary rule jurisprudence in order not to apply an exclusionary rule here. In fact, we would have to overrule Badger or substantially narrow it. The approach of Patane, on the other hand, would create an incentive to violate Miranda. We see no justification for such a retrenchment in these circumstances. In addition, because the Miranda rule is intended to protect the right to counsel, as well as the right against self-incrimination, we would have to ignore the holding in Bean and like cases which use an exclusionary rule to protect the right to counsel.

[*P25] We note that the three state supreme courts that have analyzed Patane under their state constitutions have concluded that they cannot adopt it because it undercuts the enforcement of Miranda. In Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (Mass. 2005), the Massachusetts Supreme Judicial Court refused to follow Patane in enforcing Miranda rights through Article 12 of the Declaration of Rights of the Massachusetts Constitution. The court agreed with the observation of Justice Souter, dissenting in Patane, that the decision added "'an important inducement for interrogators to ignore the [Miranda] rule'" and created "'an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained.'" Id. at 203 (quoting Patane, 524 U.S. at 647 (Souter, J., dissenting)). It concluded: "To apply the Patane analysis to the broader rights embodied in art. 12 would have a corrosive effect on them, undermine the respect we have accorded them, and demean their importance to a system of justice chosen by the citizens of Massachusetts in 1780." Id. Thus, it followed earlier decisions in which it had rejected United States Supreme Court rulings weakening the applicability of Miranda. Id. at 206.
[The other two cases are State v. Knapp, 2005 WI 127, 700 N.W.2d 899 (Wis. 2005), and State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (Ohio 2006).]

. . .

[*P28] For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.

04/08/07

Permalink 06:23:57 pm, by fourth, 498 words, 476 views   English (US)
Categories: General

Kansas holds that probable cause to get a warrant invoked inevitable discovery even though there was no effort to get a warrant

Police asked for consent three times to search defendant's home while investigating odor of marijuana and they were refused by the defendant, but he finally relented because they said they would get a search warrant if he did not cooperate. That made the consent invalid. But, because there was probable cause, inevitable discovery allowed its admission into evidence. State v. Thompson, 37 Kan. App. 2d 589, 155 P.3d 724 (2007):

In Brown, the Kansas Supreme Court upheld the admission of evidence obtained without a warrant. The court held that Brown's consent was not coerced when officers gave him the option of consenting and being searched at that time or waiting for a warrant, because the officers had sufficient probable cause to obtain the warrant. Brown, 245 Kan. at 613. The court appears to have upheld the admission of the evidence on both grounds. Because there was sufficient probable cause for the police to secure a warrant and they were in the process of obtaining the warrant, the evidence discovered on Brown would have inevitably been discovered. Additionally, because the police had sufficient probable cause to obtain a warrant, they did not impermissibly threaten him by stating they were applying for a warrant. 245 Kan. at 612-13.

The essential facts in the instant case are similar and require the same result as Brown as regards to inevitable discovery. There was enough probable cause to obtain a search warrant which would have led to the inevitable discovery of the evidence.

Comment: This is a screwy case that is just wrong. In the mind of this court, the fact they had probable cause and could have obtained a warrant excuses the fact that they did not obtain a warrant. The outcome here, then, nullifies the warrant requirement because the police can, at least in Kansas, argue that they could have gotten a warrant, therefore, their illegal entry into the house is excused under inevitable discovery. Therefore, is there no need to procure search warrants in Kansas if there is only probable cause? It also misapplies the inevitable discovery exception because there was no showing that the police where actively doing what they were supposed to do.

The affidavit failed to show a nexus between the crime and the place to be searched, so the warrant was invalid. But, it was saved by the good faith exception because none of the four exceptions applied. State v. Malm, 37 Kan. App. 2d 532, 154 P.3d 1154 (2007).*

Search of the trunk of defendant's car was valid under search incident. United States v. Brown, 223 Fed. Appx. 245 (4th Cir. 2007)* (unpublished) (An Anders brief was filed, and defendant raised this issue himself.)

Eviction pursuant to a valid state court order was not an unlawful search and seizure. Sinclair v. United States, 2007 U.S. Dist. LEXIS 25583 (W.D. Mich. April 5, 2007).*

COA denied on a habeas claim which sought to raise a search and seizure claim that had been litigated to conclusion at every level of the state court proceedings. Hyde v. Brokofsky, 2007 U.S. Dist. LEXIS 25640 (D. Neb. April 5, 2007).*

04/07/07

Permalink 09:22:11 am, by fourth, 882 words, 775 views   English (US)
Categories: General

D.Kan.: Consent to search car extended to looking at call history on cellphone

Discovery of an apparent hidden compartment justified making defendant follow the officer to a garage in a nearby city. Defendant's consent to search the vehicle extended to looking at the call history on his cellphone. Defendant conceded that it otherwise was a lawful accessing of the number under the Electronic Communications Privacy Act. [Here there also was probable cause.] United States v. Espinoza, 2007 U.S. Dist. LEXIS 25263 (D. Kan. April 3, 2007):

The Supreme Court also explained that a search incident to arrest is only proper if there is some danger that the arrestee could use a weapon, or when evidence may be concealed or destroyed. Because the footlocker in Chadwick was within exclusive government control, there was no longer a danger that the arrestee might gain access to it to seize a weapon or to destroy evidence. Defendant argues that the cellular phone here is analogous to the footlocker in Chadwick. But courts have long recognized the need to retrieve information from a pager, a much more analogous piece of property, in order to prevent its destruction as evidence. The Court finds that this case is not analogous to a closed container, such as the footlocker discussed in Chadwick, and denies the motion to suppress on this ground. n41

n41 Accord United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). Likewise, United States v. Reyes does not dictate suppression. 922 F. Supp. 818 (S.D.N.Y. 1996). Defendant likens the seizure here to the seizure in that case of a pager from a storage room of the hotel where the defendant had been staying. But that case dealt with the seizure of multiple pagers, and the phone numbers contained therein. That court suppressed evidence from the pager discussed by this defendant because the officer took an additional step and turned the pager on. Therefore, that court found that the exigent circumstances exception to the warrant requirement did not apply because the officer created the exigency. Id. at 835-36. More on point is, one of the other pagers at issue in Reyes, which was seized pursuant to the defendant's general consent to search his vehicle, in the same manner that the cellular phone in this case was seized. See id. at 833-34. The court held that this general consent to search his vehicle included consent to search the memory of the pager. Id. at 834. That court, therefore, did not reach the issue of whether that pager was seized incident to arrest. See id. at 834 n.14.

Comment: I can barely accept search of a cellphone during a valid automobile search, but consent to search a car cannot logically extend to a cellphone. I just cannot believe that a person consenting to a search of the car would believe that his cellphone would be accessed, too. I guess it should not be left in the car. But, if probable cause develops, the cellphone might separately get searched. That is an entirely different question from consent with just reasonable suspicion and the officer asking to search a car.

Defendant had been stopped for not having his headlights on in poor visibility, and the officer then suspected driving under the influence. He was asked if he was carrying drugs, and he said "yes" then "no." He then consented. People v. Valencia, 169 P.3d 212 (Colo. App. 2007):

Inherent social pressure to cooperate with police is not in itself a sufficient basis for concluding that a police-citizen encounter constituted a seizure. See People v. Johnson, 865 P.2d 836, 842 (Colo. 1994). However, a consensual interview can escalate into an investigatory stop if, upon consideration of the totality of the circumstances, a reasonable person, innocent of any crime, would feel that he or she was not free to leave the officer's presence or disregard the officer's request for information. See People v. Jackson, supra, 39 P.3d at 1188; see also People v. Heilman, supra, 52 P.3d at 228; People v. Paynter, 955 P.2d 68, 72-73 (Colo. 1998).

Officers were watching a street drug dealer, and two vehicles stopped and left. When defendant's vehicle stopped, the officers stopped him. They lacked reasonable suspicion at the time of the stop. State v. Stewart, 2007 Ohio 1597, 2007 Ohio App. LEXIS 1474 (8th Dist. April 5, 2007):

In the instant matter, the detectives can point to even less suspicious facts that warrant a stop of the Ford Ranger than those provided in Delagraza, supra. Prior to Detective Mendoza effectuating the stop of the vehicle by turning on his lights, Detective Pitts only observed appellant standing outside an apartment area known for drug activity take something from his mouth, count it, and return it to his mouth. Additionally, Detective Pitts only witnessed appellant approach the Ford Ranger, speak with the driver, and enter the vehicle. Detective Pitts did not see appellant stop any other vehicles prior to the Ford Ranger, nor did Detective Pitts see appellant perform any transactions with any other drivers in the area. Furthermore, as in Delagraza, supra, Detective Pitts did not observe appellant with any drugs or see any exchange between appellant and the driver of the Ford Ranger. Considering the totality of the circumstances, we find the trial court erred in determining the detectives had reasonable suspicion to stop the Ford Ranger.

