Archives for: May 2007

05/31/07

Permalink 11:52:26 pm, by fourth, 311 words, 1611 views   English (US)
Categories: General

NY Co. Ct. suppresses blood test based on physican-patient privilege

The District Court of Nassau Co. N.Y. holds that the police had probable cause for a search warrant for blood results after a motor vehicle accident, but suppresses the evidence based on the physican-patient privilege because it was drawn for medical purposes. People v. Muscarnera, 2007 NY Slip Op 27224, 16 Misc. 3d 622 (Nassau Co. 2007).*

Maryland holds that a police officer who had the only set of some files at his house and not at work where they belonged could be ordered to produce them under threat of disciplinary action without violating the Fourth Amendment. FOP Montgomery County Lodge 35 v. Manger, 175 Md. App. 476, 929 A.2d 958 (2007):

The files at issue belong to the MCPD and, thus, it was reasonable for them to demand appellant to produce the files. Thus, the action was justified at its inception. Had the files been located at the district station, the MCPD would have simply taken the files from the cabinet. The circumstances resulting from the accommodation of MCPD in permitting maintenance of files off site precluded the public employer, MCPD, from simply and as acknowledged by all parties, rightfully, taking the files. Reasonableness of the seizure, as considered under the circumstances, dictated that the MCPD demand appellant to produce the files immediately. Appellant's invitation to the officers to enter his residence, simply for the purpose of carrying the boxes out, did not involve an unreasonable seizure as proscribed by the Fourth Amendment.

Sua sponte appellate determination of standing, based on defendant's testimony, when the issue was not litigated below, was inappropriate because of the lack of a full record. "While the appeals court was not precluded from conducting a sua sponte inquiry into Moody's standing, we conclude the panel should have limited its review to the record at the suppression hearing, which was lacking facts necessary to make a fully informed determination." Moody v. People, 159 P.3d 611 (Colo. 2007).*

Permalink 11:40:47 pm, by fourth, 506 words, 845 views   English (US)
Categories: General

Identity not subject to suppression; search for wallet and ID was valid

Defendant's identity was not subject to suppression. He had no ID on him, and, after his arrest, the officer looked through defendant's vehicle for his wallet and ID, and this was a reasonable search. United States v. Osborne, 2007 U.S. Dist. LEXIS 38558 (E.D. Tenn. May 25, 2007).*

The fact a federal law enforcement officer provided information for the search warrant was not enough to make the state search warrant and state officers' search "federal in character" to invoke Rule 41. Defendant argued that the state nighttime search rule was violated, but federal courts do not apply state law. "Mr. Armendariz is more insistent than coherent in urging the application of state law." United States v. Armendariz, 2007 U.S. Dist. LEXIS 38503 (D. Utah May 25, 2007):

To the extent that Mr. Armendariz alleges only that a federal officer provided the information that formed the basis of the probable cause determination, he has not shown the search to have been federal in character. See Bookout, 810 F.2d at 968 (search state in character when executed by state officers where warrant based on information conveyed by federal officer). If, on the other hand, Mr. Armendariz contends that federal officers took part in the execution of the warrant, the question is a closer one. While the parties' conflicting accounts of the search do not permit a conclusion regarding the participation of federal officers in the execution of the search, there is no need to take evidence on the matter because, even if the Court were to assume, arguendo, that the search was federal in character, there has been no violation of the requirement in Rule 41 that nighttime searches be supported by good cause and expressly authorized by the issuing magistrate.

Search warrant issued after a wiretap was not imparticular, even though the list of things to be seized was extensive and identified things by references to the N.Y. Penal Code. United States v. Session, 2007 U.S. Dist. LEXIS 38477 (W.D. N.Y. May 24, 2007):

A simple reading of the search warrant makes clear that it identified two categories of evidence to be seized from 67 Quentin Road: evidence relating to the trafficking of cocaine and evidence relating to the possession of illegal firearms. Indeed, the warrant specifically identified the particular New York State narcotics and weapons offenses as to which it authorized the search and seizure of evidence. Although the list of items enumerated was relatively extensive, all items appear reasonably related to the offenses upon which the search warrant was based. Accordingly, I find that the warrant was sufficiently particular to identify for the searching officers the evidence of specific criminal activity for which they were authorized to search, see, e.g., United States v. Washington, 48 F.3d 73, 78 (2d Cir.) (upholding warrant describing "specific categories of drug-related evidence sought"), cert. denied, 515 U.S. 1151, 115 S. Ct. 2596, 132 L. Ed. 2d 843 (1995); United States v. George, 975 F.2d at 76 (collecting cases upholding warrants authorizing searches for evidence of "specific illegal activity"), and I therefore recommend that Session's motion to suppress evidence from his residence on that basis be denied.

Permalink 08:00:55 am, by fourth, 644 words, 2693 views   English (US)
Categories: General

Child porn presumptively retained so there is no "brightline rule" on staleness and it is hardly an issue

The N.D. Ohio holds that child porn is presumptively retained by the holder, so a search warrant for child porn is seldom found stale. Brothers v. County of Summit, 2007 U.S. Dist. LEXIS 38468 (N.D. Ohio May 25, 2007):

With regard to allegations of child pornography, the courts have found probable cause was not stale because it is presumed that such material is securely retained by the suspect. See United States v. Summage, 481 F.3d 1075, 2007 WL 1052456 *3 (8th Cir. 2007); U.S. v. Koelling, 992 F.2d at 823 (pedofile presumed to maintain pornography collection); United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (information that was six months old was not stale); U.S. v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (information that was 10 months old was not stale). Since there is no "bright line" standard for measuring staleness and case law has permitted use of evidence as old as 10 months old in child pornography prosecutions, then plaintiffs have not demonstrated a constitutional violation.

Plaintiff survives summary judgment on warrantless search based on her alleged consent which, remarkably, she videotaped and it showed her consenting under threat of arrest. Myers v. Halbleib, 2007 U.S. Dist. LEXIS 38577 (D. Neb. May 25, 2007):

This is an unusual case. Fifteen minutes after Myers permitted the officers to enter her home, and after the officers had several times attempted to obtain Myers' consent to search the home, Myers made a video recording of her interaction with Defendants and that video recording is in evidence before the court. The video reflects that when Myers asked "[A]re you tellin' me ... that if I don't let you guys search my house I'm gonna be arrested," Halbleib replied "[a]bsolutely, yes." (DVD Tr. 4:16-24 (emphasis added).) Later, Myers gave permission for Baker to search her home. Obviously, the voluntariness of this consent is at issue. "[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. Consent may not be coerced by implied threat or covert force, id. at 228, and certainly not by direct threats or force.

Myers contends that her consent was involuntary because she understood Officer Halbleib to have threatened her with arrest if she refused consent to search, she was physically intimidated when Officer DeSanti tried to handcuff her, and because the officers continued to request consent to search despite her repeated refusals. n3 (Filing 40 at 13.) Defendants assert that although Halbleib said "absolutely, yes" when Myers asked if she would be arrested if she refused consent, Halbleib threatened arrest not because Myers refused consent to search but because Myers' refusal to answer questions obstructed the investigation into the search for the missing girl. (Filing 55 at 5, 19.) Thus the ultimate question of fact--voluntariness of consent--is in dispute. In addition, there is a dispute as to a key underlying fact: whether DeSanti or Halbleib touched Myers in an attempt to handcuff her and whether she was handcuffed. (Myers Dep. 66:4-5 (DeSanti grabbed her and tried to put her in handcuffs); DeSanti Dep. 35:8-20 (DeSanti got his handcuffs out, but none of the officers "put their hands on Ms. Myers").) Because there is clearly a factual dispute as to the voluntariness of consent, I cannot grant summary judgment on this issue.

Pushing the plaintiff down to a bed from which she stood up did not qualify as excessive force. Gonzalez v. Cameron County, 2007 U.S. Dist. LEXIS 38598 (S.D. Tex. May 29, 2007).*

Court refuses to reconsider its refusal to assume "anamolous jurisdiction" over property taken in a seizure. The complaining party has not shown that it will be irreparably harmed, and it still has remedies for recovery of the property. In re Seizure of Various Bus. & Personal Prop., 2007 U.S. Dist. LEXIS 38553 (E.D. Wash. May 29, 2007).*

(A lot today; more later.)

05/30/07

Permalink 05:40:27 am, by fourth, 961 words, 571 views   English (US)
Categories: General

Warrantless entry on bogus informant tip survives summary judgment as to officer directing entry, but others have qualified immunity

(Only one new case today; tomorrow will be excessive.)

All police officers except the one making the decision to enter without a warrant get summary judgment in an unlawful entry case. The others were entitled to rely on his determination (essentially shifting all the liability to him). The facts are fairly compelling, but the District Court was faced with settled law that not every erroneous entry states a cause of action. The court noted in passing Los Angeles County v. Rettele, decided May 21 and noted here. This case is a good example of how easy it is for an informant to lie about something and cause a search. Mar v. City of McKeesport, 2007 U.S. Dist. LEXIS 38324 (W.D. Pa. May 25, 2007):

In summary, a dispatcher from Allegheny County 911 informed the McKeesport police that they had received a call informing that Kahule Cochrane was located in Apartment 10G in Crawford Village, where he was armed, dangerous and accompanied by at least one other armed individual. Deputy police chief Mark Holtzman, the acting shift commander, received the information and verified that the 911 dispatcher had obtained the informant's name and phone number. Kahule Cochrane was a suspect in a recently-committed murder, and was known to police to be violent and to reside in Crawford Village. Based on this information, Holtzman decided that exigent circumstances justified an immediate search without a warrant and assembled all available officers. Holtzman did not speak to the informant. Upon execution of the search of Apartment 10G only Plaintiffs, a father and his ten year old son, were found to be there.

Several officers formed a perimeter and Lieutenant Lopretto knocked on the door and announced himself as a police officer. When Darrell Mar, Sr., unlocked the door, it was forced open, and four officers entered the apartment. Officers then threw Mr. Mar to the floor, forcefully restrained him and placed a gun to his head before permitting him to sit on a couch. Another officer grabbed Darrell Mar, Jr., by the shirt sleeve, forcefully shoved him against a wall and pointed a gun in his face. The officers used profanity and gave no explanation for their actions. There is no evidence in the record that either Plaintiff was struck by the officers or suffered physical injury. The search of the apartment lasted approximately five minutes.

The "rank and file" officers get qualified immunity for relying on the decision to enter without a warrant made by their superior officer. He, however, does not. As to the excessive force claim, plaintiffs lose. The officers could legally point a gun in the face of a child and threaten to shoot.

In analyzing the excessive force factors, the Report and Recommendation did not evaluate the threat posed by the murder suspect, but instead simply stated that Plaintiffs "were unarmed, posed no threat to the safety of the officers, and never attempted to flee their home." This focus is off-target. The relevant analysis is that the crime at issue was murder, that the suspect, Kahule Cochran, posed an immediate deadly threat to officers and others, that he was actively evading and resisting arrest, that he was armed and that officers reasonably anticipated that they would confront multiple armed and violent persons. The force used by the officers was significant, consisting of forcing open the door, brandishing weapons, physically moving Plaintiffs to positions of submission, and use of profanity. However, the use of force lasted for less than five minutes and neither of the Plaintiffs was physically injured.

The Defendants cited to analogous cases in their summary judgment brief which were not addressed in the Report and Recommendation. In e.g. Torres v. United States, 200 F.3d 179, 185 (3d Cir. 1999), the Court of Appeals explained that it was reasonable for officers to handcuff occupants of a house face-down on the floor during a search for narcotics due to the legitimate interests in preventing flight, preventing disposal of narcotics and agent safety. The Court explained that the risk of harm to all involved is minimized if officers exercise unquestioned command over the situation. Id. at 186 (citing Michigan v. Summers, 452 U.S. 692 (1981)). In Glass v. City of Philadelphia, 455 F. Supp.2d 302 (E.D. Pa. 2006), the Court concluded after a non-jury trial that officers had not used excessive force by pointing guns at plaintiffs, yelling profanity, handcuffing them, and placing them in police car, even though plaintiffs were not actively resisting arrest. Also instructive, although not cited by Defendants, is Sharrar v. Felsing, 128 F.3d 810, 821 (3d Cir. 1997), in which the Court held that officers had not used excessive force even though the SWAT team was used in a domestic violence situation and police forced occupants to lie face down in the dirt at gunpoint and threatened to blow their f***ing heads off. Accord Mellott v. Heemer, 161 F.3d 117 (3d Cir. 1998) (reasonable for officers to load and point weapons and push occupant into a chair in effort to discourage expected resistance to eviction). [Here citing Los Angeles County v. Rettele in fn. 6: "The Supreme Court explained that "officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search" even though the resulting frustration, embarrassment and humiliation of occupants is real."]

Under the factors for determining the reasonableness of Defendants' use of force in this case, it is clear that their conduct was well within the parameters found to be lawful in Torres, Glass, Mellott and Sharrar. Even assuming, arguendo, that the use of force was excessive, the officers would be entitled to qualified immunity because it would not have been clear to a reasonable officer that their conduct was unlawful. Accordingly, the motion for summary judgment will be granted on the claims of excessive force as to all Defendants.

05/29/07

Permalink 07:38:45 am, by fourth, 627 words, 1047 views   English (US)
Categories: General

Court questions whether there is de novo review of a USMJ's R&R, but does it anyway

The defendant sought de novo review from the U.S. Magistrate Judge's R&R denying his motion to suppress his alleged consent based under 28 U.S.C. § 636(b)(1)(C). The District Court questions its ability to do so, but it finds under that standard that the consent was valid and the R&R stands. United States v. Zellars, 2007 U.S. Dist. LEXIS 38172 (E.D. Ky. May 24, 2007):

Although this Court must make a de novo determination of those portions of the Magistrate Judge's proposed findings of fact and recommendations to which objection is made, 28 U.S.C. § 636(b)(1)(c), "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court has reviewed the evidence presented de novo and agrees with the Magistrate Judge's conclusion that Zellars knowingly and voluntarily consented to the search of his apartment.

A traffic stop involving a PIT maneuver and injury to plaintiff resulted in a § 1983 case. Plaintiff refused to stop because he could not tell that the car pursuing him, even when it pulled up next to him, was a police car. [There is a story on ABC's Good Morning America today about people afraid to stop for police who may not appear to be police; it was not posted as of the time of this post. It appeared at 8:08 am.] The officers pled Scott v. Harris (posted here) decided April 30th, but the District Court declined to dismiss the case without discovery. Marshall v. West, 2007 U.S. Dist. LEXIS 38169 (M.D. Ala. May 24, 2007):

Having considered Defendants' argument and Plaintiff's response, the court finds, first, that it logically may be inferred that the Lincoln Town Car did not bear resemblance to the typical marked law enforcement vehicle, and, for present purposes, the court accepts the representation of Plaintiff's counsel on this point. (See Doc. No. 8 at 3 (PP 2-3), 6 and Fed. R. Civ. P. 11(b)(3).) Second, Plaintiff has alleged that he did not know either West or Hutson, that Defendants were in plain clothes (i.e., black tee shirts), and that West, without identifying himself as a law enforcement officer, pointed a pistol out the window directly at Plaintiff. (See Compl. PP 13, 15-16, 19.) The court finds that these allegations support the inference that Plaintiff believed that he was being directed to pull over in a threatening manner by two men in street clothes, not by law enforcement officers. The court, therefore, rejects Defendants' argument that there are facts presently from which it can be determined that Defendants had arguable reasonable suspicion or probable cause to believe that Plaintiff had violated § 32-5A-193(a) of the Code of Alabama. Cf. Jackson, 206 F.3d at 1166 (finding under summary judgment standard that, if a jury credited plaintiffs' version of facts, no arguable reasonable suspicion existed for the officers' investigative stop where evidence showed, among other things, that plaintiffs were in compliance with all traffic laws and that plaintiffs believed that undercover, plain-clothed officers were "armed robbers about to harm them"). Accordingly, the court finds that West and Hutson are not entitled to qualified immunity at this stage of the proceedings on Plaintiff's Fourth Amendment illegal stop claim.

(d) Fourth Amendment False Arrest and Unlawful Search Claims

Plaintiff also alleges Fourth Amendment false arrest and unlawful search claims in Count I. The viability of Defendants' substantive arguments seeking dismissal of these two claims hinges on the existence of a legal traffic stop. (See, e.g., Doc. No. 6 at 9-12.) Having found that Plaintiff has sufficiently alleged an unlawful traffic stop, the court also finds that the § 1983 false arrest and unlawful search claims survive the instant motion to dismiss.

05/28/07

Permalink 09:16:46 am, by fourth, 416 words, 569 views   English (US)
Categories: General

Utah follows Edwards for first time and allows inventory on book-in and impoundment of a car

Utah follows United States v. Edwards (1974) for the first time and allows inventory on book-in and impoundment of a car. The court found this case paralleled Edwards. Defendant sought to have his personal belongings picked up by an acquaintance and the police refused. Even the second look by the police was valid. State v. Messer, 2007 UT App 166, 164 P.3d 421, 578 Utah Adv. Rep. 49 (2007).*

Defendant's vehicle was spotted by the police and they already had probable cause to search it once it was determined to be his. Entry into the vehicle was justified by the automobile exception even though the defendant was nowhere near. State v. Sanders, 15 Neb. App. 554, 733 N.W.2d 197 (2007).*

N.H. sustained sobriety checkpoints in the past, and the Attorney General adopted regulations for conducting them. Case law require "aggressive advance notice." Here, a press release was issued and a legal notice was put in the paper the day before. "In light of that background media attention and the prevailing state of the law in other jurisdictions that have considered this issue, we hold that the timing and amount of advance notice in this case did not render the PPD checkpoints violative of Part I, Article 19 of the New Hampshire Constitution." State v. Hunt, 155 N.H. 465, 924 A.2d 424 (2007).*

Defendant claimed that officers intended to stop every person leaving a particular bar, but the question was whether there was reasonable suspicion as to this defendant. Crediting the officer's testimony, there was because he was staggering to the car. State v. Jones, 2007 Tenn. Crim. App. LEXIS 406 (May 24, 2007).*

After a traffic stop, reasonable suspicion just kept evolving. Negrette v. State, 2007 WY 88, 158 P.3d 679 (2007):

[*P15] The totality of the circumstances showed: the license plate on the pickup was not on file; the registration had been altered; the license plate number did not match the registration; the occupants of the pickup had traveled from Illinois to Oregon for a two day visit; Mr. Negrete did not know the names of the people he had just visited in Oregon; Mr. Negrete said he had borrowed the pickup from a friend named Gilbert Mendoza but the proof of insurance card showed the owner as Gilberto Maldonado; the VIN was a duplicate; Mr. Negrete seemed to change the subject whenever Deputy Hodge brought up a subject that made him uncomfortable; Mr. Negrete appeared nervous when he could not remember the names of the people he had just visited; and Deputy Hodge was unable to verify that the license plates belonged on the pickup.

05/27/07

Permalink 10:52:25 pm, by fourth, 895 words, 923 views   English (US)
Categories: General

Minnesota holds that a dog sniff at an apartment door from a common area was valid because it was based on reasonable suspicion, and Kyllo is distinguished

Minnesota holds that a dog sniff and alert founded on reasonable suspicion at an apartment door threshold was a valid basis for issuance of a search warrant. The apartment manager saw grow lights inside, and the defendant refused admission for them to fix a water leak. The court distinguished Kyllo because the sniff was from a common area [following other courts; see n. 16], and what was being detected was only evidence of crime and not other innocent activity. State v. Davis, 732 N.W.2d 173 (Minn. 2007):

In Wiegand, the police walked a narcotics-detection dog around the exterior of a motor vehicle that had been stopped because of a burned-out headlight. 645 N.W.2d at 128-29. Because there was "some expectation of privacy in an automobile," and a dog sniff intrudes upon this privacy interest "to some degree," we held that the police "cannot conduct a narcotics-detection dog sniff around a motor vehicle stopped for a routine equipment violation without some level of suspicion of illegal activity." Id. at 134. We concluded that principles from Terry v. Ohio, 392 U.S. 1 (1968), were appropriately applied to the context of a motor vehicle stop, and we said that the Terry principles authorized the balancing of the level of intrusiveness of the use of the dog "against the importance of the governmental interest at stake." Wiegand, 645 N.W.2d at 133-34. Based on this balancing, we adopted the reasonable, articulable suspicion standard as necessary to sustain the use of the dog sniff in Wiegand. Id. at 137. n8

n8 In Wiegand, we said that the reasoning of the Supreme Court in Kyllo "suggests that a dog sniff of a home might lead a court to conclude that a search requiring probable cause took place." Wiegand, 645 N.W.2d at 130 (discussing Kyllo v. United States, 533 U.S. 27(2001)). But Wiegand was decided before the Supreme Court clarified the reach of Kyllo in the context of dog sniffs in Illinois v. Caballes, 543 U.S. 405, 408 (2005) ("Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment. We have held that any interest in possessing contraband cannot be deemed 'legitimate,' and thus, governmental conduct that only reveals the possession of contraband 'compromises no legitimate privacy interest.'" (citation omitted)). See Carter, 697 N.W.2d at 208 (discussing Caballes and Kyllo).

. . .

We held in Carter that reasonable, articulable suspicion struck the appropriate balance between the privacy right of individuals and the government (and society's) interest in effective law enforcement. 697 N.W.2d at 211-12. We conclude that the same result is warranted here. When we balance the minimal intrusion on Davis's privacy interests inside his residence against the governmental interest in the use of narcotics-detection dogs as an investigative tool to combat drug crime, we conclude that the police needed a reasonable, articulable suspicion to walk a narcotics-detection dog down the common hallway outside Davis's apartment. Use of the reasonable suspicion standard is consistent with this court's goals of preserving the "law enforcement utility" of narcotics-detection dogs and ensuring that the police are not allowed to use narcotics-detection dogs "at random and without reason." Id. at 211 (internal quotation marks omitted).

Comment: This is a significant case, and it produced a dissent that is equally persuasive. I personally have trouble with a dog sniff at the door of a home, but it is easier to distinguish between an apartment from a common area with clear reasonable suspicion and a house where the police have to enter upon the property. But courts always permit police to enter from the street up the sidewalk or driveway. Whether they will also accede to a drug dog coming along for a sniff is another matter entirely. At the minimum, reasonable suspicion should be required.

Officers on bicycles were patroling outside a bar in Richmond where about 500 people were milling about when a fight broke out among about 20 females. Backup was called, and defendant in a car made a furtive gesture, and an officer ordered him out of the car, and a .357 was found, and he was a felon. The search was reasonable. United States v. Jones, 233 Fed. Appx. 273 (4th Cir. 2007)* (unpublished).

Officer developed reasonable suspicion during traffic stop, and he could run a dog around the car. United States v. Jackson, 235 Fed. Appx. 707 (10th Cir. 2007)* (unpublished).

Plaintiff driving without a license and having his vehicle towed had no Fourth Amendment claim for his arrest or its being towed. There was probable cause for his arrest, and towing the vehicle was incidental. Acevedo v. City of O'Fallon, 2007 U.S. Dist. LEXIS 38062 (E.D. Mo. May 24, 2007)*:

Even liberally construed, plaintiff's complaint fails to assert facts indicating that his arrest, the search of his person and vehicle, and the towing of his vehicle violated plaintiff's constitutional rights. Plaintiff does not assert that his vehicle was properly registered as required by law (either state statute or municipal ordinance) or that he had a valid, non-revoked state driver's license. To the contrary, plaintiff seems to believe that he does not need a driver's license to operate a motor vehicle and that he does not need to comply with vehicle registration laws - these requirements being, in plaintiff's view, "civil matters." Driving, however, is a privilege, not a right. Stewart v. Dir. of Revenue, 702 S.W.2d 472, 475 n.2 (Mo. 1986).

