Officers had a search warrant for drugs and found a safe in the premises. They induced the defendant to open it under threat of breaking into it. Consent is not an issue because the warrant authorized entry. United States v. Carlisle, 2007 U.S. Dist. LEXIS 46692 (N.D. Ind. June 26, 2007).
Police surveilled the defendant and had probable cause to believe that defendant and his car were involved in a crime. On his arrest, a search incident of the car validly led to seizure of a piece of paper with handwritten notations and a cellular phone SIM card. United States v. Tribble, 2007 U.S. Dist. LEXIS 46920 (E.D. N.Y. June 28, 2007).
Defendant's guilty plea and fact he would lose on merits cut off ineffective assistance claim. Washington v. United States, 2007 U.S. Dist. LEXIS 46917 (W.D. Tex. June 28, 2007).*
Plaintiff's arrest for breach of the peace after a neighbor's 911 call about the occupants of his house being highly intoxicated and arguing was justified and summary judgment was granted. Engwer v. Sims, 2007 U.S. Dist. LEXIS 46826 (D. S.C. June 26, 2007).*
Plaintiff's delay in bringing his search claim until after his conviction was set aside was time barred because it was not facially barred by Heck. D'Angelo v. Kirschner, 2007 U.S. Dist. LEXIS 46698 (D. Conn. June 26, 2007).*
The USMJ found that reasonable suspicion developed before the traffic ticket was issued, and defendant's summary objection was insufficient to prevent adoption of the finding. United States v. Gooden, 2007 U.S. Dist. LEXIS 46806 (E.D. N.C. June 26, 2007).*
Police called defendant's probation officer who arrived at the scene of the arrest, and the probation officer conducted a valid search. Everett v. State, 2007 Del. LEXIS 282 (June 28, 2007).*
The police exceeded the permissible scope of a Terry search when, after searching and restraining the defendant, searching the vehicle he was driving, and calling a drug-sniffing dog to the scene to search for illegal drugs, they returned to the vehicle and conducted another search based on the same suspicion that justified the initial searches. The trial court erred when it failed to suppress as evidence a gun the police found during their last search of the vehicle. State v. Flowers, 734 N.W.2d 239 (Minn. 2007).
The Fifth Circuit held that a person on the premises when a search warrant is executed can be patted down, finding that Ybarra which involved a bar owner and customers, did not neatly apply to search of a house because of a closer, personal relationship, and the patdown of the defendant here was reasonable. United States v. Darensbourg, 236 Fed. Appx. 991 (5th Cir. 2007) (unpublished):
In granting the suppression motion, the district court relied on Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), for the proposition that Darensbourg and Aycock's presence in the home where a narcotics search was to take place, without more, did not provide individualized suspicion that Darensbourg was either involved in drug trafficking or armed and dangerous. Ybarra held unconstitutional the search of a bar patron, which occurred during the execution of a search warrant authorizing searching the tavern and a bartender for heroin possession. Id. at 88. The Court agreed that police officers had a valid warrant to search the premises, but that warrant "gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers". Id. at 92.
The circumstances at hand are markedly different. We are mindful that "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person". Id. at 91 (emphasis added); see also United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (mere presence at a dwelling suspected of containing narcotics, by itself, is not enough to establish reasonable suspicion). In Ybarra the bar patrons had no relationship with the bar or the bartender therefore, searching the individuals present at that bar did not comport with Terry's requirement for reasonable, articulable suspicion.
In contrast, occupants of a house generally have a closer relationship, and it is not unreasonable to think their relationship might extend to involvement in illegal activities. (Although it was later determined that Darensbourg did not reside at the house, the Officers did not know that previous to the patdown.) Along that line, the Officers had been conducting surveillance of the house and had just arrested Fitzgerald, who, a short time before, had exited the house carrying a large quantity of drugs and a loaded handgun. Based on these factors, reasonable officers could believe that Darensbourg and Aycock could also have been involved in drug trafficking and were therefore possibly armed as well. E.g., United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) ("[F]irearms are tools of the trade for those engaged in illegal drug activities." (internal citations and quotation marks omitted)); see also United States v. Reid, 302 U.S. App. D.C. 374, 997 F.2d 1576, 1579 (D.C. Cir. 1993) (defendant's proximity to drug apartment being searched and the officer's concern for safety justified Terry frisk). The patdown was reasonable. (Accordingly, we need not consider the earlier described, alternative claims raised by the Government.)
Defendant was asked if he could be searched, not just patted down, and the search that he consented to was not exceeded. State v. Freeman, 12 So. 3d 714 (Ala. Crim. App. 2007).*
DNA sample taken in 2001 could be used to link the defendant to another more recent crime without violating the Fourth Amendment. Derrick v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453 (2007).*
Default judgment once denied and then granted against officer was set aside in the interest of doing justice and giving him a chance to pursue his defense. Larry v. Harris, 2007 WI App 132, 734 N.W.2d 169 (2007).*
State JP issued warrant did not specify the crime under investigation, so the particularity clause of the warrant was fatally overbroad, quoting at length from United States v. George, 975 F.2d 72 (2d Cir. 1992). The good faith exception did not save the warrant, either. United States v. Smith, 2006 U.S. Dist. LEXIS 96396 (W.D. N.Y. December 15, 2006):
The search warrant in this case, as previously stated, does not mention a particular crime or criminal activity to which the evidence to be seized must relate. As a result, it "is so unconstitutionally broad that no reasonably well-trained police officer could believe otherwise." Id. at 77. Therefore, it is hereby RECOMMENDED that defendant's motion to suppress the evidence seized pursuant to that search warrant be GRANTED.
Warrant for a particular address did not allow or justify search of defendant's car when he was found driving on the street, even though the warrant permitted search of defendant's vehicles without mentioning them being parked on the premises. State v. Southall, 2007 Tenn. Crim. App. LEXIS 491 (June 25, 2007):
We agree with the trial court and the defendant that the search of the defendant's vehicle was not authorized under the search warrant. Although the search warrant states that the place to be searched included any vehicles in the defendant's possession or control, we conclude that this provision can only be read to include vehicles found on the property described in the search warrant at 481 Southport Road. A warrant authorizing the search of a building "presupposes that the building mentioned in the warrant to be searched would include outhouses, vehicles upon the premises, and other places, which are appurtenant to the described building and are under the control of persons named in the warrant." Worden v. State, 197 Tenn. 340, 344, 273 S.W.2d 139, 141 (1954) (emphasis added). However, this authorization does not extend to vehicles that are not on the premises described in the search warrant. See Dolen v. State, 187 Tenn. 663, 667, 216 S.W.2d 351, 353 (1948). In Dolen, the defendant challenged the search of a vehicle that was on a road adjoining the property described by the search warrant. Our supreme court held that the vehicle search was invalid because "a warrant directing the search of a certain described parcel of real estate does not authorize the search of an automobile parked in front of that real estate, but outside its boundaries, on an adjoining road." Id.
As the state points out, the search warrant in Dolen authorized, by its terms, a search of "all outbuildings or vehicles on the premises." Id. at 664, 216 S.W.2d at 352 (emphasis added). In contrast, the warrant in the present case states that a search is to be conducted of all outbuildings and vehicles in the defendant's "possession and or control." However, the conclusion in Dolen was not premised on the language of the search warrant. Rather, the court relied on the statute providing that a search warrant must "'particularly' describe 'the place to be searched,'" Id. at 668, 216 S.W.2d at 353, and on prior cases holding that a search warrant allowing the search of a building at described premises also authorizes the search of vehicles on that premises, Id. (citing Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716 (1940); Seals v. State, 157 Tenn. 538, 11 S.W.2d 879 (1928)).
Search of a matchbox during a frisk could not be justified. Meth suppressed. State v. Kelley, 227 S.W.3d 543 (Mo. App. 2007).
Traffic stop with an objective basis can be pretextual. State v. Fry, 2007 Ohio 3240, 2007 Ohio App. LEXIS 2998 (9th Dist. June 27, 2007):
[*P13] Appellant has countered that the traffic stop was pretextual because Officer Rastorfer testified at the suppression hearing that he was not concerned about the turn signal and that he failed to issue a citation or a warning for the traffic violation. Even if Officer Rastorfer's failure to cite or warn the cab driver indicates a pretextual reason for the traffic stop, Appellant's argument still fails as a matter of law.
[*P14] Both the United States Supreme Court and the Ohio State Supreme Court have held that a police officer's subjective intent when initiating a traffic stop has no bearing on the Fourth Amendment analysis if the officer stops the vehicle based on probable cause that a traffic violation has occurred. See Whren, 517 U.S. at 819; Erickson, 76 Ohio St.3d at syllabus. This is the case even if the traffic stop is pretextual. Id. Here, the record is clear that Officer Rastorfer had probable cause to pull Appellant's cab over for a traffic violation: namely, the failure to properly use a turn signal. The initial traffic did not violate the Fourth Amendment.
The facts that support a Fifth Amendment takings claim can also support a Fourth Amendment seizure claim. Gonzalez v. City Plan Comm'n, 2007 U.S. Dist. LEXIS 46520 (N.D. Tex. June 26, 2007):
Plaintiffs claim that Defendants effected an unreasonable seizure of their property in violation of the Fourth Amendment, by selling the abandoned right-of-way and the surplus land to the Congregation, and by approving the Congregation's application to replat its property. The Fourth Amendment provides, in relevant part, that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. A seizure of property occurs "when there is some meaningful interference with an individual's possessory interests in that property." United States v. Lovell, 849 F.2d 910, 915 (5th Cir. 1988) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Defendants move for summary judgment against Plaintiffs' Fourth Amendment claim, arguing that no unreasonable seizure occurred. In support, Defendants argue that no law supports Plaintiffs' apparent position that the sale and replatting of nearby property can constitute an unreasonable seizure of Plaintiffs' property. The Court agrees. Seizures are frequently found when a complainant's physical property is either actually taken or damaged by state action. See, e.g., Pepper v. Village of Oak Park, 430 F.3d 805, 809 (7th Cir. 2005). Here, by contrast, Plaintiffs had no possessory interest in the property that was sold to the Congregation, and have failed to demonstrate, in response to Defendants' contentions, that any economic injury to their property resulted, or that such injury would be unreasonable in light of state and local law that allows the challenged actions. The Court thus GRANTS summary judgment as to Plaintiffs' § 1983 claim based on the Fourth Amendment.
Plaintiff stated a possible claim for relief under § 1983 for errors in his mental health records that keep him confined. Pecou v. Forensic Comm. Pers., 2007 U.S. Dist. LEXIS 46651 (E.D. N.Y. June 18, 2007).*
Traffic stop was justified, but reasonable suspicion developed during the stop. The officer "testified that his suspicions were aroused because: 1) Dominguez was the sole occupant of the RV; 2) Dominguez could not remember the name of the friend whose wedding he attended after driving cross-country in an RV; 3) he was extraordinarily nervous [carotid artery throbbing]; 4) he exited the interstate at an interchange with no apparent commercial establishments or signs indicating that such were present, ostensibly to re-fuel when he still had half a tank of gas; and 5) the RV emitted a strong scent of deodorizers which are typically used to mask the presence of illegal narcotics. These circumstances suffice to warrant Crain's suspicion, based on his experience as a law enforcement officer, that Dominguez was transporting illegal substances." United States v. Dominguez, 2007 U.S. Dist. LEXIS 46385 (W.D. La. May 21, 2007).*
Officer provided a deficient description of what evidence they had accumulated that defendant was involved in fires, and the search warrant was not supported by probable cause, and it was so deficient that reliance on it was unreasonable, so the good faith exception did not apply. Child porn was found on his computer. United States v. Carney, 2007 U.S. Dist. LEXIS 46640 (W.D. Pa. June 27, 2007):
Defendant's position is that any reasonable officer would have realized that an uncorroborated, anonymous telephone tip cannot provide probable cause for a search warrant. Defendant cites to numerous federal court decisions which have held that the need to corroborate an anonymous tip with independent police work is so well-established that the failure to do so falls below the standard for the Leon exception to apply. See e.g., United States v. Helton, 314 F.3d 812 (6th Cir. 2003) (reasonable officer, as affiant applying for search warrant, would not have believed that anonymous tipster's statements were trustworthy and reliable, consequently, good faith exception to exclusionary rule did not apply); United States v. Wilhelm, 80 F.3d 116, 120 (4th Cir. 1996) (search warrant which was based on affidavit providing information from anonymous informant was not supported by probable cause where affidavit provided no indication of informant's truthfulness or reliability other than officer's conclusory description of informant as "concerned citizen" and "mature person" and police only corroborated that directions which informant gave to defendant's home were correct); United States v. Barrington, 806 F.2d 529, 532 (5th Cir. 1986) (probable cause affidavit which stated that police officer received information from confidential informant who was known to officer and who had provided information in past leading to arrest and convictions, did not justify police officer's good-faith reliance on warrant in his search of hotel room).
As acknowledged by the government, Trooper Frew, who drafted the warrant affidavit, "could have and should have included more direct evidence that he and Trooper Valyo had gathered in the course of their investigation." As it was, the only information in the warrant affidavit to link defendant to the arsons in the Armagh area was the uncorroborated, anonymous telephone tip. Beyond that, there was no information in the affidavit to connect defendant or his computer to the arsons.
Illegal search that produced additional drugs did not affect the defendant's sentencing guideline range. United States v. Jock, 239 Fed. Appx. 126, 2007 FED App. 0437N (6th Cir. 2007)* (unpublished).
Defendant had no standing, so his attorney could not be ineffective for not challenging the search. Hayden v. United States, 2007 U.S. Dist. LEXIS 46447 (E.D. Mich. June 27, 2007).*
The consenter in this case was in the process of being evicted from the premises, but he still had common authority to consent to a search. State v. Haapala, 139 Wn. App. 424, 161 P.3d 436 (2007):
¶15 According to Lynda Spindor, the landlord, Craig was the only signatory on the lease, but several additional tenants lived in the house to share the rent obligation. Haapala moved into the upstairs bedroom on January 1 or 2, 2005, when Craig was moving out of that bedroom. Haapala asked Spindor to extend the lease with him as the tenant, but she refused. Due to complaints from neighbors, on January 15, 2005, Spindor served Craig with an eviction notice that gave Craig three days to vacate the premises. Police searched the house on January 19, 2005.
¶16 The trial court found that although Craig was being evicted, he was the only person on the lease and he “still had furniture and other possessions in the house and his car was visible outside of the house.” Clerk's Papers (CP) at 74. From that finding, it concluded that “Craig, as the person who rented the home, ... had the authority to consent to the [initial] search.” CP at 77. The record shows that Craig retained sufficient access and control over the residence to consent to a search of the common areas, including the downstairs bedroom. See Morse, 156 Wn.2d at 10-11.
. . .
¶18 . . . Spindor still needed to file an unlawful detainer action and obtain a court's order to force Craig to vacate the premises. RCW 59.12.040-.080. And Spindor could not have taken possession of the house during the unlawful detainer action's pendency unless she received a writ of restitution from the court. RCW 59.12.090. Even then, Craig could have filed a bond with the court to stay enforcement of the writ of restitution and to retain possession of the premises until the unlawful detainer action concluded. RCW 59.12.100. Thus, Craig, as a user and possessor of the house, would have had the authority to consent to a search of the common areas until the court ordered him to vacate the premises.