Defendant filed a motion to suppress and never obtained a ruling, so the issue was waived for appeal. Bollinger v. State, 2007 Tex. App. LEXIS 2677 (Tex. App. — Eastland April 5, 2007).*

Permalink 08:47:02 am, by fourth, 1155 words, 725 views   English (US)
Categories: General

Unzipping defendant's jacket during a patdown was reasonable

Multiple constitutional seizures may occur during a stop. Aside from the stop itself, unzipping defendant's jacket is a seizure. In this case, it was reasonable. United States v. Askew, 482 F.3d 532 (D.C. Cir. 2007. D.C. Cir. decides to explain what is permissible under Terry, apparently to clarify, which is at least worth reading, too:

To resolve this case, we must initially review the Supreme Court's case law analyzing the following key question: What investigative steps are permissible and impermissible during a Terry stop?

We begin by describing the category of impermissible steps. A Terry stop occurs when the police have "reasonable suspicion" of criminal activity -- but the police's justification has not yet risen to the level of "probable cause" needed for an arrest. Because the police do not yet have probable cause for an arrest, the police during a Terry stop may not engage in what the Supreme Court has called a "full search." Terry, 392 U.S. at 26; see id. at 30 ("general exploratory search for whatever evidence of criminal activity [officer] might find"); see also Minnesota v. Dickerson, 508 U.S. 366, 378, 124 L. Ed. 2d 334 (1993) ("evidentiary search," namely one raising prospect that officer will "rummage and seize at will" beyond "specific authorization")(internal quotation marks omitted); Florida v. Royer, 460 U.S. 491, 499 (1983) (plurality opinion of White, J.) ("In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects.") (emphasis added). As the Court has explained, such a "full search" -- sometimes called an exploratory or evidentiary search -- occurs when the police rummage through a person's pockets, bags, and clothing for contraband the person may be carrying, such as stolen goods, drugs, or other tangible evidence of crime. See Sibron v. New York, 392 U.S. 40, 64-65 (1968).

Other than the forbidden "full search," the Supreme Court has held that other investigative steps during a Terry stop are permissible if "reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20; see also Hiibel, 542 U.S. at 185. The Terry "reasonably related in scope" standard is far from self-defining, but the Supreme Court's rulings have provided guidance -- permitting "several investigative techniques which may be utilized effectively in the course of a Terry-type stop." Summers, 452 U.S. at 700 n.12 (quoting 3 LAFAVE, SEARCH AND SEIZURE § 9.2 pp. 36-37 (1978)). The permissible investigative steps include the following:

. The police may ask questions to the individual who has been stopped. See Terry, 392 U.S. at 6-7 ("Officer McFadden approached the three men, identified himself as a police officer and asked for their names."); see also United States v. Hensley, 469 U.S. 221, 229 (1985) (recognizing police ability to "ask questions, or check identification" during Terry stop); Berkemer v. McCarty, 468 U.S. 420, 439 (1984) ("[T]he officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond."); Terry, 392 U.S. at 34 (White, J., concurring) ("[T]he person may be briefly detained against his will while pertinent questions are directed to him.").

. When the police have a reasonable basis for believing that a traveler is carrying luggage that contains drugs, the police may seize the luggage "briefly to investigate the circumstances" that give rise to their suspicion, and they may subject the luggage to a dog sniff for narcotics. United States v. Place, 462 U.S. 696, 706-07 (1983); see also Illinois v. Caballes, 543 U.S. 405, 408-09 (2005) (allowing dog sniff of motorist's lawfully stopped car).

. The police may obtain fingerprints; in particular, such fingerprinting is authorized "if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with [a] crime, and if the procedure is carried out with dispatch." Hayes v. Florida, 470 U.S. 811, 817 (1985).

. A witness show-up is permissible: When it is "known that an offense has occurred in the area, the suspect may be viewed by witnesses to the crime." Summers, 452 U.S. at 701 n.12 (quotation marks omitted). (Whether the resulting witness identification may be admitted as evidence in a criminal trial is an analytically separate question. See Manson v. Brathwaite, 432 U.S. 98, 111-14 (1977); United States v. Washington, 359 U.S. App. D.C. 185, 353 F.3d 42, 44-45 (D.C. Cir. 2004).)

. . .

We assess on the other side of the Fourth Amendment balance the extent of the additional intrusion on individual privacy -- that is, the additional intrusion caused by unzipping the outer jacket. Here, to begin with, the police did not conduct a "full search," which Terry ruled flatly impermissible in a stop based solely on reasonable suspicion. 392 U.S. at 26. In unzipping Askew's jacket, Officer Willis was not conducting a "general exploratory search for whatever evidence of criminal activity he might find." Id. at 30. Moreover, the primary intrusions on Askew's individual privacy resulted from the forcible detention itself and the initial protective frisk, both of which were plainly permissible under Terry. Our focus therefore is on the additional step of unzipping a jacket to reveal clothing underneath. Contrary to Askew's contention, this is a relatively minimal additional interference with individual privacy. The Supreme Court in Pennsylvania v. Mimms, for example, authorized officers conducting traffic stops to order the driver out of the car. The Court reasoned that during a valid stop, the "additional intrusion" that leaving the car imposed upon the driver's personal privacy "can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed." 434 U.S. 106, 111 (1977). That provides a fair description of the additional intrusion in this case as well.

. . .

In sum: Balancing the competing interests and taking our cues from Supreme Court precedent, especially Hayes, we conclude that the police during a Terry show-up may reasonably maneuver a suspect's outer clothing (such as unzipping an outer jacket so a witness can see the suspect's clothing) when taking that step could assist a witness's identification. In this case, therefore, the Fourth Amendment allowed the police to initially unzip Askew's outer jacket so that the robbery victim could see Askew's clothing, thereby assisting the victim's identification during the show-up. That step was "reasonably related in scope to the circumstances which justified" stopping Askew in the first place. Terry, 392 U.S. at 20.

Prosecutorial immunity for allegedly ordering illegal wiretaps could not be decided at this point in the proceedings. There was no absolute immunity because this involved alleged illegal searches they ordered, and plaintiff alleged enough to go forward until the defense came up with more to defeat it. Bansal v. Russ, 513 F. Supp. 2d 264 (E.D. Pa. 2007).*

Defendant's stop for a traffic offense was valid, and the officer detected "an especially strong smell of marijuana that he suspected emanated from the trunk. Given these facts, [the officer] had probable cause to search the trunk" under the automobile exception. United States v. Carter, 2007 U.S. Dist. LEXIS 25519 (E.D. Va. April 5, 2007).

04/06/07

Permalink 10:03:17 am, by fourth, 487 words, 639 views   English (US)
Categories: General

Opened letter could be read under plain view doctrine

An opened letter could be read during a plain view. It is not material that the "immediately apparent" requirement is not met by looking only at the first page and that the incriminating nature of the letter was not found on an exposed page. The court relies on cases from other jurisdictions, and finds logic compels this result. Commonwealth v. Johnson, 2007 PA Super 88, 921 A.2d 1221 (2007):

[*P11] We find that logic also dictates our result. The plain view doctrine functions differently depending upon the thing that is perceived. If a police officer spies a pistol on a table, its potentially incriminating nature is not only "immediately apparent," it is very likely instantaneous. In contrast, if it is a sheet of paper on the table, there is nothing inherently incriminating in paper alone and nothing may be "immediately apparent." On the other hand, if the paper contains writing, the writing itself may be incriminating. However, the incriminating nature of writing is not perceived until it is read. Only then does its incriminating nature become "immediately apparent."

[*P12] Furthermore, we see no sense in imposing some artificial limit on the number of words that may be read before the incriminating nature of a document is no longer "immediately apparent." The incriminating nature of a letter cannot be known until the key words are read and it should not matter whether they occur in the first sentence of the letter or the last. We will not restrict a police officer either to the first few words of a letter, where the eyes are naturally drawn, or to those that "jump off the page." Simply stated, it seems foolish to tell our police officers that they may observe items in plain view, but that they must not look too closely. If a letter is left lying open on a table, we find that its entire contents are exposed to plain view and the letter is subject to seizure under that doctrine. n5

n5 We further find, without holding, that a police officer could not turn the pages of a multiple-page letter to reveal the unexposed pages as this would constitute improper manipulation and an independent search requiring probable cause. Arizona v. Hicks.