Backpack could be inventoried at the jail on defendant's arrest. State v. McCormick, 37 Kan. App. 2d 829, 159 P.3d 194 (2007).*

Permalink 09:05:10 pm, by fourth, 744 words, 593 views   English (US)
Categories: General

Strip search was unconstitutional as a matter of law; $5 compensatory, $25,000 punitive verdict affirmed

The N.D. N.Y. at Syracuse held that the strip search of plaintiff was unconstitutional as a matter of law, and this was not error. He was searched twice, finding nothing, handcuffed, and then strip searched. There simply was no reason to believe that plaintiff had drugs on his person. Also, the defendants lost on qualified immunity. Plaintiff's verdict was $5 compensatory and $25,000 punitive. The punitive award was justified based on the way plaintiff was treated before and during the strip search because the jury obviously credited the plaintiff. Derrick v. Aquino, 233 Fed. Appx. 73 (2d Cir. 2007)* (unpublished):

Defendants' sufficiency challenge to the punitive damages award merits little discussion. Despite the verdict in defendants' favor on Wilson's false arrest and excessive force claims, the jury could reasonably have found that defendants' illegal strip search was conducted out of evil motive or intent, or that defendants acted recklessly or callously. See Smith v. Wade, 461 U.S. at 56. Wilson testified that (1) he was familiar with the defendants prior to the incident; (2) defendants verbally abused him with obscenities suggesting that they were strip searching him because he was a drug dealer without regard to any belief that he was then in possession of drugs; (3) each defendant participated in punching and kicking him in the course of forcibly removing his clothes; and (4) at least one defendant physically taunted Wilson during the strip search. Drawing all inferences in Wilson's favor as we are obliged to do in reviewing a sufficiency challenge, this evidence was sufficient to support a jury finding that the defendants, individually and as a group, acted with evil motive or intent, or at least recklessly or callously, in conducting the strip search.


Comment: Clients always tell me that they were told all kinds of bad things were going to happen to them in jail and that they were verbally abused by the police. Here, the jury credited the plaintiff on malice and whacked the defendants, at least comparing the compensatory and punitive damages.

While the Fourth Amendment claim of the officers' entry into plaintiff's house was a close call, the court instead moved to the qualified immunity question which it found not close at all. The officers acted reasonably in responding to a 911 call and entering based on the information they had. Dockery v. Doyle, 237 Fed. Appx. 426 (11th Cir. 2007)* (unpublished):

In Holloway, F.3d at 1338, this court held that, based on the exigent circumstances of a 911 call reporting arguing and gunshots, "police officers in this case did not violate the Fourth Amendment when they conducted a warrantless search of Appellant's home." In Burgos, F.2d at 1526, we held that although agents conducted a warrantless search of defendant's home, the "threat of injury to the neighborhood and arresting officers justified the avoidance of delay involved in obtaining a warrant." Nothing in these decisions establishes that Patterson's conduct violated the Fourth Amendment.

Defendant's flight on being questioned by the officer gave reasonable suspicion, and the district court erred in holding to the contrary. There was reasonable susicion on the totality. United States v. Lawson, 233 Fed. Appx. 367 (5th Cir. 2007)* (unpublished):

Lawson claims, however, and the district court held: the Officer had "no right to detain him and stop him" after Lawson refused to talk to him; and, indeed, the Officer's actions "caused" Lawson's flight. An attempt to initiate a consensual encounter on the street does not constitute provocation; to the contrary, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place [and] by asking him if he is willing to answer some questions". Royer, 460 U.S. at 497.

Lawson's "unprovoked flight" upon seeing the Officer was "not going about one's business; in fact, it [was] just the opposite". See Wardlaw, 528 U.S. at 125. It, along with other factors, discussed below, gave the Officer reasonable suspicion to conduct a Terry stop. Id.

Lawson also contends the other factors cited by the Officer in justifying the Terry stop do not establish reasonable suspicion: for example, the general description of the robbery suspect as a "tall, large-built black male" has de minimis value in a predominantly black neighborhood; and the Officer's conclusion that Lawson was in a high-crime neighborhood does not mean Lawson was the suspect. Each factor by itself may not justify a Terry stop; but, the totality of these factors, along with Lawson's unprovoked flight, provided the Officer with reasonable suspicion to detain him. E.g., Sokolow, 490 U.S. at 7-8.

05/26/07

Permalink 05:49:43 pm, by fourth, 453 words, 530 views   English (US)
Categories: General

Georgia sustains a consent sought before warning ticket handed over; consent covered prying open the glove box

Defendant was stopped for a traffic offense, and the officer asked for consent three seconds before handing the warning ticket to the defendant. A request for consent is not per se a continuation of detention. A written consent form was signed. During the stop, the officer noticed screwheads had been tampered with, and he pried open the glove box finding drugs. This was not outside the scope of the consent. Medvar v. State, 286 Ga. App. 177, 648 S.E.2d 406 (2007).*

Washington refuses to adopt a negligence standard under its state constitution for a state Franks violation because it would be unduly burdensome and encroach on the magistrate's role. State v. Chenoweth, 160 Wn.2d 454, 158 P.3d 595 (2007):

¶31 In sum, Washington courts have consistently applied the Franks standard, requiring a showing of reckless or intentional misstatements or omissions of material facts. [citations omitted] Thus, our prior case law does not suggest a heightened standard for veracity challenges to a facially valid warrant. But we have not considered whether this is the appropriate standard under our state constitution.

. . .

¶34 Thus, drawing the line at reckless or intentional falsehood, and denying challenges based solely on negligent or inadvertent mistake, rests on the language of the warrant clause, which implicitly protects from reckless or deliberate fabrication of the factual allegations comprising probable cause, but not from unintentional errors. As noted earlier, the statutes and court rules in this State relating to issuing a warrant mirror the warrant clause requirements of the Fourth Amendment.

¶35 The Franks decision further rests on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Limiting veracity challenges to instances of alleged reckless or intentional falsehoods “leaves a broad field where the magistrate is the sole protection of a citizen's Fourth Amendment rights, namely, in instances where police have been merely negligent in checking or recording the facts relevant to a probable-cause determination.” Franks, 438 U.S. at 170; see also American Law Institute, A Model Code of Pre-Arraignment Procedure § 290.3(1)(a), (b), at 183, 569-70 (1975) (allowing challenges based on an affiant's “honest mistake” would unduly encroach on the magistrate's role).

¶36 Like the United States Supreme Court, this court historically followed the common law rule that reviewing courts could not go behind a warrant to challenge the factual allegations comprising probable cause, relying on the view that an independent magistrate provides constitutionally adequate protection from negligent or inadvertent errors. Thus, the Franks test is consistent with this court's historical deference to a neutral magistrate.

"[T]he police officer reasonably relied in good faith upon the defendant's wife's apparent authority to consent to the search of the bedroom closet and the unlocked case which contained the seized weapon ...." People v. Singson, 2007 NY Slip Op 4516, 40 A.D.3d 1015 (2d Dept. 2007).*

Permalink 05:22:19 pm, by fourth, 513 words, 478 views   English (US)
Categories: General

Officer's search of injured man for his ID revealed a container that the officer could not ascertain the contents of without opening; search suppressed

Defendant was found lying on the ground injured and bloody, and an officer arrived at the scene. He had difficulty communicating his name, and he permitted the officer to remove his wallet for his ID. The officer also felt an object that was round, but it had to be opened to ascertain its contents because it was not "immediately apparent." The search of the container was unlawful. Cannon v. State, 985 So. 2d 968 (Ala. Crim. App. 2007):

In this case, Cannon gave Daley consent to retrieve his identification from his pocket. Before reaching into Cannon's pocket, Daley did a pat-down search for her safety. While doing the patdown, she felt an object in one pocket that she knew was not Cannon's driver's license but that felt like a film canister. Just as the officer who testified in Warren explained, Daley said that based upon her training and experience, she knew that people kept illegal drugs in such canisters. When she could not see to identify the contents of the canister pulled from Cannon's pocket, she opened it and found what she believed to be a controlled substance. Nonetheless, nothing in the record shows that the nature of the contraband found in the canister was immediately apparent when Daley pulled it from Cannon's pocket.

Informant's statement was sufficient to show probable cause, and two week old information about drug sales from defendant's house was not stale. State v. Jenkins, 26 So. 3d 458 (Ala. Crim. App. 2007).

In a suit over a state mandated database to track information about potential predatory mortgage loans, the statute does not offend due process or the Fourth Amendment. Access to the information is only permitted if there is a crime or fraud suspected, and it is a long way from there to actual release of the information, which plaintiffs have no standing to object to under California Bankers Ass'n. v. Schultz, 416 U.S. 21, 68 (1974). Bell v. Martinez, 2007 U.S. Dist. LEXIS 37948 (N.D. Ill. May 24, 2007).*

The viability of a state constitutional claim was not absolutely clear, so the court had to deny the motion to dismiss, considering that it will likely have to decide that question itself. Aquino v. County of Monroe, 2007 U.S. Dist. LEXIS 37872 (M.D. Pa. May 24, 2007):

Plaintiff correctly notes that where there is no ruling currently available from the state's highest court on a matter of state law, the district court "must predict how that court would resolve [the relevant] issues should it be called upon to do so." Dilworth v. Metropolitan Life Ins. Co., 418 F. 3d 345, 349 (3d Cir. 2005). To make such a prediction, the district court will examine: (1) state Supreme Court decisions in related areas; (2) "decisional law" of intermediate state courts; (3) opinions of federal courts of appeals and district courts applying state law; and (4) decisions from other jurisdictions that have discussed the issues before the court. Id.

Police officer had a reasonable basis for concluding that the car that plaintiff was driving was stolen when the stop occurred, so the defendant is entitled to summary judgment. Phelan v. Village of Lyons, 2007 U.S. Dist. LEXIS 37943 (N.D. Ill. May 23, 2007).*

Permalink 10:18:33 am, by fourth, 524 words, 644 views   English (US)
Categories: General

Forged DL handed over during traffic stop justified search incident

Vehicle stop for cracked windshield also involved officer's knowledge that the back seat occupant was making furtive movements. When the car was stopped, the driver gave an apparently forged DL, and that led to his arrest and search incident which produced evidence of more forgery. The search incident was valid. Officers, as a matter of course, may order a passenger or passengers either to get out of the car or to remain in the car during a lawful traffic stop if the officers deem it necessary for officer safety. Whether the passenger is ordered to stay in the car or get out of the vehicle is a distinction without a difference. An officer making a traffic stop may immediately take the reasonable steps he or she deems necessary to secure the officer's safety, including ordering a passenger to remain in or to get out of the vehicle, without violating the Fourth Amendment. People v. Vibanco, 151 Cal. App. 4th 1, 60 Cal. Rptr. 3d 1 (6th Dist. 2007).*

Heavy traffic from a house and a traffic stop of a person who came from inside that produced drugs was not sufficient grounds to get a search warrant issued. State v. Gentile, 373 S.C. 506, 646 S.E.2d 171 (2007):

The narcotics officers' decision to investigate Gentile was precipitated primarily by the receipt of citizen complaints regarding a high volume of traffic at Gentile's residence. Even though the officers verified the pattern of traffic at Gentile's residence, this, without additional investigation into the residence, was not sufficient to establish that narcotics activity was taking place. ...

Next, we consider the single citizen claim that she smelled marijuana in the vicinity of Gentile's residence. Initially, we question whether the magistrate was privy to this information. Based on our review of the record, we are unable to find where Bradley, the officer who obtained the warrant, testified regarding this information. Instead, the only reference to this tip was through the testimony of Corporal Jenkins. Furthermore, there is no mention in the affidavit regarding this tip. Therefore, it is questionable whether it was communicated to the magistrate.

Even if we conclude that Bradley communicated to the magistrate the citizen's tip, we find it was insufficient to establish probable cause. First, the tip is vague in that there is no indication of how many times the citizen may have smelled marijuana or that she could readily identify that the odor was emanating from Gentile's residence. Secondly, there was no indication that the citizen was knowledgeable about the smell of marijuana. Significantly, there was no independent verification by the narcotics officers regarding this tip.

The trial court incorrectly held that an officer had to have reasonable suspicion before he could ask for consent to search. State v. Nash, 957 So. 2d 1266 (Fla. App. 4th Dist. 2007).*

Defendant's weaving within a line of traffic was not reasonable suspicion for a stop in itself, but the fact the vehicle was traveling in tandem with another, all inside a city, and other facts accumulating was enough to give reasonable suspicion that something was up on the totality of circumstances. The court of appeals decision was reversed. State v. Post, 2007 WI 60, 301 Wis. 2d 1, 733 N.W.2d 634 (2007).*

Permalink 09:27:08 am, by fourth, 303 words, 438 views   English (US)
Categories: General

Gov't gets out of district search warrant for Yahoo! computer system via 18 U.S.C. § 2703(a) to investigate hacking crime

The government investigating a computer hacking offense in Arizona contacted Yahoo! to have them segregate records. A search warrant was issued from the U.S. District Court in Arizona for Yahoo!'s records in Sunnydale, California under 18 U.S.C. § 2703(a). The issue was one of first impression in the Ninth Circuit, so the court followed an unpublished order from the M.D. Fla. § 2703 was amended by the USA Patriot Act as was F. R. Crim. P. 41 to authorize federal search warrants to cross court jurisdictional lines. In re, Yahoo, Inc., 701 First Ave., Sunnyvale, California 94089, 2007 U.S. Dist. LEXIS 37601 (D. Ariz. May 21, 2007), following In Re Search Warrant, 2005 U.S. Dist. LEXIS 44507 (M.D. Fla, Dec. 23, 2005).

Plaintiffs stated a Fourth Amendment claim on behalf of their autistic son who was placed in a room without windows for what they contended were excessive periods of time. The school argued that schools have control over the movements of students all the time. At the pleading stage, the court was not inclined to dismiss it. A.C. v. Independent Sch. Dist. No. 152, 2007 U.S. Dist. LEXIS 37681 (D. Minn. May 22, 2007).*

Summary judgment on liability and qualified immunity denied officers in stop claim on whether they had reasonable suspicion at the time of the stop. SMJ Towing, Inc. v. Village of Midlothian, 2007 U.S. Dist. LEXIS 37416 (N.D. Ill. May 21, 2007).*

A temporary permit on a vehicle does not give reasonable suspicion to believe that the vehicle is improperly registered. Defendant's stop was based on that alone and was unreasonable. State v. Salois, 144 Idaho 344, 160 P.3d 1279 (Ida. App. 2007).*

A statutory violation of a sealing order of a state wiretap led to suppression of evidence, which was affirmed by the state supreme court, which criticized the state's laxity in handling the evidence so shodily. State v. Oster, 922 A.2d 151 (R.I. 2007).*

05/25/07

Permalink 08:27:51 am, by fourth, 454 words, 629 views   English (US)
Categories: General

6th Cir. plays semantic games over whether defendant was free to leave, finding, of course, he was

The district court granted defendant's suppression motion because the defendant would not feel detained, seizing on one word of the officer's statement to the defendant. He testified that he said he "would like to see [Campbell's] ID, just to log that I talked to him." United States v. Campbell, 486 F.3d 949 (6th Cir. 2007):

Officer Salser's first statement was that he would like to see Campbell's ID. The use of the word "like," as opposed to "need" or "want," suggests that a reasonable person would feel free to decline this request and leave the scene. Moreover, Salser had not yet called for backup. He was alone with Campbell at this point in the encounter and had neither drawn his weapon nor activated his emergency lights or siren.

Comment and Practice Pointer: This is, to be blunt, farce. How can a person pulled over on the side of the road, blue lights flashing, not accede to a request for a driver's license? In questioning the officer, pin him down on whether the driver was free to leave: "If my client had just said 'no, I'm leaving now,' you would have stopped him or arrested him for fleeing or disobeying an officer, wouldn't you?" I bet the answer always will be yes. It always has been for me.

Service member consented to a search of his barracks room and to seize his computer elsewhere. He knew that the officers were looking for child porn and his consent to seize included consent to search. United States v. Sloan, 2007 U.S. Dist. LEXIS 37565 (D. Haw. May 22, 2007).* Also, the fact the officers could have done more to investigate the defendant and find more probable cause is not relevant if there was, in fact, probable cause.

Officer had qualified immunity from suit for searching defendant's bedroom by consent of his parents. Hughes v. Coconut Creek Police Dep't, 233 Fed. Appx. 919 (11th Cir. 2007)* (unpublished).

Officers are usually entitled to absolute immunity for relying on a warrant, but they have only qualified immunity for the method of execution of the warrant. Haugen v. Fields, 2007 U.S. Dist. LEXIS 37609 (E.D. Wash. May 23, 2007)*:

Defendants argue that they should receive absolute immunity for their conduct in executing the search warrant. With regard to P.L.'s claims that he was unlawfully seized, the Court agrees. However, Defendants are not entitled to receive absolute immunity for the conduct in executing the search warrant. See San Jose Charter of the Hells Angels Motorcycle Club, 402 F.3d at 971 (analyzing whether officers were entitled to qualified immunity for unreasonable execution of a search warrant); Motley v. Parks, 383 F.3d 1058 (9th Cir. 2004) (analyzing whether officers were entitled to qualified immunity for warrantless search of apartment and excessive use of force claim).

05/24/07

Permalink 08:31:27 am, by fourth, 658 words, 537 views   English (US)
Categories: General

Warrant for trace evidence in a murder suspect's car was reasonable; trial court's hypertechnical analysis of particularity was inappropriate

Search warrant for forensic evidence that might be found in a murder suspect's car was reasonable. The trial court erred in ascribing a hypertechnical reading to the warrant's particularity requirement and the application for the warrant. People v. Superior Court of Santa Clara County (Nasmeh), 151 Cal. App. 4th 85, 59 Cal. Rptr. 3d 633 (6th Dist. 2007):

Moreover, even if a search for constituent parts of an item did present Fourth Amendment problems because the warrant did not mention such parts, here the warrant authorized the search and seizure of "any part" of the listed items. The question before us is the adequacy of this particular warrant's language, which referred to "part[s]," but did not recite a list of such possible further descriptive terms as fractions, pieces, components, particles, elements, flecks, filaments, films, specks, strands, shards, residues, remnants, samples, subsets, trace amounts, or the like.

"[T]he requirement that a search warrant describe its objects with particularity is a standard of 'practical accuracy' rather than a hypertechnical one." (U.S. v. Peters (8th Cir. 1996) 92 F.3d 768, 769-770; accord, People v. Amador, supra, 24 Cal.4th at p. 393.) The rule against excessive parsing of the language used in a warrant (while retaining the rule that items to be seized be identified in a warrant with constitutionally required specificity, so that the police do not engage in unfettered rummaging through a person's effects) militates in favor of truthfinding in criminal investigations, a value of significant importance to the public safety and societal order. Nasmeh argues that the warrant's "'any part thereof'" specification refers only to "any subset of the named items on the list," e.g., a single credit card or one sofa cushion, rather than a constituent part of a single identified item. This kind of linguistic scrutiny might be warranted in a case construing a contract negotiated and signed by sophisticated parties whose counsel examined the placement of each comma and semicolon and who included language to cover any conceivable eventuality. A warrant's language involves different considerations and requires less absolute certainty of linguistic meaning. "'[T]he purpose of the exclusionary rule is "... to deter illegal police conduct, not deficient police draftsmanship."'" (People v. Amador, supra, 24 Cal.4th at p. 392.) Moreover, the draftsmanship here was not deficient, just not as exhaustive as Nasmeh would prefer.

Statement of probable cause plus incorporation of a list of things to be seized permitted seizure of a computer not on the incorporated list when reading the papers as a whole. United States v. Payton, 2007 U.S. Dist. LEXIS 37277 (E.D. Cal. May 4, 2007).*

Removing a Fed Ex package from a conveyor belt because it was suspicious and then subjecting it and others to a dog sniff 30 minutes later was not an unreasonable seizure. United States v. Terrell, 2007 U.S. Dist. LEXIS 37264 (W.D. La. May 2, 2007).*

Officers surrounding house attempted to take a mentally ill man in on a commitment order. He came out of the house with a shotgun in hand and shot himself in front of the officers. The officers were also accused of causing unnecessary damage to the house immediately prior. On the pleadings, the court declines to dismiss an inartfully pled Fourth Amendment claim because it was at least implied in the seizure and excessive force claims. Heckensweiler v. McLaughlin, 517 F. Supp. 2d 707 (E.D. Pa. 2007).*

In a false arrest case under § 1983, federal courts look to state law to determine the legality of the arrest and then to the Fourth Amendment to see if it was violated by a violation of state law. Plaintiff stated enough to survive summary judgment on the Fourth Amendment claim because the arrest was apparently in violation of state law. Brunner v. McKillip, 488 F. Supp. 2d 775 (W.D. Wis. 2007).*

Identified citizen informer calling 311, the police non-emergency line, was entitled to more credibility than a confidential informant, and the information did not have to be corroborated to act upon it. United States v. Roberts, 2007 U.S. Dist. LEXIS 36991 (D. Nev. May 9, 2007).*

Permalink 07:10:56 am, by fourth, 863 words, 483 views   English (US)
Categories: General

Failing to specify the crime and using the phrase "including, but not limited to" in the description of things to be seized violated particularity

Search warrant violated the particularity requirement when it failed to specify the crime believed to have occurred to limit the search. It permitted a general exploratory search, and it was so defective that the good faith exception could not be relied upon. United States v. Denton, 487 F. Supp. 2d 1180 (D. Ore. 2007):

Here, the search warrant makes no reference to the crime being investigated. Instead, the warrant only lists, in broad terms, the items to be searched for. The government claims that the reference to "controlled substances" adequately limits the scope of the search warrant and identifies what conduct is being investigated. However, without either (1) a more definite and limited statement of what the officers were authorized to search for, or (2) a description of the criminal activity being investigated, the search warrant lacks sufficient particularity. While specific categories of evidence are identified by the search warrant, including items commonly associated with drug-trafficking, other categories are overbroad. For example, under number four, the search warrant includes: "[a]ny and all diaries, notebooks, notes, and any other records and receipts." Govt's Ex. B. This category could reasonably include all records and files maintained by any tenant of the residence in question, and without any statement of what crimes are being investigated to narrow the search, leaves the warrant woefully lacking the necessary particularity.

Further, the search warrant includes the disapproved term "including but not limited to" when describing what items are sought. In Bridges, the court found the phrase "including but not limited to" especially offensive to the particularity requirement of warrants because "if the scope of the warrant is 'not limited to' the specific records listed on the warrant, it is unclear what is its precise scope or what exactly it is the agents are expected to be looking for during the search." 344 F.3d at 1017-18.

No crime is stated in the warrant, and the scope of what could be seized by the officers was not restricted to contraband. Indeed, the scope was not limited at all, given the use of the disapproved language "including but not limited to." See Bridges, 344 F.3d at 1017-18. Based on Kow and Bridges, the warrant was facially invalid and the evidence obtained pursuant to it must be suppressed.

The fact that the affidavit in support of the warrant had additional facts concerning suspected crimes cannot save the warrant.