A child's mother surreptitiously recorded telephone calls between her daughter and the defendant by plugging into a telephone jack. The telephone calls revealed a sexual relationship. "Article 38.23(a) of the Texas Code of Criminal Procedure states, 'No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.'" The Court of Criminal Appeals held, relying on Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), that the mother could vicariously consent for the daughter. Alameda v. State, 235 S.W.3d 218 (June 27, 2007), aff'g Alameda v. State, 181 S.W.3d 772 (Tex. App.--Ft. Worth 2005).*
Defendant was stopped for a traffic offense and consented to a search. He was asked whether he would mind if the officer searched. The trial court's finding of fact supporting consent in the face of the argument defendant misunderstood is not clearly erroneous. Clarke v. State, 868 N.E.2d 1114 (Ind. 2007)*:
The meaning of Clarke's response of "no" to whether he would "mind" if his car was searched is for the trial court to resolve. Bostick, 501 U.S. at 432. Clarke may have misunderstood the question, but, as phrased, a negative answer is a consent to the search. Moreover, Eastwood testified that Clarke's "body language" conveyed a consent, and Clarke made no effort to change his response. Eastwood therefore reasonably accepted Clarke's response as a consent, and the trial court's finding that consent was given is not clearly erroneous and is dispositive of that issue. Under Bostick, the Fourth Amendment permits consensual interrogation "as long as the police do not convey a message that compliance with the requests is required." 501 U.S. at 434-35. There is no evidence that Eastwood conveyed that message. Her mere presence as a uniformed law enforcement officer does not convert her questions into commands. Id. Accordingly, there was no seizure before Clarke gave consent to the search, and the search established probable cause to arrest Clarke. This process did not violate the Fourth Amendment.
Speeding in a school zone led to a plain view of marijuana and drug paraphernalia. When being arrested, he was asked about weapons in the car which he first denied, and then mentioned that he had a shotgun in the vehicle which was in a school zone, and that led to an impoundment which the court of appeals found unnecessary. State v. Rowell, 2007 NMCA 75, 141 N.M. 783, 161 P.3d 280 (2007), certiorari granted, 2007 N.M. LEXIS 651 (N.M., Dec. 11, 2007):
[*28] The State failed to present sufficient evidence to support application of either the exigent circumstances exception or the search incident to arrest exception in the present case. No one but Defendant was in the vehicle. After arresting Defendant, the officer asked him whether there were any weapons of which the officer should be made aware. Defendant initially stated "No," but shortly thereafter stated that there was a shotgun in the back seat of his vehicle. The officer placed Defendant in his patrol vehicle for "safety purposes" and then "conduct[ed] an inventory pending impound of the vehicle," pursuant to which the officer found several weapons. Apparently, the officer's only reason for entering the vehicle was that he had determined to have the vehicle impounded and he wanted to perform an inventory search before it was towed. The officer did not say that he believed there was any threat to his safety, nor did he state any concern that objects in the vehicle would be concealed or destroyed.
[*29] Further, the weapons were not within Defendant's immediate control at the time they were seized. None of the facts actually relied upon by the officer constitute facts that amount to any exigent circumstance justifying application of the exigent circumstances exception to the warrant requirement. Nor is there evidence of facts known to the officer at the time that he searched the vehicle which, viewed objectively, provided a valid constitutional ground for the officer's actions.
The defendant was seen operating a vehicle with an expired tag, and he has ticketed. The vehicle was not towed, and the officer "advised Morris that he had to make arrangements to get his vehicle out of the area because it could not be driven on the roadways." Two weeks later the vehicle was seen again, still with an expired tag, and this time it was parked on a vacant lot. Impounding the car was unnecessary. The inventory produced drugs which were suppressed. Morris v. State, 958 So. 2d 598 (Fla. App. 4th Dist. 2007):
If Flemming was concerned that Morris would operate the vehicle on the public roadways without a valid registration, then she could have immobilized the vehicle or given Morris the option to make his own arrangements to have his vehicle towed. We can find no basis or justification for the impounding of Morris's vehicle. Flemming's action of impounding the vehicle and conducting a warrantless inventory search constituted an unreasonable search and seizure. We therefore reverse the trial court's denial of the motion to suppress and because the motion to suppress is dispositive, we remand, and direct the trial court to vacate Morris's conviction.
Defendant's opening his garage door was analogous to opening his front door. He had a reasonable expectation of privacy in the closed area. State v. Jenkins, 2007 Ida. App. LEXIS 65 (February 21, 2007):
The State's argument unnecessarily expands Santana. Jenkins opened an otherwise enclosed garage to gain access to his home. His exposure of the garage to public view was temporary and is more analogous to the opening of a door to a private home than to the continued, knowing display of a walkway, driveway, or open porch where visitors are expected to go. See State v. Wren, 115 Idaho 618, 623, 768 P.2d 1351, 1356 (1989) (differentiating between a "public" unenclosed porch and an enclosed porch indistinguishable from the attached home). A garage with a large door that exposes much of a garage's interior when open is admittedly different from a house; nevertheless, an attached, enclosed garage is typically an area where people expect privacy and expect to secure their possessions and perform private activities away from public view. While it is true that there can be no reasonable expectation of privacy as to observations which can be made from a driveway impliedly open to public use, this is limited by the principle that police officers without a warrant are only permitted the same level of intrusion as one would expect from a reasonably respectful citizen. See Christensen, 131 Idaho at 147, 953 P.2d at 587. Moreover, a privacy interest is not destroyed simply because an officer has open view into an area. See State v. Clark, 124 Idaho 308, 313, 859 P.2d 344, 349 (Ct. App. 1993) citing Texas v. Brown, 460 U.S. 730, 738 n. 4, 103 S. Ct. 1535, 1541 n. 4 (1983) ("An open view observation alone, absent exigent circumstances or other Fourth Amendment justification, does not authorize a warrantless seizure or entry into an area where a privacy interest does exist. However, what is seen in open view may furnish probable cause for obtaining a warrant.") Jenkins' garage was part and parcel of the structure constituting his home, and was secured with a door closed at the time police arrived at the home. On the facts of this case, Jenkins had a reasonable expectation of privacy in his temporarily opened attached garage, and this space was subject to Fourth Amendment protection.
Comment about the defendant's exercise of Fourth and Fifth Amendment rights in a DUI arrest was here subject to plain error analysis, but it was harmless beyond a reasonable doubt in light of all the other evidence in the case. United States v. Moran, 2007 CAAF LEXIS 827 (C.A. A.F. June 22, 2007).*
The AFOSI had probable cause for issuance of a search warrant for defendant's computer. His roommate bumped the computer table, and the screen lit up, and Windows Media Player was open. He clicked on recent files opened and saw "14 year old Filipino girl." Defendant's claim that it could be innocuous was insufficient to overcome a showing of probable cause. United States v. Leedy, 2007 CAAF LEXIS 828 (C.A. A.F. June 22, 2007):
From a Constitutional perspective, the shortcoming in Appellant's argument is that he focuses almost exclusively on the title "14 year old Filipino girl" as the predicate for probable cause. It is evident that as is the case with many digital file titles found on the Internet or on one's personal computer, the title could be innocent. Consider the file name "Lolita," which on its own could as easily reference an English term paper, a discussion of teacher-student relations, or contain adult or child pornography. Likewise, in a vacuum, the title "Teen Angel" could as likely reference a popular 1960s song as it could be a video file containing child pornography. Similarly, a listing of any number of rap song titles might suggest images of violence and pornography, but not in fact visually convey those images when played. The point certainly is made.
However, in the current case, Appellant's file title "14 year old Filipino girl," does not appear in isolation. Consequently, the title alone is not the sole predicate fact. As an initial factor, it is included on a sequential play list alongside titles that A1C Winkler understood to identify sex acts and which the military judge concluded referenced sex acts.
Moreover, and critically, none of these facts are abstract pieces of evidence, but rather are properly viewed in context, through the professional lens in which they were presented to the magistrate. The magistrate had the benefit of the affiant's professional experience in investigating child pornography, a background which usefully "illuminated" the facts provided. Gates, 462 U.S. at 230.
Preliminary injunction granted against obtaining e-mail records without notice to the subscriber under the Stored Communications Act. Warshak v. United States, 2006 U.S. Dist. LEXIS 96390 (S.D. Ohio July 21, 2006):
While emails sent through and stored on the servers of commercial ISPs are obviously distinguishable in many respects from both sealed letters and postcards physically mailed via public or private carrier, the letter analogy appears -- on the limited evidence presently before the Court -- to be more apt. As Warshak persuasively argues:
[I]n the case of email, the subscriber perhaps maintains more control over the email lettter than in any other traditional third party carrier context. In the latter scenarios, the sender or receiver of a closed letter or package actually relinquishes control of the container and cannot immediately repossess the letter or package -- it is in the physical possession of the postal carrier and/or common carrier outside the dominion and control of the sender or recipient. In the email context, the owner of the email can repossess a read-and-then-closed email at any moment, without any notice or permission from the ISP, can retake the email, delete the email from his mailbox, or do what she wants to do with the email ....
(Doc. # 11 at 10 (emphasis added).) The United States has asserted in its papers and at oral argument that the privacy expectations attributed to letters entrusted to third-party carriers are inapposite to emails entrusted to commercial ISPs, because ISPs and individual account holders routinely both reserve and exercise rights to open, delete, or turn over personal emails to law enforcement. As the parties noted at oral argument, however, the terms of service governing email accounts can vary from ISP to ISP. At oral argument, Warshak also challenged the United States' assertion that ISPs routinely "access" the emails in their subscribers' individual accounts in any meaningful Fourth Amendment sense. Although Warshak did not appear to contest the United States' more specific assertion that ISPs can and do screen emails for objectively damaging or illegal content such as viruses or child pornography, 10 he strenuously disputed the presumption that employees of commercial ISPs open and read -- or their subscribers reasonably expect them to open and read -- individual subscriber emails as a matter of course.
. . .
While the Court is prepared to reconsider its views upon the presentation of further evidence on these points, it is not persuaded -- as an initial matter -- that an individual surrenders his reasonable expectation of privacy in his personal emails once he allows those emails (or electronic copies thereof) to be stored on a subscriber account maintained on the server of a commercial ISP. 11 As such, the Court finds that Warshak has shown a substantial likelihood of success on the merits of his Fourth Amendment claim. The first factor of the preliminary injunction test thus weighs in favor of relief. Deja Vu, 274 F.3d at 400.
Taxicab that defendant was riding in was not validly stopped. There was neither a traffic offense nor reasonable suspicion justifying a stop. Also, the officers claimed there was a "TRIP" decal in the rear window that the taxicab was subject to random stops. Being in the back window does not put a passenger on notice. United States v. Stewart, 2007 U.S. Dist. LEXIS 45883 (S.D. N.Y. June 13, 2007):
Taxicabs approach customers from significant distances, at significant speeds, at different times of day and night, and in different neighborhoods, with different apprehensions of danger. Passengers do not have time to reflect on the decals adorning the taxicab.
There was no proof that Stewart saw the decals or otherwise surrendered his reasonable expectation of privacy given to him by state and federal law when he entered Jimenez's taxicab. Again, there was no proof that Officers Torres and Regnier were aware of, or saw, any TRIP decals. Nor was there proof that the owner of Jimenez's taxicab, or Jimenez, had enrolled in the program or, if either had enrolled, that he had maintained his enrollment. Thus, the two cases that uphold a TRIP stop do not apply. See Woodrum, 202 F.3d at 5(police "aware of the decals" affixed to taxicab); Abad, 98 N.Y.2d at 15 (officers "saw a TRIP decal on [the] vehicle" before commencing stop); United States v. Harrell, 268 F.3d 141, 149 n.3 (2d Cir. 2001) (justification based upon observation of traffic violation would turn upon whether the officer "noticed ... the [violation] before he stopped the car"). After-the-fact justifications cannot justify an unauthorized stop. See Swindle, 407 F.3d at 569; United States v. Como, 340 F.2d 891, 893 (2d Cir. 1965).
A civil claim for false arrest under § 1983 can be defeated by actual probable cause or "arguable probable cause." "Furthermore, in the context of qualified immunity analysis, the issue is not whether actual probable cause existed but instead whether there was 'arguable probable cause' for the plaintiffs arrest. See Davis v. Williams, 451 F.3d 759, 762-63 (11th Cir. 2006)(stating that in the context of a claim for false arrest, an officer is entitled to qualified immunity where that officer had 'arguable probable cause' to effectuate the arrest)." Whittington v. Town of Surfside, 490 F. Supp. 2d 1239 (S.D. Fla. 2007).*
A state prison guard was reasonably suspected of importing contraband into the prison, and he was brought into a conference room and interviewed and patted down. His car was searched in the parking lot revealing a close relationship to some inmates. Then his desk was searched and drugs were found. Summary judgment for defendants granted. Morris v. Valeriano, 2007 U.S. Dist. LEXIS 45993 (D. Conn. June 25, 2007):
In the case at bar, prior to searching Morris's person and car, the defendants had many objective facts from which they could have reasonably drawn the inference that Morris may have been planning to carry contraband into the correctional facility. A routine audit of the speed-dial system for all DOC facilities had discovered that 3,576 calls were made from inmate phones at Garner to Morris's speed-dial number between June 1, 2003, and May 17, 2004, as compared to an average of between 25 to 50 of such calls per month to other speed-dial numbers. See Def.'s Stat. at PP7-9. Moreover, the audit found that the recording feature on Morris's phone was disabled on February 10, 2004, which requires an affirmative act. Id. at PP12-13. Finally, three DOC Security Division employees personally listened to calls made by inmate Duffy to Morris between May 17 and May 20, 2004, in which they claim to have heard Duffy urge Morris repeatedly to bring him various items, with Morris responding in a way that, to these individuals, indicated he was planning to bring those items to Duffy. Id. at PP20-22. They also claim that they heard code words that they believed were used to disguise the items Duffy and Morris were discussing. Id. at P23.
The court finds these facts sufficient to meet the reasonable suspicion standard. See Carey, 737 F.2d at 205-206. Moreover, the court rejects Morris's argument that the intrusion in this case was far greater than constitutionally permitted. See Plf.'s Mem. in Opp. at 10-11. In Carey, the Second Circuit permitted strip searches of certain correction officers where there was reasonable suspicion to do so. Id. A search of such an intrusive nature having been permitted under the reasonable suspicion standard, the court can find no reason for not constitutionally permitting the brief pat-down search of Morris's outer clothing. Moreover, with respect to the search of Morris's car, the Supreme Court has indicated that a "search of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person," Almeida-Sanchez v. U.S., 413 U.S. 266, 279 (1973) (Powell, J., concurring), and that individuals have a diminished expectation of privacy in their car, U.S. v. Chadwick, 433 U.S. 1, 12 (1977). Based on this reasoning, as well as the presence, acknowledged by Morris, of the sign at Garner's entry and the Administrative Directives regarding vehicle searches on prison property, the court finds the search of Morris's car to be constitutionally permissible. It was based on a reasonable suspicion that Morris was bringing contraband into Garner. See supra at 10-11.
Therefore, summary judgment as to the Fourth Amendment search and seizure claim against the defendants is granted.
The officer had probable cause to arrest the defendant based on a 911 call from a crime victim who reported that defendant had threatened her with a shotgun. She did not give her name, but she identified herself as his girlfriend, and that was enough to find her later if need be. Once the officer was inside, the defendant consented to finding the shotgun. United States v. McKnight, 2007 U.S. Dist. LEXIS 46205 (M.D. Tenn. June 25, 2007):
This case is distinguishable from J.L. in at least two material respects. First, the caller was not exactly anonymous. While the Court does not know based on the record before it if Ronesha Smith gave her name to dispatch, it is clear that the caller identified herself as the girlfriend of Barry McKnight and that she was staying at 151 University Court. As the Supreme Court pointed out in J.L., an anonymous tip is less reliable than "a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated." Id. at 1375. Here, even if Ronesha Smith did not initially give her name to the police, she was sufficiently identified such that the police could track her down and hold her accountable should it become necessary. See, United States v. Howard, 150 Fed. Appx. 476, 479 (6th Cir. 2005)(tip was not anonymous even though investigating officer did not know informant where the informant left her name and number with the 911 dispatcher and following arrest investigating officer contacted the informant); Elston, 479 F.3d at 318 (a "significant indicator that an anonymous informant is reliable is her disclosure of information that would enable authorities to identify her if they deem it necessary to do so").