[*P13] Thus, we find that pursuant to both case law and logic, the court below erred in suppressing the letter at issue. The entire contents, including the passage at issue, were openly exposed in plain view, and its incriminating nature was immediately apparent upon the key words being read. Accordingly, we will reverse the order below and allow the letter to be admitted at trial.

Defendant was stopped for a traffic offense, and reasonable suspicion was developing, and another officer smelled marijuana on the defendant's person. They told him that a dog would be called, and defendant then consented to a search. The videotape shows that it was voluntary consent. Lambeth v. State, 221 S.W.3d 831 (Tex. App. — Ft. Worth 2007).*

Permalink 09:42:04 am, by fourth, 296 words, 442 views   English (US)
Categories: General

Defendant being treated in ER for accident was not "in custody" for Miranda purposes

Defendant was in the hospital being treated after an accident, and officers believed he was DUI-drugs. He was not in police custody when he was questioned, so Miranda did not apply; his “detention” was not state action. Exigent circumstances permitted the taking of blood at night without a search warrant. It is common knowledge that it is more difficult and problematic to get a search warrant in the middle of the night. Grant of motion to suppress reversed. State v. Steimel, 155 N.H. 141, 921 A.2d 378 (2007).

Plaintiffs allegedly being forced to join an alcohol dependency program did not allege whether it was inpatient or outpatient, so the claims were dismissed for not alleging a seizure. [This was pled as a civil RICO case, too.] MacShane v. City of New York, 2007 U.S. Dist. LEXIS 25014 (E.D. N.Y. March 30, 2007)*; McNamara v. City of New York, 2007 U.S. Dist. LEXIS 25015 (E.D. N.Y. March 30, 2007)*; Miller v. City of New York, 2007 U.S. Dist. LEXIS 25016 (E.D. N.Y. March 30, 2007).*

Here, Figueroa testified that he observed the defendant pacing back and forth and was subsequently seen giving Hassett an item that he had hidden in his shoe. Figueroa also testified that the area where he observed the defendant was a place where there was a high incidence of drug trafficking and an area where he had made between ten to fifteen heroin-related arrests in the preceding year. Figueroa also testified that he believed that the activity that he had observed was consistent with a drug transaction. All of these facts, taken together, support Figueroa's belief that a criminal act had just occurred, and his approach to the defendant thus was based on a reasonable suspicion that a crime had been committed. Commonwealth v. Hernandez., 448 Mass. 711, 863 N.E.2d 930 (2007).*

Permalink 06:40:33 am, by fourth, 533 words, 570 views   English (US)
Categories: General

Airport arrest and six day detention for powdery substance in bag that plaintiff protested was laundry soap did not state a claim or was barred by qualified immunity

Plaintiff was arrested at the El Paso airport after TSA found a white powdery substance in his luggage in clear bags. He said it was laundry detergent. He was held for six days, got a perfunctory hearing within 48 hours in which he did not participate, and then it was discovered that there was no contraband in his luggage. The district court finds that there was no constitutional violation, and the perfunctory hearing did not violate the constitution, even if it violated Texas law. Finally, even if there was a colorable claim, the officers had qualified immunity. Bittakis v. City of El Paso, 2007 U.S. Dist. LEXIS 24429 (W.D. Tex. March 13, 2007). Comment: The moral? Don't carry laundry soap in your luggage such that it looks like cocaine. How? Beats me.

Court finds that search occurred after 6 a.m., so Rule 41 was not violated. And, in dicta, the court says that a violation of the 6 a.m. start time would not necessarily warrant suppression because that would not necessarily be a constitutional violation, citing Hudson. United States v. Carling, 2007 U.S. Dist. LEXIS 24431 (D. Conn. March 22, 2007).*

Informant's information about defendant's home was largely corroborated by the police, so there was pobable cause for the search warrant. United States v. Shofner, 2007 U.S. Dist. LEXIS 24498 (D. Minn. February 21, 2007).*

Questioning by one officer with others standing around would not lead a reasonable person to believe that he was seized. State v. Wood, 218 S.W.3d 596 (Mo. App. S.D. 2007):

Defendant asserts that he was seized because he was alone in the parking lot with several officers present, and he was questioned without being told he could refuse to answer and leave anytime. Neither assertion is persuasive. While it is true that several officers arrived at the scene to assist Gordon, no one except Millirons interacted with Defendant. Millirons never displayed his weapon during the encounter. Prior to initiating the search, Millirons did not physically touch Defendant. He was handcuffed only after Millirons felt the metal pipe, which he immediately recognized as drug paraphernalia. At that point, Millirons had probable cause to arrest Defendant. See State v. Vanacker, 759 S.W.2d 391, 394 (Mo. App. 1988). According to Millirons, he did not threaten or coerce Defendant to make him answer questions. In our view, the language used by Millirons in questioning Defendant would not indicate to a reasonable person that compliance with the officer's requests might be compelled. Finally, it is well settled an officer is not required to inform a citizen that he or she is free to leave or refuse to respond to questions before the encounter can be deemed consensual. Shoults, 159 S.W.3d at 446-47; State v. Day, 87 S.W.3d 51, 56 (Mo. App. 2002); Rowe, 67 S.W.3d at 655-56; State v. Scott, 926 S.W.2d 864, 870 (Mo. App. 1996).

In sum, the trial court concluded that the encounter between Defendant and Millirons was consensual.

Comment: Once again, a court finds a citizen would not feel seized when a bunch of officers are standing near him and he is being questioned by one. What a court finds a reasonable person would understand in police-citizen interactions is not what a reasonable person would actually believe is happening because such interactions are inherently coercive.

04/05/07

Permalink 06:52:27 am, by fourth, 308 words, 604 views   English (US)
Categories: General

Suicide after leaving custody is not a § 1983 claim

Plaintiff's decedent committed suicide after being released from custody, and the court can find no law that a claim is stated, so qualified immunity would apply as well. Garcia v. Jim Wells County, 2007 U.S. Dist. LEXIS 24264 (S.D. Tex. March 30, 2007):

Marcos Garcia committed suicide after defendants released him from custody. Plaintiffs have not cited a single Supreme Court or Fifth Circuit case to support their theory of liability that defendants violated the Fourteenth Amendment by releasing Marcos from the Jim Wells County Jail without first providing mental health assistance. After surveying their jurisprudence, the Court finds that neither the Supreme Court nor the Fifth Circuit have held that the Fourteenth Amendment offers protection to former detainees who commit suicide at home after release from jail custody. Because former detainees who commit suicide at home after release are not afforded the protection of the Fourteenth Amendment, plaintiffs have not alleged a constitutional violation. Defendants Lopez, Garza, Wright, and Montalvo are entitled to qualified immunity for that reason. Defendants Flores and Villareal are entitled qualified immunity for a more basic reason: plaintiffs have not alleged a constitutional violation committed by Flores and Villareal because they have not even shown that defendants Flores and Villareal interacted at all with Marcos during his detention. The Court finds that all six individual deputies are entitled to qualified immunity.

Questions of fact remained for trial of whether a police officer accidentally shot the plaintiff and whether it was a bullet from his gun. Hickenbottom v. Nassan, 2007 U.S. Dist. LEXIS 24336 (W.D. Pa. March 30, 2007).*

Plaintiffs' motion for summary judgment for excessive forced used in their arrest outside a Rolling Stones concert was denied. There are disputed facts as to whether the force was necessary or whether officers were entitled to qualified immunity. Phillips v. Stevens, 2007 U.S. Dist. LEXIS 24448 (S.D. Ohio March 29, 2007).*

Permalink 06:21:35 am, by fourth, 481 words, 840 views   English (US)
Categories: General

A police officer has a lesser right to privacy as a result of his career choice

In a convoluted RICO conspiracy claim brought by an NYPD officer against the city and others, one claim dealt with invasion of privacy. The court held that the officer had a lower expectation of privacy as a result of his voluntarily becoming a police officer. The case involved detox. Buneo v. City of New York, 2007 U.S. Dist. LEXIS 24766 (E.D. N.Y. March 30, 2007):

Plaintiff further claims that City Defendants' actions resulted in a violation of his constitutional right to privacy. However, as City Defendants correctly point out, Plaintiff, as a police officer, is not entitled to the same privacy rights as the average citizen. "The privacy expectations of any particular group is markedly diminished by such factors as the employees' voluntary pursuit of a position they know to be pervasively regulated for reasons of safety and the employees' acceptance of severe intrusions upon their privacy." Seelig v. Koehler, 76 N.Y.2d 87, 91 (1990) (citing National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668 (1989); see also Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 618 (1989)).