While defendant was on pretrial release, U.S. Marshals were looking for him to arrest him for a violation or terms of release. His adult child consented to a search but he was not found but drugs were. He arrived later and was arrested. The consent search was valid. United States v. Alama, 486 F.3d 1062 (8th Cir. 2007).*

Border Patrol officers did a knock and talk looking for an illegal alien, and they gained entry into the apartment but the alien was not there. While the officers were there, they did a "security sweep" and kept people separate. In the course of that, defendant admitted that he was an illegal. The officers' testimony was credited. "Therefore, the court finds that neither the entry into nor the search of Defendant's apartment constituted a violation of Defendant's Fourth Amendment rights. Moreover, neither asking for identification from Defendant nor requesting Defendant to remain seated during the search constituted an unlawful seizure." United States v. Maino, 2007 U.S. Dist. LEXIS 37189 (S.D. Cal. May 22, 2007).*

Man with a gun report brought officers to plaintiff's house where a young man was ordered to the ground at gunpoint. The gun turned out to be a toy gun, and the matter ended. The officers were entitled to summary judgment in a § 1983 case against them because they had reasonable suspicion for the stop and entry onto the driveway of the house. Murray v. Metro. Gov't of Nashville, 2007 U.S. Dist. LEXIS 37071 (M.D. Tenn. May 21, 2007):

In this case, the totality of the circumstances supports the propriety of the officers conducting a Terry stop. Officers had received a dispatch regarding a "person with a weapon call." The description of the subject was a 16 or 17-year old black male wearing a gray top, white sweatshirt, and black pants. Upon arrival at the scene, the caller confirmed to the officers that she had seen a 16 or 17-year old black male pointing a gun at his sister. The caller's daughter stated that she too saw what she thought to be a gun.

With this information, it was reasonable to proceed to the suspect's house and walk up the driveway with guns drawn. "This Circuit permits the use of force, such as handcuffs and guns, to effect a stop when such a show of force is reasonable under the circumstances of the stop." United States v. Heath, 259 F.3d 522, 530 (6th Cir. 2001). This is in keeping with the Supreme Court's statement in Terry that police officers are not "required to take unnecessary risks in the performance of their duties." Terry, 392 U.S. at 23. "Indeed, police officers may use reasonable means to protect themselves when conducting a Terry stop, including drawing weapons if the officers believe the suspect may be armed." United States v. Lindsey, 114 Fed.Appx. 718, 721-722 (6th Cir. 2004)(citing, United States v. Hardnett, 804 F.2d 353, 357 (6th Cir. 1986)).

05/23/07

Permalink 05:58:56 am, by fourth, 650 words, 503 views   English (US)
Categories: General

Hiding a bag in an apartment's outside dryer vent accessible from common area manifested no expectation of privacy

The defendant hid a bag in his apartment's dryer vent which was accessible by anyone in the common area of the apartment complex. He failed to show a reasonable expectation of privacy in that place. People v. Carodine, 374 Ill. App. 3d 16, 311 Ill. Dec. 856, 869 N.E.2d 869 (1st Dist. 2007):

Guided by the foregoing factors, we conclude that defendant failed to carry his burden of establishing that he held a reasonable expectation of privacy in the dryer vent. Neal, 109 Ill. 2d at 218. Defendant had no possessory interest in the area searched. Although defendant leased the apartment in which he and his mother resided, he had no possessory interest to the common area from which the officer reached because the inhabitants of two other units had access to the common area. Defendant had no possessory interest in the exterior wall outside of his apartment and no possessory interest to the dryer vent. Although the dryer vent was used exclusively by the basement apartment, which the defendant inhabited with his mother, the dryer vent was accessible to the landlord, who was responsible for the maintenance of the exterior of the building, and other members of the general public including deliverymen, door-to-door salesmen, etc. Defendant did not have the ability to control or exclude others' use of the property. He had no ability to exclude others from the common property from which the officer reached, had no ability to exclude others from the exterior wall of the building, and had no ability to exclude others from the dryer vent.

Notwithstanding the foregoing, defendant argues that he had a reasonable expectation of privacy in the dryer vent because it led to the inside of his apartment. The fact that the dryer vent leads to the inside of defendant's apartment is outweighed by the more persuasive fact that the dryer vent is accessible to the outside world from the exterior wall of the building.

Defendant lacked a reasonable expectation of privacy as a guest in his girlfriend's apartment. While he had lived there before, he did not at the time of the search. His primary residence was elsewhere, and he seldom spent the night. Commonwealth v. Colon, 449 Mass. 207, 866 N.E.2d 412 (2007).*

Probable cause existed for arrest of the defendant for hand to hand drug deals. They could search a bulge in his sock. State v. O'Neal, 190 N.J. 601, 921 A.2d 1079 (N.J. May 22, 2007).*

Frisk of defendant was justified for safety reasons during execution of a search warrant where he was on the premises because there was reason to believe that the target of the search had lookouts there for him. State v. Marquez, 2007 UT App 170, 163 P.3d 687, 578 Utah Adv. Rep. 3 (2007)*:

[*P12] The record reflects that the officers received information that Gerrish was a fugitive, wanted for possession of controlled substances, that he was "hiding out" in the residence, and that other persons present at the home were acting as "lookouts" for him. Upon entering the house, Officer Wood testified that he did not know whether Marquez was Gerrish, and that he did not know what "the situation was inside the house." These facts, coupled with the inherent danger associated with entering a residence at night, sufficiently establish that "a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry, 392 U.S. 1 at 23, 88 S. Ct. 1868, 20 L. Ed. 2d 889; cf. Summers, 452 U.S. at 702-03 (noting that execution of warrant to search for drugs "may give rise to sudden violence or frantic efforts to conceal or destroy evidence"). Further, information that occupants may be acting as "lookouts" for Gerrish reasonably suggests that any person on the premises during the search might violently interfere with the search or the arrest of Gerrish. Accordingly, we agree with the trial court that the frisk was reasonable for purposes of officer safety and therefore did not violate Marquez's Fourth Amendment rights.

Permalink 05:37:18 am, by fourth, 799 words, 469 views   English (US)
Categories: General

6th Cir. approves of an inventory search of a duffle bag of an injured motorist before its seizure

The Sixth Circuit approves of an inventory search of a duffle bag after defendant had an accident and was there with it. He ran off the road and crawled up the embankment with the duffle bag and a computer bag. A good samaritan stopped and called for help and waited as EMTs and police arrived. The defendant was slipping in and out of consciousness, and he expressed concerned about the duffle bag he had with him, and the police looked in it, finding an unlawful gun and silencers. Against the argument that the police had an investigatory motive, the court followed the Second Circuit and found that not controlling. United States v. Tackett, 486 F.3d 230 (6th Cir. 2007):

Second, Tackett argues that even if the police had an established inventory policy, his asserted privacy interest outweighs the police department's interest in opening the bag. More to the point, he insists that, in general, the police rely post hoc on such policies simply to legitimize their investigatory motives. The Second Circuit's decision in United States v. Markland addressed and rejected a similar claim, and we find its analysis persuasive. 635 F.2d 174 (2d Cir. 1980). In Markland, the court considered an inventory conducted after a driver lost control of his jeep. Id. at 175. When the jeep turned over, objects including a zippered beverage container flew out the windows of the jeep. Id. When a state trooper picked up the container, it felt heavier than he expected, so he opened it and found stolen packages from the driver's employment at the post office. Id. The Second Circuit rejected the driver's argument that police departments should take a "hands-off" approach to private property in order to eliminate their potential liability for lost, stolen, or damaged items. Id. at 176. Instead, the Second Circuit held that police officers' duty to protect citizens' property and prevent crimes justified the practice of inventory searches. Id. Moreover, officers have the right to protect themselves. See id. ("This impersonal package could have contained anything from beer to bullion or a bomb. Its contents might have been perishable, valuable, or dangerous.").

The court did recognize, as we do, that some situations [*8] create a greater expectation of privacy. To take two examples, a repository of personal effects could deserve more privacy than a generic container, or an individual could manifest her privacy expectations with an objective signal. See id. at 177. Neither situation applies here. The large backpack in this case is not akin to a "repository of personal effects," such as a purse.

Tackett contends that in removing the bag from the car and carrying it with him to the truck, he manifested his privacy interest in the bag. But Franks testified that although Tackett removed the bag from his car, he eventually left it on the road, where it could have been damaged, lost, or stolen. Although Tackett may have had a greater privacy expectation for the backpack than for other items in plain sight in his car, he never gave the police any clear signal asserting his privacy.

Comment: Yet he was in and out of consciousness. What do they expect?

Heck barred plaintiff's claim because, despite his conduct the claim applied only to acquitted conduct, that was not true because it also applied to counts he was convicted of. Baxter v. Crawford, 233 Fed. Appx. 912 (11th Cir. 2007)* (unpublished).

Defendant answered knock at the door and it was a police officer he'd dealt with before. He stepped back and essentially offered entry. That was consent to enter. The court also found the consent after the entry was valid. United States v. Rutherford, 2007 U.S. Dist. LEXIS 36903 (E.D. Mo. May 21, 2007):

Addressing first the entry itself, the Court finds both that Defendant voluntarily consented to Det. Van Mierlo's entry into the apartment, and that in any event she reasonably understood Defendant to be providing consent to enter. There was no show of force by Det. Van Mierlo. She simply knocked on the door during the daylight hours and Defendant, who knew her from their prior interaction, stood back from the door and permitted her to enter. On these facts, it was also reasonable for Det. Van Mierlo to understand that Defendant was allowing her to enter. See, e.g., United States v. Carter, 378 F.3d 584, 588 (6th Cir. 2004) (holding officers reasonably understood they had consent to enter where defendant, after being asked if they could enter, moved away from the door and backed up), cert. denied, 543 U.S. 1155 (2005); United States v. Ramirez-Chilel, 289 F.3d 744, 748, 752 (finding officers properly interpreted actions as consent to enter where defendant opened door and stepped aside, even though search occurred at midnight); accord United States v. Hampton, 260 F.3d 832, 833, 835 (8th Cir. 2001) (consent to enter found where defendant told police his identification was inside and held door open to admit them).

05/22/07

Permalink 07:55:51 am, by fourth, 780 words, 599 views   English (US)
Categories: General

Officers are not obliged to trust defendant's statement that everybody inside was out, and a protective sweep was permissible

Defendant was arrested outside, and he told the officers that all the people inside were outside. The officers were not obliged to take the defendant's word that everybody was out, and they could do a protective sweep. State v. Quartman, 2007 Ohio 329, 2007 Ohio App. LEXIS 2267 (2d Dist. January 26, 2007):

[*P35] With respect to the issue of exigent circumstances, we agree with the trial court that the evidence in the record, which it cited, supports a finding of exigent circumstances, justifying a protective sweep of the house. Although Smith testified that it was his understanding, "based on what Mr. Quartman is telling me," that the only occupants of the residence had exited, and that it was then vacant, the police could reasonably distrust the information they received from Quartman. Quartman had not been especially cooperative with the police, given that it took an hour before he deigned to communicate with them.

[*P36] Given the fact that Quartman was charged with a violent act involving a firearm, for which a magistrate had found probable cause, his reluctance to even talk to the police who came to arrest him, and the 2002 incident in which police officers came to his residence and a shot was fired from the inside of the house through the door, we conclude that the police had sufficient grounds to be concerned that one or more individuals might remain inside the house, armed, and with hostile intent. This justified a protective sweep of the house. Maryland v. Buie (1990), 494 U.S. 325, 110 S. Ct. 1093, 108 L. Ed. 2d 276.

Officers were in the defendant's driveway to talk to him, and they took him to the stationhouse. An officer stayed behind to look in the yard over a solid fence with a flashlight, and he saw a headband that had evidentiary value, which he seized. The court finds that the first and third prong of the plain view exception were met, despite the fact that he was looking over a solid fence but from the driveway. The second prong, however, was the subject of questions from defense counsel that received unresponsive answers. The case was remanded for a further determination of the officers' purpose that remains unexplained. State v. Lane, 393 N.J. Super. 132, 922 A.2d 828 (2007):

There is no dispute, however, that the headband was located within an enclosure immediately adjacent to the home. The record does not reveal the nature of the uses to which this area was put, but the record gives no reason to doubt that the owner's use of this area -- as demonstrated by the encircling impervious wooden fence -- was intended to be kept private from observations by passersby. In short, the record permits no dispute about the fact that the area in which the headband was found was within the curtilage and subject to the protection of the Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution.

That the item seized is found within the curtilage, however, does not foreclose the applicability of the plain view exception. The curtilage may include certain "semi-private areas," where visitors would be expected to go, such as walkways, driveways and porches. State v. Johnson, supra, 171 N.J. at 209, 793 A.2d 619 (quoting LaFave, supra, § 2.3(f)). "Observations made from such vantage points are not covered by the Fourth Amendment." Ibid. Accordingly, the seizure of an item seen within the curtilage is not invalid if the officer had a right to be at his vantage point, such as a semi-private area or on the street.

The trial judge found credible the testimony of Detective Braconi that, while standing on the driveway near an open gate in the fence surrounding the backyard, he saw with the aid of a flashlight, a headband in plain view. Bound by the finding that the officer was standing on the driveway at this time, State v. Locurto, 157 N.J. 463, 470-71, 724 A.2d 234 (1999), we are required to conclude that the officer was in a "semi-private area" where a visitor might be expected to go and what he may have seen in plain view from that vantage point, even with the aid of a flashlight, would not preclude a finding that the first prong of the plain view exception was met.

Officer chasing a motorcycle killed the motorcyclist in a collision. While there was evidence of prior bad blood between the officer and the deceased, that was at best speculation that the officer intentionally killed the deceased. Steen v. Myers, 486 F.3d 1017 (7th Cir. 2007).*

Officers had qualified immunity for arresting the plaintiff because there was ample probable cause from the alleged victim's statements and picking plaintiff out of a photo array. Brock v. City of Zephyrhills, 232 Fed. Appx. 925 (11th Cir. 2007)* (unpublished).

Permalink 05:39:19 am, by fourth, 1331 words, 788 views   English (US)
Categories: General

SCOTUS decides that police searching the wrong house had qualified immunity (decided on the cert papers without argument)

In Los Angeles County v. Rattelle, 2007 U.S. LEXIS 5900 (May 21, 2007), decided on the cert papers alone, the Supreme Court held that officers searching the wrong house with a search warrant had qualified immunity from suit, even though they had reason to believe, as soon as they were inside, they likely were in the wrong house. "Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost."

The officers had a search warrant from a prior drug deal, and they knew one suspect had a gun. When the search warrant was obtained and executed four months later, it turned out that the prior occupants had moved and new tenants were there. The officers entered and immediately noticed that the occupants were a different race than the persons being sought. Nevertheless, the occupants were ordered out of bed long enough for the police to search to be sure there was no gun, and they apparently, within 2-4 minutes, told the occupants to get dressed.

The Ninth Circuit held, 186 Fed. App. 765 (9th Cir. 2006), posted here, that the officers were not entitled to qualified immunity because it was readily apparent they were in the wrong place, and ordering the occupants out of bed was unreasonable.

The Supreme Court reversed and held that the officers acted reasonably under the circumstances, including ordering the occupants out of bed and searching it, and they were entitled to qualified immunity. [Notably, the plaintiffs did not challenge the validity of the warrant for staleness since the persons sought had moved four months before the search.]

There is no syllabus, being a per curiam [Souter would deny cert, and Ginsburg and Stevens concurred in the decision].

In Michigan v. Summers, 452 U.S. 692 (1981), this Court held that officers executing a search warrant for contraband may "detain the occupants of the premises while a proper search is conducted." Id., at 705. In weighing whether the search in Summers was reasonable the Court first found that "detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant." Id., at 703. Against that interest, it balanced "preventing flight in the event that incriminating evidence is found"; "minimizing the risk of harm to the officers"; and facilitating "the orderly completion of the search." Id., at 702-703; see Muehler v. Mena, 544 U.S. 93 (2005).

In executing a search warrant officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search. Id., at 98-100; see also id., at 103 (KENNEDY, J., concurring); Summers, supra, at 704-705. The test of reasonableness under the Fourth Amendment is an objective one. Graham v. Connor, 490 U.S. 386, 397 (1989) (addressing the reasonableness of a seizure of the person). Unreasonable actions include the use of excessive force or restraints that cause unnecessary pain or are imposed for a prolonged and unnecessary period of time. Mena, supra, at 100; Graham, supra, at 396-399.

The orders by the police to the occupants, in the context of this lawful search, were permissible, and perhaps necessary, to protect the safety of the deputies. Blankets and bedding can conceal a weapon, and one of the suspects was known to own a firearm, factors which underscore this point. The Constitution does not require an officer to ignore the possibility that an armed suspect may sleep with a weapon within reach. The reports are replete with accounts of suspects sleeping close to weapons. See United States v. Enslin, 327 F.3d 788, 791 (CA9 2003) ("When [the suspect] put his hands in the air and began to sit up, his movement shifted the covers and the marshals could see a gun in the bed next to him"); see also United States v. Jones, 336 F.3d 245, 248 (CA3 2003) (suspect kept a 9-millimeter Luger under his pillow while he slept); United States v. Hightower, 96 F.3d 211 (CA7 1996) (suspect kept a loaded five-shot handgun under his pillow); State v. Willis, 36,759-KA, p. 3 (La. App. 4/9/03), 843 So. 2d 592, 595 (officers "pulled back the bed covers and found a .38 caliber Model 10 Smith and Wesson revolver located near where defendant's left hand had been"); State v. Kypreos, 115 Wn. App. 207, 61 P. 3d 352 (2002) (suspect kept a handgun in the bed).

The deputies needed a moment to secure the room and ensure that other persons were not close by or did not present a danger. Deputies were not required to turn their backs to allow Rettele and Sadler to retrieve clothing or to cover themselves with the sheets. Rather, "the risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation." Summers, 452 U.S., at 702-703.

This is not to say, of course, that the deputies were free to force Rettele and Sadler to remain motionless and standing for any longer than necessary. We have recognized that "special circumstances, or possibly a prolonged detention" might render a search unreasonable. See id., at 705, n. 21. There is no accusation that the detention here was prolonged. The deputies left the home less than 15 minutes after arriving. The detention was shorter and less restrictive than the 2- to 3-hour handcuff detention upheld in Mena. See 544 U.S., at 100. And there is no allegation that the deputies prevented Sadler and Rettele from dressing longer than necessary to protect their safety. Sadler was unclothed for no more than two minutes, and Rettele for only slightly more time than that. Sadler testified that once the police were satisfied that no immediate threat was presented, "they wanted us to get dressed and they were pressing us really fast to hurry up and get some clothes on." Deposition of Judy Lorraine Sadler in No. CV-0206262-RSWL (RNBX) (CD Cal., June 10, 2003), Doc. 26, Exh. 4, p. 55.

The Fourth Amendment allows warrants to issue on probable cause, a standard well short of absolute certainty. Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost. Officers executing search warrants on occasion enter a house when residents are engaged in private activity; and the resulting frustration, embarrassment, and humiliation may be real, as was true here. When officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the Fourth Amendment is not violated.

As respondents' constitutional rights were not violated, "there is no necessity for further inquiries concerning qualified immunity." Saucier v. Katz, 533 U.S. 194, 201 (2001). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

The briefs are not available online, at least not yet, because this case was decided on the cert papers, without full briefing.

The LA Times article is here, and an excellent editorial piece entitled "Naked Truth" is here:

AS RESIDENTS OF the Los Angeles area don't have to be told, law enforcement officers sometimes misbehave in ways that violate individual rights and call for severe sanctions. But a ruling Monday by the U.S. Supreme Court is a reminder that it's unwise to make a federal case out of every misstep by the police.

Dec. 19, 2001, was a bad day for Max Rettele and Judy Sadler. They were in bed in their Lancaster home — and not wearing pajamas — early that morning when L.A. County sheriff's deputies arrived with drawn guns and a search warrant. The deputies ordered the couple to get out of bed and show their hands, and at first wouldn't allow them to cover their nakedness.

A few minutes later, the deputies were apologizing to the now-clothed couple. Although the address on the warrant matched the couple's residence, the targets of the search — three suspected identity thieves — had moved out before Rettele and Sadler had moved in. Also, the suspects were African Americans; Rettele and Sadler are white.

The post on the Volokh Conspiracy blog is here.

At least the officers apologized before leaving. I've read cases where it was alleged that the officers did not even apologize for breaking down the door to the wrong house in the middle of the night.

05/21/07

Permalink 05:59:46 am, by fourth, 163 words, 429 views   English (US)
Categories: General

Wife consented to search just after getting order of protection

Defendant's wife validly consented to search of her home for husband's firearms just after she obtained an order of protection. He was a felon in possession, and he was convicted of being an armed career criminal. After the trial and not making a motion to suppress, he raised the issue on appeal with what he had over the issue of whether he was in "possession" of the firearms. The wife's consent was valid. United States v. Shipp, 233 Fed. Appx. 847 (10th Cir. 2007)* (unpublished).

Comment: I have read literally hundreds of cases where a female partner suffers physical or verbal abuse at the hands of the defendant, and she calls the police and consents to a search. Then, the search reveals weapons (and he's felon in possession), drugs, or other evidence of crime in plain view. Sometimes, the defendant commits a crime against the police. The stupidity of the average criminal never ceases to amaze me. The entire criminal justice system survives off this staple.

05/20/07

Permalink 10:40:17 am, by fourth, 352 words, 1610 views   English (US)
Categories: General

10th Cir. melds probable cause into good faith exception, yet again

The Tenth Circuit melds probable cause and the good faith exception, essentially determining them together. After determining that the informant was reasonably corroborated and that probable cause is such a fluid concept dealing with mere probabilities, the court finds that the good faith exception applied. United States v. Bedolla, 2007 U.S. App. LEXIS 11733 (10th Cir. May 16, 2007)* (unpublished):

Although defendant does not directly challenge the district court's good-faith determination, his arguments attacking the reliability of the informant implicate the third exception recognized in Leon. We conclude, however, that SA Carroll's affidavit was not so lacking in indicia of probable cause as to convince a reasonably well-trained officer that the search was illegal. See Danhauer, 229 F.3d at 1007. We have previously explained that "the absence of information establishing the informant's reliability or basis of knowledge does not necessarily preclude an officer from manifesting a reasonable belief that the warrant was properly issued, particularly when the officer takes steps to investigate the informant's allegation." Id. (citation omitted). Furthermore, an officer is not required to corroborate information provided by an informant through personal observation. See United States v. Mathis, 357 F.3d 1200, 1204 (10th Cir. 2004). It is enough if the officer simply has "knowledge of other matters that reasonably corroborate the informant's statements." Id. Finally, we have held that good faith can be established so long as a minimal nexus exists between the place to be searched and the suspected criminal activity. See United States v. Gonzales, 399 F.3d 1225, 1231 (10th Cir. 2005).

Plaintiff survived summary judgment on excessive force claim during execution of a search warrant. He claimed that he was kicked and beaten with a flashlight while handcuffed. "Yet, the reasonableness of law enforcement using their hands or feet to keep the Defendant's head down during execution of the search warrant turns, at least in part, on how much force was used. Given the conflicting version of events, a jury could determine that the degree of force officers used was excessive in relation to the danger the Plaintiff posed laying handcuffed on the ground." Cooper v. City of Fort Wayne, 2007 U.S. Dist. LEXIS 36301 (N.D. Ind. May 15, 2007).*

05/19/07

Permalink 03:50:57 pm, by fourth, 411 words, 631 views   English (US)
Categories: General

Strip search at jail was without justification and suppressed

A strip search at the jail that produced packages of cocaine from defendant's buttocks crack was invalid because the officers could not articulate their justification for that search. King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391 (2007):

Further, unlike Craddock, no evidence exists in this record to establish what led deputies to conduct the intrusive search at issue in this case. The Commonwealth argues that information in the probation violation report attached to the capias established that King was a person with a known history of drug abuse. Even if we were to assume that a defendant's prior conviction of a drug offense was alone sufficient justification for a body cavity search, there is no evidence that the deputies who conducted the search had knowledge of the contents of the probation violation report. When the deputies searched King, the only information contained in the record regarding King and potential drug activity known by them was that King was seen leaving a house where two previous drug arrests had been made. This is hardly the "clear indication" that evidence was concealed in King's body that is required for a body cavity search. See Hughes, 31 Va. App. at 460, 524 S.E.2d at 162 (holding that an informant's tip that defendant was dealing drugs and kept them hidden in his underwear was insufficient to establish a clear indication that drugs were concealed in a body cavity).