The plaintiff consented to patdown searches for IEDs to enter Tampa Buccaneers games for which he had season tickets. He checked on the policy, objected to those in charge, but he went to the games anyway, submitted to patdowns so he could see the games, and voiced his objections at the time. Nevertheless, it was apparent he voluntarily consented to the policy when he attended the games. Johnston v. Tampa Sports Auth., 490 F.3d 820 (11th Cir. 2007) (per curiam).
Defendants' consent to search their airplane by ICE officers was shown to be consensual. United States v. Franco-Acosta, 243 Fed. Appx. 812 (5th Cir. 2007)* (per curiam) (unpublished).
One defendant in a SWAT raid was entitled to summary judgment on qualified immunity grounds because his participation was limited to entry after the initial break-in and he left. Martinez v. McCord, 2007 U.S. Dist. LEXIS 46326 (M.D. Ala. June 26, 2007):
The events about which plaintiffs complain involve the violent entry into Martinez's home by the S.W.A.T. team. A "flash-bomb" or other explosive device was thrown through the window, exploding in front of one of the boys watching television. Officers with masks, assault garb, and drawn weapons entered the mobile home by breaking down a door. Weapons were pointed at Martinez and her minor children, and they were required to lie on the floor face-down. Nothing in Martinez's offering of evidence suggests that Whittle personally had anything to do with the events complained of, with the exception of the search of Martinez's home. Martinez does not contradict that Whittle did a "walk-through" and left. Her affidavit does not specify which officers conducted the thorough and allegedly damaging search.
Defendant consented to entry by police officers when he answered the door and opened it wide when they asked whether they could come in. The officers' walk through to look for others was by consent. United States v. Patterson, 2007 U.S. Dist. LEXIS 46298 (E.D. Mo. June 26, 2007).*
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Fitting the description and fleeing the scene (heading in a direction away from the scene) in a particularly described car and then the odor of gunshot residue about the defendant's person 15 minutes after a shooting was probable cause. People v. Jones, 374 Ill. App. 3d 566, 313 Ill. Dec. 96, 871 N.E.2d 823 (1st Dist. 2007):
Here, the serious crimes of murder and attempted murder had been committed about 15 minutes before the police apprehended defendant. Defendant was within three blocks of the crime scene and fit the general description of the fleeing suspects. These circumstances alone support a finding of probable cause. More facts would have been needed to establish probable cause if the suspect had been physically or temporally more distant from the scene or if the officers did not know for certain that a serious crime had been committed. Not only did the time and place of defendant's apprehension correspond to the time and place of the shooting, but defendant also fit the description given by the witnesses and had been running as reported by the witnesses.
The odor of gunshot residue was yet another fact in support of probable cause. "[D]istinctive odors can be persuasive evidence of probable cause. A police officer's detection of controlled substances by their smell has been held to be a permissible method of establishing probable cause." Stout, 106 Ill. 2d at 87.
Also, citizen informant at the scene did not have to be corroborated like a snitch. While the officers did not get their names, they were at the scene and the officer could assess their credibility when they made their report. Id.*:
Defendant argues against this conclusion, characterizing the descriptions the officers received from anonymous witnesses as vague and uncorroborated. In general, the reliability of an ordinary citizen, unlike an informant, need not be established. People v. Williams, 305 Ill. App. 3d 517, 524, 712 N.E.2d 883 (1999). Absent indications to the contrary, information provided by an ordinary citizen is presumed to be reliable. Williams, 305 Ill. App. 3d at 524. Here, although the witnesses did not provide their names, the officers were able to observe them and assess their credibility. The witnesses' descriptions were sufficiently specific. Shackleton testified that the witnesses said the offenders had low haircuts, very little or no facial hair, black shorts, black shoes and were running southbound on foot. Defendant matched this general description.
When the defendant during a traffic stop made a furtive gesture that the officer took as her looking for a weapon, the officer was permitted to frisk the vehicle for a potential weapon. People v. McDaniel, 160 P.3d 247 (Colo. 2007)* (this case is a replica of Michigan v. Long, but it was decided only citing state cases).
The S.D. Ala. had to deal with an interesting question: When does arrest end and pre-arraignment detention begin? It matters in an excessive force case because during arrest the Fourth Amendment applies and in pre-arraignment situations the Fourteenth Amendment applies. Here, the defendant was in the police station and in the booking process when he was Tasered, so the court determined that the Fourth Amendment applied because arrest was not complete. (The court cites dozens of cases, just a few are here.) Stephens v. City of Butler, 509 F. Supp. 2d 1098 (S.D. Ala. 2007):
The Fourth Circuit has rejected the "continuing seizure" theory. See Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir. 1997). The Seventh Circuit has rejected the extension of Fourth Amendment protection into the "gap" between the initial arrest and charge--at least once the person has been arrested and "placed securely in custody." Wilkins v. May, 872 F.2d 190, 192-93 (7th Cir. 1989) (Fourteenth Amendment applied to claim for threats during interrogation).
The authority in this Circuit establishes no clear cut-off point beyond which the Fourth Amendment ceases to apply. In Redd v. Conway, 160 Fed.Appx. 858, 861 (11th Cir. 2006), a panel of the Court of Appeals analyzed a claim that officers used excessive force during booking under the Fourteenth Amendment standard, without discussion of the potential for use of the Fourth Amendment standard. In Cotrell v. Caldwell, 85 F.3d 1480 (11th Cir. 1996) a different panel reversed the trial court's application of the Fourteenth Amendment to an excessive force claim in which the arrestee died during transportation to the jail. And in Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002), another panel analyzed the plaintiff's excessive force claim under the Fourth Amendment where the allegedly excessive force was applied during the ride to the jail but declined to decide whether the Fourth Amendment applied to a pretrial detainee.
(Comment: If the law could just be the same for these issues, this court would not have to engage in its metaphysical discussion of when an arrest, which can extend well into the time in the police station, transforms into post-arrest detention. It is interesting, but it is something only a Fourth Amendment geek would really like, and it only matters in an excessive force civil case. I'm apparently not.)
The investigation started with an anonymous tip, but, over five days, the officer was able to corroborate enough of the informant's story to give reasonable suspicion for a stop. United States v. Pearsall, 492 F. Supp. 2d 432 (D. Del. 2007).*
Search issue raised in the trial court and abandoned for appeal was fairly litigated and barred under Stone v. Powell. Westfall v. Parker, 2007 U.S. Dist. LEXIS 45787 (E.D. Okla. June 22, 2007).*
Plaintiff who claimed that she was arrested at school for drug use for her father's drugs and the case was "contrived" by the police stated a claim for relief. Allen v. Fresno City, 2007 U.S. Dist. LEXIS 45827 (E.D. Cal. June 13, 2007).*
Utah holds that a state constitutional challenge, that it stresses that it would have welcomed, was waived by defense counsel's failure to develop the issue at trial and on appeal. State v. Worwood, 2007 UT 47, 164 P.3d 397, 581 Utah Adv. Rep. 8 (2007):
[*P14] We would have welcomed an analysis under article I, section 14 of the Utah Constitution; however, we find Worwood's state constitutional claim to be procedurally barred and inadequately briefed. We have repeatedly instructed counsel on the consequences of failing to properly preserve and develop a state constitutional law claim. Still, this instruction bears repeating, given the frequency with which these claims are inadequately briefed before this court.
[*P15] When interpreting state constitutional provisions that are similar or identical to those in the federal constitution, we encourage a primacy approach. Under the primacy model, "'a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive.'"
[*P16] In developing an independent body of state search and seizure law, we have held that article I, section 14 of the Utah Constitution often provides greater protections to Utah citizens than the Fourth Amendment, despite nearly identical language. In order to further develop state constitutional law, however, claims must be properly presented to this court. In criminal cases, "'specific preservation of claims of error must be made a part of the trial court record'" before the issue can be heard on appeal. The issue must be "'raised to a level of consciousness'" that allows the trial court an adequate opportunity to address it. It follows, then, that perfunctorily mentioning an issue, without more, does not preserve it for appeal. Although inapplicable in this case, a court may consider an unpreserved issue when plain error is apparent or in an exceptional circumstance. Furthermore, in part on the basis of the principle that preservation requires the lower court to be cognizant of a discreet issue, we have repeatedly refrained from engaging in state constitutional law analysis unless "an argument for different analyses under the state and federal constitutions is briefed." (footnotes omitted)
Inevitable discovery supported admission of evidence found during police entry while a search warrant was being obtained. Officers saw a "bound, motionless body" through a motel room window, and they sought a search warrant, but entered before the warrant issued. Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007)*:
In the case before us, the information summarized above contained in the affidavit in support of the application for the search warrant for the motel room had been gathered prior to the illegal entry of the GBI crime scene investigator into the room. We conclude that the State established that the evidence in question would have been discovered by lawful means, and the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct, since the investigation that took place prior to the police error or illegal conduct resulted in information that served as the basis for issuance of a search warrant. Accordingly, we conclude the trial court did not err when it admitted the evidence.
The United States Supreme Court decided yesterday a malicious prosecution/RICO case with a Fourth and Fifth Amendment implication: Wilkie v. Robbins. The Court held 7-2 (Opinion by Souter, concurring opinion by Thomas, Ginsburg concurring in part and dissenting in part) that actions by federal employees acting within their duties are not subject to suit under Bivens or RICO. The case is interesting for civil practitioners dealing with potential immunity from Bivens actions, but it does not have broad enough Fourth Amendment implications to discuss at length. Instead, consider this quote from Willamette Law Online:
Robbins’ High Island Ranch is private property intermingled with parcels belonging to private owners and both the state and federal governments. When Robbins bought the Ranch the easement previously enjoyed by the government had not been recorded. Negotiations with Robbins to reestablish the easement broke down and he refused to re-grant it. This conflict led to numerous trespass and permit-revocation actions cited in this suit. Robbins brought suit both under the RICO Act and the Fourth and Fifth Amendments as applied in the Bivens case. The United States Court of Appeals for the Tenth Circuit affirmed the United States District Court for the District of Wyoming’s dismissal of the charges and the United States Supreme Court granted certiorari. The Court held that aggressive practices from Bureau of Land Management employees were within their job descriptions for the most part and allowing a Constitutional tort claim against those employees under Bivens would do more harm than good. The proper remedy to overzealous government employees is legislative not judicial. [Summarized by Melissa Parker]
Hot pursuit of a man with a gun that the police believed he would use was sufficient exigent circumstances for a warrantless entry. United States v. Ponder, 240 Fed. Appx. 17, 2007 FED App. 0428N (6th Cir. 2007)* (unpublished).
Defendant's stop was justified by his weaving and repeatedly hitting his brakes. When stopped, his eyes were bloodshot and his speech was slurred. The officer asked for and received consent. Defendant was a felon in possession of ammunition. Such questioning during a stop is not unreasonable. United States v. Mesa, 2007 U.S. App. LEXIS 15036 (9th Cir. June 19, 2007)* (unpublished):
Mere police questioning does not constitute a seizure unless it prolongs the detention of the individual, and, thus, no reasonable suspicion is required to justify questioning that does not prolong the stop. Muehler v. Mena, 544 U.S. 93, 101 (2005) (citing Illinois v. Caballes, 543 U.S. 405, 408 (2005)). The rule applies to questioning during traffic stops, as well as in other contexts. United States v. Mendez, 476 F.3d 1077, 1081 (9th Cir. 2007). The Ninth Circuit in Mendez determined that police questioning did not prolong a traffic stop where the entire encounter lasted approximately eight minutes, during which the police ran a records check and searched the vehicle. Id. at 1080-81.
Stop that lasted 21 minutes including the request for consent after the paperwork was returned was not unreasonable. It became a consensual encounter because it was not coercive. United States v. Rochin-German, 2007 U.S. Dist. LEXIS 45335 (D. Kan. June 21, 2007):
Sonja was advised that Cocking had nothing more for her and was told to have a good evening. Only then was Sonja asked if Cocking could have permission to search her vehicle. There is no indication that Cocking made any "coercive show of authority" such that a reasonable person would not have felt free to leave. See United States v. Turner, 928 F.2d 956, 959 (10th Cir. 1991) (discussing factors for finding a "coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by the officer, or his use of a commanding tone of voice indicating that compliance might be compelled"). The court therefore finds that the traffic stop had become a consensual encounter.
(Comment: Again, the fiction of lack of show of authority.)
Officer had reasonable suspicion for patdown after stop based on several factors, including the fact that the defendant had left a known drug house, it was 2 a.m., defendant's nervousness and furtive movement, evasive answers about age, and a dispatch that the person stopped was a missing person. United States v. Collins, 2007 U.S. Dist. LEXIS 45320 (D. Utah June 21, 2007).*
The defendant was stopped for a traffic offense. "After directing the defendant to pull over and stop, the officer approached the vehicle and observed the defendant sweating, crying, reluctant to speak in response to questions, and gagging after being ordered out of his car. When the defendant opened his mouth on the officer's command, the officer noticed a clear plastic bag in it, covered in blood and saliva, but the defendant refused to spit it out. Suspecting that the bag contained cocaine, the officer grabbed the defendant by the throat with one hand and applied enough pressure to inhibit the defendant's ability to swallow. After about fifteen to twenty seconds, the defendant spit the bag onto the sidewalk." Grier v. State, 868 N.E.2d 443 (Ind. 2007):
The application of force to a detainee's throat to prevent swallowing of suspected contraband violates the constitutional prohibitions against unreasonable search and seizure. By grabbing the defendant's throat to prevent him from swallowing the suspected bag of drugs, the police violated this constitutional protection.
Evidence obtained as a result of an unconstitutional search must be suppressed. ... We therefore hold that the trial court should have granted the defendant's motion to suppress evidence obtained by the application of physical force to his throat to prevent him from swallowing it.
Consent after arrest in Indiana can only be sought after a Miranda warning. Peel v. State, 868 N.E.2d 569 (La. App. 2007):
When considering the above, we can only conclude that Peel and Capps were in custody for purposes of Miranda after admitting that they had committed a criminal offense. Thus, for a consent to search to be valid, they were entitled to an advisement of the right to counsel before a valid consent to search the motel room could be obtained. Inasmuch as the record unequivocally establishes that no such advisements were given, the trial court erred in denying Peel's motion to suppress.