Plaintiff voluntarily joined the NYPD, an organization that is not only highly regulated, but whose regulations are often predicated on the numerous safety concerns it faces as the primary protector of New York City. Because police officers' work is, by definition, safety-sensitive, it is a justifiable intrusion upon a police officer's privacy to ensure that he or she is mentally and physically fit to carry out the duties and responsibilities required of a member of the service. See Biehunik v. Felicetta, 441 F.2d 228, 231 (2d Cir.1971). By joining such an organization, Plaintiff implicitly accepted greater intrusions upon his privacy. See, e.g., Poole v Stephens, 688 F. Supp. 149, 155 (D.N.J. 1988) (finding that correction officers' privacy expectation was diminished by the safety considerations of their work). To the extent that Plaintiff's § 1983 action is predicated upon an unconstitutional intrusion on his privacy, that claim is dismissed as a matter of law. [And he does not prevail.]

District court's finding that defendant understood English enough to consent and read and signed the Spanish language side of the consent form was not clearly erroneous. United States v. Ramos-Gonzalez, 2007 U.S. App. LEXIS 7660 (5th Cir. April 3, 2007)* (unpublished).

The search warrant was not stale. While the primary information was five months old, there was at least some evidence in the affidavit of drug sales from and related possession in defendant's house after that. United States v. Perry, 2007 U.S. Dist. LEXIS 24540 (E.D. Mich. April 3, 2007).*

An officer does not need reasonable suspicion to stop and ask for identification, but, in this case, the officer did have reasonable suspicion because the defendant matched the description of a bank robber. United States v. Askew-Bell, 2007 U.S. Dist. LEXIS 24679 (N.D. Ill. April 2, 2007).*

Federal deputy marshal's executing a court order for forfeiture had immunity under the order. Jebril v. United States, 2007 U.S. Dist. LEXIS 24542 (E.D. Mich. March 30, 2007).*

Permalink 05:54:45 am, by fourth, 440 words, 834 views   English (US)
Categories: General

Failure to announce in warrantless arrest voids search incident but not arrest

Police were on a "manhunt" for a bank robber on a bicycle and narrowed the search to a motel. They entered the motel room that defendant was supposed to be in, and he fled out a window and was captured. The warrantless entry was invalid because there were no exigent circumstances to dispense with announcement. The mere possibility of a gun is not enough under Richards. "We are persuaded, however, that Payton still governs non-parolee cases (such as this one) involving a failure of knock and announce without a search warrant. We conclude that the wad of money, the knives, and the glass pipe should have been suppressed as fruit of the knock and announce violation." The arrest, however, was not invalid. Finally, Hudson did not apply to a case without a search warrant. State v. Gibbs, 224 S.W.3d 126 (Mo. App. W.D. 2007).

Police did not violate the common law right of inquiry of a citizen by stopping and talking to him. He validly consented to a search. People v Casimey, 2007 NY Slip Op 2807, 2007 N.Y. App. Div. LEXIS 4123 (1st Dept. April 3, 2007).*

Officers arresting defendant on his porch were permitted to follow him into his house under Chrisman when he went in to tell his girlfriend he was arrested. Once inside, he validly consented to a search of the basement living area. United States v. Varner, 481 F.3d 569 (8th Cir. 2007).*

Third party consent was valid, and police did not have to find a potentially objecting co-tenant to secure his approval, too. United States v. Patterson, 481 F.3d 1029 (8th Cir. 2007):

On appeal, Patterson argues that the district court violated the Supreme Court's recent decision that "a warrantless search of a shared dwelling ... over the express refusal of consent by a physically present resident cannot be justified ... on the basis of consent given to the police by another resident." Georgia v. Randolph, 126 S. Ct. 1515, 1526 (2006). Here, had the district court credited Patterson's testimony that Officer Cartwright avoided asking Patterson for consent until after the closet search, we would need to construe and apply the Supreme Court's caveat that the police have no obligation "to take affirmative steps to find a potentially objecting co-tenant" when one co-tenant has consented to the search. Randolph, 126 S. Ct. at 1527. But the district court did not credit Patterson's testimony, instead finding that Patterson expressly consented to a search of the closet. As that credibility finding is not clearly erroneous, Cartwright searched the closet with the consent of both Fletcher and Patterson, uncovering probable cause to arrest them both and to obtain a warrant to search the remainder of their residence. The motion to suppress was properly denied.

04/04/07

Permalink 03:04:26 pm, by fourth, 531 words, 1177 views   English (US)
Categories: General

Coast Guard boarding and search for safety purposes was not pretextual

The Coast Guard boarded defendant's ship to look for safety issues under 14 U.S.C. § 89. It was not found to be pretextual. United States v. Overseas Shipholding Group, 2006 U.S. Dist. LEXIS 95813 (E.D. Tex. October 4, 2006):

The Coast Guard's exercise of its duties to carry out a vessel inspection in a safe and proper manner is considered to be a limited intrusion that is reasonable under the Fourth Amendment. United States v. Villamonte-Marquez, 462 U.S. 579, 588, 103 S.Ct. 2573, 77 L.Ed.2d 22 (1983). While the inspections conducted by the Coast Guard are administrative in nature, they are not covered by the general administrative search exception to the Fourth Amendment warrant requirement. United States v. Royal Caribbean Cruises, Ltd., 24 F. Supp.2d 155, 164 (D.P.R. 1997); see also Michigan v. Clifford, 464 U.S. 287, 291-92, 104 S. Ct. 641, 78 L. Ed. 2d 477 (1984); Michigan v. Tyler, 436 U.S. 499, 511-12, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978). Rather, Coast Guard searches are covered under the rubric of searches on the high seas or in United States territorial waters and fall under the regulatory rubric directed to safety inspections and ships. That criminal activity might be suspected is immaterial to the issue of the reasonableness vel non of the search. Royal Caribbean Cruises, Ltd., 24 F.Supp.2d at 164; see United States v. Villamonte-Marquez, 462 U.S. at 584.

. . .

It is difficult to conceive how the Coast Guard's actions in this matter amount to a pretext search. The Coast Guard has statutory authority to board a vessel "for the prevention, detection, and suppression of violations of laws of the United States". 14 U.S.C. § 89(a). The Coast Guard had clear authority to board the Pacific Ruby to examine equipment and review documents relating to discharges and other issues relating to the pollution equipment on board. Their purpose in boarding the vessel was to, in fact, examine that equipment and those related documents. The fact that they informed the Captain and crew that they were there to conduct a Non-Priority Vessel (NPV) Safety Exam or a "Random" Non-Priority Vessel (NPV) Safety Exam does not, in this Court's view, make this search or inspection pre-textual. In addition, there is no authority for the proposition that the Coast Guard had a duty to disclose any of their suspicions that a crew member may have committed a crime before boarding and conducting an inspection under the relevant statutes. It is conceivable that such a disclosure, in some circumstances, could cause repercussions for the individuals on board the vessel who provided information to the Coast Guard.