Moreover, the record is devoid of any evidence of required exigent circumstances, such as "imminent medical harm to [King], or secretion of a weapon ...." Moss v. Commonwealth, 30 Va. App. 219, 226, 516 S.E.2d 246, 250 (1999). Therefore, the Commonwealth has failed to demonstrate any "special justification" for the search conducted in this case.

In summary, the search of King was undertaken without the authorization of a search warrant. It was, therefore, presumptively unreasonable, and the Commonwealth assumed the burden of establishing otherwise. From the record before us, we conclude that the Commonwealth failed to establish the facts that we have previously held are a necessary predicate to a warrantless visual body cavity search.

Defense counsel filed an Anders brief, and defendant raised suppression issue himself. The court found the search valid as a search incident or automobile exception because of probable cause to arrest. State v. Harrison, 2007 Ohio 2421, 2007 Ohio App. LEXIS 2237 (2d Dist. May 18, 2007).*

Defendant was not a guest, and he "had no standing to challenge the search of a house he neither resided in nor owned." Dora v. State, 2007 Miss. App. LEXIS 331 (May 15, 2007).*

Permalink 03:46:30 pm, by fourth, 886 words, 759 views   English (US)
Categories: General

LA: Subpoena for DNA was valid because it was initially passed on by a judge

In a case of first impression in the state, the state sought a subpoena duces tecum for a DNA sample, and it was approved by a judge. That made it valid. State v. Lee, 964 So. 2d 967 (La. App. 1st Cir. 2007):

Because the validity of the use of an LSA-C.Cr.P. art. 66 subpoena duces tecum to acquire a DNA sample appears to be a case of first impression in Louisiana, we adopt the rationale set forth in In re Shabazz, 200 F.Supp.2d 578, 581 (D.S.C. 2002). Although Shabazz involved a subpoena duces tecum issued by a grand jury, we find the reasoning employed by that court in finding the subpoena a valid means of obtaining a saliva sample equally applicable to an LSA-C.Cr.P. art. 66 subpoena duces tecum authorized by a trial court judge. In both instances an intervening authority (either a grand jury or a trial judge) passes on the reasonableness of the individualized suspicion that the subject of the subpoena has been involved in the alleged crime, thereby reducing the possibility of prosecutorial abuse.

The obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels--the "seizure" of the "person" necessary to bring him into contact with government agents and the subsequent search for and seizure of the evidence. It is well-established that "a physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable." In re Shabazz, 200 F. Supp. 2d at 581, citing Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989) (drug and alcohol testing of railroad employees), Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood test for alcohol), and Winston v. Lee, 470 U.S. 753, 760-61, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985) (order to compel surgical operation to remove a bullet). However, what a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection; accordingly, subpoenas compelling voice samples, handwriting samples, fingerprints, and hair samples are not "searches" and therefore do not implicate the Fourth Amendment. [citations omitted]

Nevertheless, as pointed out by the Shabazz court, the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. Thus, under certain circumstances, searches and seizures may be permissible under the Fourth Amendment "based on suspicions that, although 'reasonable,' do not rise to the level of probable cause." In re Shabazz, 200 F.Supp.2d at 583, citing New Jersey v. T.L.O, 469 U.S. 325, 341, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985), and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Shabazz court reasoned that probable cause need not be a prerequisite for the issuance of a grand jury subpoena ordering a DNA saliva test because the very purpose of requesting the information is to ascertain whether probable cause exists.

The Shabazz court concluded that the privacy concerns that led the Supreme Court to require probable cause in other cases are not as pronounced with a saliva swab because it is not as intrusive as a blood test or a surgical bullet-removal procedure. Although the saliva swab involves a slight invasion of a person's bodily integrity, it is not a "surgical procedure" and therefore does not fall within Schmerber's threshold requirement of probable cause, so no showing of probable cause is needed before the issuance of a subpoena duces tecum requiring a saliva sample. In re Shabazz, 200 F.Supp.2d at 584.

Nexus for search of defendant's house was shown for the drugs he had been selling, and this is established by normal inferences that judges draw. Commonwealth v. Luthy, 69 Mass. App. Ct. 102, 866 N.E.2d 930 (2007):

A magistrate may draw "'normal inferences as to where a criminal would be likely to hide' the drugs he sells." Id. at 302, quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213, 449 N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S. Ct. 186, 78 L. Ed. 2d 165 (1983). "An inference drawn from circumstantial evidence 'need only be reasonable and possible; it need not be necessary or inescapable.'" Commonwealth v. Gilbert, 423 Mass. 863, 868, 673 N.E.2d 46 (1996), quoting from Commonwealth v. Beckett, 373 Mass. 329, 341, 366 N.E.2d 1252 (1977). See Smith, Criminal Practice & Procedure § 179 (2d ed. 1983 & Supp. 2006).

. . .

These inferences were reinforced by evidence indicating that after Luthy left his residence, he entered his vehicle, drove away, and soon thereafter arrived at the location appointed for the second controlled buy. Although there may have been some ambiguity in the affidavit as to whether Luthy drove directly from his residence to the buy location, it was reasonable for the magistrate to infer that Luthy likely took drugs from a cache stored in his residence and then proceeded directly to his destination.

Request for consent to search a car within first minute of a traffic stop for window tinting was valid. State v. Watts, 2007 Ohio 2411, 2007 Ohio App. LEXIS 2231 (2d Dist. May 18, 2007)*:

The mere fact that Defendant was detained by police pending issuance of a traffic citation, standing alone, does not render Defendant incapable of voluntarily giving consent for the search. [¶] Because Defendant's consent to search his vehicle was obtained during his lawful detention for a traffic violation, and Defendant had voluntarily consented to that search, his Fourth Amendment rights were not violated. Therefore, the trial court erred in suppressing the evidence discovered in the course of that search.

Permalink 03:11:14 pm, by fourth, 431 words, 659 views   English (US)
Categories: General

No expectation of privacy in a cellphone left at a crime scene

Defendant did not have an expectation of privacy in a cellphone left at a crime scene that was in another's name. Alternatively, it was abandoned at the crime scene. United States v. Hanner, 2007 U.S. Dist. LEXIS 36296 (W.D. Pa. May 14, 2007):

From the unrebutted evidence presented during the suppression hearing, the following has been established by a preponderance of the evidence:

. Cricket cellular telephone 412-628-5290 was found by the police in the alleyway adjacent to the house and crime scene where Frank Helisek, Jr., had been shot on the night of January 19, 2004;

. The telephone subscriber records for Cricket cellular telephone 412-628-5290 reflect Derrick Maurer as the subscriber;

. The telephone subscriber records do not list Defendant Hanner as an authorized user of the subject telephone;

. The listed subscriber, Derrick Maurer, did not purchase this particular cellular telephone;

. The listed subscriber, Derrick Maurer, never gave permission or authorized Defendant Hanner to possess or use Cricket cellular telephone 412-628-5290;

. Periodically, Dena Berardi and/or Paul Cimino would contact Defendant Hanner at cellular telephone 412-628-5290; and

. With the exception of Khaliah Solomon, no one other than Defendant Hanner would answer cellular telephone 412-628-5290.

What remains unknown and without evidentiary support, however, is how Defendant Hanner came to be in possession of Cricket cellular telephone 412-628-5290 and/or whether Defendant Hanner was an authorized user of the phone.

. . .

Without any substantively meaningful evidence to support Defendant Hanner's argument that he had a subjective expectation of privacy, one which society is prepared to recognize as "reasonable," the Court finds that Defendant Hanner has not carried his burden to establish that he had a legitimate reasonable expectation of privacy in the Cricket cellular telephone 412-628-5290 and thus, he is foreclosed from challenging the warrantless search of the Cricket cellular telephone.

B. Abandonment

Assuming, arguendo, however, that Defendant Hanner has proven by a preponderance of the evidence that he had a legitimate reasonable expectation of privacy in the subject Cricket cellular telephone, his motion to suppress would still be denied. The police recovered the subject cellular telephone after Defendant Hanner voluntarily abandoned it; thus, Defendant Hanner relinquished any legitimate expectation of privacy that he may have had.

Excessive force in a jail on a pretrial detainee is governed by the Fourteenth Amendment, not the Fourth Amendment. Jenkins v. City of Clanton, 2007 U.S. Dist. LEXIS 36016 (M.D. Ala. March 7, 2007).*

Curfew stop resulted in defendant turning away and walking away from the police officer. The officer stopped him and frisked him, and the defendant spontaneously made admissions and drugs were found. The stop and frisk was legal. State v. A.L., 2007 Fla. App. LEXIS 7578 (2d Dist. May 18, 2007).*

Permalink 02:46:42 pm, by fourth, 400 words, 648 views   English (US)
Categories: General

Exigent circumstances were not present, and a briefcase and computer's evidentiary value was not "immediately apparent"

The police made an exigent circumstances based entry which the Magistrate found wanting, and, even if there was some exigency, the police overstayed the need for any entry. While inside, they saw a computer which they seized after re-entering. The District Judge affirmed the suppression order. United States v. Sikut, 488 F. Supp. 2d 291 (W.D. N.Y. 2007):

Even if the Court were to assume arguendo that exigent circumstances were present making the officers' initial entry into the apartment legal and that the officers' arrest of the defendant based on both his harassing conduct towards them and his outstanding warrants was proper, suppression would still be required because there was no legal justification for the officers to re-enter the apartment after the arrest for the purpose of conducting a warrantless search of defendant's brief case, computer case or computer. At that point, any exigency had dissipated. The defendant had been arrested and removed from the apartment. If the officers then had probable cause to believe there was evidence of a crime remaining in the apartment, they should have made an application for a search warrant. Having failed to do so, they violated defendant's Fourth Amendment right against unreasonable search and seizure, the remedy for which is suppression.

First time confidential informant provided sufficient information that was corroborated to create a fair probability that evidence would be found in the place to be searched. United States v. Montes-Medina, 2007 U.S. Dist. LEXIS 36105 (D. Neb. May 16, 2007).*

Entry onto land was supported by reasonable suspicion developed during surveillance, and defendant consented after that. United States v. Del Val, 223 Fed. Appx. 963 (11th Cir. 2007)* (unpublished).

Plaintiff showed a sufficient fact dispute that the officer used excessive force in striking her decedent with a blunt object while he was unarmed and being attacked by a trained police dog. Taylor v. Dean, 2007 U.S. Dist. LEXIS 36089 (M.D. Fla. May 17, 2007).*

In a case where the plaintiff was able to keep one defendant in the case because of false arrest, the county was able to get out because the plaintiff failed to show a policy led to the incarceration. Wolk v. Seminole County, 2007 U.S. Dist. LEXIS 36203 (M.D. Fla. May 17, 2007).*

Reliance on an ADA who said that the use of a drug dog on money that ended up being seized was objectively reasonable and gave qualified immunity. Leventry v. Watts, 2007 U.S. Dist. LEXIS 36256 (W.D. Pa. May 17, 2007).*

Permalink 11:54:01 am, by fourth, 420 words, 588 views   English (US)
Categories: General

"Darkness alone is not sufficient to justify a pat down search."

The defendant's patdown at night was without reasonable suspicion. The officer could articulate nothing except that stop was at night. United States v. Scott, 2007 U.S. Dist. LEXIS 35608 (W.D. Va. April 27, 2007):

Ranger Buxton has not articulated any facts which the court can find lead to a reasonable suspicion that Scott was armed and dangerous or that the car contained narcotics, before he executed the search. Darkness alone is not sufficient to justify a pat down search. Additionally, the court can conceive of many reasons why a passenger may remain quiet during a lawful traffic stop which are not indicative of criminal activity.

A question on the street quickly ripened into reasonable suspicion by the defendant's actions. State v. Parnell, 960 So. 2d 1091 (La. App. 5th Cir. 2007)*:

When Deputy Williams first stopped, he just wanted to ask the Defendant some questions. However, we find that what started as a hunch ripened into reasonable suspicion for an investigatory stop and a Terry pat down, with the smell of marijuana, the startled look, and the immediate insertion of his hand in his pocket with a clenched fist and his refusal to remove it after numerous requests, along with his backing up the driveway and pronouncement that he could not be questioned because he was in his yard. As Deputy Lehrmann approached and the Defendant turned, changing his angle, Deputy Williams saw the outline of the top strap and front site of a .38 caliber revolver through the Defendant's pants. He immediately restrained the Defendant, having cause to conduct a Terry pat down search for weapons for the protection of himself and others, as well as probable cause for arrest.

Officer was following plaintiff on a scooter, and the plaintiff ran off the road on his own and there was no pursuit. The officer had reason to believe that the defendant was a felon in possession of a firearm, and that justified his detention until the officer located a gun in the grass. Ray v. Pauley, 2007 U.S. Dist. LEXIS 35546 (N.D. Ind. May 14, 2007).*

Defendant's arrest was without probable cause, and his statement thereafter was not attenuated from the arrest, and it was suppressed. State v. Gooden, 2007 Ohio 2371, 2007 Ohio App. LEXIS 2210 (8th Cir. May 17, 2007).*

Officers had probable cause to stop the defendant, a known drug dealer, when he showed up for a drug deal. The fact the entire drug "stash" was not found on him permitted them to search the vehicle to look for the "stash." Curry v. State, 228 S.W.3d 292 (Tex. App. — Waco 2007).*

Permalink 11:09:21 am, by fourth, 633 words, 645 views   English (US)
Categories: General

§ 1983 claim for SWAT raid on wrong house overcame summary judgment: reasonableness needed to be decided

Police SWAT drug raid on wrong house first and handcuffing occupants stated a claim for relief and overcame summary judgment claim because reasonableness was partially a question of fact. Smith v. City of Jacksonville, 2007 U.S. Dist. LEXIS 35640 (E.D. Ark. May 15, 2007):

The Eighth Circuit Court of Appeals has cautioned in a case involving the mistaken execution of a valid warrant on the wrong premises, "the Fourth Amendment's allowance for officers' honest mistakes is limited to mistakes that are objectively reasonable." Dawkins v. Graham, 50 F.3d 532, 534 (8th Cir. 1995) citing, Maryland v. Garrison, 480 U.S. 79, 87 & n. 11, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987). In Dawkins, the Court concluded that "the execution of a valid warrant on the wrong premises violates the Fourth Amendment if the officers should know the premises searched are not the premises described in the warrant, i.e., the officers' mistake is not objectively reasonable." Id.

The Court finds that a question of fact exists as to whether the officers' mistake was objectively reasonable in this case. Officers Slash, Erickson, Keefer and Corben entered Plaintiffs' home after a briefing in which the target home at 104 Overland was described. As set forth above, the residence at 104 and 108 were distinctly different. Further, Plaintiffs present evidence that as the officers approached the residence other officers recognized the mistake and yelled out "wrong house." Detective Hibbs also entered Plaintiffs' home after his participation in the detention of Brian Smith and Todd Conley. Hibbs wrote in his statement that he "noticed the house had a carport, not supposed to" and still walked in. Officers Lett and Chapman did not enter Plaintiffs' home, but Plaintiffs argue that their conduct in recognizing that the other officers were entering the wrong home, yet not stopping or warning them, caused the Plaintiffs to be subjected to a violation of their constitutional rights. The Court finds that questions of fact exist as to whether Lett and Chapman violated Plaintiffs' constitutional rights by their failure to intervene. Considering the evidence in the light most favorable to the Plaintiffs, the Court concludes that the Plaintiffs have presented sufficient evidence to create a genuine issue of material fact as to their unreasonable search claims.

ICE officers stopped car with a boat on a trailer in Northwest Washington with reasonable suspicion that the boat had crossed the border without having checked in, and that justified their stop. The basic questions added to reasonable suspicion. United States v. Wong, 2007 U.S. Dist. LEXIS 35839 (W.D. Wash. May 16, 2007)*:

The boat's driver, Defendant Ho, did not enter the United States at the port of entry at Port Angeles, but instead made entry at the Freshwater Bay Marina without making the required contact with immigration officials prior to landing in the United States. The earlier surveillance of the defendants as described at the suppression hearing, the defendants' entry into the United States without reporting at an area other than a port of entry, the defendants' conflicting stories about what they were doing, together with the experience of the agents involved is sufficient to conclude that under the totality of the circumstances, the agents had a reasonable suspicion of criminal activity sufficient to conduct a border search.

Officers’ arrest of the plaintiff was with probable cause, although he was not the bank robber they were looking for, and that defeats his claim for summary judgment. Godette v. Stanley, 490 F. Supp. 2d 72 (D. Mass. 2007).*

Officers’ having a list of items to be seized which came from the warrant satisfied reasonableness of the warrant. They also made an inventory for defendant. United States v. Makki, 2007 U.S. Dist. LEXIS 35678 (E.D. Mich. May 16, 2007).*

NYPD officers had reasonable suspicion for drug stop after surveillance in Queens, and that gives them qualified immunity. Sutton v. Duguid, 2007 U.S. Dist. LEXIS 35853 (E.D. N.Y. May 16, 2007).*

05/18/07

Permalink 08:14:17 am, by fourth, 498 words, 642 views   English (US)
Categories: General

Spitting on the sidewalk is an abandonment of DNA / Man who was mistaken for another and handcuffed and then released when mistake was discovered could consent to search

(More to come later; I'm doing a CLE today, and I have to prepare.)

After police were unable to get DNA from a suspect to tie him to a rape of their mentally challenged daughter, the victim's family hired a PI who followed the suspect for months. Finally, he saw him spit on the sidewalk, and he gathered the evidence and it was tested by the police linking the defendant to the crime. Spitting on a public street and making no effort to protect the sample from collection by others is an abandonment. Commonwealth v. Cabral, 69 Mass. App. Ct. 68, 866 N.E.2d 429 (2007).

Officers were looking for three Romanians, and two they knew for sure and the third they believe was one of them. After the arrest, they discovered their mistake of identity and released the third man. He was shortly asked for consent, and it was validly granted. The erroneous arrest and then release did not taint the consent under Hill v. California. Borta v. State, 957 So. 2d 1262 (Fla. App. 4th Dist. 2007):

Borta later moved to suppress all the evidence, claiming that all of it resulted from the initial seizure and handcuffing. The trial court denied the motion, holding that the initial handcuffing was a good faith mistake, that Borta had then been released from that seizure, and that his later consents to search were both valid. We agree.

In Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971), the Supreme Court held that when police have a warrant to arrest one person but mistakenly arrest another, the arrest is valid if the mistake was reasonable. Subjective good faith alone is not enough; the mistake would be reasonable if the surrounding facts and context made the identification of the suspect sufficiently probable. 401 U.S. at 804. Later the Court held that the reasonableness of the arrest depends on the totality of circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989).

The trial judge's factual finding is supported by substantial competent evidence. The agents already had probable cause to arrest Panaipescu and Cerna. They had seen the man they believed was Panaipescu with another known suspect whom they recognized as part of the scheme and who lived in the same complex. They knew the three suspects had all been together in the same apartment, seeing the two leave. Under the circumstances the trial judge could determine that the identification of the third man, Panaipescu, was sufficiently probable. Their mistake was therefore reasonable under the circumstances.

Lack of visibility of back tag on car was cause for stop, and it did not dissipate when the officer walked right up to it (distinguishing cases), because of the excessive tint making the interior of the car invisible to him. United States v. Jackman, 2007 U.S. Dist. LEXIS 35231 (D. Utah May 14, 2007).*

Informants were classic citizen informants who were witnesses to crime, and they are entitled to more credibility as a result. Castella v. State, 2007 Fla. App. LEXIS 7480 (4th Dist. May 16, 2007).*

05/17/07

Permalink 08:07:39 am, by fourth, 565 words, 4969 views   English (US)
Categories: General

Federal conditional plea was not preserved by a passing reference in the PSR where plea agreement and record were silent

The Fifth Circuit rejects an appeal of denial of a suppression motion because the attempted conditional plea was not sufficiently reserved and presented to the court. A passing reference in the PSR is not enough, and the plea agreement was silent. United States v. Stevens, 487 F.3d 232 (5th Cir. 2007).

The affidavit for the search warrant in a child porn case was sufficient in its conclusion that child porn would be kept in the home. United States v. Watzman, 486 F.3d 1004 (7th Cir. 2007):

So we must determine whether the affidavit sworn on October 24, when purged of these facts, still contained sufficient information to establish probable cause. Watzman argues that it did not, primarily because the officers' observations on October 22 were the only evidence that his apartment had a working computer and Internet connection, and without that information the affidavit "failed to establish that any illegal activity could be found" in his home. The district court improperly assumed, he argues, that "pornography necessarily is viewed in the privacy of one's own home." Watzman submits that it is "equally likely" that one might download child pornography in "innumerable places, such as offices, public and private libraries, universities and airports."

Watzman's argument is meritless. First, probable cause is not certainty; it requires "only a probability or substantial chance that evidence may be found." Sidwell, 440 F.3d at 869. Thus, Watzman's assertion that alternative inferences might have been drawn about where child pornography might be stored is unavailing. Moreover, a finding of probable cause "does not require direct evidence linking a crime to a particular place." Anderson, 450 F.3d at 303. Reasonable inferences are permitted. Id.; United States v. Angle, 234 F.3d 326, 335 (7th Cir. 2000). In his affidavit Agent Wolflick explained in great detail his experience with consumers of child pornography and specifically averred that these individuals tend to hoard collections at home. The district court's reliance on these expert representations is not an "assumption"; the court was entitled to rely on Agent Wolflick's expertise to conclude that there was a fair probability that child pornography would be found in Watzman's home. See United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998) (citing "expert information" in affidavit that "pornographers tend to maintain their collections of material for long periods, usually at home"); United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (holding that affidavit provided "ample reason" to believe items sought [*9] were in defendant's apartment, where affiant stated that "collectors and distributors of child pornography value their sexually explicit materials highly, 'rarely if ever' dispose of such material, and store it 'for long periods' in a secure place, typically in their homes").

Police received a 911 call of a domestic disturbance and a "beating" in progress. At the scene, the caller said that she changed her mind and everything was fine. There was no indication of injury. Nevertheless, the officers entered the house to talk to the defendant, and he allegedly went for a knife and they tazered him. The entry was invalid. State v. Delong, 2007 Ohio 2330, 2007 Ohio App. LEXIS 2170 (4th Dist. May 11, 2007).