Defendant brought a backpack to a friend's house and left it for a while. The friend's parents could smell marijuana, and they called the police. The officer smelled the marijuana and he seized it and opened it later. The plain smell doctrine only determines probable cause; not an ability to search without a warrant. State v. Wise, 2007 Ohio 3113, 2007 Ohio App. LEXIS 2873 (6th Dist. June 22, 2007).*
Seatbelt stop was objectively reasonable, and it did not matter that the officer had an investigatory motive, so the plain view was proper. State v. Sheffield, 2007 Tenn. Crim. App. LEXIS 483 (June 21, 2007):
The state seatbelt law requires a driver and passengers to wear safety belts when a vehicle is in forward motion. See T.C.A. § 55-9-603(a)(1). Thus, upon seeing Defendant driving the car without wearing his seatbelt, Office Hagler had probable cause to believe that Defendant was in violation of the state seatbelt law. It is of no consequence that Officer Hagler had no intention to cite Defendant for violation of the seatbelt law. Likewise, it does not matter that Officer Hagler primarily wanted to investigate the suspicious conduct by Defendant and his passenger. The officer's initial observation that Defendant was not wearing his seatbelt was sufficient justification for the stop. Once the stop was made, the officer's detention of Defendant was not unreasonable in light of the sequence of events which occurred. The observation of evidence of contraband in plain view in the vehicle justified a search of the interior of the vehicle, State v. Byerley, 635 S.W.2d 511, 513-14 (Tenn. 1982), a search of the trunk of the vehicle, United States v. Ross, 456 U.S. 798, 820-21,102 S. Ct. 2157, 2170-71, 72 L. Ed. 2d 572 (1982), State v. McCall, 698 S.W.2d 643, 649 (Tenn. Crim. App. 1985), and a search of Defendant's person and seizure of the evidence discovered as a result of the search of his person. State v. Crutcher, 989 S.W.2d 295, 300 (Tenn. 1999); Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980). Accordingly, the trial court did not err in denying Defendant's motion to suppress.
Informant was corroborated by officer going to defendant's premises and smelling burnt marijuana himself. That made PC. United States v. Walter, 2007 U.S. Dist. LEXIS 44975 (D. Vt. June 20, 2007).*
Showing that the phrase "constitutionally protected area" still has validity, Florida's 5DCA held that the trial court erred in finding that defendant's porch was, and reversed a suppression order. State v. E.D.R., 959 So. 2d 1225 (Fla. App. 5th Dist. 2007):
The trial court erred in suppressing the evidence in this case. The porch was not a constitutionally protected area. The unenclosed porch was in the front of the house, not obscured from public view, E.D.R. was sleeping in a chair on the front edge of the porch, and any delivery person or passerby could have walked onto the porch and left a package or knocked on the door without a violation of the resident's reasonable expectation of privacy. In doing so, the police officers, like a delivery person, would have observed the crack cocaine in plain view in E.D.R.'s lap. The officers had probable cause to arrest him and seize the evidence. We reverse the trial court's order granting E.D.R.'s motion to suppress and remand for further proceedings.
Plaintiff's affidavit contradicting the officers' version of his arrest was sufficient to overcome the officers' motion for summary judgment. Benson v. Sefton, 2007 U.S. Dist. LEXIS 44875 (E.D. N.C. January 4, 2007).*
Oregon holds that taking DNA from a convicted person put on probation does not violate the state constitution or the Fourth Amendment. State v. Sanders, 343 Ore. 35, 163 P.3d 607 (2007).*
Reasonable suspicion was present when the defendant and a companion were pushing bicycles out from behind a closed bar at 3 a.m. and defendant did not stop for over 50 feet after the companion did. The officer noticed knives clipped to his pocket, and asked for permission to search. "According to his affidavit, Maldonado asked Tanner if he had any other contraband, particularly drugs, and Tanner replied, 'I don't know; you can check.'" Tanner v. State, 228 S.W.3d 852 (Tex. App. — Austin 2007).*
The fact it took five days to bring the defendant before a USMJ when he was arrested at sea hundreds of miles from the nearest one is not unnecessary delay. Here, the defendant was flown to Tampa. His confession was valid because there was no oppressive questioning in the interim. United States v. Lizarraga-Caceres, 2007 U.S. Dist. LEXIS 45107 (M.D. Fla. June 8, 2007):
In determining whether the government violated [F.R. Crim. P.] Rule 5(a), courts look at the reason(s) for the delay. Purvis, 768 F.2d at 1239; Rogers, 330 F.2d at 538. In Purvis, the court looked at such factors as the distance from the place of arrest to the nearest United States territory, any reasons for delay during the transport, the treatment of the defendant during transport and whether the defendant was improperly interrogated. Purvis, at 1239. In considering the "outer limits" of any necessary delay during which an interrogation will be permissible, the court in Rogers considered the availability of a committing magistrate, the length of delay before the prisoner is taken before the magistrate, and the police purpose or justification, if any, for the delay. Rogers, at 538. When a judicial officer is available and detention is prolonged for the purpose of eliciting a confession through interrogation, Rule 5(a) is violated. Id. (citing Mallory v. United States, 354 U.S. 449 (1957)).
In Purvis, the defendants were on a boat 350 miles from Key West when the boat was boarded and drugs were found. Purvis, 768 F. at 1239. Five days elapsed from the time the defendants were arrested at sea to the time they were brought before a federal magistrate. Id. at 1238-39. In concluding there was no unnecessary delay under Rule 5, the court determined that a large part of the delay was necessitated by the fact that the arrests were made at a significant distance from port and a portion of the delay was necessitated by the brief unavailability of the magistrate. Id. Additionally, the court noted that the defendants had not been mistreated during the delay, they were fed regularly, given mattresses to sleep on, and had access to bathrooms. Id. Further, there was no evidence of any improper or coercive interrogations; rather, the defendants were read their rights and interrogated by Coast Guard authorities after the arrest. Id.
Traffic offense justified stop, and defendant consented to a patdown. Before the patdown could occur, defendant apparently tossed baggies of crack to the ground, and it was abandoned property. United States v. Tisdale, 2007 U.S. Dist. LEXIS 44781 (D. Kan. June 19, 2007).*
The date decal on an out of state license plate was partially blocked by a license plate bracket, and that gave cause for a stop under Kansas law. The officer could see it after the stop, and he told the defendant that he was not getting a ticket, but the officer asked for consent and got it. The consent was valid. United States v. Orduna-Martinez, 2007 U.S. Dist. LEXIS 45156 (D. Kan. May 2, 2007)*:
Upon receiving the information from dispatch, Trooper Nicholas approached defendant who was standing at the back of the Explorer, gave him a warning ticket, returned all of defendant's paperwork, and told him, "Have a safe trip." Both started walking toward their respective vehicles. Trooper Nicholas then asked, "Hey, can I ask you some questions?" When defendant returned to the back of the Explorer, Trooper Nicholas motioned toward the tires and wheels in the back of the Explorer and asked, "Those fit a Honda? Can I look at them?" The defendant replied, "Yeah," and opened the back of the Explorer. The trooper then asked, "You don't have any drugs, guns, money or stuff like that," and upon receiving a negative response from defendant, asked for and received consent to search.
During Trooper Nicholas' examination of the tires, wheels and vehicle, he became convinced that there was a false compartment in the vehicle and called for backup. Back-up officers later arrived and the officers discovered cocaine in the concealed compartment. Defendant and the passenger were then arrested and defendant was given a Miranda card written in Spanish, which he said he understood. Defendant was not asked any questions at that time.
Defendant was involved in online chats with an undercover law enforcement officer, and he showed up at an assigned place for a meeting. He said he was bringing condoms. The police had probable cause to search his car incident to his arrest to look for evidence of the crime. United States v. Lanzon, 2007 U.S. Dist. LEXIS 45013 (S.D. Fla. June 21, 2007).
In dealing with a clerical error that a want on a particular car had been removed from the system by the time of the stop, that led to a vehicle stop, the court should assess, first, whether the stop was reasonable, and second, what is the remedy. Here, the court found that the stop was not reasonable because the collective knowledge rationale was based on conclusions. United States v. Anderson, 2007 U.S. Dist. LEXIS 45137 (N.D. Ohio June 21, 2007).*
Officer admitted that he did not have reasonable suspicion to stop the defendant, but the court finds that the defendant was not stopped--it was a consensual encounter. United States v. Rogers, 491 F. Supp. 2d 530 (M.D. Pa. 2007).*
2255 petitioner never challenged the search and seizure before pleading guilty, and he was well aware of it. It is waived for post-conviction. United States v. Borer, 2007 U.S. Dist. LEXIS 44872 (D. Neb. June 20, 2007).*
A search warrant for premises for drugs permitted search of a safe found in the premises. United States v. Lengen, 245 Fed. Appx. 426, 2007 FED App. 0402N (6th Cir. 2007)* (unpublished):
The principle of search and seizure jurisprudence is now settled, however, that "[a] lawful search of fixed premises generally extends to the entire area in which the object of the search may be found." United States v. Ross, 456 U.S. 798, 820, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982). Thus, although a warrant to search for a stolen vehicle would not justify opening a small wall safe in a bedroom closet, judicial authorization to search a home for contraband drugs, money associated with drug trafficking, and drug paraphernalia would clearly justify the opening of doors, closets, drawers, safes, and other places where the listed items could be hidden. Consequently, the police in this case were not required to obtain a separate warrant to look in the safe found in the closet of the defendant's bedroom.
On remand from Beard v. Whitmore Lake Sch. Dist., 402 F.3d 598, 601 (6th Cir. 2005), which held that teachers had qualified immunity for a strip search of students, the school district escaped liability, too, because it could not be shown that the school district was deliberately indifferent or failed to train the teachers in the school search policy [and it did not train them]. Beard v. Whitmore Lake Sch. Dist., 244 Fed. Appx. 607, 2007 FED App. 0410N (6th Cir. 2007)* (unpublished).
Qualified immunity denied an officer involved in a search because the factual basis is fact bound. Duncan v. Jackson, 243 Fed. Appx. 890, 2007 FED App. 0415N (6th Cir. 2007)* (unpublished).
Plaintiff had been arrested after giving a stranger a ride, but the stranger was fleeing the police and a crime. When the stranger was seen, the car was stopped and everybody detained. Plaintiff was put in a police car with the stranger just so the police could record their conversation, and it became immediately apparent that plaintiff was not involved in the stranger's activities. They let the plaintiff go, but they did not return a gun of his at the scene for officer safety. There was no valid basis for claiming officer safety for keeping the gun, and plaintiff stated a claim for relief. The officer's claim of qualified immunity also failed because, despite the fact that no case in point was found, the law was sufficiently clear on this point. Stewart v. Sotolongo, 2007 U.S. Dist. LEXIS 45006 (M.D. Fla. June 21, 2007):
Accordingly, the issue for the Court to determine is whether the state of the law on October 6, 2005 gave the Officer Defendants fair warning that the retention of Plaintiff's property overnight was unconstitutional. Hope, 536 U.S. at 741. The Court holds that it did:
While Plaintiff has not submitted any case law with similar facts in order to show that the Officer Defendants had fair warning that their conduct was unconstitutional, that is not fatal to his claim. Instead, as explained below, broad statements of principle in case law existed that made it obvious to a reasonable police officer in the Officer Defendants' position that the retention of Plaintiff's property overnight was unlawful.
District Court erred in concluding that there was reasonable suspicion at an earlier time that the Court of Appeals finds, but it is not reversible error. Officer shouting "Gun" and drawing weapon effected a stop because no reasonable person would believe he was free to go. United States v. Goddard, 377 U.S. App. D.C. 66, 491 F.3d 457 (2007):
We disagree with the district court that the stop happened "as soon as the police officers drove up to the gas station." ... Moreover, the fact that the car halted in the gas station's entrance way does not suggest that a reasonable, innocent pedestrian would have felt unfree to leave.
Nor did the stop occur when the police exited their car and began to approach Goddard and the other three men. Admittedly, some of the circumstances are suggestive of a stop, including that four officers were present--all with guns and handcuffs showing and wearing identifiable MPD jackets and badges--and that the officers "jumped out" of the car. Tr. of June 21, 2004 Hr'g at 58. But the presence of multiple officers does not automatically mean that a stop has occurred.
Based on the record before us, the stop occurred when one of the officers yelled "gun" and told Walker to return to the group. We have no doubt that a reasonable person would feel unfree to leave upon hearing officers seven or eight feet away yell "gun"--a statement sure to arouse the concern of all officers and civilians in the immediate area--and order one of his companions to return. See Wood, 981 F.2d at 540 (finding stop where officer ordered defendant to stop); United States v. Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (finding seizure where officer ordered defendant's coworker to "freeze" when individuals "were only five feet apart and ... obviously working together").
Dissenting, Judge Janice Rogers Brown wrote: "As a result, what we are now tempted to enforce is not Terry but the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion."
Reasonable suspicion was present, primarily from the occupants of the car not having their stories straight as to where they were going. United States v. Orta, 228 Fed. Appx. 633 (8th Cir. 2007) (per curiam)*:
Within the first twelve minutes of the stop, the trooper observed (1) the vehicle's California license plate, (2) a single key on the key ring in the ignition, (3) three cell phones on the center console, (4) Orta's Washington driver's license, (5) an insurance card presented by one of Orta's passengers which did not list the stopped vehicle, and (6) inconsistent statements between Orta and a passenger about the length of their intended stay in St. Paul as well as their inability to provide specific information about their trip destination.
Search incident that occurred before arrest was valid where there was probable cause. United States v. Dotson, 246 Fed. Appx. 897, 2007 FED App. 0411N (6th Cir. 2007)* (unpublished).
There is no reasonable expectation of privacy in the records of gun dealers of one's prior purchases. The gunsellers have no reasonable expectation of privacy, so it follows that the buyer does not either. Besides, the record is held by a third person. Harrison v. City of Chicago, 2007 U.S. Dist. LEXIS 45117 (N.D. Ill. June 19, 2007):
Here, the issue is whether a police recruit has a reasonable expectation of privacy in records a gun seller is required to keep with respect to the police recruit's prior gun purchases. This Court concludes that the answer is no. The Supreme Court has explained that the gun sellers themselves have no reasonable expectation of privacy in their business such that a search warrant is not required to search their premises or records. United States v. Biswell, 406 U.S. 311, 315 (1972) ("close scrutiny of [firearms] traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders."). The Seventh Circuit has described why firearm purchasers have no reasonable expectation of privacy with respect to their firearm purchases. City of Chi. v. U.S. Dep't of Treasury, 287 F.3d 628, 637 (7th Cir. 2002) ("the purchase of a firearm is not a private transaction. The Gun Control Act requires that a transaction for the sale of a firearm be recorded and every dealer is required to make business records available to investigation. Again, every purchaser of a firearm is on notice that their name and address must be reported to state and local authorities and AFT. As a result, there can be no expectation of privacy in the requested names and addresses.") (internal citations omitted), judg't vacated on other grounds, 537 U.S. 1229. The Court concludes that a gun purchaser has no reasonable expectation of privacy in the fact of the gun purchase or in the record of such purchase. Because Harrison had no reasonable expectation of privacy with respect to the records of his prior gun purchases, he cannot prevail on his § 1983 claim against Leracz.