Plaintiff denied consent and his girlfriend by affidavit denied she consented. The officers only made a swearing match, so their summary judgment is denied. Sledge v. Stoldt, 480 F. Supp. 2d 530 (D. Conn. 2007).*

Officer had cause to stop the plaintiff for a minor traffic violation and then arrest for DUI. Gregorie v. Goins, 2007 U.S. Dist. LEXIS 24133 (D. S.C. March 29, 2007).*

Court appointed guardian ad litem has absolute immunity under § 1983 for a Fourth Amendment claim. Jenkins v. Whitley, 2007 U.S. Dist. LEXIS 23952 (E.D. Tenn. March 27, 2007).*

Officers who never observed alleged use of excessive force could not be sued under § 1983 for failing to intercede. Cosby v. City of White Plains, 2007 U.S. Dist. LEXIS 23770 (S.D. N.Y. February 9, 2007).*

Permalink 02:24:14 pm, by fourth, 435 words, 2111 views   English (US)
Categories: General

False imprisonment is a Fourteenth Amendment due process claim rather than a Fourth Amendment unreasonable seizure claim

False imprisonment is a due process claim rather than an unreasonable seizure claim. Bracknell v. Montgomery County Comm'n, 2007 U.S. Dist. LEXIS 23981 (M.D. Ala. March 29, 2007):

Plaintiff is in essence complaining that he was falsely imprisoned by Savage. A false imprisonment claim is properly analyzed under the Fourteenth Amendment, rather than under the Fourth Amendment protection against unlawful search and seizure. See Cannon v. Macon County, 1 F.3d 1558, 1563 (11th Cir. 1993)(holding that the plaintiff must establish that an imprisonment "worked a violation of fourteenth amendment due process rights."); Douthit v. Jones, 619 F.2d 527, 532 (5th Cir. 1980) (noting that the fourteenth amendment governs false imprisonment actions); Davis v. Hall, 375 F.3d 703, 712 (8th Cir. 2004) (due process clause of the fourteenth amendment protects an individual from detention after his release date). Because Plaintiff's claims are properly analyzed under the framework of substantive due process of the Fourteenth Amendment, his Fourth Amendment claims are DISMISSED.

Officers could reasonably believe they had probable cause under the search warrant, and the warrant was particular enough ("gambling paraphernalia"). Therefore, they were entitled to qualified immunity. Murray v. City of Lavonia, 2007 U.S. Dist. LEXIS 23682 (M.D. Ga. March 30, 2007).*

The statute of limitations on a seizure does not really start to run until the seizure abates, so it continues through the possession. Herrin v. Dunham, 2007 U.S. Dist. LEXIS 24202 (E.D. Mich. March 30, 2007):

The plaintiffs allege an unconstitutional seizure of their property. "[A] seizure of property occurs when 'there is some meaningful interference with an individual's possessory interests in that property' .... This expansive definition is necessary because a seizure threatens an individual's distinct interest in retaining possession of his or her property." Thomas v. Cohen, 304 F.3d 563, 569-70 (6th Cir. 2002) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)). The seizure of property continues until the interference ends. Although the property at issue in this case was seized initially on July 13, 2001, the county retained possession of the property until February 2, 2005, when two trailers and an asphalt roller were released to the plaintiffs. The plaintiffs allege "that no other property has yet been returned to" them. Pl.'s Compl. at P 9. The seizure of these items continued until their release. Therefore, the statute of limitations has not expired on these claims. The magistrate judge's report must be rejected in so far as it suggests otherwise, and the plaintiffs' objection is sustained.

The savings statute to civil rights claims dismissed without prejudice does not extend the statute of limitations as to civil rights claims not brought in the original action. Fuller v. Cuyahoga Metro. Hous. Auth., 2007 U.S. Dist. LEXIS 24144 (N.D. Ohio March 30, 2007).*

Permalink 02:03:22 pm, by fourth, 781 words, 706 views   English (US)
Categories: General

Putting personal computer on a network waives reasonable expectation of privacy when it is accessed through the network

By defendant networking his personal computer into a city computer system for purpose of file sharing, he lost any subjective reasonable expectation of privacy in the computer when it was networked. United States v. Barrows, 481 F.3d 1246 (10th Cir. 2007):

Mr. Barrows claims that he invited no one to use his computer and therefore expected its contents to remain private. Yet he surely contemplated at least some third-party access: he knowingly networked his machine to the city computer for the express purpose of sharing files. And though the record does not reflect whether an employee operating the city computer could access all of Mr. Barrows's files or only a few, the fact remains that Mr. Barrows knew the contents of his machine were not wholly private. He also knew when he chose to relocate his computer to city hall that he would be working in a public area. City employees and members of the general public passed in and out all day. The chances a passerby might spy snatches of personal material over his shoulder, or sit down to use his computer having honestly mistaken it for a city one, were appreciable.

Even if Mr. Barrows did possess a subjective expectation of privacy, his failure to take affirmative measures to limit other employees' access makes that expectation unreasonable. Angevine, 281 F.3d at 1135; see O'Connor v. Ortega, 480 U.S. 709, 718 (1987) ("[S]ome government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable."). Those who bring personal material into public spaces, making no effort to shield that material from public view, cannot reasonably expect their personal materials to remain private. Home owners who place personal effects in their driveways cannot reasonably anticipate that those items will go unobserved. United States v. Long, 176 F.3d 1304, 1308-09 (10th Cir. 1999) (citing California v. Greenwood, 486 U.S. 35, 41 (1988)). Apartment tenants who move personal items into a common hallway cannot reasonably believe those items will be left uninspected. See United States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (holding that a tenant lacks a reasonable expectation of privacy in the common areas of an apartment building); accord United States v. Nohara, 3 F.3d 1239, 1242 (9th Cir. 1993), United States v. Acosta, 965 F.2d 1248, 1252 (3d Cir. 1992), United States v. DeWeese, 632 F.2d 1267, 1270 (5th Cir. 1980).

Mr. Barrows voluntarily moved his personal computer into a public space and took no measures to protect its contents from public inspection. Consequently, he did not enjoy a reasonable expectation of privacy and Officer McQuown's search worked no Fourth Amendment violation.

An arrest warrant does not justify detaining others who live there under Summers. Freeman v. Gore, 483 F.3d 404 (5th Cir. 2007):

Because Freeman was at her own home when she was detained, and because the deputies had no right to search Freeman's home based on their arrest warrant for Kevin, the detention cannot be justified under Summers.

Seeing a shotgun in a car justified a Long search for the gun and the person of the defendant. Reasonable suspicion was otherwise shown. United States v. Clay, 483 F.3d 739 (11th Cir. 2007).*

The government keeping records that were seized too long was a Fourth Amendment issue, not a due process issue, so the due process claim is dismissed. Hansen v. Schubert, 2007 U.S. Dist. LEXIS 24094 (E.D. Cal. April 2, 2007):

Plaintiffs' § 1983 due process claim arises out of the allegation that defendants' deliberate refusal to return the seized items within a reasonable period of time resulted in the destruction of plaintiffs' business without due process of law. (Pls.' 2d. Am. Compl. P 29). The unreasonable retention of seized property is the type of government conduct for which the Fourth Amendment provides explicit limitations. See United States v. Tamura, 694 F.2d 591, 597 (9th Cir. 1982) (holding that the "Government's unnecessary delay in returning the master volumes appears to be unreasonable and therefore unconstitutional manner of executing the warrant"); see also Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), reversed on other grounds by 117 F.3d 1425 (1997) ("A seizure of property occurs, within the meaning of the Fourth Amendment, when there is some meaningful interference with an individual's possessory interests in that property.") (internal quotations omitted). The Supreme Court has affirmatively held that where the Fourth Amendment is the source of limitations on the type of conduct challenged by a plaintiff's claims, that Amendment, rather than the more general substantive due process protections guaranteed by the Fourteenth Amendment, must govern the plaintiff's claim. Albright, 520 U.S. at 273; Graham, 490 U.S. at 395; see Armendariz, 75 F.3d at 1321. As such, because the conduct plaintiffs allege is the type of government action that the Fourth Amendment regulates, their substantive due process claim is precluded. Therefore, defendants' motion for summary judgment regarding plaintiffs' substantive due process claim is GRANTED.

Permalink 08:14:08 am, by fourth, 307 words, 699 views   English (US)
Categories: General

A violation of state law is not a per se Fourth Amendment violation, but it can show unreasonableness

An arrest in Oklahoma by Arkansas officials on an Arkansas arrest warrant violated the laws of both states, and, while a violation of state law may not be a constitutional violation, it could still be unreasonable, and that would make it violate the Fourth Amendment. Therefore, plaintiff's case should proceed to trial. Engleman v. Ferguson, 2007 U.S. Dist. LEXIS 23287 (W.D. Ark. March 28, 2007).

Officers had no reasonable suspicion when they approached defendant and ordered him to take his hands out of his pockets. They could articulate no reason other than officer safety, but having one's hands in pockets is not suspicious conduct. State v. Hamilton, 2007 Tenn. Crim. App. LEXIS 278 (March 29, 2007).*

Defendant's removal from a Greyhound bus in New Mexico was by consent. The officer got on the bus and asked about citizenship, and defendant said he was naturalized, and he began to sweat profusely. The officer asked or told him to get off the bus so they could talk, and the district court credited the officer's version that it was consensual. Reasonable suspicion developed for a patdown which produced drugs taped to defendant's body. United States v. Rodriguez-Lopez, 222 Fed. Appx. 784 (10th Cir. 2007)* (unpublished).