A search warrant was issued for specific property, none of which was contraband or a firearm, and the officers seized ammunition because the defendant was under an order of protection and it was illegal to possess ammunition. The ammunition was in plain view despite being outside the particularity of the warrant. United States v. Dunbar, 2007 U.S. Dist. LEXIS 35473 (W.D. Pa. May 15, 2007).*

Permalink 07:34:15 am, by fourth, 682 words, 737 views   English (US)
Categories: General

Use of fictitious name to ship a package is not an abandonment or waiver of expectation of privacy

The defendant used fictitious names to ship packages, this one a teddy bear full of drugs. The shipping store was suspicious, and they called the police. The police came, took the box away, and searched it without a warrant. The trial court suppressed, and the court of appeals affirmed. The use of a fictitious name is not abandonment when the person otherwise objectively manifests control over it. People v. Pereira, 150 Cal. App. 4th 1106, 58 Cal. Rptr. 3d 847 (1st Dist. 2007):

In U.S. v. Pitts (7th Cir. 2003) 322 F.3d 449 (Pitts), a divided panel of the Seventh Circuit rejected this broad proposition, although upholding the denial of a suppression motion under the totality of circumstances in that case. The court reasoned that there are many legitimate reasons for which persons wish to remain anonymous while sending or receiving mail, such as authors and journalists who use pseudonyms, celebrities who wish to avoid intrusion, and government officials and businessmen with security concerns. (Id. at pp. 457-458.) "There is nothing inherently wrong with a desire to remain anonymous when sending or receiving a package, and thus the expectation of privacy for a person using an alias is one that society is prepared to recognize as reasonable." (Id. at p. 459.) While use of an alias is one factor that may be considered to determine if property has been abandoned, the majority held, it is not dispositive. (Id. at pp. 456-459.) The court upheld the finding of abandonment there because the addressee had expressly refused to accept delivery of the package and by using all fictitious names the defendants had rendered the property irretrievable.

The majority view in Pitts is in accord with the approach in California. "The question whether property is abandoned is an issue of fact, and the court's finding must be upheld if supported by substantial evidence." (People v. Daggs, supra, 133 Cal. App. 4th at p. 365.) "[T]he intent to abandon is determined by objective factors, not the defendant's subjective intent." (Ibid.) The appropriate test is whether defendant's words or actions would cause a reasonable person in the searching officer's position to believe that the property was abandoned. (Id. at pp. 365-366.)

Although in this case defendant's use of a fictitious name is evidence that might have supported a contrary finding, there is nonetheless substantial evidence to support the trial court's finding that defendant did not abandon the package. There is no evidence that the name or address of the recipient to whom the package was addressed was fictitious. Moreover, defendant obtained a tracking number for the package, which permitted him to retain significant control over it while in transit. Defendant telephoned Ponce four to five times regarding the whereabouts of the package, objectively demonstrating his continuing interest in it. And the fact that defendant gave Ponce his telephone number and that Ponce was able to return his calls further indicates that defendant did not remain completely anonymous. The trial court concluded, "[E]very other thing [other than the fictitious name and false address] concerning the conduct and the-and the contact that Mr. Pereira has with Mr. Ponce, the shipper, is I am very interested about my package with my phony name and phony address. I really care about it getting delivered. I care about it so much, that I've left messages that made Mr. Ponce upset. So that's the totality. "There is thus substantial evidence of objective factors that support the trial court's finding that defendant did not abandon his package.

Traffic stop by Park Ranger had objective basis, and odor of alcohol and defendant's comment "I'm okay to drive" aroused his suspicion. United States v. Camacho-Uranda, 2007 U.S. Dist. LEXIS 35023 (D. Nev. May 9, 2007).*

Ordering defendant from his car at gunpoint, when suspected of a drug offense, is reasonable because "[c]ourts throughout the country have recognized that 'the nature of narcotics trafficking today reasonably warrants the conclusion that a suspected dealer may be armed and dangerous.' State v. Evans, 67 Ohio St.3d 405, 413, 1993 Ohio 186, 618 N.E.2d 162, quoting United States v. Ceballos (E.D.N.Y. 1989), 719 F.Supp 119, 126." State v. Wilson, 2007 Ohio 2298, 2007 Ohio App. LEXIS 2152 (12th Dist. May 14, 2007).*

Permalink 06:00:31 am, by fourth, 693 words, 1530 views   English (US)
Categories: General

Parole search condition permitted warrantless search of plaintiff's house and computer for child porn when he was not home

Parole officers did not violate the Fourth Amendment by conducting a warrantless search of plaintiff's home, when he was not there, searching for child porn on his computer. The officers had the requisite "well founded suspicion" under Washington law based on a report from a neighbor. He signed a parole agreement agreeing to such searches on "well founded suspicion." Plaintiff was on parole for a sex offense. Addleman v. King County, 2007 U.S. Dist. LEXIS 35117 (W.D. Wash. May 14, 2007).

Demolition of plaintiff's uninhabited and collapsing building was a seizure under the Fourth Amendment, but it was reasonable on a balancing of interests. Gariffo Real Estate Holdings Co. v. City of Philadelphia, 2007 U.S. Dist. LEXIS 35071 (E.D. Pa. May 11, 2007):

Balancing the relative interests at issue, it is clear that the balance is struck in favor of the City. The Plaintiff retained little or no reasonable expectation of privacy in a dilapidated, uninhabited rental property after L&I provided notice by mail, as well as posted on the structure itself, of its imminently dangerous condition. See Freeman, 242 F.3d at 652. Moreover, the City has a strong interest in ensuring that structures located within City bounds do not pose a threat to the safety of the general public. See Camara v. Municipal Court of San Francisco, 387 U.S. 523, 537, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967) ("[T]he public interest demands that all dangerous conditions be prevented or abated.").

It is important to note that a seizure in this circumstance is not per se unreasonable without the City first obtaining a warrant. See Gardner v. McGroarty, 68 Fed. Appx. 307, 312 (3d Cir. 2003); Manganaro v. Reap, 29 Fed. Appx. 859, 861 (3d Cir. 2002); Freeman v. City of Dallas 242 F.3d 642, (5th Cir. 2001). Although a warrant may first be necessary before inspectors may enter an inhabited building to inspect suspected violations of municipal housing code, Camara, 387 U.S. at 534, this safeguard is not necessary where, as here, the evidence of the municipal code violations were already obtained by means unchallenged by the Plaintiff, i.e. the collapsed outer wall was visible from the street. Freeman, 242 F.3d at 651.

Generalized motion to suppress could be denied in the court's discretion, but the court denies the motion on standing because the car the marijuana was stored in was being used as a shipping container and it was out of defendant's control for shipping, having been driven by another. United States v. Crowder, 2007 U.S. Dist. LEXIS 34946 (N.D. Ill. May 10, 2007):

Here, Crowder's unsupported claims that he "had a proprietary interest and legitimate expectations of privacy" in the Mustang does not carry the day. See Def.'s Brief, P 5. Any reasonable expectation of privacy Crowder alleges "must be demonstrated to the Court." United States v. Mendoza, 438 F.3d 792, 795 (7th Cir. 2006). Absent a supporting affidavit "or testimony from the defendant, it is almost impossible to find a privacy interest ...." Id. Given the fact that the Mustang was registered to co-defendant Watkins's mother, that Crowder was not even the driver of the Mustang at the time the DEA agents stopped the car, and that Crowder relinquished control of the Mustang to a third party shipping company, Crowder does not have standing to claim that the search of the car was in violation of the Fourth Amendment.

. . .

Plainly put, Crowder cannot establish a reasonable expectation of privacy in the drug-laden Mustang. He delivered the car and its contents to the shipping company to transport across the country, and surrendered the keys to the automobile upon delivery. As a result, the bailee, in this case the driver, had complete access to the car, in order to drive it onto and off of the truck, in addition to a number of other purposes. "A reasonable expectation of privacy is infringed when the defendant exhibits an actual or subjective expectation of privacy, and the expectation is one that society is prepared to recognize as reasonable." Mendoza, 438 F.3d at 795. The driver had complete control and full access to the Mustang when it was shipped to Illinois. No individual, who relinquishes control over a vehicle in the manner done so by Crowder, could possess a subjective expectation of privacy in that vehicle. See id.

05/16/07

Permalink 08:18:09 am, by fourth, 553 words, 609 views   English (US)
Categories: General

Misstatements and omissions from affidavit for search warrant precluded summary judgment for defendants in § 1983 case

Suit against state SPCA would proceed for time being because of misstatements shown in the affidavit for the search warrant which undermined the probable cause. Also, federal § 1983 case was not "inextricably intertwined" with state case and state law to be barred by Rooker-Feldman doctrine. Allen v. Pennsylvania SPCA, 488 F. Supp. 2d 450 (M.D. Pa. 2007).*

The government failed to show reliability of their informant and reasonable suspicion, and the motion to suppress should have been granted. The government argued that the defense did not properly assert that there was no reasonable suspicion, but it carried the burden. United States v. Martinez, 486 F.3d 855 (5th Cir. 2007):

Without establishing the reliability of the informant, the government had to establish reasonable suspicion based on some or all of the other factors listed above: the specificity of the information provided, the extent to which the information is corroborated by officers in the field, and whether that information concerns recent activity or has instead gone stale. At the time of this stop, the police had (1) a tip that a person named "Angel" was storing weapons that had been used in a crime in his girlfriend's house; (2) corroboration by the individual leaving the specified house that a man named "Angel" was inside; and (3) visual verification that two people left the residence 20 minutes after a phone call was placed asking Angel to pick up his car, and that those two people drove toward the location where the pick-up was supposed to occur. Therefore, at the time of the stop, the only verified information that the police had was that a man named Angel was in a specified residence. Notably absent, however, is any verified information that "criminal activity may be afoot." Jaquez, 421 F.3d at 340-41. Our review of precedent, both our own and that of the Supreme Court, makes clear that this is insufficient to give rise to reasonable suspicion.

Spending an hour interviewing the informant was sufficient for the officer to establish reliability. O'Connor v. City of Philadelphia, 233 Fed. Appx. 161 (3d Cir. 2007)* (unpublished).

Disputed facts on exigency for warrantless entry precluded summary judgment. The same standard that precludes summary judgment on the facts may preclude application of qualified immunity, and here it does. Woods v. Valentino, 511 F. Supp. 2d 263 (M.D. Fla. 2007).*

Reasonable suspicion existed based on the similarity with the occurrence at hand and another one. That justified the longer detention and request for consent. United States v. Thompson, 2007 U.S. Dist. LEXIS 35074 (E.D. Mo. May 14, 2007)*:

Here the officers had reasonable suspicion based on the conduct of Defendant and the other suspects at the hotel and the marked similarity between this incident and the incident that had occurred the previous month, including that the Uplander [the vehicle] had been rented by the same individual who had rented the Pontiac G6 and the fact that bulky items appeared to be concealed in the Uplander in the same manner as before. Defendant's statement regarding the purpose of his current travels appeared to be inconsistent with the surveillance conducted by the officers, providing further basis to expand the scope of the stop. Consequently, even if the officers had not, in the interim, determined that there was a large quantity of marijuana in the Uplander, they would have been justified in expanding the scope of the stop to request consent to search. ....

05/15/07

Permalink 07:14:13 pm, by fourth, 122 words, 464 views   English (US)
Categories: General

D.C. Cir. hears appeal of the search of Rep. Jefferson's office on Tuesday

The D.C. Court of Appeals heard oral argument today in the case of the search of Rep. William Jefferson's (D-LA) Congressional office, as shown on the Washington Post's website this afternoon. The same article is on the NY Times website.

Previous posts are here on the search and the District Court's upholding the search.

One judge seemed troubled by the execution of the search.

Judge Judith W. Rogers questioned whether the Justice Department carried out the raid appropriately.

"The question in my mind is the manner in which it was done," she said.

That does not mean that that judge will stick with that view or that at least one other agrees.

Deputy Solicitor General Michael Dreeben appeared for the government.

Permalink 08:22:40 am, by fourth, 837 words, 516 views   English (US)
Categories: General

Asking defendant to get out of car after he was free to go during a traffic stop was unreasonable

After the defendant was told he was free to go, the officer decided to order him out of the car for further questioning, and this was unreasonable. State v. Henderson, 2007 Ohio 2315, 2007 Ohio App. LEXIS 2137 (11th Dist. May 11, 2007):

[*P28] Officer O'Leary's motive in asking Henderson to exit his vehicle is not controlling. Apart from his motive, O'Leary had probable cause for the initial traffic stop. However, his continued detention and questioning after advising Henderson that he was "free to go" required the existence of reasonable suspicion of ongoing criminal activity. At the time O'Leary told Henderson he was "free to go," there was no ongoing criminal activity that O'Leary could observe. As the Second Appellate District stated in the case of State v. Retherford:

[*P29] "'[T]he mere fact that a police officer has an articulable and reasonable suspicion sufficient to stop a motor vehicle does not give that police officer "open season" to investigate matters not reasonably within the scope of his suspicion.'"

[*P30] Instead of simply handing Henderson his citation for expired plates and allowing him to go on his way, O'Leary pursued the items that did not make sense to him and continued with his questioning of Henderson until he got Henderson's consent to search his vehicle. Thus, the statement to Henderson that he was "free to go" was ephemeral. A reasonable person would not perceive that he was free to go when the officer moves into the next round of questioning with the lights from his patrol vehicle still flashing.

Stop was valid, and the officer recognized defendant as matching the description given by an informant from a drug deal. Defendant consented and it was valid. United States v. Flanders, 2007 U.S. Dist. LEXIS 34723 (S.D. Ga. May 10, 2007).*

Consent to search was granted while the officer was still holding the driver's license and car rental agreement. The Arkansas Supreme Court found no problem with that. Yarbrough v. State, 2007 Ark. LEXIS 293 (May 10, 2007):

During the course of this encounter, Sgt. Davis determined that he was going to give Yarbrough a warning for the traffic violation; but, before doing so, he asked Yarbrough for his consent to search the vehicle. Yarbrough directed the officer to Guzman, whose name was on the rental contract. Guzman consented to the search approximately sixteen (16) minutes after the initial stop. As of the point in time when Guzman gave his consent to the search, Sgt. Davis had neither returned Yarbrough's identification papers to him nor given him a copy of the warning.

In Lilley v. State, supra, we viewed the traffic stop as completed after the warning and vehicle documentation were handed to the driver. Likewise, we said in the Sims case that the legitimate purpose of the stop had terminated "after [the officer] handed Sims back his driver's license and registration, along with a warning for [the traffic offense] ...." Sims v. State, 356 Ark. at 513, 157 S.W.3d at 534. Based on this case law, we cannot say that the circuit court's ruling is clearly against the preponderance of the evidence.

Nonetheless, Yarbrough asserts that the officer had issued the warning before the search took place, thereby "completing the basis of the traffic stop." In support of that assertion, he suggests that there was a discrepancy in the officer's testimony and the report made shortly after the arrest. At the hearing, Sgt. Davis testified that he was in the process of writing the warning before consent was requested and obtained; whereas, his report contained the following sentence: "I ran a check on his license and issued him a warning for his violation." In rejecting Yarbrough's discrepancy argument, the circuit judge specifically found the officer's testimony at the hearing to be credible. In matters of credibility, it is well-settled that this court defers to the circuit judge. Flanagan v. State, 368 Ark. 143, ___ S.W.3d ___ (2006).

Yarbrough also suggests that Sgt. Davis's irrelevant line of questioning was in and of itself an unreasonable detention. However, that argument was not made below. This court has repeatedly stated that we will not address arguments, even constitutional arguments, raised for the first time on appeal. Dowty v. State, 363 Ark. 1, 210 S.W.3d 850 (2005). In any event, we have clearly held that, as part of a traffic stop, a police officer may ask the motorist routine questions during the process of performing a number of routine tasks related to the traffic violation. Laime v. State, supra.

Comment: Lame is right. This had to have been written by a law clerk. Justice Imber's work is far better than this.

Trial court erred in granting a motion to suppress because of the defendant's alleged inability to understand English when the record clearly showed that he did. People v. Castro, 159 P.3d 597 (Colo. 2007).*

Failure to object to seizure of evidence prior to its admission at trial is a waiver. Swanson v. State, 282 Ga. 39, 644 S.E.2d 845 (2007).*

There was reasonable suspicion based on immediate information of a crime just occurring, so the stop was valid. State v. Weis, 2007 Ohio 2279, 2007 Ohio App. LEXIS 2116 (3d Dist. May 14, 2007).*

Permalink 07:21:49 am, by fourth, 259 words, 473 views   English (US)
Categories: General

A search warrant for drugs permitted police to lift floorboards in house

Police had a search warrant for drugs based on an informant buy. When executing the warrant, lifting floorboards was within the scope of search. Although there was only a small quantity of drugs involved, the floorboard could be removed by hand and without tools. United States v. Handy, 2007 U.S. Dist. LEXIS 34739 (D. Mass. May 11, 2007).

A technical violation of the pen register statute, 18 U.S.C. § 3122, was a statutory violation only and not a constitutional violation. Therefore, suppression was not required under Smith v. Maryland. Congress did not provide for a suppression remedy, so the court would not. (Hudson was cited at the end of a footnote.) United States v. German, 486 F.3d 849 (5th Cir. 2007):

Moreover, even in constitutional cases the Supreme Court has recently cautioned against expanding the exclusionary rule, emphasizing that suppression is a "last resort" that generates "substantial social costs." Hudson v. Michigan, 126 S. Ct. 2159, 2163 (2006).

Brief delay of a FedEx package in transit at Orange County airport for a dog sniff because it was selected for a dog sniff with six others was not an unreasonable interference with the movement of the package. The dog alerted and a warrant was obtained. United States v. Quoc Viet Hoang, 486 F.3d 1156 (9th Cir. 2007).*

Defendant's unconditional plea waived his search issue. If he wants to raise that issue, it should be by a post-conviction petition. United States v. Tucker, 232 Fed. Appx. 597 (7th Cir. 2007)* (unpublished).

Stop of defendant's rental car for having tags that did not match the car was reasonable. United States v. Salazar, 245 Fed. Appx. 1 (11th Cir. 2007)* (unpublished).

05/14/07

Permalink 08:07:23 am, by fourth, 320 words, 928 views   English (US)
Categories: General

Declaratory judgment unnecessary in § 1983 damages action

(Yesterday, there were 24 cases to sort through; today 1. Sometimes Mondays have 7-9.)

Pro se plaintiff got past the pleading stage in his § 1983 false arrest case, and he filed a request for declaratory judgment under F.R.C.P. 57 (which incorporates 28 U.S.C. § 2201). The court held that declaratory relief was unnecessary to determine the rights of the parties in this type of civil rights case. Nail v. Gutierrez, 2007 U.S. Dist. LEXIS 34568 (N.D. Ind. May 10, 2007):

The purpose of the Declaratory Judgment Act is to afford relief from uncertainty and insecurity with respect to legal relations. Nucor Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 578 (7th Cir. 1994); Sears, Roebuck & Co. v. American Mut. Liability Ins. Co., 372 F.2d 435, 438 (7th Cir. 1967). Otherwise stated, the purpose of declaratory judgments are "to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication, without waiting until his adversary should see fit to begin suit, after damage had accrued." Nucor Corp., 28 F.3d at 578.

Although the defendants have not responded to Nail's motion and the court could summarily rule on the motion pursuant to N.D. Ind. L.R. 7.1(a), the court will address the merits of Nail's motion. In this case, Nail has filed a complaint for monetary damages based upon an unreasonable search and seizure. There is no uncertainty with respect to the legal relations between the parties in this case because the Fourth Amendment has defined the legal relations between the parties with regards to unreasonable search and seizure cases. The issue in this case is not determinative on whether a legal relation exists, but whether or not the officers' conduct rose to the level of an unreasonable search and seizure. This type of determination is not within the purpose of the Declaratory Judgment Act. As a result, Nail's motion for a declaratory judgment (docket # 71) is DENIED.

05/13/07

Permalink 11:22:23 am, by fourth, 383 words, 410 views   English (US)
Categories: General

While the affidavit for search warrant could have included more detail, considering deference search warrants get, this one survives

Considering the deferential standard that search warrant affidavits are entitled to, the court of appeals erred in focusing on what was not in the affidavit rather than what was. It was reasonable to conclude that the cocaine in a garage had been transferred to a car where it was found. The affidavit was not perfect, considering it was drafted in the heat of the moment of the investigation, and it would have been better if it included more information that the police had, but it certainly was not fatal to have not included it. So, the warrant for the house was valid. Rodriguez v. State, 232 S.W.3d 55 (Tex. Crim. App. 2007).*

Defendant's consent to a blood draw signed in a Louisiana prison was found to be valid. His argument was that he thought it was to be used in a Louisiana investigation, not a Texas investigation. The consent form itself belied that contention. Jones v. State, 225 S.W.3d 772 (Tex. App. — Houston (14th Dist.) 2007).*

Exigent circumstances justified a warrantless entry by Virgin Islands police because they had a report of someone with a felony conviction having just come out of the house, firing a gun, and going back inside. When they arrived, children visible from the door looked scared. After they got inside, a protective sweep found the man hiding under a bed, and the gun would have been found anyway for inevitable discovery purposes. United States v. Parris, 229 Fed. Appx. 130 (3d Cir. 2007)* (unpublished).

§ 1983 claim barred: "a verdict in Gingras's favor would necessarily imply the invalidity of his South Dakota conviction. Thus, under Heck, Gingras's claims are not cognizable under § 1983." Gingras v. Wood, 2007 U.S. Dist. LEXIS 34553 (D. S.D. May 10, 2007).

Defendant approached a police car surveying damage after a storm, and the defendant's right wheels went into high water on the side of the road. The police car did not have its emergency lights on, and the officer stopped the defendant because he remembered that the defendant had a previously suspended license but knew nothing of the current status. The stop was unreasonable. The defendant argued that the community caretaking function should not apply to a moving vehicle, which the court did not embrace, but it held that the stop was invalid under any standard. State v. Craveiro, 155 N.H. 422, 924 A.2d 361 (2007).

Permalink 10:49:47 am, by fourth, 754 words, 445 views   English (US)
Categories: General

Obtaining DNA by ruse was not unreasonable / Probation search extends to containers reasonably believed to be controlled by probationer, and those who live with probationers are subject to the same risk of being searched

Police used a ruse to get defendant to mail them an envelope so he would lick the envelope and leave DNA. The police posed as a law firm and wrote to defendant telling him that he was entitled to participate in a case, and he needed to provide some elemental information about himself. The DNA from his saliva linked him to a 22 year old rape and murder. The Washington Supreme Court, construing its broader state constitutional protection for "private affairs" found that the obtaining of the DNA was not unlawful. It was also argued that the police abused the process by holding themselves out as a ficticious law firm. Granting that the attorney-client privilege theoretically could apply, the court held that leaving DNA on the envelope was not a "communication" for purposes of the privilege. State v. Athan, 160 Wn.2d 354, 158 P.3d 27 (2007).

A probation search extends to property and containers reasonably believed to be connected to the probationer. Also, those who live with probationers are subject to being searched, too, distinguishing Steagald. State v. Walker, 215 Ariz. 91, 503 Ariz.
Adv. Rep. 9, 158 P.3d 220 (2007):

P20 A probation search is authorized "[w]hen an officer has reasonable suspicion that a probationer subject to a search condition is engaged in criminal activity." Id. The Ninth Circuit Court of Appeals has held the scope of a probation search extends to an item that the police have "reasonable suspicion ... is owned, controlled, or possessed by probationer." U.S. v. Davis, 932 F.2d 752, 758 (9th Cir. 1991) (holding because officers had reasonable suspicion to believe a safe belonged to probationer, contents of the safe could be used as evidence against non-probationer who lived with probationer). In this case, based on the arrest warrant, Harkins had reasonable suspicion to believe that Gibbs violated the terms of her probation and was engaged in criminal activity, specifically drug use. This authorized the officer to conduct a probation search for contraband upon executing the arrest warrant for Gibbs. Moreover, the locked trunk in Gibbs' home and her statement that she knew what was in it indicated that she owned, controlled or possessed the trunk, bringing it within the valid scope of a probation search. Thus, the search of Gibbs' home and trunk constituted a valid probation search under the Fourth Amendment, and the evidence seized was lawfully obtained.

P21 We now address whether the evidence lawfully seized during a probation search of Gibbs can be used against Defendant, a non-probationer who cohabitated with her at the time of the search.