Officer's reasonable suspicion defendant was transporting drugs equals reasonable suspicion he was armed. ("Courts have recognized that it is objectively reasonable to believe that a person involved in drug trafficking is armed and dangerous.") A patdown was permissible. Benavides v. State, 2007 Tex. App. LEXIS 4802 (Tex. App. — East land June 21, 2007).*
Claim that defendant officer kicked in plaintiff's door without a warrant to arrest plaintiff for DUI stated a claim, and the officer was denied qualified immunity. Cilman v. Reeves, 2007 U.S. Dist. LEXIS 45165 (E.D. Va. June 20, 2007).*
Plaintiff was convicted in state court based on the search of his property, and it was affirmed on appeal. He sued over the search, and the defendants did not raise collateral estoppel. The court held that collateral estoppel can be raised by the court on its own motion, so the defendant's waiver did not matter. He was collaterally estopped by the state court judgment. Best v. Portland Police Dep't, 2007 U.S. Dist. LEXIS 44791 (N.D. Ind. June 19, 2007).*
Traffic stop led to officer smelling marijuana when the driver opened the window. The occupants gave conflicting accounts. The marijuana justified the search, and the stories from the occupants justified seizure of the vehicle. United States v. 2004 Silver Chevrolet Minivan, 2007 U.S. Dist. LEXIS 44866 (D. Neb. June 19, 2007).*
Best Buy in Shreveport was installing a new hard drive in the defendant's computer, and they did a simple diagnostic check not requested by the defendant to verify that the computer was operating correctly, because it had operations issues. The repairman used his own flashdrive to check the computer's function, and then the computer opened the default "My Pictures" folder, and he found child porn. The police were called. The search was a purely private search. The advances in computer technology and privacy concerns do not yet require the courts to revisit the expectation of privacy issues. State v. Horton, 962 So. 2d 459 (La. App. 2d Cir. 2007):
We recognize that State v. Hutchinson, supra, was decided in 1977 and State v. Coleman, supra, was decided in 1985, some thirty and twenty-two years ago respectively-long before the technological revolution in electronic communications, computers and the internet in the last ten years. These new technologies have raised privacy issues in all aspects of our cultural life which will perhaps one day require this court or the supreme court to revisit the private search question. However, the facts of this case do not warrant a re-examination of our previous decision in State v. Coleman, supra, because the discovery of the illicit images on Horton's computer was clearly by accident, and the evidence adduced does not establish that Horton had a subjective expectation of privacy, nor did he demonstrate that his expectation is one that society is prepared to recognize as reasonable and legitimate. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.2d 576 (1967). Horton brought his computer to Best Buy to have a hard drive installed and the computer physically cleaned. Surely it is not a far reach for a customer to expect that the computer technician might perform a cursory inspection of the computer's operation, particularly if the computer appeared to be having some problems. In a sense, the discovery of the images by the technician in this case is more analogous to a "plain view" discovery of evidence of a crime.
Even if we assumed that the Best Buy employee's opening of the "My Pictures" file was unauthorized, and that Horton had a privacy interest in the images contained in the folder, we cannot conclude that Horton thereby meets the "reasonable expectation of privacy test" standards. Horton did not exercise dominion or control over the computer images in the "My Pictures" folder because he had voluntarily relinquished control of the computer to the repair store and failed to secure the images in the folder. The images were located in the default file, which meant that it opened automatically when the "My Pictures" folder was opened. In other words, displaying the images required no conscious thought and action or intention of the technician to enter the file.
(Comment: This case was not the proper vehicle to raise the issue of whether there is now a greater expectation of privacy in a computer, if the defendant did. One would suspect that it was raised by the defendant, but we cannot be sure. At any rate, this case was simple on the facts: The default opening folder was "My Pictures." I know that the general populace does not read search and seizure cases to see how the law has developed in this regard, or on the reasonable expectation of privacy in general, but the defendant had to know that somebody might see what was on his computer in the shop, particularly when "My Pictures" comes right up when the computer is turned on. I would also assume that anyone would know that the computer would have to be tested to make sure that the new hard drive would be read when the computer was turned on. This was not some sophisticated invasion of privacy by the computer geeks; it was simple and necessary to do their jobs. One cannot reasonably disagree with the outcome. If the law on reasonable expectation of privacy in a computer is going to change, it is going to require far better facts than these.)
Police officers pulled over a car, and the passenger fled. The police found out who he was and where he was staying and went to his motel room and entered without a warrant. Inside, they found drugs. The pursuit was not in hot pursuit, and the entry was not with exigent circumstances. Even probable cause was lacking because flight alone is not enough. [To compound the problems, the parties stipulated to police reports as the evidence of the arrest, and it was full of factual holes that the appellate court could not resolve since the state carried the burden of proof.] State v. Smith, 960 So. 2d 369 (La. App. 2d Cir. 2007). (Comment: The state should not have stipulated to using the reports in this case, but the opinion makes it fairly clear that the best case scenario for the state on the gaps in the proof was still a losing proposition.)
Defendant was stopped in Montana for DUI on a cross country trip in an Avis rental car. The plans for the short trip raised suspicions of drug trafficking in the officer. The officer called Avis who considered the rental agreement terminated by the arrest. Avis directed that the car be held until they could retrieve it, and defendant's personal belongings were removed. Removal was lawful, and it led to finding a roach. The officer got a search warrant for the closed containers and found the cash. Defendant's unusual travel plans were probable cause for issuance of the search warrant. State v. $129,970.00, 2007 MT 148, 337 Mont. 475, 161 P.3d 816 (2007).*
The defendant sought the officer's confidential personnel file for the purposes of a Pitchess to challenge the officer's credibility, but he could not make a sufficient showing to get it since the undisputed facts showed probable cause for arrest. Giovanni B. v. Superior Court, 152 Cal. App. 4th 312, 60 Cal. Rptr. 3d 469 (4th Dist. 2007):
To show good cause for discovery of confidential officer information, a Pitchess motion must (among other things) explain the proposed defense and articulate how the requested discovery may be admissible as direct or impeachment evidence in support of the proposed defense. (Warrick v. Superior Court, supra, 35 Cal. 4th at p. 1024.) Here, Giovanni explained the proposed defense, and the relevance of the requested information, was a potential suppression motion that would assert "Trampus and Murgia wrote false information in their police report to justify their detention and pat[-]down of Giovanni [and] [w]ithout the false information, the officers [would] not have been justified in detaining and patting down Giovanni."
However, Giovanni was detained and placed into temporary custody based in part on his appearing to be underage and on the streets after midnight. Because the officers had (and Giovanni does not contest) this objectively reasonable basis on which to detain and place Giovanni in temporary custody for suspected violation of Chula Vista's curfew ordinance (see In re Charles C. (1999) 76 Cal. App. 4th 420, 424 [police may place minor in custody for violating curfew]; In re Ian C., supra, 87 Cal. App. 4th at pp. 859-860 [police may place minor in temporary custody for violating curfew and conduct search incident to arrest]), Giovanni cannot contest the validity of the stop and search by asserting the officers' other observations concerning suspected criminal activity were false and a subterfuge to support the stop. (People v. Woods, supra, 21 Cal.4th at pp. 679-681.) Giovanni's Pitchess motion did not claim it might reveal information calling into question the accuracy of the officers' observations that Giovanni was a minor on the streets in violation of curfew, or any information suggesting the officers improperly relied on their observations of his youthful appearance to support the stop. (See In re James D. (1987) 43 Cal.3d 903, 916-917.) Giovanni's Pitchess motion did not articulate how the officers' veracity would be admissible on whether, after Giovanni was properly stopped and placed in temporary custody for curfew violation, the officers were permitted to conduct the pat-down search that revealed the screwdriver.
Consent to search was voluntary on totality. The fact that the officer had his gun drawn for just 10 seconds and reholstered when any apparent threat was nonexistent was significant. So was his prior criminal history. United States v. Mendoza, 2007 U.S. Dist. LEXIS 44647 (W.D. Pa. June 20, 2007):
The length of time of the encounter between defendant and the officers at the time of the consent to search defendant's person was less than five minutes, and the questioning of defendant was not prolonged or repeated. Defendant exhibited a calm demeanor and was cooperative with the officers. Defendant did not exhibit any mental or physical handicaps that would effect his ability to consent to the search of his person and defendant's age was not such that it would effect his ability to consent to the search of his person. Finally, defendant's background includes a prior arrest and conviction on drug charges.
911 call from a six year old child justified officers' warrantless entry into plaintiff's home, and they were entitled to qualified immunity. Morton v. Lunde, 2007 U.S. Dist. LEXIS 44523 (D. Idaho June 19, 2007).*
Plaintiff's version of the facts of her arrest showed it was without probable cause and with excessive force, and she stated a claim for relief. Hayhurst v. Upper Makefield Twp., 2007 U.S. Dist. LEXIS 44762 (E.D. Pa. June 19, 2007).*
Protective sweep was unjustified and happened prior to arrest or any circumstances that could justify it, and, frankly, was only "half-heartedly" argued by the state. State v. Trudelle, 2007 NMCA 66, 142 N.M. 18, 162 P.3d 173 (2007), cert. granted 141 N.M. 763, 161
P.3d 260 (2007), cert. granted 2007 N.M. LEXIS 661 (2007), cert. quashed 2008 N.M. LEXIS 79 (2008):
[*22] The State half-heartedly asserts that the arrest of Mrs. Trudelle "could arguably support a protective sweep of the premises." This argument fails for three reasons. First, the record appears to show that the officers conducted the protective sweep prior to arresting Mrs. Trudelle. We have previously held that a protective sweep is "uncalled for" where the sweep takes place before the police decide to place a suspect under arrest. Id. Second, the fact that the officers left Defendants unrestrained and allowed Mrs. Trudelle to re-enter the house unaccompanied suggests that the officers did not fear for their safety, at least with respect to Defendants or others who may have remained inside of the house. See id. at 440-41, 806 P.2d at 580-81 (finding that officers did not reasonably fear danger where suspect was left unrestrained and was allowed to re-enter house). Finally, the officers arrested Mrs. Trudelle pursuant to an unrelated, outstanding warrant that the officers happened to discover during or following the protective sweep. Therefore, the arrest of Mrs. Trudelle bears no relation to the protective sweep and cannot be used to justify it.
. . .
[*25] Nevertheless, the State argues that the evidence suggesting the existence of a meth lab on the property, combined with Mrs. Trudelle's arrest and Mr. Trudelle's desire to retrieve his dog from the house, justified the protective sweep. This argument is without merit. First, as we have previously stated, Mrs. Trudelle's arrest was of no consequence with regard to the protective sweep. Second, the record shows that Mr. Trudelle decided to retrieve his dog only after the officers told him that they were going to conduct the sweep with or without his consent. Even if we were to assume that Mr. Trudelle's entry constituted some type of exigency, that exigency would have been of the officers' own making and thus cannot be used to justify the sweep. See State v. Wagoner, 1998 NMCA 124, P 13, 126 N.M. 9, 966 P.2d 176 [hereinafter Wagoner I] ("[T]he exigency should not be one improperly created by law enforcement officers."), overruled on other grounds by Wagoner II, 2001 NMCA 14, P 40.
Probation search walk through did not require reasonable suspicion, and they are not limited to interpersonal contact with the probationer. United States v. LeBlanc, 490 F.3d 361 (5th Cir. 2007).
Police responded to a domestic dispute including a beating that was called in by a neighbor, and it could not be determined whether the person being beaten and screaming on the other end was a woman or a child. Exigent circumstances were apparent from the call. Richards v. State, 286 Ga. App. 580, 649 S.E.2d 747 (2007).*
30 second delay of sitting at a light that changed is reasonable suspicion to stop. The court had previously held that 8-10 seconds was not, but this was considerably longer. State v. Barnard, 2007 N.C. App. LEXIS 1307 (June 19, 2007).*
Arrest of the wrong man with the same name but at different address as the person named in an arrest warrant was without probable cause where there were no identifiers like the arrestee's social security or driver's license number which were available but not provided. Lucas v. Galloway Township Police Department, 2007 U.S. Dist. LEXIS 44616 (D. N.J. June 20, 2007):
Instead, Officer Welsh took affirmative steps to change the object of the warrant to Jason J. Lucas, and that act is something considerably more than simply executing a judicially authorized warrant. The Supreme Court has stated that [*23] "if officers of reasonable competence could disagree on [probable cause], immunity should be recognized." Schneider, A.2d at 360 (quoting Malley, 475 U.S. at 341). However, our Constitution does not permit an officer to serve a warrant providing nothing more than a name and address on anyone matching that name; such is beyond the bounds of reasonable belief and is impermissible. See Marron v. United States, 275 U.S. 192, 196 (1927) (holding particularity requirement of Fourth Amendment "makes general searches under [warrants] impossible and prevents the seizure of one thing under a warrant describing another. As to what [or who] is to be taken, nothing is left to the discretion of the officer executing the warrant." (emphasis added)). No undue burden is placed on New Jersey's municipal police departments in requiring that officers executing warrants be left with no discretion on whom to serve them. While mistakes will invariably happen, the Fourth Amendment guarantees that mistakes will only be made after proper diligence and regard for our notions of liberty and justice is accorded. Thus, taking the facts in a light most favorable to the Plaintiff, the facts alleged make out a constitutional violation.
The difference between criminal and civil searches can be dramatic. Consider these two cases from Arizona and the Eighth Circuit decided Wednesday and Thursday:
The defendant had been arrested and was subjected to a strip search, incidentally by a code enforcement officer who had not been trained in doing strip searches, but was the only female around to do it. The trial court suppressed removal of a bag partially protuding from defendant's anus because no warrant was sought because precedent required a warrant for any search that was so intrusive. State v. Barnes, 215 Ariz. 279, 159 P.3d 589 (2007):
P8 The state primarily contends that Armstrong did not intrude beyond the surface of Barnes's body because "no piercing, probing, or even touching of the skin was required to seize" the bag. See State v. Magness, 115 Ariz. 317, 321, 565 P.2d 194, 198 (App. 1977) (visual search of area "around the rectum" permissible in absence of a warrant as part of search incident to arrest.). To address this contention, we must determine whether an officer transforms a lawful warrantless strip search into an intrusion beyond the body's surface requiring a warrant when he or she handles an object protruding from, and extending into, an arrestee's anal cavity. Although the state correctly observes that its officer neither inserted any object, digit, or instrumentality into Barnes, the officer's manipulation and removal of the protruding portion of the bag necessarily exerted force on the portion of the bag extending into Barnes's rectum. And the officer's actions had the effect of moving the portions of the bag within Barnes's rectum as the bag emerged. Once an officer's actions have the effect of exerting force within an arrestee's body, we decline to draw constitutional distinctions based on the mechanism by which the officer does so. The invasion of privacy is the same regardless of the mechanism used. See Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449, 1449 n.11 (9th Cir. 1991) (finding "Schmerber governs all searches that invade the interior of the body" and is not limited to "cases in which skin is pierced or entry is forced"). Moreover, the Court's opinion in Schmerber instructs that the intrusiveness of a body search must be assessed in part by the potential risks of inflicting trauma or pain. 384 U.S. at 771- 72, 86 S. Ct. at 1836. Although nothing in the record suggests that Barnes actually suffered any trauma or pain, we have little doubt that an officer's removal of items extending into a suspect's "innards" generally poses such potential risks, the relevant consideration here.
P9 We are not the first court to conclude that an officer must secure a warrant to remove items partially protruding from an arrestee's rectum. In Hughes v. Commonwealth, 524 S.E.2d 155, 159, 162 (Va. Ct. App. 2000), quoting Commonwealth v. Gilmore, 498 S.E.2d 464, 469 (Va. Ct. App. 1998), the court found that an officer's removal of a plastic bag protruding halfway from a defendant's rectum constituted an "intrusive physical body cavity search" requiring a warrant in the absence of both exigent circumstances and "'a clear indication that evidence is located within a suspect's body.'" And, in People v. More, 764 N.E.2d 967, 969 (N.Y. 2002), quoting People v. Luna, 535 N.E.2d 1305, 1308 (N.Y. 1989), New York's highest court characterized physical body cavity searches, such as the seizure of a bag partially protruding from a suspect's rectum, as "'invasive'" and "'degrading'" and found such searches "at least as intrusive" as the blood test procedures addressed in Schmerber. Accordingly, the court held the evidence found in the suspect's rectum should have been suppressed because officers had neither complied with the warrant requirement set forth in Schmerber nor articulated exigent circumstances sufficient to obviate the need for a warrant. More, 764 N.E.2d at 969-70.