Defendant signed a Fourth Amendment waiver after conviction in state court. Then, he was investigated for a drug offense. The court never had to reach the blanket waiver issue because the district court found that the search was by consent that day and that the finding was not clearly erroneous. United States v. Brown, 223 Fed. Appx. 875 (11th Cir. 2007)* (unpublished).

There is no reasonable expectation of privacy in not having a law enforcement officer look through a car's windows while it is parked on a hotel parking lot. The officer used a flashlight to see through the tinting and saw crack cocaine in baggies on the seat. State v. Battle, 2007 Tenn. Crim. App. LEXIS 276 (March 29, 2007).*

Permalink 07:16:55 am, by fourth, 242 words, 576 views   English (US)
Categories: General

Attempted search is not a Fourth Amendment violation

Defendants' attempted search of plaintiff's property is not a Fourth Amendment violation. All plaintiff got was a "notice to appear." Youngblood v. Florida Dep't of Health, 224 Fed. Appx. 909 (11th Cir. 2007)* (unpublished).

Allegations of striking plaintiff with police baton is an allegation of a seizure. R.A. v. Lacey, 2007 U.S. Dist. LEXIS 23395 (M.D. Ala. March 27, 2007).*

Parole officers could not be sued for their actions in searching plaintiff's property under his parole agreement, which was valid. Alvarado v. City of New York, 482 F. Supp. 2d 332 (S.D. N.Y. 2007).*

The defendant city acted properly in getting an administrative warrant on a proper showing for a warrant to enter defendant's property because of a series of code violations. Bodor v. Town of Lowell, 2007 U.S. Dist. LEXIS 23321 (N.D. Ind. March 28, 2007).*

On a motion to dismiss, private actor bank was subject to suit under plaintiff's allegations that the bank conspired with public officials to cause plaintiff's false arrest. Muhammad v. Washington Mut. F.A., 2007 U.S. Dist. LEXIS 23377 (N.D. Ga. March 27, 2007).*

Officer was entitled to qualified immunity for arrest of plaintiff for maintaining drug premises because it was reasonable for the officers to believe there was probable cause. Wheeler v. Lawson, 2007 U.S. Dist. LEXIS 23322 (N.D. Ind. March 15, 2007).*

Based on the facts shown, it cannot be said that the officers clearly violated plaintiff's rights, so they are entitled to qualified immunity. Leaeno v. Pistor, 2007 U.S. Dist. LEXIS 23294 (D. Haw. March 28, 2007).*

04/03/07

Permalink 05:31:34 pm, by fourth, 333 words, 423 views   English (US)
Categories: General

Plaintiff states claim for police framing him through an identification witness

Plaintiff stated a claim that police officers knowingly fed false information to an alleged witness to get the witness to implicate him in a double murder from which he was ultimately exonerated. Blake v. Race, 487 F. Supp. 2d 187 (E.D. N.Y. 2007).

Wallace v. Kato required court to reconsider prior holding when elements came together after a prior appeal in the case. Gibson v. Superintendent of New Jersey Dep't of Law & Pub. Safety-Division of State Police, 2007 U.S. Dist. LEXIS 22871 (D. N.J. March 29, 2007):

While the Third Circuit's ruling would seem to bind this Court in the instant matter, the Supreme Court has since issued a ruling which appears to contradict the Third Circuit's recent holding. In Wallace v. Kato, 127 S. Ct. 1091 (2007), the Supreme Court held that "the statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process." Id. at 1100. In so holding, the Court characterized Heck as delaying "what would otherwise be the accrual date of a tort action until the setting aside of an extant conviction which success in that tort action would impugn." Id. at 1098. Regarding false arrest cases, the Court stated that in order to defer accrual of the claim, it would need to extend the Heck principle to state "that an action which would impugn an anticipated future conviction cannot be brought until that conviction occurs and is set aside." Id. (emphasis original). Finding such a principle to be impracticable, the Court stated that it was "not disposed to embrace this bizarre extension of Heck." Id.

Taking a student out of class by school officials and their lawyer investigating a racial incident at school was not an unreasonable seizure under the Fourth Amendment or T.L.O. It was constitutionally insignificant. Mislin v. City of Tonawanda Sch. Dist., 2007 U.S. Dist. LEXIS 23199 (W.D. N.Y. March 28, 2007).*

Permalink 04:51:10 pm, by fourth, 548 words, 489 views   English (US)
Categories: General

Fourth Amendment not implicated in requiring bank records in a police officer discharge hearing

Police officer discharged from employment for allegedly stealing $160 from an arrestee was not deprived of any Fourth Amendment interest by the City requiring production of two days worth of bank records from him. Westbrook v. City of Omaha, 231 Fed. Appx. 519 (8th Cir. 2007)* (unpublished):

In this case, Omaha's intrusion began with a citizen complaint that Westbrook took money and wagered at a casino the next day, considered with his assertion of usually withdrawing money from an ATM before wagering. The scope of the intrusion was an order for two-days' record of Westbrook's banking, to which he complied. Under these circumstances, neither the inception nor the scope of intrusion was unreasonable. The investigation's purpose was to determine employee, work-related misconduct, and not criminal prosecution. See Uniformed Sanitation Men Ass'n, Inc. v. Comm'r of Sanitation, 392 U.S. 280, 284, 88 S. Ct. 1917, 20 L. Ed. 2d 1089 (1968) (citing Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967), and stating "that testimony compelled by threat of dismissal from employment could not be used in a criminal prosecution of the witness"). Thus, the district court did not err in granting summary judgment on the Fourth Amendment claim.

Plaintiff stated a claim for excessive force for his arrest, and the right was clearly established, but he loses on qualified immunity because the officers would not clearly know that they violated his rights. Humphrey v. Mabry, 482 F.3d 840 (6th Cir. 2007).*

Defense counsel could not be ineffective for not raising what was, for all intents and purposes in the habeas petition, a frivolous ground to suppress. The search was clearly legal. United States v. Ball, 2007 U.S. Dist. LEXIS 23426 (M.D. Fla. March 30, 2007).*

Civil rights case was barred by Heck because it sought to negate an element of the crime that plaintiff was convicted of. Houston v. Buffa, 2007 U.S. Dist. LEXIS 23532 (E.D. Mich. March 30, 2007):

The court finds that, applying the rule of Heck to the facts of this case, Houston cannot proceed on either of his claims under § 1983. The fourth element of Interference with Police, as charged by the trial court, is that "the officer was then carrying out lawful duties." (Tr. at 213.) In order to proceed on either of Houston's claims, he would have to negate one element of the offense, thereby calling into question the validity of his conviction.

In Houston's underlying criminal trial, the parties presented two competing versions of the events of January 27, 2003. Under Houston's version, the police officers arrived at the club and immediately, without explanation, rationale or probable cause, placed him in handcuffs, took him into a back room and, without any provocation or motivation whatsoever, proceeded to beat him while he was still handcuffed. This is the exact factual scenario upon which Houston's § 1983 claims are based. Conversely, under the prosecution's version, Houston initially consented to speak with them in a back room but, on the way to the room, Houston began an altercation which essentially did not end until the police eventually got him to the back room and, after continued struggle, placed him in handcuffs and took him to the station. This is the exact factual scenario upon which the Officers' § 1983 defense is based.

Reasonable suspicion ripened into probable cause when a gun was found during a patdown. United States v. Johnson, 2007 U.S. Dist. LEXIS 23119 (D. Del. March 29, 2007).*

Permalink 06:33:11 am, by fourth, 554 words, 426 views   English (US)
Categories: General

Clan lab's risk of explosion is per se exigent circumstances

Clandestine meth lab is per se exigent circumstances. State v. Sandor, 2007 Ohio 1482, 2007 Ohio App. LEXIS 1384 (9th Dist. March 30, 2007):

This Court agrees with the Eleventh District that the danger to occupants, officers and community associated with the suspected production of methamphetamine constitutes per se exigent circumstances. Therefore, if officers have probable cause to believe a premises is being used to manufacture methamphetamine, the officers may conduct a warrantless search in the interest of safety. Recently, the legislature has recognized the public safety threat created by methamphetamine labs by enacting R.C. 2933.33(A) which provides:

"If a law enforcement officer has probable cause to believe that particular premises are used for the illegal manufacture of methamphetamine, for the purpose of conducting a search of the premises without a warrant, the risk of explosion or fire from the illegal manufacture of methamphetamine causing injury to the public constitutes exigent circumstances and reasonable grounds to believe that there is an immediate need to protect the lives, or property, of the officer and other individuals in the vicinity of the illegal manufacture."