P22 "[W]here two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either." U.S. v. Matlock, 415 U.S. 164, 172, n.4, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (quoting Skally v. U.S., 347 U.S. 935, 74 S. Ct. 630, 98 L. Ed. 1086 (1954)); see also State v. Jones, 185 Ariz. 471, 481, 917 P.2d 200, 210 (1996) (holding where owners had joint access or control over dining room closet where defendants' clothes were found, they both had authority to consent). Additionally, when one allows a third party to use or control his property, he "assume[s] the risk" that the property will be seen by additional parties. Matlock, 415 U.S. at 171 (citing Frazier v. Cupp, 394 U.S. 731, 740, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969)); see also People v. Pleasant, 123 Cal. App. 4th 194, 19 Cal.Rptr. 3d 796, 798 (Cal. Ct. App. 2004) ("Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers"). (Citation omitted.)

P23 In this case, Harkins and his team were lawfully inside Gibbs' and Defendant's home pursuant to the arrest warrant for Gibbs and the authority of the probation search. During the initial cursory search to secure the residence, the officers noticed in plain view the gun and the drug paraphernalia in the bedroom. Also, because the trunk was in the living room, a common area, and because the officers were authorized to open the trunk under the rationale described above, the contents of the trunk were also properly seized against Defendant and the trial court did not err by denying his motion to suppress.

To rely on inevitable discovery, the prosecution must litigate it and make a recond. The trial court erred in applying inevitable discovery to a search where the state did not argue it. Also, the facts did not support it because there was nothing apparent from the record that the police were on an independent investigation that would lead to the same result. State v. Alvey, 2007 UT App 161, 2007 Utah App. LEXIS 161 (May 10, 2007).

Permalink 10:23:55 am, by fourth, 574 words, 688 views   English (US)
Categories: General

D. Kan. [surprisingly] finds no cause for a stop and no reasonable suspicion for any detention / Buyer in good faith of a stolen vehicle had standing

Court finds that, after agonizing somewhat, that reasonable suspicion did not exist for a traffic stop after the lengthy observation of the activities of the defendant at a motel where he paid in cash. Mindful that Arvizu cautioned against a "divide and conquer" analysis, the court went through every factor asserted as reasonable suspicion and found each was consistent with innocent activity, and, added up, did not amount to much. United States v. Lopez, 2007 U.S. Dist. LEXIS 34173 (D. Kan. April 30, 2007)*:

In this case, unlike the cases cited above, the factors relied on by the government in addition to the exchange are simply not enough, even when viewed in totality, to support a finding of reasonable suspicion. Even when considering that Mr. Lopez was from Texas, had a brief stay at the hotel, paid in cash and waited in the parking lot, there is nothing articulable to indicate that criminal activity might be afoot. There is nothing in the record, such as presence in a high crime area, known criminal history, or an informant's tip, to take the exchange of the cooler out of the realm of innocent activity. In other words, the court finds no "concrete reasons" supporting an interpretation that the innocent factors in this case amounted to a "suspicious conglomeration." Thus, the court is not satisfied that, at the time the troopers stopped Mr. Lopez, they had developed a reasonable suspicion rather than mere "inchoate suspicions and unparticularized hunches" to link the cooler or Mr. Lopez to criminal activity. Accordingly, because the traffic stop was not justified at its inception as required under Terry, the court grants Mr. Lopez's motion to suppress.

Comment: The District of Kansas is always a source of drug courier stops, and this is the first suppression motion I've seen granted from there in a long time. Maybe there has been another, but I don't remember one. Since a warrantless search gets de novo review, we can expect the government to appeal.

Defendant driving a stolen vehicle was found to have standing. He testified at the suppression hearing that he bought the vehicle just before he was arrested and had paperwork to prove it, including the payment book of the original owner. He did not have to transfer ownership with DMV immediately to have standing. United States v. Garcia-Robledo, 488 F. Supp. 2d 50 (D. P.R. 2007):

Thus, in view of the above, Garcia-Robledo had a legitimate presence in the vehicle, had prior use of the vehicle, was in control of the Ford F-250 the day of the incident, was in possession of the vehicle, and had the ability to exclude others' use of the property.

In turn, the government contends the vehicle in question was reported stolen in April 2006 and, thus, Garcia-Robledo had no reasonable expectation of privacy. Nonetheless, no credible evidence was presented that Garcia-Robledo had any knowledge at the time he purchased the vehicle that the Ford F-250 vehicle was stolen.

Although the manner in which Garcia-Robledo bought the car may be unconventional, inasmuch as the vehicle's registration was not promptly transferred to his name, Garcia-Robledo provided a credible explanation as to why this was not done. Garcia-Robledo explained he would not qualify for a loan of the Ford F-250 vehicle or to assume the lease because his credit was not enough. ...

Defendant's effort to conceal a box during a traffic stop justified a patdown. United States v. Valdivia, 2007 U.S. Dist. LEXIS 34187 (D. Neb. May 9, 2007).*

05/12/07

Permalink 03:00:29 pm, by fourth, 427 words, 484 views   English (US)
Categories: General

U.S. Bureau of Prisons regs for searches of imates and others

I was on the Bureau of Prisons website today looking for something else, and I came upon the regulations for searchs of inmates and others. The Policy Statement number coincides with the Code of Federal Regulations section number.

The inmate search regulation is Program Statement 5521.05 (June 30, 1999) (.pdf). This is implemented under 28 C.F.R. § 552.10:

§ 552.10 Purpose and scope.

In order to further the safe, secure, and orderly running of its institutions, the Bureau of Prisons conducts searches of inmates and of inmate housing and work areas to locate contraband and to deter its introduction and movement. Staff shall employ the least intrusive method of search practicable, as indicated by the type of contraband and the method of suspected introduction.

The CFRs for all "custody" relationships are here.

They include the following:

§ 552.11: Body searches

§ 552.12: Close observation

§ 552.13: X-ray, major instrument, fluoroscope, or surgical intrusion

§ 552.14: Search of inmate housing and work areas [Note: "Tossing" the cell is inappropriate. Policy Statement ¶ 9(b) "Staff conducting the search shall leave the housing or work area as nearly as practicable in its original order."]

Search of visitors is Program Statement § 5267.08 (May 11, 2006). This is implemented under 28 C.F.R. § 540.40:

§ 540.40. Purpose and scope.

The Bureau of Prisons encourages visiting by family, friends, and community groups to maintain the morale of the inmate and to develop closer relationships between the inmate and family members or others in the community. The Warden shall develop procedures consistent with this rule to permit inmate visiting. The Warden may restrict inmate visiting when necessary to ensure the security and good order of the institution.

§ 540.41 Visiting facilities.

The Warden shall have the visiting room arranged so as to provide adequate supervision, adapted to the degree of security required by the type of institution. The Warden shall ensure that the visiting area is as comfortable and pleasant as practicable, and appropriately furnished and arranged. If space is available, the Warden shall have a portion of the visiting room equipped and set up to provide facilities for the children of visitors.

(a) Institutions of minimum and low security levels may permit visits beyond the security perimeter, but always under supervision of staff.

(b) Institutions of medium and high security levels, and administrative institutions may establish outdoor visiting, but it will always be inside the security perimeter and always under supervision of staff.

The rule on attorney visits was last revised in 2003:

§ 540.46 Attorney visits.

Requirements for attorney visits are governed by the provisions on inmate legal activities (see §§ 543.12 through 543.16 of this chapter). Provisions pertinent to attorney visits for pretrial inmates are contained in § 551.117 of this chapter.

Permalink 09:59:40 am, by fourth, 377 words, 863 views   English (US)
Categories: General

A group of interesting cases: search incident of a cell phone suppressed; F.R.Crim.P. 41 precluded a § 1983 case; failure to list on inventory not a ground to suppress; officer's statement during search was not an interrogation

The defendant was arrested on a controlled delivery of a package containing meth to his house. His cellphone was seized at the time of his arrest, but its call directory was not accessed for nearly three hours. The search of the cellphone could not be justified under the search incident doctrine. United States v. Lasalle, 2007 U.S. Dist. LEXIS 34233 (D. Haw. May 9, 2007).

Plaintiff's § 1983 claim for recovery of records seized during a raid for over sale of psuedophedrine was dismissed because he had a remedy under Rule 41. Fowler v. Lawson, 2007 U.S. Dist. LEXIS 34235 (W.D. Okla. May 9, 2007):

In his response to the instant motion, Plaintiff acknowledges that Rule 41 provides for the return of his records. Viewing the evidence in the light most favorable to Plaintiff and viewing all reasonable inferences in Plaintiff's favor, as the Court must when addressing a motion for summary judgment, the Court finds that the remedy provided by Rule 41 is a "special factor" counseling hesitation and precluding Plaintiff's claim based on the retention of his records.

Failure to list firearms seized from a felon in the inventory was not a Fourth Amendment violation that entitled the defendant to suppress the evidence. United States v. Ford, 2007 U.S. Dist. LEXIS 34154 (W.D. Pa. May 9, 2007).

A statement to the accused during search was not interrogation designed to elicit a response [HA!]. United States v. Jackson, 2007 U.S. Dist. LEXIS 34207 (D. Me. May 7, 2007):

At the conclusion of the hearing, during closing arguments, the government conceded that the defendant was not free to leave when he made the offer to try to retrieve the gun or when he told Campbell that the guns were in the refrigerator, but the defendant takes nothing from this because I conclude that neither statement was the result of interrogation. Informing a suspect of the evidence gained to date by law enforcement in the investigation of a particular crime and of the potential charges against the suspect do not constitute interrogation for purposes of Miranda. See Genao, 281 F.3d at 308, 310-11 (showing defendant items seized from his apartment and saying "We've got a problem here" not functional equivalent of questioning); United States v. Conley, 156 F.3d 78, 81, 83 (1st Cir. 1998) (recital of evidence by officer and his observations on its strength did not constitute interrogation).

Permalink 08:11:49 am, by fourth, 568 words, 408 views   English (US)
Categories: General

Driver's possession of a vehicle is normally enough to create an expectation of privacy, but not where the defendant stopped with others tossed the keys and remained silent when asked who had the vehicle

Ohio recognizes that the driver of a car owned by another and with permission of the owner normally has an expectation of privacy. When stopped with others, however, defendant remained silent when they were all asked by a police officer about his relationship to the car because the keys had been tossed. [Tossing the keys is an act designed to disassociate from the vehicle.] State v. Middleton, 2007 Ohio 2227, 2007 Ohio App. LEXIS 2076 (8th Dist. May 10, 2007):

[*P27] In the instant case, Middleton attempts to argue that he "took normal precautions to maintain his privacy" in the area searched. During the incident, Middleton maintains that although he was outside the vehicle, he remained in close physical proximity to the Chevy Caprice. He also claims that the keys were discovered on the ground of the parking lot, only two feet away from him and that the doors to the vehicle were closed and locked. Finally, Middleton argues that the jacket was located on the floor of the vehicle, not in plain view and that the gun was discovered because Detective McClendon reached inside the pocket of the jacket.

[*P28] However, if Middleton wanted to take normal precautions to maintain privacy, he should have declared to the police officers that he was in lawful possession of the Chevy. Detectives McClendon and Crayton stated that they asked Middleton and the other individuals who owned the Chevy and who owned the keys that were found on the ground of the parking lot. No one acknowledged ownership and no one seemed to know who owned the vehicle or the keys. Middleton did not assert ownership of the vehicle, nor did he contend that he was in lawful possession of the vehicle. Thus, Middleton lacks standing to challenge the search and seizure.

Asking plaintiff to leave was not a Fourth Amendment violation. The case was intertwined with a First Amendment claim, which also was dismissed. Qualified immunity also applied. Ramos v. Carbajal, 508 F. Supp. 2d 905 (D. N.M. 2007).*

Applying the state consitution only, the Delaware court finds that the defendant's stop was with reasonable suspicion. Ross v. State, 925 A.2d 489 (Del. 2007).*

Officer saw same unique truck configued for a hidden compartment again on the same highway. The videotape broke, so the exchange between the officer and the motorist was lost, but it was up to 50 minutes long, which the court finds was not too long to issue a traffic ticket [which is a real stretch]. That led to consent. State v. Faga, 2007 Iowa App. LEXIS 554 (May 9, 2007):

court noted, our supreme court has previously upheld a detention of fifty minutes as reasonable following a routine traffic stop. Id. at 559. We recognize this may have been a long time to issue a speeding ticket; however, it was not unreasonable under the circumstances. The length of the detention and the action of the trooper were justified by the traffic violation, the time needed to perform routine checks on the truck and the defendant, the trooper's reasonable suspicion based on the unusual configuration of the truck, his past experience with a nearly identical truck, the implausibility of the defendant's account of her use of the truck, and the defendant's nervousness. We find no violation of the defendant's rights based on the length of the stop.

Watching defendant drive the wrong way on a one-way street a second time was reason enough to stop him. State v. Poling, 2007 Iowa App. LEXIS 559 (May 9, 2007).*

05/11/07

Permalink 08:12:40 am, by fourth, 904 words, 1888 views   English (US)
Categories: General

1983 claim for malicious prosecution without probable cause from failure to detect obvious facts could go forward, at least for now

In a 1983 case, plaintiff was prosecuted allegedly without probable cause. There was a state mechanism for determining probable cause for the prosecution, but, here, there were facts available to the police who failed to check into them until after the prosecution was initiated. Whether the investigation was incomplete or the officers were reckless could not yet be determined, and summary judgment was denied. OPW Fueling Components v. Works, 2007 U.S. Dist. LEXIS 34083 (S.D. Ohio May 9, 2007):

The Sixth Circuit has held that "where a state affords an opportunity for an accused to contest probable cause at a preliminary hearing and the accused does so, a finding of probable cause by the examining magistrate or state judge should foreclose relitigation of that finding in a subsequent § 1983 action." Coogan v. City of Wixom, 820 F.2d 170, 174-75 (6th Cir. 1987), overruled on other grounds by Frantz v. Village of Bradford, 245 F.3d 869, 874 (6th Cir. 2001). Only where there is evidence of false statements or misrepresentations by law enforcement officials during the criminal proceeding does the finding of probable cause in a preliminary state criminal hearing lose its preclusive effect. See Hinchman v. Moore, 312 F.3d 198, 202-03 (6th Cir. 2002); Darrah v. City of Oak Park, 255 F.3d 301, 311 (6th Cir. 2001). Here, Works and the Estes do not argue that they were unable to contest probable cause at a preliminary hearing. Instead, the[y] allege that Jones and Rogers knew or should have known that the charges against them were false, lacked probable cause, or were reckless in that regard.

At the preliminary hearing, Jones testified that he was not aware of anyone giving Works permission to [] remove the nozzles on April 15, 2005--the date Works was videotaped. However, Jones stated that he later learned that Works had been given permission to remove some materials in August of 2005. It is not clear from the state court record whether these statements by Jones were false or misleading or merely indicate a[n] incomplete investigation on behalf of Jones and Rogers. At this stage of the proceedings, based upon these statements, in combination with the allegations contained in the Amended Counterclaim and Third Party Complaint, the Court must find that Works and the Estes have properly alleged a lack of probable cause. As a result, the Court DENIES Jones and Rogers Motion to Dismiss Works and the Estes' claim for malicious prosecution under section 1983.

In a convoluted civil case involving a Heck defense, the plaintiffs contended that the state investigators withheld information of wiretaps from them until after they were released from prison. Following circuit precedent, the court held the claims barred by Heck. Whitaker v. Garcetti, 2007 U.S. App. LEXIS 11012 (9th Cir. May 10, 2007):

Plaintiffs also argue for a "belated discovery" exception to Heck for individuals who, because of a defendant's actions, do not discover a constitutional violation until after their confinement ends. They argue that Plaintiffs were "kept in the dark by the Defendants and the only way they have been kept from seeking relief during their confinement was due to Defendants' successful concealment." We need not reach this question. Assuming without deciding that such an exception should exist, no Plaintiff would qualify for it. Contrary to Plaintiffs' flat assertion, the Portillo Plaintiffs knew about the handoff procedure less than eight months after they pleaded guilty, while each either was in jail or on parole, and Gaxiola and Gastelum knew about the handoff before they pleaded guilty. Indeed, when Plaintiffs filed their first complaint in 1999, all Plaintiffs (with the exception of Whitaker, who was not convicted of any crime) remained in prison or on parole.

At oral argument, Plaintiffs asserted for the first time that the judicial deception claim is sufficiently attenuated from the evidence to avoid the bar of Heck. This new argument runs counter to Plaintiffs' theory throughout this case--that an unbroken chain linked the improper, undisclosed wiretaps to the surveillance and the evidence used against Plaintiffs at trial. It is too late for Plaintiffs to change theories now. See Smith, 194 F.3d at 1052 ("[O]n appeal, arguments not raised by a party in its opening brief are deemed waived."); Monetary II Ltd. P'ship v. Comm'r, 47 F.3d 342, 347 (9th Cir. 1995) ("As a general rule, an appellate court will not consider arguments which were not first raised before the district court, absent a showing of exceptional circumstances." (internal quotation marks omitted)).

In short, we hold that Heck bars Portillo, Avalos, Martinez, Delgado, Carrizoza, Gaxiola, and Gastelum from bringing suit for declaratory relief or damages on their judicial deception and handoff claims.

Consent was obtained from a motorist for a search as found by his answers and hand gestures. The fact consent was sought while the officer was holding defendant's driver's license was not determinative. United States v. Burnett, 2007 U.S. Dist. LEXIS 33894 (E.D. Ark. May 7, 2007):

Burnett argues that the search was not consensual because when Coleman asked him if he could search the vehicle, Coleman was holding his driver's license and he was not free to terminate the encounter. However, consent is not the product of coercion merely because the officer requesting consent has not finished his investigation of the driver's license or returned the license. See United States v. Siwek, 453 F.3d 1079, 1084 (8th Cir. 2006) (citing United States v. Fuller, 374 F.3d 617, 622 (8th Cir. 2004)). Furthermore, an officer is not required to inform a subject that he is free to leave and refuse a search before consent to search may be deemed voluntary. Id.

05/10/07

Permalink 04:27:40 pm, by fourth, 504 words, 1986 views   English (US)
Categories: General

Animal control officers' plain view did not authorize entry into the curtilage to seize animals and make further observations

Animal control officers entered the curtilage without a warrant claiming plain view. Morgan v. State, 285 Ga. App. 254, 645 S.E.2d 745 (2007):

(a) The Curtilage. Morgan contends that the trial court erred in concluding that the warrantless search of the curtilage surrounding his home was justified under the plain view doctrine. We agree that the plain view doctrine, standing alone, did not provide a sufficient basis for the search of the curtilage.

It is true that the deputy's initial observations of malnourished and mistreated animals occurred while he was standing in the driveway and on the public road, a vantage point that "breached no right of privacy of [Morgan]." State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981). See Sirmans v. State, 244 Ga. App. 252, 254-255 (2) (b) (534 SE2d 862) (2000) (officer's observations of mistreated animals from public roadway did not violate defendant's Fourth Amendment rights); Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986) (officer's observations made while on driveway did not violate defendant's Fourth Amendment rights since officer had taken "the same route as would any guest, deliveryman, postal employee, or other caller") (citation and punctuation omitted). These initial observations constituted "a lawful, nonsearch plain view situation" supporting a finding of probable cause to suspect that the crime of cruelty to animals was being committed on Morgan's property. (Punctuation and footnote omitted.) Boldin v. State, 282 Ga. App. 492, 495 (2) (639 SE2d 522) (2006). See Sirmans, 244 Ga. App. at 254-255 (2) (b) (plain view observation of animals in deprived condition supplied officer with probable cause to search defendant's property).

However, the officer's initial plain view observations from the driveway and road, in and of themselves, did not authorize the officer to then make a warrantless entry into Morgan's backyard--a location undisputably within the curtilage surrounding the residence--and take steps culminating in the dogs there being seized and removed from the property.

Consent to enter to look for a suspect was valid consent. Defendant was never in custody, and "Appellant is not a 'newcomer to the law', having a prior criminal history." State v. Boone, 2007 Ohio 2212, 2007 Ohio App. LEXIS 2053 (5th Dist. May 7, 2007).*

Officer lacked reasonable suspicion that the passenger was guilty of anything when he detained her. False name arose, and a violation of a no-contact order arose from that. State v. Allen, 138 Wn. App. 463, 157 P.3d 893 (2007):

¶24 Second, Lowrey did not have a lawful basis for a reasonable suspicion that the passenger was Allen when he asked Peggy to come to the rear of the vehicle. At this point, Lowrey had a reasonable suspicion because the false name Ben Haney did not register on the CAD databases. But this evidence was derived from Allen's unlawful seizure and inquiry and, therefore, it must be excised from the review of Lowrey's reasonable suspicion. Without knowledge that the passenger provided a false name, Lowrey did not possess reasonable articulable facts to believe that the no-contact order referred to the passenger. For these reasons, the identifying information Lowrey obtained from Peggy does not qualify as a lawful independent source of evidence that gave rise to the probable cause needed to arrest Allen.

Permalink 07:31:35 am, by fourth, 466 words, 664 views   English (US)
Categories: General

11th Cir.: Dog sniff during the normal course of a traffic stop is not unreasonable

Dog sniff during the normal course of a traffic stop is not unreasonable. The alert gave probable cause to search the entire vehicle. United States v. $175,722.77 in United States Currency, 307 Fed. Appx. 257 (11th Cir. 2007)* (unpublished):

The district court did not err in concluding that the length of the initial traffic stop was reasonable. Seven minutes is a reasonable amount of time to effectuate a traffic stop, and Payne was entitled to conduct a series of checks on Patino and his license. Further, the dog sniff did not unreasonably delay the traffic stop, nor was it an unreasonable search under the Fourth Amendment because the dog sniff occurred simultaneously with Payne's check of Patino's license.

Comment: Officers have finally figured out how to do it: run the dog around the car while waiting for the computer check to come back. Now, we know that the officer will tell the computer operator to "give me a couple of minutes" longer so the dog sniff will be within the period of the computer check. Once again, the officers have figured out how to take another right away, and the courts just play along.

Defendant was stopped at a driver's license roadblock, and he had warrants for his arrest. A search incident to that arrest produced a typewriter which was used to convict defendant of mail fraud. United States v. Lee, 225 Fed. Appx. 132 (4th Cir. 2007)* (unpublished).*

Collateral estoppel bars plaintiff's civil claim over his arrest. He litigated the same question to conclusion in state court. Kircher v. City of Ypsilanti, 2007 U.S. Dist. LEXIS 33565 (E.D. Mich. May 8, 2007).*

Under the undisputed facts, the defendant in a § 1983 case had probable cause to stop the plaintiff, so the plaintiff's case fails. Graham v. County of Washtenaw, 2007 U.S. Dist. LEXIS 33568 (E.D. Mich. May 8, 2007).*

There was a factual dispute in whether defendants used excessive force, including Tasering the plaintiff, to get him into a cell, so summary judgment is denied. Because plaintiff was not a convict, the Fourth Amendment applied, not the Eighth Amendment. Pearson v. Byrd, 2007 U.S. Dist. LEXIS 33509 (M.D. Ala. May 7, 2007).*

In a probation search § 1983 case, the co-tenant refused consent and officers came in anyway. Randolph does not void the search because the probation agreement permitted the search, and consent was not an issue. Taylor actually lived elsewhere, but he spent a lot of time with his co-tenant, and she was aware he was on probation and had been searched in the past. Taylor v. Brontoli, 2007 U.S. Dist. LEXIS 33672 (N.D. N.Y. May 8, 2007). (Comment: This case seems almost like the plaintiff sought refuge in a place he could not be subjected to probation searches, but probation search agreements follow the probationer around. Third parties who take in probationers are subject to having their premises searched, too.)