The plaintiff was strip searched in a motel room after his arrest, where he was handcuffed and had his pants pulled down by the defendant officer, was bent over, and a tissue was removed from his buttocks. After a four day trial, the jury awarded $35,000 in "nominal" damages which the district court reduced to $1. The parties appealed and cross-appealed, and the Eighth Circuit granted qualified immunity to the officer. Richmond v. City of Brooklyn Ctr., 490 F.3d 1002 (8th Cir. 2007):
We hold that a reasonable officer in the defendant's position would not have understood that the strip search of [*14] Richmond in his motel room would violate his constitutional rights. The law in April 2001 was clear that strip searches should be conducted in an area as removed from public view as possible without compromising legitimate security concerns. See Franklin v. Lockhart, 883 F.2d 654, 656-57 (8th Cir. 1989) (holding that visual body cavity searches of prison inmates conducted within view of four to six other inmates did not violate the Fourth Amendment because any measures taken to increase privacy would implicate legitimate prison security concerns); see also Hill v. Bogans, 735 F.2d 391, 393-94 (10th Cir. 1984) (finding the manner of a strip search of an arrestee unreasonable where it was conducted in a police station lobby area with "ten to twelve people ... milling about"). The law was also clear that strip searches should be conducted by officials of the same sex as the individual to be searched. E.g., Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir. 2001); see also Justice v. Peachtree City, 961 F.2d 188, 193 (11th Cir. 1992). Finally, the law was clear that strip searches should be performed in a hygienic fashion and not in a degrading, humiliating or abusive fashion. Cf. Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (holding that a plaintiff stated a valid Fourth Amendment search-and-seizure claim where he alleged that he was subjected to sexual comments about his anatomy and rubbing of his buttocks with a nightstick during strip searches); see also Bell, 441 U.S. at 560 (stating that it is unreasonable to conduct a strip search "in an abusive fashion"); Bonitz v. Fair, 804 F.2d 164, 172-73 (1st Cir. 1986) (holding body-cavity searches unreasonable where, inter alia, the searching officers wore a single pair of gloves while searching multiple inmates), overruled on other grounds by Unwin v. Campbell, 863 F.2d 124, 128 (1st Cir. 1988), abrogated by Johnson v. Jones, 515 U.S. 304, 132 L. Ed. 2d 238 (1995) (abrogating Unwin).
In this case, the standards for privacy and hygiene clearly were met because only the officers and the arrestee were present for the strip search, the motel room was isolated from public view, the officers were the same sex as Richmond, and Officer Bruce wore a sanitary latex glove. Richmond claims that the search was performed in a degrading, humiliating or abusive manner because he was restrained during the search, he was not allowed to lower his own pants and boxer shorts, and Officer Flesland forcibly bent him over a table for the search. First, while the special verdict form did not ask the jury to make a specific finding as to whether Officer Flesland forcibly bent Richmond over a table, the jury did find specifically that Officer Flesland's conduct during the search was reasonable. This indicates strongly that when the jury rejected Richmond's testimony that the search included a body cavity search, it also rejected his concurrent testimony about Officer Flesland forcibly bending him over a table during the search. Therefore, viewing the evidence in the light most favorable to the verdict, we reject this aspect of Richmond's allegation.
Search incident in a different hotel room from the one defendant was arrested in was invalid. Holloman v. State, 959 So. 2d 403 (2d Dist. 2007).
State appeals court decided appeal on lack of probable cause when neither party briefed it, and this was error. Defense counsel's expressly declining to raise a pretext issue because it had been recently addressed by the state supreme court was a waiver of the issue. State v. Dalzell, 282 Conn. 709 924 A.2d 809 (2007).*
The defendant was arrested outside his house, and he wanted to get his shoes. The officers could follow him back into the house to get his shoes. United States v. Russell, 2007 U.S. Dist. LEXIS 44125 (D. Vt. June 15, 2007):
The facts as found credible by the Court, however, are clear that Defendant was lawfully arrested outside of his home. It follows, therefore, that the Troopers were permitted to accompany Defendant into his home to retrieve his shoes, even if the idea to enter the home for this purpose originated with the Troopers. See, e.g., United States v. Harness, 453 F.3d 752, 755-56 (6th Cir. 2006). Despite that Defendant now surely wishes he had risked the hazards of a shoeless night instead of leading the Troopers into his home, "a suspect's poor choice does not render unconstitutional an officer's objectively reasonable offer." Id. at 756 (quoting United States v. Garcia, 376 F.3d 648, 651 (7th Cir. 2004)).
One officer was "not a beacon of credibility" but the other was, so the court sides with the police on whether the marijuana in defendant's car could be smelled. United States v. Artis, 2007 U.S. Dist. LEXIS 44138 (E.D. Va. June 18, 2007):
After painstakingly reviewing the evidence and relevant testimony, the decision is admittedly difficult. In evidence, the Court has the testimony of two United States Park Police Officers' that they smelled marijuana from the car, and that smell got stronger as Defendant stepped outside of the car. This testimony alone is sufficient to find probable cause, granted one important conclusion--that the Court finds this testimony credible. Militating against such a finding of credibility are the following two observations: First and most significant, the marijuana seized from Defendant was sealed inside a zip-lock bag, inside another sealed plastic bag, and inside the Defendant's thick sweatshirt. Notably, the testimony at the hearing is that these bags contained no holes through which odor could more easily escape. Whether the odor of raw marijuana could penetrate two plastic bags and a thick sweatshirt so strongly as to be detected outside of the car gives the Court some hesitation. Unfortunately, neither Government nor Defendant introduced any expert testimony on the subject, which would have undoubtedly aided the Court in its decision. In addition, Officer Gordon's testimony was not necessarily a beacon of credibility, judging from the lack of certainty in his answers, as well as his tone of voice, inflection, and cadence.
Nevertheless, the Court is given significant reassurance by the testimony of Officer Miller, who provided meaningful corroboration to Officer Gordon's testimony. His detailed account of the stop, the interactions of the officers with Ms. Thomas and Mr. Artis, and the circumstances surrounding the arrest sufficiently align with Mr. Gordon's account of the same. Taking these two stories together, although not perfectly parallel (as separate accounts rarely are), convince the Court that the officers' testimony is worthy of credence.
Inmate plaintiff who collapsed in his housing unit and was taken to the hospital unit could have urine forcible drawn. He first came to when given a drug to counteract an OD on opiates, and he was told that they needed a urine or blood sample. He asked for a search warrant and was told that they did not need one because he was an inmate. He passed out again, and they inserted a catheter to retrieve his urine for a drug test. The search was reasonable. Fuller v. Washington County Hosp., 2006 U.S. Dist. LEXIS 96359 (D. Md. May 23, 2006).*
Plaintiff sued for injunctive relief and not damages, and the district court held that he lacked standing to sue because of the speculative nature of a recurrence. Martinez v. Marino, 2007 U.S. Dist. LEXIS 44421 (E.D. Pa. June 18, 2007):
Martinez fails to satisfy the pleading requirements to show he may be entitled to injunctive relief. The Supreme Court has suggested that a plaintiff, who alleged he had been choked by police, might be able to seek injunctive relief if he could make "the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police officers to act in such manner." City of Los Angeles v. Lyons, 461 U.S. 95, 105, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983). The plaintiff in Lyons failed to meet this heightened standard and Martinez does as well.
Plaintiff's version of what he did to get arrested gave the officers qualified immunity. Benton-El v. Odom, 2007 U.S. Dist. LEXIS 44270 (M.D. Ga. June 19, 2007).*
"In the case at bar, the information was obtained from an informant whom the agent had known for 3 years and who had previously given information that lead to at least 8 arrests. There is no evidence whatsoever that the informant was unreliable or provided inaccurate information at that time or at any time in the past. Based on the totality of circumstances in this case, there is no evidence of any reason to not rely on the information provided by the well-known, trusted source." United States v. Benson, 2007 U.S. Dist. LEXIS 44308 (M.D. Ga. June 19, 2007).*
Controlled delivery of a container load of drugs led to probable cause to arrest the recipients and search their vehicles. United States v. Pulido-Tejedo, 2007 U.S. Dist. LEXIS 44312 (S.D. Ga. June 18, 2007).*
Defendant's argument that the USMJ lacked a substantial basis for finding probable cause on a corroborated informant was rejected. United States v. Crawford, 2007 U.S. Dist. LEXIS 44417 (E.D. Pa. June 18, 2007):
Taken together, these corroborated details, in addition to numerous other pieces of evidence described in the affidavit, supported the agent's statement that the CS had provided reliable information in the past. The totality of the evidence clearly created a substantial basis for a finding of probable cause and was more than sufficient for the issuance of a warrant to search Rah's Fashion Boutique. Accordingly, we are compelled to reject Defendant's argument that the evidence should be suppressed for lack of probable cause.
State law enforcement officers' extrajurisdictional activites in participating in a search did not constitute a Fourth Amendment violation. A state law violation does not equate with a Fourth Amendment violation. United States v. Nure, 2007 U.S. Dist. LEXIS 43974 (E.D. Mo. June 18, 2007).
In Washington State, it does not violate the state constitution either. State v. Barron, 139 Wn. App. 266, 160 P.3d 1077 (2007).
Pro se arrestee sued under § 1983 for immediate release on state charges, which the district court found barred by Younger absention. Green v. Kingsport Police Dept., 2007 U.S. Dist. LEXIS 43925 (E.D. Tenn. June 15, 2007):
Under the doctrine established by Younger v. Harris, 401 U.S. 37 (1971), federal courts must abstain from entertaining lawsuits by an individual seeking to enjoin a criminal prosecution against him in state court where those proceedings implicate important state interests and the plaintiff has an adequate opportunity to raise his challenges in that forum. See O'Shea v. Littleton, 414 U.S. 488, 499-504 (1974). All of the factors supporting abstention are present here. Therefore, the Court must abstain from interfering in plaintiff's state criminal proceedings by issuing rulings as to whether the warrantless entry into the plaintiff's room, seizure of his property, and subsequent arrest violated his constitutional rights.
Defendant was on probation, and he had to make his computer available to his PO. The PO with "consent" looked at the computer and found "inappropriate if not illegal" images, so he went to the police for further guidance. The PO came back with the police and defendant further consented to a search of the computer. The search of the computer was not by consent. State v. White, 2007 R.I. Super. LEXIS 82 (June 7, 2007):
This entry was without the express permission of the defendant. White and two others were ordered to sit in the television viewing area "as a safety precaution" and one of the four troopers was assigned to watch the three civilians. White was not allowed to accompany the State Police to his back bedroom or observe what the officers did with respect to his computer. A man of limited intelligence and education, who is unable to take care of his ordinary everyday affairs without constant help, was now surrounded by six law enforcement officers in his home. He was not allowed to move from his living room area and was described by the man who knows him best as nervous, tense and "actually scared."
Trooper Borek was obviously not trained in the area of investigating child pornography offenses. He had one of the other troopers call their supervisor for instructions. The troopers on the scene were instructed to seize the computer if they could get "consent." Apparently no serious consideration was given to collecting the facts known about the defendant and the computer's contents in support of a search warrant application. No consent form was offered to the defendant to memorialize his informed decision to consent to a seizure of his computer.
Moreover, when asked by Trooper Borek if he would consent to the seizure of his computer, Borek told White that if he did not consent to the removal of his computer, the police would just get a warrant and stay in White's trailer until they obtained it.
Considering the totality of the pertinent facts and circumstances, this Court cannot conclude that the state has proved by a preponderance of the evidence that the verbal consent by White was freely and voluntarily given. [Although the standard may be clear and convincing, the preponderance standard was not satisfied.]
Defense counsel would not be ineffective for not pursuing a motion to suppress that could not win. King v. Runnels, 2007 U.S. Dist. LEXIS 43884 (E.D. Cal. June 18, 2007).*
D.C. Cir. holds that impoundment of vehicle in accord with unwritten addition to "standard policy" but contrary to the written policy was unreasonable. United States v. Proctor, 376 U.S. App. D.C. 512, 489 F.3d 1348 (2007):
We believe that if a standard impoundment procedure exists, a police officer's failure to adhere thereto is unreasonable and violates the Fourth Amendment. Cf. United States v. Maple, 358 U.S. App. D.C. 260, 348 F.3d 260, 263-64 (D.C. Cir. 2003) (search of vehicle relocated by police after traffic arrest unreasonable because contrary to [policy] GO 602.1). GO 602.1 provides that a vehicle "classified as prisoner's property shall be disposed of in any lawful manner in which the person arrested directs." GO 602.1, AA at 42 (emphasis added). Thus, before impounding the vehicle, an officer should provide the arrestee with the opportunity to arrange for its removal. See Hill v. United States, 512 A.2d 269, 274 n.10 (D.C. 1986) ("As 'prisoner's property' [under GO 602.1] ... a vehicle cannot be impounded without first giving the prisoner an opportunity to make other lawful arrangements for its disposition."); Arrington v. United States, 382 A.2d 14, 18 (D.C. 1978) ("[P]olice are authorized to impound a motor vehicle as prisoner property [under GO 602.1] only where the prisoner consents thereto or is incapable of making other arrangements for its disposition."). Proctor, however, was afforded no such opportunity. On the contrary, Shegan testified that the officers were required to impound Proctor's vehicle because no one was present to remove it, see Tr. 11/23/04 at 24, Proctor was not the owner and they "weren't going to wait" for the owner to remove it, id. at 38; see also id. ("I don't believe I had a choice."). Accordingly, the officers' impoundment (seizure) decision violated GO 602.1.
The officers' impoundment decision led to an inventory search that also violated GO 602.1. As noted earlier, Shegan testified that due to a lack of impoundment space at MPD facilities, MPD's "new procedure" necessitated that a ROC crane tow Proctor's vehicle to a private impoundment lot rather than to an MPD facility. Id. at 24-25, 52-53. According to Shegan, the officers were thus required to search "[t]he entire vehicle" before it was towed, id. at 26, "[t]o reduce liability on the police department and to preserve any property that the owner of the vehicle or the occupants of the vehicle may have," id. at 25. GO 602.1, however, expressly prohibits an inventory search of a vehicle not taken to an MPD impoundment lot. GO 602.1, AA at 43 ("If a vehicle classified as prisoner's property is disposed of so that it is not taken to a police facility, it shall not be inventoried in any way.").
Consensual stop escalated into a detention without reasonable suspicion, and defendant was just going along. United States v. Washington, 490 F.3d 765 (9th Cir. 2007):
Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens. As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop. Washington testified that he knew of and discussed with a friend one of the pamphlets, n3 which contained advice to citizens such as "follow the officer's directions" when stopped, and "if ordered, comply with the procedures for a search." Additionally, in a message from the Chief of Portland's Police Department, the pamphlet listed common reasons police will stop a person, such as a person "committed a crime," or "is about to commit a crime."
. . .
Washington's voluntary consent to the search of his person, however, does not preclude the possibility that officer Shaw improperly seized Washington as events unfolded. See Mendoza-Cepeda, 250 F.3d at 628 (recognizing that a consensual encounter may become a seizure); United States v. Ayarza, 874 F.2d 647, 650 (9th Cir. 1989) (stating that a consensual encounter "may evolve into a situation where the individual's ability to leave dissipates"). If Shaw and Pahlke's actions exceeded the scope of Washington's consent to the search of his person, such that a reasonable person in Washington's situation would not have felt free to depart if he so chose, then Shaw and Pahlke seized Washington. See Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (recognizing that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope"); United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1506 (9th Cir. 1988) (reasoning that even if the suspect voluntarily consented to a search of his bag, the law enforcement officers could have "seized [him] for purposes of the fourth amendment at a later point").