This Court finds that R.C. 2933.33(A), while not applicable in the present case, is exceptionally persuasive authority. It is clear that the legislature has deemed the very real threat of explosion and fire due to the volatility of the materials used to produce methamphetamines a sufficient enough threat to justify warrantless searches. In short, R.C. 2933.33(A) validates the principle espoused in Pape, and this Court sees no reason why it should not be adopted in the present case. Accordingly, this Court concludes that if police officers in the present case had probable cause to believe a methamphetamine lab was operating on the premises, then exigent circumstances existed to justify a warrantless search of the residence.

The police went to the jail to take a DNA sample from the defendant, and he argued that it violated his Sixth Amendment right to counsel, forgoing the Fourth Amendment claim. Taking DNA was not a critical stage. State v. Monroe, 2007 Ohio 1492, 2007 Ohio App. LEXIS 1357 (4th Dist. March 22, 2007).

A police officer on his way to work in uniform was involved in a hit and run and followed the other car that hit him. The other driver ran red lights and finally stopped. The officer came out of the car with his gun drawn in the "low ready" position and directed the driver to turn off the car and get out. The officer then heard breaking glass and was hit with three shots. The car fled. Investigating officers went to the address associated with the car, and they saw it after entering the yard. Based on obsevations, including a broken car window, they got a search warrant, and the warrant was valid. The entry into the yard was valid. Porteous v. State, 259 S.W.3d 741 (Tex. App. — Houston (1st Dist.) 2007).

Defendant was detained on reasonable suspicion, and, because of unusual movements in the car, he was handcuffed to be separated from the others and placed in the back seat of the patrol car while they sorted it out. A patdown revealed a tin foil ball. As he was getting into the patrol car, he bumped his head, his hat fell off, and under it were drugs and drug paraphernalia. The seizure was valid. Fentress v. State, 863 N.E.2d 420 (Ind. App. 2007).*

Permalink 06:10:14 am, by fourth, 427 words, 605 views   English (US)
Categories: General

Crime scene entry was valid as extension of original emergency

Applying N.Y.'s long standing Mitchell rule on emergency entries, the court finds the entry in this case was valid because of a dead body. More significantly, however, the court held that the crime scene unit's stay was permissible under the original entry. People v. Desmarat, 2007 NY Slip Op 2773, 2007 N.Y. App. Div. LEXIS 4054 (2d Dept. March 27, 2007):

Moreover, the crime scene unit's subsequent recovery of evidence from the motel room did not exceed the scope and duration of the emergency (see People v George, 7 A.D.3d 810, 811, 776 N.Y.S.2d 883; cf. People v Cohen, 87 A.D.2d 77, 82-83, 450 N.Y.S.2d 497, affd 58 N.Y.2d 844, 446 N.E.2d 774, 460 N.Y.S.2d 18, cert denied 461 U.S. 930, 103 S. Ct. 2092, 77 L. Ed. 2d 302), inasmuch as Room 210 was secured while officers waited for the crime scene unit, which arrived within several hours and then seized the ripped currency, ripped sheet, and blood evidence that was in plain view (see People v George, supra; see also People v Brown, 96 N.Y.2d 80, 89, 749 N.E.2d 170, 725 N.Y.S.2d 601). While the newspapers from which the police later obtained the defendant's fingerprints may not have been lawfully seized under the plain-view doctrine because their incriminating nature was not immediately apparent, the information derived from them -- that the defendant was the occupant of Room 210 -- was, in fact, subsequently obtained by the police from a variety of independent sources (see People v Goodwin, 286 A.D.2d 935, 733 N.Y.S.2d 319; see generally People v Arnau, 58 N.Y.2d 27, 32-33, 444 N.E.2d 13, 457 N.Y.S.2d 763, cert denied 468 U.S. 1217, 104 S. Ct. 3585, 82 L. Ed. 2d 883). Accordingly, suppression of the physical evidence was properly denied.

Pulling an unmarked car up behind the car in which defendant was a passenger and then requesting [demanding?] defendant's identification was a seizure under the Fourth Amendment because the defendant would not objectively feel free to leave. City of Roswell v. Hudson, 2007 NMCA 34, 141 N.M. 261, 154 P.3d 76 (2007).

Lack of reasonable suspicion for a probation search was not argued to the trial court, and it is deemed waived for appeal. Bamberg v. State, 953 So. 2d 649 (Fla. App. 2d Dist. 2007).*

Defendant was stopped and asked for his identification, which he could not immediately produce. The officer arrested him for failure to provide identification. The appeals court held, however, that the officer should have asked the defendant for his social security number so his name could be run before arresting him. Therefore, the arrest was invalid, and so was the search incident. State v. Green, 2007 Ohio 1459, 2007 Ohio App. LEXIS 1333 (8th Dist. March 29, 2007).*

04/02/07

Permalink 07:23:50 am, by fourth, 466 words, 524 views   English (US)
Categories: General

Emergency doctrine permitted entry and sweep of all rooms for potential injured persons

Officers had a reasonable basis under the emergency doctrine to enter a house and inspect all rooms for potential injured persons. The court provided a detailed analysis of all factors justifying the scope of the search. Guererri v. State, 922 A.2d 403 (11th Cir. 2007):

There also was a reasonable nexus between the emergency and the area searched. At the time the officers entered Guererri's house, they had no knowledge of how many people were actually inside, nor did they know if anyone had been injured during the shootings. Thus, the police properly restricted their search to areas inside Guererri's house where they might find potential gunshot victims. Their search was not unlimited or random, such as, for example, peering into drawers, cupboards or wastepaper baskets. Here, after the police confronted the defendants who apparently were in no need of emergency assistance, it was reasonable for them to check the rest of the house "to see if there was anybody else down or hurt inside the residence." The police had reason to search the basement for potential victims and did so without exceeding the bounds of their authority under the emergency doctrine. Therefore, because the officers had a reasonable basis for an emergency search and the scope of their search was likewise reasonable under the circumstances, they did not violate the Fourth Amendment.

Defendant officers had cause to enter on a domestic disturbance call because of the sounds from inside. "'Police officers responding to a domestic violence report have a duty to ensure the present and continued safety and well-being of the occupants....the fact that the occupants appeared to be unharmed when the officers entered did not guarantee that the disturbance had cooled to the point where their continued safety was assured.' People v. Higgins, 26 Cal. App. 4th 247, 253 (Cal. Ct. App. 1994), quotations omitted." Sanders v. City of Bakersfield, 2007 U.S. Dist. LEXIS 22675 (E.D. Cal. March 10, 2007).*

Officers noticed strong odor of a meth lab, and they went to defendant's door and knocked. When he answered, they arrested him and conducted a protective sweep, not finding a lab. They secured a search warrant, and then found the lab. The trial court erred in granting the motion to suppress, applying the wrong law. State v. Kennedy, 953 So. 2d 655 (Fla. App. 1st Dist. 2007).*

Officers came to defendant's motel room door looking a man in the motel, and said he was not the one they were looking for (he actually wasn't). They asked for ID, and he went back into the room to get it. While the door was open, the officer could smell raw marijuana, and he stepped into the room for safety purposes, and then he could see marijuana packages in plain view. The motion to suppress was improperly granted. United States v. Jones, 64 M.J. 596 (Army Ct. App. 2007).*

Permalink 07:12:20 am, by fourth, 369 words, 740 views   English (US)
Categories: General

Driving too slow in the left lane was insufficient for reasonable suspicion

The defendant was driving 12 miles under the speed limit in the left lane on an interstate highway, but this did not constitute reasonable suspicion for a stop. The officer also thought that the passenger waving to the officer added something, but the court held that it did not. United States v. Coronado, 2007 U.S. Dist. LEXIS 22477 (W.D. Tex. March 16, 2007).

Citizen reporting crime to 911 and identifying herself but unwilling to meet with officers face to face was capable of being found by the 911 and her own information and that was sufficient to elevate her status above that of an anonymous informant, and the district court erred in treating her as an anonymous informant requiring more corroboration. Not all of it was corroborated, but a significant part of her information was, and that gave reasonable suspicion. United States v. Elmore, 482 F.3d 172 (2d Cir. 2007).