05/09/07

Permalink 08:14:22 am, by fourth, 724 words, 527 views   English (US)
Categories: General

Roommate's general access to defendant's computer gave roommate authority to consent, even though subject files were encrypted

Service member's roommate had sufficient common access to his computer that he could consent to a search of it, even though the files at issue were encrypted (and contained child porn). United States v. Rader, 65 M.J. 30 (C.A. A.F. 2007):

Appellant nonetheless contends that A1C Davis could not consent to the search of Appellant's computer because he had only limited use and access to it. Consequently, his argument goes, the search was illegal, the images derived from it inadmissible, and the findings and sentence should be set aside. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963); M.R.E. 311(a).

The control a third party exercises over property or effects is a question of fact. See, e.g., Rodriguez, 497 U.S. at 180 (detailing record facts evidencing control over the premises, and lack thereof). We will not disturb the military judge's findings of fact unless they are clearly erroneous or unsupported by the record. Reister, 44 M.J. at 413.

In this case, the findings of fact include the following: (1) Appellant's computer was physically "located in [A1C] Davis' bedroom"; (2) "[N]either the accused's computer nor the My Music folder on the accused's computer was protected by a password"; (3) "[T]he accused never told Davis not to access his computer or any files within the computer"; (4) A1C Davis and Airman Thacker "used the accused's computer to play computer games" with Appellant's "knowledge and consent"; (5) A1C Davis "accessed the accused's computer approximately every two week[s] to perform routine maintenance on that computer"; and (6) Appellant "never told Davis not to access his computer or any files within the computer."

We agree with the lower court that the military judge's findings of fact "were well-grounded in the facts developed on the record," Rader, 2006 CCA LEXIS 164, at *4, 2006 WL 1976603, at *2, and Appellant has not demonstrated that they are clearly erroneous. See United States v. Springer, 58 M.J. 164, 167 (C.A.A.F. 2003) ("If the military judge makes findings of fact, we review the findings under a clearly erroneous standard of review."); United States v. Owens, 51 M.J. 204, 209 (C.A.A.F. 1999) ("We review a military judge's evidentiary ruling for abuse of discretion."). Whether these facts rise to the level of "'joint access or control for most purposes,'" is a question of law. Reister, 44 M.J. at 415 (citation omitted). In this case, the military judge concluded that A1C Davis' consent was valid; that it would be "difficult to imagine how there could have been a greater degree of joint access, mutual use, or control." We agree.

We reject Appellant's argument that A1C Davis did not have control over or authority to consent to a search of the "My Music" files within the computer because he only had permission to use the computer to play games or conduct maintenance. First, the military judge's finding that Appellant did nothing to communicate a restriction regarding access to his computer files to anyone is amply supported by the record. Second, to the extent there was an understanding regarding restricted access to Appellant's computer it was tacit and unclear, as evidenced by A1C Davis and Airman Thacker's use of the computer. This is further illustrated by Appellant's response to A1C Davis' phone call to him.

Comment: This is not the first case to find common authority over a computer with encrypted files that only the encrypter can access. The issue as it deveops is access to the computer, not just the files.

Officers had exigent circumstances for opening a padlocked dufflebag when they were searching defendant's premises for a meth lab on consent of the landlord. When the bag was picked up, it made noises that indicated that the contents may be parts of a meth lab. (The defendant waived the landlord consent issue by not raising it in the trial court.) State v. Gomez, 2007 MT 111, 337 Mont. 219, 158 P.3d 442 (2007).*

Officer's entry into property under foreclosure and occupied by repairmen and boxes of defendant's property was unreasonable. His later spontanous statement to the officer would be admitted. People v. Kunz, 2007 NY Slip Op 27183, 16 Misc. 3d 312 (Erie Co. 2007).*

The fact the trial court may have used the wrong burden of proof in suppressing a search does not mandate reversal for the state because the appellate court is obligated to review the suppression order de novo. State v. Labine, 2007 SD 48, 733 N.W.2d 265 (2007).

Permalink 07:11:08 am, by fourth, 414 words, 867 views   English (US)
Categories: General

A traffic stop can be based on reasonable suspicion, not just probable cause

A traffic stop can be based on reasonable suspicion, not just probable cause, and any ulterior motive is irrelevant.

Kennedy's argument I should apply a probable cause standard to the traffic stop is unavailing. The Terry reasonable suspicion standard applies to routine traffic stops. U.S. v. Delfin-Colina, 464 F.3d 392, 397 (3d Cir. 2006). A police officer has the initial burden of providing the "specific, articulable facts" to justify a reasonable suspicion to believe that an individual has violated the traffic laws. Id. (internal citations omitted). When I consider the traffic stop, I find Cpl. Neuhaus credibly articulated the tinted windows gave him reason to make the Feb. 21, 2006, traffic stop. An officer's ulterior motive for making a stop is irrelevant. Whren v. United States, 517 U.S. 806, 813 (1996). Reason to believe a traffic violation occurred makes the stop and search legal regardless of the officer's subjective intent. Ohio v. Robinette, 519 U.S. 33, 38 (1996) (holding motive of officer irrelevant).

Police responded to a domestic call, and defendant's girlfriend met the police outside and told them that he choked her and she wanted to go in, get her stuff, and leave. The three went in, and saw the defendant sitting on a couch fidgeting. He stood up and tried to walk away, but the officers were concerned about their own safety so they patted him down, finding nothing, so they searched the couch where he was sitting and found a gun. United States v. Humphrey, 2007 U.S. Dist. LEXIS 33197 (W.D. Tenn. May 4, 2007).*

Defendant was not entitled to summary judgment in his false arrest case. "In this case, if the finder of fact were to credit Parker's version of the events, it could conclude that Stanhope lacked probable cause to believe the Plaintiff posed a threat of serious physical harm, either to the officer or to others and that no warning, if feasible, was given. Consequently, summary judgment is not warranted." Parker v. Henderson County, 2007 U.S. Dist. LEXIS 33233 (W.D. Tenn. May 4, 2007).*

Questions to the defendant after a traffic stop were not unreasonable. United States v. Toranzo, 2007 U.S. Dist. LEXIS 33309 (N.D. Ind. May 4, 2007)*:

Moreover, contrary to Defendant's contention, Commander Martinez's questions were not "commanding and very loaded" thereby detaining the Defendant. In fact, the Supreme Court upheld a similar line of questioning in Robinette. ...

After the ticketing was complete, Commander Martinez was free to ask Defendant any questions without probable cause or reasonable suspicion just as he could with anyone on the street or in a public place. ...

Permalink 06:56:29 am, by fourth, 548 words, 446 views   English (US)
Categories: General

Defendant's argument traffic statute was unconstitutionally vague did not overcome de facto good faith exception of Krull v. Illinois

Defendant's argument that the state traffic law on readability of license plates that was used for his stop was so vague as to be unconstitutional and that officers could arbitrarily arrest did not have any effect on the legality of his stop and search under the Fourth Amendment. The question under Krull v. Illinois is whether the officers acted in good faith reliance on the statute. United States v. Cardenas-Alatorre, 485 F.3d 1111 (10th Cir. 2007):

The Supreme Court has repeatedly instructed that the exclusionary rule ought not to be deployed when officers act in good faith--that is, in "objectively reasonable reliance" upon a statute--even though the statute ultimately may be found unconstitutional. Krull, 480 U.S. at 355; see also United States v. Leon, 468 U.S. 897 (1984). The rationale animating the good faith exception is, we are told, in harmony with the underlying purpose of the exclusionary rule, for if "the officer is acting as a reasonable officer would and should act in similar circumstances[, e]xcluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty." Leon, 468 U.S. at 920 (internal quotation omitted).

We find this exception applicable and dispositive here. Even assuming (without deciding) that Mr. Cardenas-Alatorre is correct that the New Mexico statute is unconstitutional as applied to him, we are unable to conclude that Deputy Roth acted in an objectively unreasonable manner. ...

Defendant was driving a convertible with the top down on a cold December day and he accelerated away from the police officer as he passed him. Various other factors led to reasonable suspicion. Morris v. Dean, 223 Fed. Appx. 937 (11th Cir. 2007)* (unpublished).

Plaintiffs' motion for new trial in an illegal search case is granted because of likely jury confusion on the instructions concerning the search of plaintiffs' home. Reasonableness of the method of search did not equate with whether it was reasonable at its inception. Goff v. Carpenter, 2007 U.S. Dist. LEXIS 33178 (W.D. Ark. May 4, 2007)*:

Given the pervasive focus on reasonableness in the Instructions, the Court agrees with plaintiffs that Instruction 10a had the potential to create confusion in the minds of the jurors. The only liability issue in the Interrogatories on the Verdict was whether the defendants violated the right to be secure against "unreasonable searches." Instruction 10 told the jury that plaintiffs had the burden of proving that a search of their home occurred, but also stated that it was not plaintiffs' burden to prove that any such search was unreasonable--because the search of a person's home without a warrant is presumed to be unreasonable. Thus, Instruction 10 incorporated a legal proposition based on what the evidence indisputably showed--that there was no warrant associated with the events alleged by plaintiffs to have constituted a search of their home.

The immediately following Instruction 10a then told the jury that there were things they could not consider when deciding whether the defendants' conduct was reasonable. This instruction could reasonably have implied to the jury--or permitted them to reasonably infer--that in determining whether a search of plaintiffs' home had occurred, they should evaluate the reasonableness of defendants' actions at the time of the alleged search. Such an implication and/or inference would be erroneous and could be unfairly prejudicial to plaintiffs.

05/08/07

Permalink 07:49:01 pm, by fourth, 525 words, 495 views   English (US)
Categories: General

E-mail privacy: New law review article

Leave it to the newspapers to be a source. In today's local paper is mention of a really interesting and excellent law review article: Ned Snow, A Copyright Conundrum: Protecting Email Privacy, 55 Kan. L. Rev. 101 (2007), which can be opened or downloaded here. The Abstract follows:

The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the “forward” button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of “fair use.” Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.

The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection.

Would the courts find an expectation of privacy that society would recognize as reasonable in e-mail once sent? As the White House is about to find out, "e-mail is forever." Copyright maybe; under traditional Fourth Amendment doctrine, no because, by sending an e-mail, like mailing a letter, once it is out there, it is fair game.

But, that is the point of the article: E-mail actually inhibits free and frank discussion because of fear of forwarding. What I hate are people that shoot off e-mails without thinking about them, or looking at the recipient (as they respond to an entire list serv with something confidential). Written letters give you time to think, reflect, and change your mind. An e-mail can go around the world in a matter of a second or two. A forwarded e-mail in minutes or hours, and you have no control.

Remember e-mail etiquitte:

23. Do not use email to discuss confidential information.

Sending an email is like sending a postcard. If you don't want your email to be displayed on a bulletin board, don't send it. Moreover, never make any libelous, sexist or racially discriminating comments in emails, even if they are meant to be a joke.

. . .

28. Don't send or forward emails containing libelous, defamatory, offensive, racist or obscene remarks.

By sending or even just forwarding one libelous, or offensive remark in an email, you and your company can face court cases resulting in multi-million dollar penalties.

Permalink 06:05:30 pm, by fourth, 115 words, 619 views   English (US)
Categories: General

News and comment: Man charged with audiotaping his own DUI arrest

In New Hampshire, a man was charged with wiretapping for audiotaping his own arrest when he was stopped. Boston Globe, Dover man charged with taping his DWI arrest (May 7, 2007).

So, let me get this straight: The police can surreptitiously record us, videotape from cars, place suspects in a police car with a recorder, hoping that they will talk to each other and incriminate themselves, videotape the same stop that this motorist recorded, but the motorist can't? What possible expectation of privacy does the police officer have in the police-citizen encounter? The same one that makes him figure that he can lie about the facts of a stop and the judge will always buy the story?

Permalink 07:44:59 am, by fourth, 842 words, 628 views   English (US)
Categories: General

Fire scene search where firemen went to basement to check for electrical problems was not unreasonable

Fire scene search: The fire in defendant's house was confined to the second floor, but water went everywhere and was running down to the first floor and basement. Fireman checked the building to protect against water damage and electrical problems from the water and for a continued source of CO2. In the basement, the fireman found 1250 pounds of fireworks which were unlawfully possessed under federal law. United States v. Buckmaster, 485 F.3d 873 (6th Cir. 2007):

Here, however, the firefighters did not leave and then later return, as in Tyler or Clifford. Their initial efforts were directed at extinguishing the fire in the bedroom; then their efforts turned toward ensuring that the house did not sustain electrical or structural damage owing to the water that had been released in the bedroom, and toward ensuring that carbon monoxide levels were at an acceptable level. All this appears to have lasted less than one hour. Tr. at 35 (Perko Test.); Tr. at 60 (Byers Test.). Nothing in the express language of Tyler and Clifford, nor in what can be inferred therefrom, suggests that it is unreasonable for firefighters to act in this fashion, even if it involves making warrantless entries into some of the rooms of the house not directly affected by smoke or fire. If the government provided unrefuted testimony that water was "basically raining in the basement and coming out of outlets and such things," we fail to see how Buckmaster can claim that it was unreasonable for Madison Township firefighters to stem this flow of water and prevent it from causing electrical shorts or other potential electrical dangers.

It seems an unremarkable proposition that if firefighters are aware of lurking electrical dangers resulting from their efforts to put out a fire in a home--imagine, for example, a homeowner who returns to his salvaged house and attempts to plug an appliance into a moist socket, especially an old socket not fitted with a ground fault circuit interrupter--they should neither have to obtain a warrant nor the express permission of the homeowner in order to alleviate such dangers, especially when they do so, as here, immediately after the fire has been extinguished. This temporal caveat is important, for it makes all the difference in assessing reasonableness. In Clifford, for example, when the arson investigators returned to the house some five hours after the blaze had been extinguished, they were met by a work crew that was not only boarding up the house but was also "pumping some six inches of water out of the basement." 464 U.S. at 290. Had the fire officials in Clifford attempted to justify their reentry at this point on grounds that they wished to ensure the electrical safety of the house (an argument which they wisely did not make), such justification would have been utterly unreasonable and pretextual, because they could of course have taken such action five hours earlier.

Fact dispute denied summary judgment and qualified immunity in case where the plaintiff alleged that she was stopped and searched based on a domestic dispute to aid her husband's cause the day before a child custody hearing. Piers v. Higgs, 2007 U.S. Dist. LEXIS 33006 (W.D. Mich. May 4, 2007):

Plaintiff has sued for violation of her Fourth Amendment right to be free from unreasonable searches, arrest and prosecution pursuant to 42 U.S.C. § 1983. Plaintiff has alleged that Defendant VandenBerg and Defendant Rickey Lynn Higgs conspired to violate § 1983 by planting drugs and a partially full bottle of wine in her car and affecting an arrest the night before a scheduled child custody hearing. Plaintiff further alleges a state claim of malicious prosecution.

. . .

As detailed above, Plaintiff has alleged sufficient facts to show that, if true, there was a violation of her constitutional right to be free from an unreasonable search and seizure under the Fourth Amendment of the Constitution. There is no question that if Defendant VandenBerg initiated a traffic stop without probable cause, such an action would violate the "clearly established law" under the Fourth Amendment. See Ferguson, 8 F.3d at 391; see also Terry v. Ohio, 392 U.S. 1 (1968). Further, examining the record in a light most favorable to Plaintiff, there are sufficient facts which raise a question as to whether Defendant VandenBerg had probable cause to arrest or prosecute Plaintiff after the search of her vehicle. Plaintiff apprised Defendant VandenBerg of the fact she was due in court the next day over a custody dispute with her soon-to-be ex-husband. This fact called into question the motivation and credibility of Defendant VandenBerg's "source" regarding Plaintiff's drug use and habit, which information was allegedly the only reason he was following Plaintiff on that occasion. In light of these facts, Defendant VandenBerg's claim of qualified immunity must be denied.

Claim preclusion of a nuisance case in state court barred a federal case on the same facts. Cornell v. City of Cleveland, 2007 U.S. Dist. LEXIS 33063 (N.D. Ohio May 4, 2007).*

Defendant's evasive conduct in dealing with the officers and her drug history justified a dog sniff when she was stopped. State v. Stombaugh, 2007 MT 105, 157 P.3d 1137 (2007).*

05/07/07

Permalink 05:46:47 am, by fourth, 185 words, 535 views   English (US)
Categories: General

Passing through an unlocked front gate to get to the front door for a knock and talk is not a violation of the Fourth Amendment

Officers passing through an unlocked gate to get to defendant's front door for a knock and talk was not a violation of the Fourth Amendment. United States v. Otero, 231 Fed. Appx. 809 (10th Cir. 2007)* (unpublished).

Under the totality of circumstances, the encounter between the defendant and the officer in a city park was voluntary and led to consent. State v. Young, 37 Kan. App. 2d 700; 157 P.3d 644 (2007).*

Officer had exigent circumstances, the factual basis of which are not explained, for entering premises to search for pseudophedrine which he found was being flushed after he knocked [it would be better if there was evidence mentioned that the officer actually heard the flushing]. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (May 4, 2007) (maybe unpublished, following Britt v. Commonwealth, 2006 WL 141590 (Ky. Jan. 19, 2006) (unpublished), which is supposed to be exactly the same.*

Defendant was detained on suspicion of burglary. A patdown produced a watch. Taking the defendant to the police station to determine whether the watch was stolen was an unreasonable extension of the detention without reasonable suspicion. Even the patdown was unreasonable. State v. Boyce, 2007 Ohio 2131, 2007 Ohio App. LEXIS 2011 (2d Dist. May 4, 2007).*

05/06/07

Permalink 11:43:23 am, by fourth, 915 words, 884 views   English (US)
Categories: General

Ambiguous response that defendant was "right over there" was not consent to enter to arrest him

Officers asked for defendant who the householder said was "right over there." This was not consent and was ambiguous, so government did not prove consent to enter to arrest the defendant. United States v. Castapheny, 2007 U.S. Dist. LEXIS 32872 (S.D. W.Va. May 3, 2007).

Protective sweep that lasted too long was unreasonable. And, inevitable discovery does not apply because there was no ongoing line of investigation that would have inevitably led to finding the drugs. United States v. Ibarra, 2007 U.S. Dist. LEXIS 32901 (D. S.D. May 3, 2007):

The Magistrate's Report and Recommendation correctly concluded that this Court is limited by the Eighth Circuit's interpretation of Buie in the Waldner case. The "sweep" in the case at hand lasted longer than what was necessary to dispel any reasonable suspicion of danger, and extended beyond a "cursory inspection" of any potentially dangerous space within the trailer home. Further, at the time Officer Ellman discovered the narcotics on the plate he could no longer have possessed "a reasonable belief based on specific and articulable facts that the area to be swept harbor[ed] an individual posing a danger." Buie, 494 U.S. at 337. For these reasons the Magistrate's Report and Recommendation correctly rejects the Government's position that the search was valid under the protective sweep doctrine.

. . .

In addition, this Court does not find that in the facts of this case there existed "an ongoing line of investigation that is distinct from the impermissible or unlawful technique," so as to satisfy the second factor of the inevitable discovery exception to the exclusionary rule. See United States v. Villalba-Alvarado, 345 F.3d 1007, 1020 (8th Cir. 2003). Although Officer Ellman when identifying individuals in the back room discovered that one of the women had an outstanding arrest warrant, this incident does not constitute a substantial, alternative line of investigation that the officer was pursuing at the time his conduct exceeded the scope of a valid protective sweep. Having satisfied neither of the two factors, the facts of this case do not support the inevitable discovery exception to the exclusionary rule.

Evidence seized during unlawful search cannot constitute proof against the victim of the search, and this exclusionary prohibition extends to both direct and indirect products of the unlawful search. Wong Sun v. United States, 371 U.S. 471 (1963). Since this Court has determined that the officer's conduct exceeded the scope of a Constitutionally valid protective sweep at the time the drugs on the plate were found in the bedroom, and since this Court has found that the inevitable discovery exception to the exclusionary rule does not apply, this Court concludes that evidence of the drugs on the plate shall be suppressed, and the evidence of other drugs and drug related items that were found in the trailer as well as Defendant's statements that were made after being confronted with the evidence of the drugs on the plate, shall be suppressed as the fruit of the unlawful search.

The question of consent for entry to arrest was fact bound, as defendants concede, so summary judgment was precluded. Stokes v. City of New York, 2007 U.S. Dist. LEXIS 32787 (E.D. N.Y. May 3, 2007).*

Posting plaintiff on a "Mug/Drug website" with a disclaimer that the individuals posted had been arrested but not convicted did not state a § 1983 claim. It did not state a state claim for defamation because it was true. Blake v. Minner, 2007 U.S. Dist. LEXIS 32819 (D. Del. May 1, 2007).*

Government showed sufficient reasonable cause to seize money as possible drug money to survive motion to dismiss a forfeiture action under CAFRA (essentially the same probable cause to seize it in the first place). United States v. $50,040 in United States Currency, 2007 U.S. Dist. LEXIS 32840 (N.D. Cal. April 19, 2007):

This order looks to the totality of the circumstances to evaluate the sufficiency of the complaint. Mondragon, 313 F.3d at 866. In the instant case, the $ 50,040 consisted of 118 hundred-dollar bills, 108 fifty-dollar bills, 1641 twenty dollar bills and 2 ten-dollar bills. The currency "was divided into 50 individually rubber-banded stacks" contained in "two separate heat-sealed pouches," further sealed in a computer box (Compl. PP 9). Although strong evidence, a large sum of money, by itself, is insufficient to show a connection to drugs. United States v. Currency, U.S. $42,500.00, 283 F.3d 977, 981-982 (9th Cir. 2002). But other factors present here suggest a connection to drugs. Courts have found the manner of packaging used in this case to be consistent with drug trafficking. Id. at 982 (wrapping money in cellophane was commonly used to conceal drug odor and avoid detection by drug dogs); United States v. $242,484.00 in U.S Currency, 389 F.3d 1149, 1161-1163 (11th Cir. 2004) (rubber-banded money sealed in cellophane-like material and Christmas wrap was consistent with drug couriers). The narcotic detection canine alerted to the package. $42,500.00, 283 F.3d at 982 (whether there is a sophisticated dog alert is an important factor). When questioned, the claimant gave inconsistent statements. The addressee denied knowing the claimant and disclaimed the package. United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212 1216-1217 (9th Cir. 2001) (inconsistent statements and discrepancies in stories support an inference that the money was drug-related). The totality of these allegations support a reasonable belief that the currency was connected to drugs. Mondragon, 313 F. 3d at 866 (the sum, unusual packaging in sealed plastic bags and drug dog alert on money found sufficient). The complaint is detailed enough that Moss could have commenced a meaningful investigation and drafted a responsive pleading. Finding that the complaint sufficiently states a claim under both Rule G and Rule E(a)(2), this order denies claimant's motion to dismiss.

05/05/07

Permalink 10:31:43 am, by fourth, 646 words, 772 views   English (US)
Categories: General

Defendant's shed was outside the curtilage and, therefore, not covered by the warrant

In dealing with a two edged sword, the defendant successfully argued his shed was outside the curtilage and therefore not subject to the search warrant for the premises, and gets the search of the shed suppressed. (Usually, being outside the curtilage means no reasonable expectation of privacy, but it depends upon the facts.) United States v. Gilman, 2007 U.S. Dist. LEXIS 32524 (D. Haw. May 2, 2007):

4. "Every curtilage determination is distinctive and stands or falls on its own unique set of facts." Depew, 8 F.3d at 1426. In United States v. Dunn, 480 U.S. 294, 301, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (1987), the Supreme Court stated that questions of curtilage should be

"resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, the steps taken by the resident to protect the area from observation by people passing by."