We have identified several non-exhaustive situations where an officer's actions escalate a consensual encounter into a seizure: "when a law enforcement officer, through coercion, physical force, or a show of authority, in some way restricts the liberty of a person," Washington, 387 F.3d at 1068 (internal quotation marks omitted), or "if there is a threatening presence of several officers, a display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendoza-Cepeda, 250 F.3d at 628 (internal quotation marks omitted) (alteration omitted). In Orhorhaghe, we identified several factors to consider in determining if a person was seized, any one of which, if present, could constitute a seizure: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or non-public setting; (4) whether the officer's tone or manner was authoritative, so as to imply that compliance would be compelled; and (5) whether the officers informed the person of his right to terminate the encounter. Orhorhaghe, 38 F.3d at 494-96.
Applying these factors, we conclude that under the total circumstances present in Washington's case, Shaw and Pahlke's encounter with Washington escalated into a seizure.
Hudson forecloses inquiry into a knock-and-announce violation. The defendant argued, and the district court found, that the brevity of time between the knock and entry was so short as to constitute a no-knock warrant. United States v. Ankeny, 490 F.3d 744 (9th Cir. 2007):
Turning first to the alleged knock-and-announce violation, see Wilson v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995) ("[The] common-law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment."), we hold that suppression is foreclosed by the Supreme Court's decision in Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).
The federal DNA collection statute does not violate the Fourth Amendment. Banks v. United States, 490 F.3d 1178 (10th Cir. 2007).*
The defendant argued that a search warrant was required for the police to send an informant in to make a buy. This was rejected. State v. Prestwich, 2007 UT App 206, 2007 Utah App. LEXIS 212 (June 14, 2007):
Defendant first argues that the trial court erred in failing to suppress evidence seized in violation of his Fourth Amendment right against unreasonable searches and seizures when a confidential informant entered Defendant's home without a search warrant. "However, the Fourth Amendment has no application to the actions of invited and authorized persons, even when, unbeknownst to the unwary, they are acting as police agents." State v. McArthur, 2000 UT App 23, P20, 996 P.2d 555 (emphasis omitted). "It is not illegal for a private individual, even if acting as a government agent, to enter another's home if he or she does so with the owner's permission." State v. Koury, 824 P.2d 474, 478 (Utah Ct. App. 1991). Here, the confidential informant initiated contact with Defendant, made arrangements to buy marijuana from Defendant, and went to Defendant's residence to conduct the purchase. The confidential informant asked Defendant if she could enter his apartment, and Defendant allowed her in the residence. Based on this evidence, we conclude that the confidential informant's entry was permissive and that the trial court did not err in ruling that the warrantless entry did not implicate the Fourth Amendment.
The defendant was ordered out of his vehicle by an officer who came upon his parked vehicle. "In the instant case, defendant was directed to exit his vehicle, subjected to a pat-down search, instructed to perform field sobriety tests and then told to sit down on the police vehicle before the officer asked him to sign the consent form authorizing a search of the interior of the vehicle. Defendant was treated as if he was not free to leave .... We note that, although not mandatory, the People did not establish that defendant was advised that he could refuse to consent to the search .... In view of the foregoing, we conclude that defendant's consent was not voluntary." People v. Keesler, 2007 NY Slip Op 27247, 16 Misc. 3d 45 (2d Dept. 2007).*
Franks hearing denied where the affidavits offered did not make it impossible for the drug deal to have gone down as the informant said it did. The affidavits were from biased witnesses who were related to the defendant. People v. Gorosteata, 374 Ill. App. 3d 203, 312 Ill. Dec. 492, 870 N.E.2d 936 (6th Dist. 2007).*
Defense counsel was not ineffective for not challenging a search that was uniformly testified to be consensual. People v. Starnes, 2007 Ill. App. LEXIS 652 (2d Dist. June 12, 2007), released for publication July 17, 2007.*
Officers showed probable cause to seize photographs of nude young boys from defendant's house based on his own admissions there would be photographs. His staleness argument was not raised in the trial court and was waived. Commonwealth v. Tiffany, 2007 PA Super 162, 926 A.2d 503 (2007).*
In the past, I have occasionally ranted in comments that some appellate courts lack common sense in their determination that a motorist is free to leave after having been pulled over. Prosecutors have argued this with some success, considering that appellate courts with their heads in the sand (or elsewhere) have bought into the argument that a detention became consensual at some point even though the police car still had its lights on and the officer was standing around. Coercion is implicit, and no reasonable person could feel free to leave. The rub comes when the motorist is told that he is free to leave and the officer reinitiates questioning. The motorist is already stopped. Is the reinitiation of questioning a part of the original detention or not? To argue that it is not is, to me anyway, pure sophistry. How can a motorist feel free to leave? At best, the officer has sent grossly conflicting signals. "You may go, but one more thing...." This is a continuation of the detention under any reasonable person's view. If this means that appellate courts that buy into the prosecution argument that it is consent are "unreasonable," so be it. They are.
A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on "privacy and personal security" does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. Cf. Drayton, supra, at 197-199, 203-204 (finding no seizure when police officers boarded a stationary bus and asked passengers for permission to search for drugs).
It is also reasonable for passengers to expect that a police officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. In Maryland v. Wilson, 519 U.S. 408 (1997), we held that during a lawful traffic stop an officer may order a passenger out of the car as a precautionary measure, without reasonable suspicion that the passenger poses a safety risk. Id., at 414-415; cf. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (driver may be ordered out of the car as a matter of course). In fashioning this rule, we invoked our earlier statement that "'[t]he risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.'" Wilson, supra, at 414 (quoting Michigan v. Summers, 452 U.S. 692, 702-703 (1981)). What we have said in these opinions probably reflects a societal expectation of "'unquestioned [police] command'" at odds with any notion that a passenger would feel free to leave, or to terminate the personal encounter any other way, without advance permission. Wilson, supra, at 414.
It all boils down to using the last sentence in context. So, readers, the Supreme Court has given a way to put this appellate sophistry to an end. Brendlin should be applied to attempt to direct courts to hold that a highway stop is legally coercive in its nature, since the motorist was stopped under color of law, and to argue that a person can just drive off when the officer keeps talking is just contrary to all normal human experience. The fact the officer says the motorist can go and then keeps talking tells the motorist he cannot leave. It is implicit coercion, if not explicit.
The E.D. Pa. discusses the circuit split on the question of whether a person driving a rental car rented by another has standing to contest a search of the car. The court divines that the Third Circuit would follow the totality of circumstances test and find standing. The car was reasonably impounded on the request of the owner because the owner was unaware of the defendant's permission to drive the car. United States v. Kennedy, 2007 U.S. Dist. LEXIS 43511 (E.D. Pa. June 15, 2007):
1. Defendant Has Standing to Contest the Searches of the Car
As mentioned above, to contest the legality of a search an individual must establish both a subjective expectation of privacy in the place searched and that such expectation is objectively reasonable. Carter, 525 U.S. at 88. The Third Circuit has not addressed standing in the context of rental cars driven by unauthorized drivers. In a case involving a borrowed car, however, the Third Circuit noted that "whether the driver of a car has the reasonable expectation of privacy necessary to show Fourth Amendment standing is a fact-bound question dependent on the strength of his interest in the car and the nature of his control over it; ownership is not necessary." United States v. Baker, 221 F.3d 438, 442 (3d Cir. 2000).
The circuits that have addressed the issue are split. The Fourth, Fifth, and Tenth Circuits have adopted a bright-line rule, holding that if an individual is not listed on the rental agreement, then he does not have a reasonable expectation of privacy in the rented vehicle. See United States v. Thomas, 447 F.3d 1191, 1197 (9th Cir. 2006) (collecting cases). Even an unauthorized driver who had permission from an authorized user has no legitimate expectation of privacy in the car. Despite the laudable qualities of this standard--including ease of applicability--it is a blunt instrument, particularly in an area of law that usually calls for a fact-specific analysis.
Perhaps for this reason, other circuits have decided against applying this test. For example, the Eighth and Ninth Circuits have adopted a modified bright-line rule that allows standing to unauthorized drivers who can show permission to use the car from an authorized driver. Id. (citing United States v. Muhammad, 58 F.3d 353, 355 (8th Cir. 1995)). Yet another approach examines the totality of the circumstances and considers a range of factors including: "(1) whether the defendant had a driver's license; (2) the relationship between the unauthorized driver and the lessee; (3) the driver's ability to present rental documents; (4) whether the driver had the lessee's permission to use the car; and (5) the driver's relationship with the rental company ...." Id. (citing United States v. Smith, 263 F.3d 571, 586 (6th Cir. 2001)).
It is an open question in the Third Circuit whether unauthorized drivers can ever establish a legitimate expectation of privacy in a rental car. The framework set forth in Baker, however, may be read as an implicit endorsement of either the modified bright-line rule or the totality of the circumstances test. In Baker, the court noted that a "fact-bound" inquiry assessing "the strength of [the driver's] interest in the car and the nature of his control over it" is necessary in determining whether someone who borrowed a car had a reasonable expectation of privacy in it. 221 F.3d at 442. Likewise, in denying standing to a passenger in a rented truck, a district court in the Western District of Pennsylvania concluded that the passenger was not an authorized driver, and, moreover, there was no evidence that he had ever driven the truck or had the authorized driver's permission to do so. United States v. Yamba, 407 F. Supp. 2d 703, 716 (W.D. Pa. 2006). The fact that the court in Yamba discussed factual matters beyond the passenger's status as an unauthorized driver suggests that it also predicted that a more nuanced test than the bright-line rule applies within the Third Circuit.
Assuming the Third Circuit would utilize either the modified bright-line rule, under which unauthorized drivers of rental cars have standing to contest a search if they have the permission of an authorized driver, or the totality of the circumstances test, the evidence here supports the conclusion that Defendant had a reasonable expectation of privacy in the Camry. Defendant had a license, an authorized driver's permission to use the car, and, according to the police, was driving it earlier that day. (Tr. at 66-67.) Therefore, Defendant has standing to contest the seizure and searches of the car.
Spending the evening to do drugs in an apartment does not give the defendant standing to challenge the search of the house. This was more like Carter than Olson. United States v. Higareda, 2007 U.S. Dist. LEXIS 43609 (S.D. Cal. June 14, 2007):
The evidence in this case establishes that the Defendant Rameriz "de facto spent the night [at the apartment] doing drugs and hanging out with his friends with the permission of a lawful resident of the apartment Co-defendant Higareda." (Doc # 37 at 3-4.) This evidence supports only the inference that Defendant Rameriz was legitimately on the premises, which is insufficient to demonstrate a legitimate expectation of privacy. See Amenta, 69 F.3d at 309. Defendant Rameriz did not live at the apartment. The evidence establishes that Defendant Rameriz was not an overnight guest at the apartment such that he had "an expectation of privacy in the home that society is prepared to recognize as reasonable." Minnesota v. Olson, 495 U.S. 91, 96-97. The evidence establishes only that Defendant Rameriz came to the apartment and remained with permission of Defendant Higareda in order to do drugs and hang out with friends, that the night passed, and that Defendant Rameriz was still there in the morning. Under these facts, Defendant Rameriz did not have a legitimate expectation of privacy in the residence of Defendant Higareda that society is prepared to recognize as reasonable.
Search incident that occurs immediately before an arrest for which there was already probable cause is valid. United States v. Thompson, 244 Fed. Appx. 926 (11th Cir. 2007)* (unpublished).
Officer's moving plaintiff out of his way by touching her arm did not constitute a seizure. "When vewing all the circumstances surrounding this incident, there is no evidence that an objective person in Plaintiff's position would have believed she was restrained, i.e., she was not free to leave. Plaintiff did not even subjectively believe she was not free to leave based on her testimony. Defendant physically moved Plaintiff out of his way, but did not give any indication that she was not free to leave. Accordingly, Plaintiff was not seized for purposes of the Fourth Amendment." McKeown v. Hairston, 2007 U.S. Dist. LEXIS 43490 (E.D. Mich. June 15, 2007).*
Defendant's dropping bag of crack and walking away from it was probable cause. United States v. Keely, 2007 U.S. Dist. LEXIS 43650 (E.D. Mo. June 15, 2007). (Comment: This is the first federal dropsy case I've seen in a long time.)
(More later: Federal appellate brief up next.)
The Sixth Circuit holds that there is a reasonable expectation of privacy in stored e-mails, and an e-mail user has standing to challenge overbroad subpoenas to ISPs for the e-mails. The case involved suit under the Stored Communications Act, 18 U.S.C. §§ 2701-12, distinguishing holders of e-mail and recipients who have already received e-mail. This is a significant case, and it extends established law about mail in transit to e-mails in transit. The District Court's preliminary injunction is affirmed as modified. Warshak v. United States, 490 F.3d 455, 2007 FED App. 0225P (6th Cir. 2007):
2. Reasonable expectation of privacy in e-mail content
Two amici curiae convincingly analogize the privacy interest that e-mail users hold in the content of their e-mails to the privacy interest in the content of telephone calls, recognized by the Supreme Court in its line of cases involving government eavesdropping on telephone conversations. See Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). In Berger and Katz, telephone surveillance that intercepted the content of a conversation was held to constitute a search, because the caller "is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world," and therefore cannot be said to have forfeited his privacy right in the conversation. Katz, 389 U.S. at 352. This is so even though "[t]he telephone conversation itself must be electronically transmitted by telephone company equipment, and may be recorded or overheard by the use of other company equipment." Smith, 442 U.S. at 746 (Stewart, J., dissenting). On the other hand, in Smith, the Court ruled that the use of pen register, installed at the phone company's facility to record the numbers dialed by the telephone user, did not amount to a search. This distinction was due to the fact that "a pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications." 442 U.S. at 741 (emphasis in original).
The distinction between Katz and Miller makes clear that the reasonable expectation of privacy inquiry in the context of shared communications must necessarily focus on two narrower questions than the general fact that the communication was shared with another. First, we must specifically identify the party with whom the communication is shared, as well as the parties from whom disclosure is shielded. Clearly, under Katz, the mere fact that a communication is shared with another person does not entirely erode all expectations of privacy, because otherwise eavesdropping would never amount to a search. It is true, however, that by sharing communications with someone else, the speaker or writer assumes the risk that it could be revealed to the government by that person, or obtained through a subpoena directed to that person. See Miller, 425 U.S. at 443 ("[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities."). The same does not necessarily apply, however, to an intermediary that merely has the ability to access the information sought by the government. Otherwise phone conversations would never be protected, merely because the telephone company can access them; letters would never be protected, by virtue of the Postal Service's ability to access them; the contents of shared safe deposit boxes or storage lockers would never be protected, by virtue of the bank or storage company's ability to access them.
The second necessary inquiry pertains to the precise information actually conveyed to the party through whom disclosure is sought or obtained. This distinction provides the obvious crux for the different results in Katz and Smith, because although the conduct of the telephone user in Smith "may have been calculated to keep the contents of his conversation private, his conduct was not and could not have been calculated to preserve the privacy of the number he dialed." 442 U.S. at 743. Like the depositor in Miller, the caller in Smith "assumed the risk" of the phone company disclosing the records that he conveyed to it. Id. Yet this assumption of the risk is limited to the specific information conveyed to the service provider, which in the telephone context excludes the content of the conversation. It is apparent, therefore, that although the government can compel disclosure of a shared communication from the party with whom it was shared, it can only compel disclosure of the specific information to which the subject of its compulsion has been granted access. It cannot, on the other hand, bootstrap an intermediary's limited access to one part of the communication (e.g. the phone number) to allow it access to another part (the content of the conversation).