NCIC printout that there was a felony warrant on defendant justified police entry into his motel room to arrest him. A comment on the print out that said "pick up in Florida only" related to extradition payments, not the authority to arrest. After the arrest, officers left and got a search warrant for things seen in plain view in the room, and that was a valid independent source for the seizure. United States v. Sobolewski, 2007 U.S. App. LEXIS 7313 (3d Cir. March 29, 2007) (unpublished).

A reasonable belief that a defendant committed a traffic violation is all that is required for a stop. [The court declined to quibble over whether there was in fact a factual basis or not; the question was whether it was reasonable for the officer to believe there was.] United States v. Pena, 2007 U.S. App. LEXIS 7309 (5th Cir. March 28, 2007)* (unpublished).

Plaintiff in a § 1983 survives PLRA review as to some defendants. "In the instant case, defendant Jenkins testified at the plaintiff's preliminary hearing that he and defendant Burger arrested plaintiff on a parole violation warrant whereas the plaintiff contends that no such warrant exists and that no other circumstances justified his arrest. These assertions are sufficient to state a Fourth Amendment false arrest claim and for the plaintiff to proceed on the claim." Harris v. Libal, 2007 U.S. Dist. LEXIS 22733 (E.D. Wis. March 27, 2007).*

Permalink 06:26:55 am, by fourth, 982 words, 1207 views   English (US)
Categories: General

Indiana Public School Police are school resource officers under T.L.O.

Indiana has the Indiana Public School Police which act as school resource officers. Acting on a tip, one encountered a student suspected of marijuana, and his original intent was to take the student to the dean's office. Instead, the officer took the student to the police. The officer was governed by T.L.O. The court surveys the cases and finds that school resource officers generally are governed by T.L.O. even though they may be sworn police officers working in a school. T.S. v. State, 863 N.E.2d 362 (Ind. App. 2007):

Finally, courts have found relevant the officer's purpose in conducting the search. See J.F.M., 607 S.E.2d at 307-08 (officer was concerned with student's actions as violations "under the rules and policies of the school, not as violations of the laws of North Carolina"); In re Josue T., 1999 NMCA 115, 128 N.M. 56, 989 P.2d 431, 438 (N.M. Ct. App. 1999), review denied, ("The nature of a T.L.O. search by a school authority is to maintain order and discipline in the school. The nature of a search by a police officer is to obtain evidence for criminal prosecutions."); State v. Tywayne H., 1997 NMCA 15, 123 N.M. 42, 933 P.2d 251, 255 (N.M. Ct. App. 1997), review denied (holding that search conducted by police officers hired as security for an after-school dance sponsored by local chapter of Mothers Against Drunk Driving was not governed by T.L.O. because the rationale of the student-teacher relationship, upon which T.L.O. was based, "is not applicable to a uniformed police officer conducting a search on his own initiative").

We conclude that Sergeant Driskell acted as school resource officer acting to further educationally related goals. Although Sergeant Driskell's encounter with T.S. ultimately resulted in Sergeant Driskell taking T.S. to the police station, Sergeant Driskell testified that, at the time he initiated the encounter, he intended to take T.S. to the Dean's office. Tr. at 33. Therefore, although Sergeant Driskell did not act in conjunction with other school officials prior to the initial contact with T.S., when he initiated contact, he had the intent to involve the school's dean. Such intent indicates that Sergeant Driskell was concerned with a possible violation of school rules, and not solely a criminal violation. We also agree with the rationale of the North Carolina and Pennsylvania courts that the presence of drugs on school property presents a serious threat to a learning environment. Therefore, Sergeant Driskell acted not only to ferret out criminal activity, but also to preserve an environment conducive to education.

We do not hold that any action by a school police officer is governed by T.L.O.'s reasonableness test. As our supreme court has indicated, this standard applies to school resource officers acting on their own initiative, and acting "to further educationally related goals." Myers, 839 N.E.2d at 1160. On the facts of this case, Officer Driskell was acting to further such goals, and we therefore will analyze his actions under the principles of T.L.O.

Oklahoma sustained a driver's license checkpoint based on proof that there was a problem with unlicensed drivers in the jurisdiction and the officers' plan was to avoid any impeding of traffic beyond seconds. Lookingbill v. State, 2007 OK CR 7, 157 P.3d 130 (Okla. Crim. App. 2007):

It is evident from the cases discussed above that law enforcement officers, operating within certain parameters, may establish checkpoints for the purpose of verifying that drivers are licensed and that they are operating ostensibly safe vehicles. The District Court concluded that the highway checkpoint seizure in Appellant's case was not constitutionally flawed. In reviewing the record, we find the evidence is sufficient to support that conclusion.

The law enforcement officers in this case testified that there was a "significant" problem of unlicensed drivers in Greer County, and this was their stated purpose for planning the driver's license checkpoint challenged here. The State offered proof showing that the officers chose the site because it was the route most traveled through Greer County. The checkpoint was in a fixed location, in broad daylight, and in an open area where the troopers could be easily seen. The officers planned to stop every passing car and, if everything was in order, to detain motorists for less than a minute. n6

n6 According to Trooper Cummins, their checkpoint plan included the contingency that if traffic should start to back up, vehicles would then be waved through so as not to cause any unreasonable delays in travel. A traffic backup never occurred, however, because Appellant was one of the first vehicles through the checkpoint, resulting in the checkpoint being promptly disbanded once Trooper Laughlin arrested Appellant and transported him to jail.

Use of a ruse to gain entry did not constitute a violation of the knock and announce requirement. Martinez v. State, 220 S.W.3d 183 (Tex. App. – Austin 2007).

Defendant's grandfather had authority to consent to an entry into the premises and the bedroom defendant was staying in. Since it was his property, the police acted reasonably in believing that his consent extended to defendant's backpack in the room. Glenn v. Commonwealth, 49 Va. App. 413, 642 S.E.2d 282 (2007) (en banc):

Equally important, nothing about the backpack itself put the officers on notice that Glenn claimed an exclusive privacy interest in it. The backpack had no lock or, for that matter, anything else ostensibly designed to inhibit someone from opening it. The backpack was found on the floor of a room sometimes used by Glenn, not squirreled away in some secretive place within his principal bedroom. No identifying information on the backpack revealed who owned it, used it, or had access to it. The officers did not know who left it there or who, if anyone, intended to come back for it. Under such circumstances, the officers were not required to speculate -- as Glenn implicitly suggests -- that grandsons, but never grandfathers, use backpacks.

04/01/07

Permalink 07:16:09 am, by fourth, 436 words, 491 views   English (US)
Categories: General

Postings still postponed; Elvis's body snatcher has just been added to our witness list

The postings will be late again because of my case. I've been working on a motion to be filed by early afternoon today for a hearing Monday morning.

Remember my trial that started February 26th? It's still going on, and my client's name was mentioned for the first time Thursday. On Friday, Elvis's body snatcher, whose identity was disclosed minutes earlier, even though he'd allegedly been known about for six weeks, testified in an offer of proof for the prosecution that my client ordered a hit on the meth head lab operator who was testifying in exchange for dismissal of a pre-existing meth lab case, and the prosecutor, and a co-defendant he had never met until being booked in on this case who has absolutely nothing to do with his case. Elvis's body snatcher took the Fifth on the number of people he's killed in his life. His answer to one question was "You have a right to kiss my ass." They intend to call him in my case, which, if they do, will cause a severance of the other two defendants, within days of their closing after five weeks of testimony from 110 witnesses, 104 of which have no relation to my client. It will also cause an eight week midtrial continuance to investigate this witness.

On Saturday, in the words of Warren Zevon, "Send lawyers, guns and money; The shit has hit the fan." There was yet a new development, which I'm not going to disclose until the press does. But, it has required that I work on a pleading to disqualify the prosecutor and her office for her conflict of interest. I know she doesn't read this website, because she has no intellectual curiosity about the law, so I can say what I want here.

The state objected to my question about him being convicted of stealing Elvis's body, which he brags to everybody about, and he did eight months in the Tennessee DOC for it back in the 70's. He admits to having been in prison seven times, the last a federal prison in Minnesota. Actual news about the Elvis testimony is almost nonexistent, but you can catch it on one TV station. The Leader is a semi-weekly paper, which had this headline yesterday: "Witness is either a hitman or a liar." It was not posted on their website as of the time of this posting. It may not be until tomorrow because their website is not a big part of their operation.

I know that today is April Fools Day. But this is true. I feel like I've stepped through the looking glass.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

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  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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