These factors "cannot be mechanically applied, but are merely useful analytical tools to determine whether an area is to be protected from unconstitutional searches and seizures." Johnson, 256 F.3d at 901 (quoting Dunn, 480 U.S. at 301).

5. The Government's only argument against suppressing the evidence obtained from Gilman's shed is that the shed falls within the curtilage of Gilman's home and is therefore covered by the search warrant.

The misstatements in the affidavit for the search warrant were not substantial enough to deny the officer qualified immunity. There unquestionably was probable cause from observation of the plaintiff's marijuana grow operation, albeit for medical purposes. Plaintiff's claim of excessive force and unreasonable conduct by the officers was sufficient to survive summary judgment. Wood v. Kitsap County, 2007 U.S. Dist. LEXIS 32634 (W.D. Wash. May 3, 2007).*

Swearing match between defendant and officers goes to the police, and their testimony is found more credible that the defendant consented to the search and it was completely nonconfrontational. United States v. Espinoza-Flores, 2007 U.S. Dist. LEXIS 32573 (D. Ore. April 30, 2007).*

911 call of a battery in progress in a driveway brought officers to defendant's house. A man in the driveway denied knowledge of any such occurrence, and he said that there were people inside. Officers went to the porch and asked the man who came to the door, and he denied knowledge of the occurrence. The testimony of the officers differed at this point, and one ended up inside arresting defendant for "obstructing my investigation." The search of the house thereafter was unreasonable. Wheeler v. State, 956 So. 2d 517 (Fla. App. 2d Dist. 2007).*

Defense counsel's failure to object to defendant's exercise of his right to not consent to a search was a "fundamental error" but harmless under the facts of this case. State v. Christiansen, 144 Idaho 463, 163 P.3d 1175 (2007):

The same rationale that precludes evidence of an accused's assertion of his or her Fifth Amendment Rights offered for the purpose of either impeachment or inferring guilt precludes evidence of the accused's assertion of his or her Fourth Amendment rights offered for the same purposes. The State concedes that the prosecuting attorney's sole purpose for eliciting this testimony was to have the jury infer that Christiansen's refusal to consent to the search showed consciousness of guilt. The State also agrees that eliciting such testimony was improper and that the prosecuting attorney could not reasonably have believed that such evidence was admissible in this case. We hold that the prosecutor's questioning as to Christiansen's refusal to consent to the search of his business premises constituted fundamental error when the purpose for such testimony is to show consciousness of guilt.

Defendant's counsel's concessions at close of the suppression hearing that the officer who obtained the search warrant was a sworn law enforcement officer in the jurisdiction waived the argument for appeal [which likely was factually a loser anyway]. State v. Alton, 2007 Ohio 2109, 2007 Ohio App. LEXIS 1969 (8th Dist. May 3, 2007).*

Permalink 08:36:39 am, by fourth, 1083 words, 715 views   English (US)
Categories: General

8th Cir. clarifies officers' ability to question during traffic stop / 3d Cir. exhalts good faith exception over motions to suppress

The Eighth Circuit clarifies its cases, not in an en banc opinion, and holds that three brief questions during a valid traffic stop is not unreasonable, even though one of them was about carrying drugs. Dog sniff while waiting for a response from the dispatcher was not unreasonable. Even Hudson is invoked. United States v. Olivera-Mendez, 2007 U.S. App. LEXIS 10492 (8th Cir. May 4, 2007):

Some of our cases appear to say that merely asking an off-topic question during an otherwise lawful traffic stop violates the Fourth Amendment, United States v. Ramos, 42 F.3d 1160, 1163 (8th Cir. 1994); United States v. Barahona, 990 F.2d 412, 416 (8th Cir. 1993), but this view does not survive Muehler v. Mena, 544 U.S. 93, 125 S. Ct. 1465, 161 L. Ed. 2d 299 (2005). In Muehler, the Supreme Court reiterated that "mere police questioning does not constitute a seizure," id. at 101 (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)), and rejected the suggestion that questioning on a matter unrelated to the purpose of a detention constituted a "discrete Fourth Amendment event." Id. at 100-01. Where the initial detention was not prolonged by questioning on unrelated matters, "there was no additional seizure within the meaning of the Fourth Amendment." Id. at 101. See also United States v. Shabazz, 993 F.2d 431, 436-437 (5th Cir. 1993).

Muehler does not address whether questions unrelated to the initial purpose of a detention may constitute an unlawful seizure if they extend the length of the detention. Three circuits have held that where a seizure of a person is based on probable cause to believe that a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention. United States v. Alcaraz-Arellano, 441 F.3d 1252, 1259 (10th Cir. 2006); United States v. Burton, 334 F.3d 514, 518-19 (6th Cir. 2003); United States v. Childs, 277 F.3d 947, 951-54 (7th Cir. 2002) (en banc); but cf. United States v. Pruitt, 174 F.3d 1215, 1220-21 (11th Cir. 1999). The rationale for this conclusion was stated most thoroughly by the en banc Seventh Circuit, which reasoned that in contrast to the constraints applicable to a stop based merely on reasonable suspicion, see Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Fourth Amendment does not require the release of a person seized with probable cause "at the earliest moment that step can be accomplished," and that "[q]uestions that hold potential for detecting crime, yet create little or no inconvenience, do not turn reasonable detention into unreasonable detention." Childs, 277 F.3d at 953-54. See Berkemer v. McCarty, 468 U.S. 420, 439 n.29, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984) ("We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop."). The police here had probable cause to seize Olivera-Mendez for driving at an excessive speed, and we do not think Kolz effected an unreasonable seizure simply by asking three brief questions related to possible drug trafficking amidst his other traffic-related inquiries and tasks.

Assuming for the sake of argument, however, that it was unreasonable for Kolz to extend the stop by twenty-five seconds unless he had reasonable suspicion to ask questions about drug-related activity, we hold alternatively that evidence seized from Olivera-Mendez should not be suppressed. Evidence should not be excluded from trial based on a constitutional violation unless the illegality is at least a but-for cause of obtaining the evidence. Hudson v. Michigan, 126 S. Ct. 2159, 2164, 165 L. Ed. 2d 56 (2006); Segura v. United States, 468 U.S. 796, 815, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984). There is no basis on this record to conclude that Kolz's brief and fruitless inquiries about drugs during the course of an otherwise lawful traffic stop led to discovery of the cocaine.

Third Circuit belittles motions to suppress search warrants holding that the good faith exception will ordinary cure any problem with a warrant, and the reviewing court should consider good faith and not bother with the merits. United States v. Primo, 223 Fed. Appx. 187 (3d Cir. 2007) (unpublished):

In a case such as this, where "a suppression motion poses no Fourth Amendment question of broad import," it is "prudent [*5] for a reviewing court to immediately turn to the question of whether the officers acted in good faith." Gates, 462 U.S. at 265 (White, J., concurring in the judgment); see United States v. $92,422.57, 307 F.3d 137, 145 (3d Cir. 2002); see also United States v. Craig, 861 F.2d 818, 820 (5th Cir. 1988) ("Principles of judicial restraint ... dictate that, in most cases, we should not reach the probable cause issue if a decision on the admissibility of the evidence under the good-faith exception of Leon will resolve the matter."). We will therefore limit our analysis to the dispositive question of "whether a reasonably well trained officer would have known that the search[es] [were] illegal despite the magistrate's authorization." Loy, 191 F.3d at 367.

Under our cases, the mere "fact that an officer executes a search pursuant to a warrant typically suffices to prove that an officer conducted a search in good faith and justifies application of the good faith exception." $92,422.57, 307 F.3d at 146 (internal quotation omitted). Indeed, we have identified only "four narrow situations," id., in which suppression is appropriate:

"(1) the magistrate issued the warrant in reliance on a deliberately or recklessly false affidavit.

(2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function.

(3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.

(4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized."

Williams, 3 F.3d at 74 n.4 (citations omitted).

Primo does not specifically argue that any of these "narrow situations" applies here. In fact, his brief does not mention Leon's good-faith exception. Our own independent review of the record confirms that the Somerset police officers acted in good-faith reliance on the District Justice's issuance of the four warrants in question. The record contains no indicia of deliberate or reckless falsities in the affidavits. The District Justice appears to have performed his neutral and detached function. The affidavits contain sufficient indicia of probable cause. And none of the four warrants is "so facially deficient that it failed to particularize the place to be searched or the things to be seized." See id. In short, the Somerset police reasonably relied on the authority of the four search warrants, and the District Court's denial of Primo's suppression motion was proper.

05/04/07

Permalink 08:29:12 am, by fourth, 430 words, 623 views   English (US)
Categories: General

In kidnapping cases, the emergency doctrine permits a search not only for the kidnap victim, but also for evidence that might lead to the victim's location

Wisconsin holds that, "in kidnapping cases, the emergency doctrine permits a search not only for the kidnap victim, but also for evidence that might lead to the victim's location." The searches here were lawful. State v. Larsen, 2007 WI App 147, 302 Wis. 2d 718, 736 N.W.2d 211 (2007).

Game wardens were investigating illegal use of ATVs on state protected lands and came upon the defendants. The defendants were armed and the officers asked about other weapons, and the defendants validly consented to a search of their trucks that revealed drug paraphernalia. One defendant actually assisted in the search of his vehicle, and that indicated voluntariness. State v. Hartwig, 2007 WI App 160, 302 Wis. 2d 678, 735 N.W.2d 597 (2007).

Traffic stop in a "criminal hot spot" that led to seeing a gun justified a search of the car. United States v. Kimber, 2007 U.S. Dist. LEXIS 31978 (S.D. Ohio May 1, 2007).*

Defendant passenger had standing to challenge the stop of the vehicle he was riding in [the issue pending in Brendlin v. California, argued April 23d]. The use of a drug dog while waiting for the computer check to come back was reasonable. United States v. Garcia-Medina, 2007 U.S. Dist. LEXIS 32073 (D. Kan. April 30, 2007).*

Defendant was a cashier at a National Park store and she was arrested without a warrant after computer surveillance of her making sales but pocketing the money. She was charged with theft and felony conspiracy. Due to a family emergency, the Park Magistrate was unavailable for 28 hours, so she was late being presented to a magistrate. This was not a deliberate or egregious delay justifying dismissal of the charges. United States v. Guthrie, 2007 U.S. Dist. LEXIS 32329 (E.D. Cal. April 18, 2007).

Defendant abandoned property for expectation of privacy purposes by leaving it on a telephone pole when police approached. It was in a public place and away from his person. The burden of proof is not beyond all doubt. People v. Henry, 477 Mich. 1123, 730 N.W.2d 248 (2007).*

Similarly, in a Texas case, defendant saw a police car approach and he obviously threw something into a car that was not his. When the officer approached the defendant, he was excessively nervous, and the officer's reaching into the car and opening the package was not unreasonable because there was no evidence that would render defendant's claim of privacy objectively reasonable. Jimenez v. State, 2006 Tex. App. LEXIS 11278 (Tex App. — San Antonio September 27, 2006, released for publication April 13, 2007).*

Defendant's close proximity to where drugs were found during a search was a factor in determining constructive possession. Reynosa v. State, 2006 Tex. App. LEXIS 8941 (Tex. App. — San Antonio October 18, 2006, released for publication April 23, 2007).*

Permalink 07:14:37 am, by fourth, 1134 words, 788 views   English (US)
Categories: General

Office of Foreign Asset Control seizures of assets for alleged terrorism support were valid

The Holy Land Foundation was subject to seizure of assets and a search by the government in Decemer 2001 as a terrorist supporting organization, and the search of property and the seizure of assets were valid under the Fourth Amendment. United States v. Holy Land Found., 2007 U.S. Dist. LEXIS 32293 (N.D. Tex. May 2, 2007):

On December 4, 2001, in accordance with this terrorist designation and the International Emergency Economic Powers Act ("IEEPA"), 50 U.S.C. § 1701, et seq., the Office of Foreign Asset Control ("OFAC"), a division of the Department of Treasury, blocked HLF's assets. Id. The same day OFAC searched HLF's offices in California, Illinois, New Jersey, and Texas and seized physical property and assets in those locations. Id.; Government's Response to Defendants' Joint Motion and Memorandum to Suppress Evidence ("Government's Response") at 2.

OFAC based its seizures entirely on its authority derived from the IEEPA, relevant executive orders, and the blocking notices pertaining to HLF's assets; it did not obtain a search warrant or other judicial approval before engaging in the searches and seizures. Defendant's Motion at 5. In April 2002, the FBI obtained warrants from Magistrate Judge Stickney of this court to search HLF property that had been previously seized by OFAC.

. . .

As an initial matter, the government argues that the Fourth Amendment was not implicated by OFAC's conduct because no investigative action was undertaken until the FBI obtained a warrant in April 2002. Id. at 2-3. The government offers no authority for this contention, and the court finds it unpersuasive. The Fourth Amendment not only prohibits the unauthorized search of property; it also prohibits unauthorized seizure--an action clearly taken by OFAC.

Whether an action violates the Fourth Amendment, however, is a different question from whether the action simply implicates the amendment's protections. In this case, the government contends that OFAC did not violate the Fourth Amendment because no warrant was required for OFAC to seize the HLF's property. This argument is premised on the fact that OFAC derives its authority to seize assets from executive orders and the IEEPA. Id. at 7-9.

. . .

The defendants have admitted that the IEEPA applies to them. See Defendant's Motion at 7-8. They argue, however, that a "nonprofit humanitarian organization is not a 'closely regulated' industry" as would be required to support a warrantless search. Id. at 10, citing New York v. Burger, 482 U.S. 691, 715 (1987). In Burger, the Supreme Court found that an administrative scheme allowing inspectors to review the records and inventory of vehicle junkyard operators to ensure that stolen vehicles are not being improperly dismantled did not violate the Fourth Amendment. Burger, 482 U.S. at 715-16. The court found that the statute satisfied an important administrative purpose and that it was not unconstitutional simply because inspectors regularly discovered other criminal behavior when conducting statutorily authorized inspections. Id.

While the court agrees with the defendants that nonprofit humanitarian organizations are not a closely regulated industry like automotive junkyards or arms dealers, the court believes a more relevant categorization applied to the HLF at the time OFAC executed the blocking order and seized property belonging to the defendants--it was a specially designated global terrorist. See Defendant's Motion at 3. Moreover, the IEEPA clearly gave the defendants notice that the government could use any means specified by the President to "investigate, block ... regulate, direct and compel, nullify, void, prevent or prohibit, any acquisition, holding, withholding, use, transfer, withdrawal, transportation, importation or exportation of, or dealing in, or exercising any right, power, or privilege with respect to, or transactions involving, any property" in which the HLF had an interest. 50 U.S.C. § 1702(a)(1)(B). The court cannot agree with the defendants' assertion, see Defendant's Motion at 10, that OFAC's seizure was not based on the government's regulation of the HLF's activities. Indeed, the court finds that OFAC's seizure was based entirely on the government's regulation of specially designated terrorist organizations in accordance with Executive Orders 12947 and 13224 and the IEEPA. See id. at 7.

Furthermore, even if the court were to conclude that OFAC's actions violated the Fourth Amendment--which they do not--the defendants have not shown that the exclusionary rule should apply to the evidence obtained from OFAC's seizure. In Arizona v. Evans, 514 U.S. 1, 12-14 (1995), the Supreme Court noted that the exclusionary rule does not apply to every violation of the Fourth Amendment. The court held, "exclusion is appropriate only if the remedial objectives of the [exclusionary] rule are thought most efficaciously served." Id. at 13-14.

The standard for qualified immunity is "arguable probable cause," not probable cause. Taking the facts most favorably to the officer, there was neither in this case. Skop v. City of Atlanta, 485 F.3d 1130 (11th Cir. 2007):

While an officer who arrests an individual without probable cause violates the Fourth Amendment, this does not inevitably remove the shield of qualified immunity. We do not automatically hold an officer liable for making an arrest that, when seen with the benefit of hindsight, turns out not to have been supported by probable cause. As the Supreme Court observed in Anderson v. Creighton, 483 U.S. 635, 641 (1987), "it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials ... should not be held personally liable." Thus, even if we determine that the officer did not in fact have probable cause, we apply the standard of "arguable probable cause," that is, whether "reasonable officers in the same circumstances and possessing the same knowledge as the Defendant[] could have believed that probable cause existed to arrest." Lee v. Ferraro, 284 F.3d 1188, 1195 (11th Cir. 2002) (emphasis added, quotation marks omitted). Indeed, this is "all that is required for qualified immunity to be applicable to an arresting officer." Scarbrough v. Myles, 245 F.3d 1299, 1302 (11th Cir. 2001) (per curiam). This standard recognizes that law enforcement officers may make reasonable but mistaken judgments regarding probable cause but does not shield officers who unreasonably conclude that probable cause exists.

Whether an arresting officer possesses probable cause or arguable probable cause naturally depends on the elements of the alleged crime, Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004), and the operative fact pattern. Here, the officer suggests that there are two possible crimes for which Skop could be arrested: obstructing a police officer in the lawful discharge of his official duties, and refusing to obey an order from an officer directing traffic. If Officer Brown possessed probable cause or arguable probable cause to arrest Skop for either, he is entitled to qualified immunity. We take each in turn.

Where no finding was made on part of plaintiff's motion to suppress in his state court conviction or no evidence was derived from the search that was used as evidence, collateral estoppel did not bar his federal action. Shales v. General Chauffeurs, Salesdrivers & Helpers Local Union No. 330, 2007 U.S. Dist. LEXIS 32268 (N.D. Ill. May 2, 2007).*

05/03/07

Permalink 08:00:39 am, by fourth, 304 words, 798 views   English (US)
Categories: General

MD: Smell of burnt marijuana is PC to search passenger compartment and trunk

Maryland holds that the smell of burnt marijuana gives probable cause to search the passenger compartment and trunk, analyzing the cases from other jurisdictions and the interests involved and the "burnt-raw" odor and "user-dealer" distinctions. Wilson v. State, 138 Wn. App. 29, 156 P.3d 246 (2007):

To adopt appellant's argument, the trunk, or any other area outside of the passenger compartment, becomes a safe harbor for the transportation of drugs for both users and traffickers who use drugs. n8 We are not persuaded that a Fourth Amendment reasonableness analysis dictates that result. Probable cause is "a flexible, common-sense standard" to be applied in a "practical" and "non-technical" manner. Davis, 172 Md. App. at 89. The result we reach meets that standard because it eliminates the need to distinguish between burnt, burning, or raw marijuana and avoids speculation over whether a person is a user or a trafficker and, depending on which he or she is, where, within a vehicle, he or she would conceal any additional marijuana.

Officers had probable cause to believe that defendant's vehicle was an instrumentality of crime, so it was searchable under the automobile exception. United States v. Timmons, 233 Fed. Appx. 206 (4th Cir. 2007)* (unpublished).

State's failure to raise standing in trial court waives it for appeal. The evidence supported the trial court's finding of consent. Brownfield v. State, 44 So. 3d 1, (Ala. Crim. App. 2007), Released, As Corrected May 6, 2008, Released for Publication August 2, 2010.Affirmed by Ex parte Brownfield, 2009 Ala. LEXIS 334 (Ala., Dec. 23, 2009)*

Consent to search pockets for weapons does not authorize the officer to search further. Here, officer felt neither weapons nor contraband and went into the pocket. Foster v. State, 285 Ga. App. 441, 646 S.E.2d 302 (2007).*

Defendant's admission he had a gun in the car was sufficient basis for a vehicle frisk, and that led to a plain view. State v. Parker, 183 N.C. App. 1, 644 S.E.2d 235 (2007).*

05/02/07

Permalink 07:21:34 am, by fourth, 299 words, 552 views   English (US)
Categories: General

California holds that DNA may be taken from a juvenile adjudicated of a felony

A juvenile adjudicated of a felony in juvenile court may have DNA taken from him. In re Calvin S., 150 Cal. App. 4th 443, 58 Cal. Rptr. 3d 559 (3d Dist. 2007).

Insurance company's investigator was not acting as an agent of the state when he entered and reentered insured's property investigating a fire. The trial court erred in holding that he was. People v. Pilkington, 156 P.3d 477 (Colo. 2007):

We agree with the Tenth Circuit's observation that there are "two important inquiries" that aid in determining whether an individual is acting as an agent of the government: (1) whether the government "encourage[d], initiate[d], or instigate[d] the private action," and (2) whether "the party performing the search intended to assist law enforcement efforts or to further his own ends." United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir. 1996) (citing Pleasant v. Lovell, 876 F.2d 787 (10th Cir. 1989)). On previous occasions this court has paid special attention to these factors when considering whether private actors are agents of the government.

A Kansas State Trooper had reasonable suspicion to pull over the defendant for weaving onto the shoulder. Once stopped, the officer developed probable cause to believe that the car was stolen, and that justified defendant's arrest. United States v. Brown, 234 Fed. Appx. 838 (10th Cir. 2007)* (unpublished).

Defendant was arrested in a national park and tried for assault before a U.S. Magistrate Judge. Instead of moving to suppress evidence, he moved to dismiss, and that did not provide a remedy. An illegal arrest does not void a subsequent conviction. United States v. Vasquez, 2007 U.S. Dist. LEXIS 31278 (E.D. Cal. April 10, 2007).*

Defendant consented to a search of his person, and finding a "large amount of cash" [$525] and suspected contraband on him gave probable cause to search his car. State v. Hawkins, 2007 Ohio 2080, 2007 Ohio App. LEXIS 1941 (5th Dist. April 23, 2007).*

05/01/07

Permalink 09:34:26 am, by fourth, 338 words, 475 views   English (US)
Categories: General

Single expert's hypothesis on unreasonable deadly force did not overcome all the deposition evidence to contrary

Single expert's hypothesis that plaintiff's decedent was unreasonably the target of deadly force compared to all the other testimony in the record is not enough to overcome summary judgment for the officers. The issue was whether there was a fact question decedent pointed a gun at the officers before he shot them. Summary judgment affirmed. Lewis v. Adams County, 244 Fed. Appx. 1 (6th Cir. 2007)* (unpublished):

With respect to the use of deadly force, certain specific rules apply. For example, "the Fourth Amendment prohibits a police officer's use of deadly force to seize an unarmed, non-dangerous suspect." Sample v. Bailey, 409 F.3d 689, 696 (6th Cir. 2005) (citing Garner, 471 U.S. at 11). Rather, the use of deadly force is only constitutionally permissible if "the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others ...." Garner, 471 U.S. at 11; see also Sample, 409 F.3d at 697 (noting that "only in rare instances may an officer seize a suspect by use of deadly force" (internal quotations omitted)).

Plaintiff defeats summary judgment for defendant officers on excessive force claim that they slammed his face into the trunk of the police car while arresting him and broke his jaw. Affer v. Taylor, 2007 U.S. Dist. LEXIS 31045 (E.D. Mich. April 27, 2007).*

Defendant's English pro se filing in opposition to his counsel's Anders brief that claimed he did not understand English to consent did not show that defendant's search incident or consent was invalid. The arguments to the contrary were frivolous. United States v. Ochoa, 2007 U.S. App. LEXIS 9877 (7th Cir. April 18, 2007)* (unpublished).

Smell of burnt marijuana after a traffic stop justified a search of the car. United States v. Reeves, 2007 U.S. Dist. LEXIS 31120 (W.D. Mich. April 27, 2007).*

Murder defendant's failure to object to testimony about knives found in his vehicle at the time of his arrest that were allegedly stolen in another burglary made his search claim harmless. People v. Prince, 40 Cal. 4th 1179, 57 Cal. Rptr. 3d 543, 156 P.3d 1015 (2007). [He would lose on the merits, anyway.]

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Little Rock, Arkansas
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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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