This focus on the specific information shared with the subject of compelled disclosure applies with equal force in the e-mail context. Compelled disclosure of subscriber information and related records through the ISP might not undermine the e-mail subscriber's Fourth Amendment interest under Smith, because like the information obtained through the pen register in Smith and like the bank records in Miller, subscriber information and related records are records of the service provider as well, and may likely be accessed by ISP employees in the normal course of their employment. Consequently, the user does not maintain the same expectation of privacy in them vis-a-vis the service provider, and a third party subpoena to the service provider to access information that is shared with it likely creates no Fourth Amendment problems. n3 The combined precedents of Katz and Smith, however, recognize a heightened protection for the content of the communications. Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.n4
n4 As the Supreme Court explained in Smith, the reasonable expectation of privacy inquiry "embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,--whether, in the words of the Katz majority, the individual has shown that he seeks to preserve [something] as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable, -- whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is justifiable under the circumstances." 442 U.S. at 740 (internal citations and quotation marks omitted).
Similarly, under both Miller and Katz, if the government in this case had received the content of Warshak's e-mails by subpoenaing the person with whom Warshak was e-mailing, a Fourth Amendment challenge brought by Warshak would fail, because he would not have maintained a reasonable expectation of privacy vis-a-vis his e-mailing partners. See Phibbs, 999 F.2d at 1077. But this rationale is inapplicable where the party subpoenaed is not expected to access the content of the documents, much like the phone company in Katz. Thus, as Warshak argues, the government could not get around the privacy interest attached to a private letter by simply subpoenaing the postal service with no showing of probable cause, because unlike in Phibbs, postal workers would not be expected to read the letter in the normal course of business. See Ex Parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1878) ("No law of Congress can place in the hands of officials connected with the postal service any authority to invade the secrecy of letters and such sealed packages in the mail; and all regulations adopted as to mail matter of this kind must be in subordination to the great principle embodied in the fourth amendment of the Constitution."). Similarly, a bank customer maintains an expectation of privacy in a safe deposit box to which the bank lacks access (as opposed to bank records, like checks or account statements) and the government could not compel disclosure of the contents of the safe deposit box only by subpoenaing the bank.
This analysis is consistent with other decisions that have addressed an individual's expectation of privacy in particular electronic communications. In Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2007), we concluded that users of electronic bulletin boards lacked an expectation of privacy in material posted on the bulletin board, as such materials were "intended for publication or public posting. "Of course the public disclosure of material to an untold number of readers distinguishes bulletin board postings from e-mails, which typically have a limited, select number of recipients. See also Jackson, 96 U.S. at 733 ("[A] distinction is to be made between different kinds of mail matter, -- between what is intended to be kept free from inspection, such as letters, and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a condition to be examined."). Although we stated that an e-mail sender would "lose a legitimate expectation of privacy in an e-mail that had already reached its recipient," analogizing such an e-mailer to "a letter-writer," this diminished privacy is only relevant with respect to the recipient, as the sender has assumed the risk of disclosure by or through the recipient. Id. at 333 (citing United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995)). n6 Guest did not hold that the mere use of an intermediary such as an ISP to send and receive e-mails amounted to a waiver of a legitimate expectation of privacy.
Before getting to this question, the court had to determine what standard applied for subpoenas for e-mail. If the e-mail sender or recipient had a reasonable expectation of privacy, the government's burden to obtain them was higher:
Phibbs makes explicit, however, a necessary Fourth Amendment caveat to the rule regarding third-party subpoenas: the party challenging the subpoena has "standing to dispute [its] issuance on Fourth Amendment grounds" if he can "demonstrate that he had a legitimate expectation of privacy attaching to the records obtained." Id.; see also United States v. Miller, 425 U.S. 435, 444, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976) ("Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant." (emphasis added)). This language reflects the rule that where the party challenging the disclosure has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure vis-a-vis that individual, and assumes the risk of that person disclosing (or being compelled to disclose) the shared information to the authorities. See, e.g., United States v. Jacobsen, 466 U.S. 109, 117, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984) ("[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.").
Combining this disclosure to a third party with the government's ability to subpoena the third party alleviates any need for the third-party subpoena to meet the probable cause requirement, if the challenger has not maintained an expectation of privacy with respect to the individual being compelled to make the disclosure. For example, in Phibbs, the documents in question were credit card and phone records that were "readily accessible to employees during the normal course of business." 999 F.2d at 1078. A similar rationale was employed by the Supreme Court in Miller. 425 U.S. at 442 ("The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business."). See also SEC v. Jerry T. O'Brien, Inc., 467 U.S. 735, 743, 104 S. Ct. 2720, 81 L. Ed. 2d 615 (1984) ("When a person communicates information to a third party even on the understanding that the communication is confidential, he cannot object if the third party conveys that information or records thereof to law enforcement authorities."). The government's compelled disclosure argument, while relevant, therefore begs the critical question of whether an e-mail user maintains a reasonable expectation of privacy in his e-mails vis-a-vis the party who is subject to compelled disclosure -- in this instance, the ISPs. If he does not, as in Phibbs or Miller, then the government must meet only the reasonableness standard applicable to compelled disclosures to obtain the material. If, on the other hand, the e-mail user does maintain a reasonable expectation of privacy in the content of the e-mails with respect to the ISP, then the Fourth Amendment's probable cause standard controls the e-mail seizure.
Comment: It could be said that the government came into this case having already shot itself in the foot over the abuse of NSLs and lost credibility about its admitted inability to comply with the law in collecting this type of information.
The Supreme Court unanimously decided Brendlin v. California, 2007 U.S. LEXIS 7897 (June 18, 2007), today, just as predicted here when cert was granted: a passenger in a car illegally stopped has standing to challenge the stop. It could not reasonably have come out any other way. Indeed, the only strange thing about the case is the fact that the California Supreme Court got it so wrong.
From the Syllabus:
After officers stopped a car to check its registration without reason to believe it was being operated unlawfully, one of them recognized petitioner Brendlin, a passenger in the car. Upon verifying that Brendlin was a parole violator, the officers formally arrested him and searched him, the driver, and the car, finding, among other things, methamphetamine paraphernalia. Charged with possession and manufacture of that substance, Brendlin moved to suppress the evidence obtained in searching his person and the car, arguing that the officers lacked probable cause or reasonable suspicion to make the traffic stop, which was an unconstitutional seizure of his person. The trial court denied the motion, but the California Court of Appeal reversed, holding that Brendlin was seized by the traffic stop, which was unlawful. Reversing, the State Supreme Court held that suppression was unwarranted because a passenger is not seized as a constitutional matter absent additional circumstances that would indicate to a reasonable person that he was the subject of the officer’s investigation or show of authority.
Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4-13.
(a) A person is seized and thus entitled to challenge the government’s action when officers, by physical force or a show of authority, terminate or restrain the person’s freedom of movement through means intentionally applied. Florida v. Bostick, 501 U. S. 429, 434; Brower v. County of Inyo, 489 U. S. 593, 597. There is no seizure without that person’s actual submission. See, e.g., California v. Hodari D., 499 U. S. 621, 626, n. 2. When police actions do not show an unambiguous intent to restrain or when an individual’s submission takes the form of passive acquiescence, the test for telling when a seizure occurs is whether, in light of all the surrounding circumstances, a reasonable person would have believed he was not free to leave. E.g., United States v. Mendenhall, 446 U. S. 544, 554 (principal opinion). But when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, supra, at 435-436. Pp. 4-6.
(b) Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to “terminate the encounter” between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission. A traffic stop necessarily curtails a passenger’s travel just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on “privacy and personal security” does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U. S. 543, 554. An officer who orders a particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect the officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. It is also reasonable for passengers to expect that an officer at the scene of a crime, arrest, or investigation will not let people move around in ways that could jeopardize his safety. See, e.g., Maryland v. Wilson, 519 U. S. 408, 414-415. The Court’s conclusion comports with the views of all nine Federal Courts of Appeals, and nearly every state court, to have ruled on the question. Pp. 6-9.
(c) The State Supreme Court’s contrary conclusion reflects three premises with which this Court respectfully disagrees. First, the view that the police only intended to investigate the car’s driver and did not direct a show of authority toward Brendlin impermissibly shifts the issue from the intent of the police as objectively manifested to the motive of the police for taking the intentional action to stop the car. Applying the objective Mendenhall test resolves any ambiguity by showing that a reasonable passenger would understand that he was subject to the police display of authority. Second, the state court’s assumption that Brendlin, as the passenger, had no ability to submit to the police show of authority because only the driver was in control of the moving car is unavailing. Brendlin had no effective way to signal submission while the car was moving, but once it came to a stop he could, and apparently did, submit by staying inside. Third, there is no basis for the state court’s fear that adopting the rule this Court applies would encompass even those motorists whose movement has been impeded due to the traffic stop of another car. An occupant of a car who knows he is stuck in traffic because another car has been pulled over by police would not perceive the show of authority as directed at him or his car. Pp. 9-13.
(d) The state courts are left to consider in the first instance whether suppression turns on any other issue. P. 13.
38 Cal. 4th 1107, 136 P. 3d 845, vacated and remanded.
From my previous post: "The California Supreme Court decision is People v. Brendlin, 38 Cal. 4th 1107, 45 Cal. Rptr. 3d 50, 136 P.3d 845 (June 29, 2006). Lexis Overview: 'Because a deputy effected a traffic stop without any indication that defendant, the passenger, was the subject of his investigation or show of authority, defendant was not seized for Fourth Amendment purposes when the driver submitted to the deputy's authority and stopped the vehicle; thus, defendant was not entitled to suppress evidence of drugs.' [The free link to the California Supreme Court opinion is now dead.]"
Police officers aiding a court ordered receiver in his actions toward plaintiff's property acted reasonably and with qualified immunity. The court notes that the facts here are the "mirror image" of Soldal. Downeast Ventures v. Washington County, 2007 U.S. Dist. LEXIS 43461 (D. Me. June 13, 2007)*:
In any event, assuming that the facts of Soldal were actionable under the Fourth Amendment, those facts are the mirror-image of what is presented in the summary judgment record of this case. In Soldal the sheriff's deputies prevented the plaintiff from interfering with the removal of his mobile home from a park even though they knew that the owner of the park had not complied with Illinois law and that no judgment of eviction had ever issued. Id. at 57. Here, the County Defendants knew that the Receiver was a court-appointed officer with the authority to demand possession of property held by third parties. Although the Receiver's authority was not unlimited, it was nevertheless established by court order that he was empowered to demand possession of contested property. Because there is no evidence that the County Defendants knowingly participated in any abuse of the Receiver's power and authority, the summary judgment record is insufficient, as a matter of law, to support a finding that the County Defendants violated Downeast's Fourth Amendment rights.
Search warrants and affidavits are discoverable under F. R. Crim. P. 16. United States v. Moss, 2005 U.S. Dist. LEXIS 45231 (W.D. Tenn. June 13, 2005):
Courts have recognized that search warrants and affidavits are not exempted by Fed. R. Crim. P. 16. See United States v. Politi, 334 F. Supp. 1318, 1320 (S.D.N.Y. 1971) (noting that the Government agreed that search warrants and affidavits should be produced). As such, to the extent that Defendants seek the production of search warrants or affidavits related to United States Customs agents' seizures of international shipments, the Court finds that the Government shall produce these documents per the Magistrate Judge's May 5, 2005 Order.
Defendant was free to leave the airport until the officers directed him not to leave the taxi stand area. He was being followed, and that was not a seizure. "It does not matter whether the officers intended to allow Nielsen to leave the airport, so long as they did not communicate this intention to him. ... Moreover, Nielsen asked at the taxi stand whether he was then being detained, indicating his understanding that he was not detained before that." United States v. Nielsen, 2007 U.S. App. LEXIS 14225 (9th Cir. June 12, 2007)* (unpublished).
I know: This is a blog about the Fourth Amendment, not due process of law, prosecutorial misconduct, or the fine points of a Brady violation. It is, however, still a blog about the Constitution and how the ministers of the law administer it. So, I cannot resist. I have to talk about Mike ("rogue prosecutor"/"too little, too late") Nifong, the Durham N.C. District Attorney ordered disbarred Saturday night by the North Carolina Bar Disciplinary Panel.
Like all conscientious criminal defense attorneys, I gave Mr. Nifong the benefit of the doubt. Maybe I'm instilled with the disciplinary double standard that has existed heretofore in the legal system where prosecutorial misconduct gets a wink and a nod but defense counsel misconduct results in charges. Mr. Nifong was represented by a capable criminal defense attorney, David B. Freedman of Winston-Salem. Even the best lawyer cannot win when the facts are so overwhelming. Been there, done that.
In Friday's NY Times is this:
At one point after the accusation surfaced, Mr. Nifong said, “I am not going to let Durham’s view in the eyes of the world be a bunch of lacrosse players from Duke raping a black girl from Durham.”
On Friday, he said, “I think that crossed the line.”
Mr. Nifong said he had made other mistakes in the case but continued to defend himself against charges from the bar that he had intentionally lied and withheld from the defense DNA evidence favorable to the defendants.
Mr. Nifong, a 29-year veteran of the district attorney’s office who had been appointed to the job in April 2005 by Gov. Michael F. Easley, attributed his mistakes to inattention, preoccupation with a political campaign, and what he said was inexperience in handling felony cases in recent years. (emphasis added)
When I read that he blamed his lack of experience, I laughed out loud. Here is a "29-year veteran" of the DA's office pleading inexperience as justification for his flagrant misrepresentations that there was no Brady material. He charged young men he could not even prove were at the party, the DNA evidence exonerated them and he hid it, police officers warned him that he was charging people that he could not place there. Nifong may not be far off the mark, however. Many state prosecutors wilfully ignore or belittle Brady thinking that nothing is exculpatory.
His excuse is the kind all criminal defense lawyers hear from clients who are incapable of taking responsibility. Mr. Nifong played it close to the vest and admitted only that which he had to, I'm sure against his lawyer's advice. In a federal sentencing, a federal judge might not consider some of his testimony full acceptance of responsibility under U.S.S.G. § 3E1.1, up until he finally offered to give up his ticket, likely in hopes that the disciplinary panel would just accept it and not issue an opinion.
But they did.
After Mr. Nifong offered to be disbarred, the ethics panel said it still had to decide on a penalty, and 40 minutes later it issued a scathing opinion.
“There is no discipline short of disbarment that would be appropriate in this case,” said F. Lane Williamson, a Charlotte lawyer who led the panel.
See Comments of Disciplinary Panel’s Chairman from NYTimes.com.
I have dealt with several prosecutors who played close to the line and a few who actively sought to subvert Brady. Some remember nothing of Brady except what they learn in law school, and it leads to uncertainty in convictions and endless post-conviction. But this: This was a Brady violation with a vengenance. I had a prosecutor once deny on the record that there was any exculpatory evidence when a police officer told me that the prosecutor knew that another man had confessed to the crime my client was charged with. The punishment? No contempt, no referral, no nothing. DAs are judged by different standards, at least until now.
In the end, this proves that there is no double standard in lawyer discipline, and some disciplinary authorities will take prosecutorial misconduct seriously.
The State should just get ready to pay these young men for what they went through. Nifong may be immune, thanks to Imbler v. Pachtman, but the State should pay them their attorney's fees and mental anguish, which has to be considerable.
And criminally? Nifong may not be out of the woods there, either. Obstruction of justice, abuse of office, falsifying public records, false swearing, contempt of court?
I bought a Duke Lacrosse t-shirt off eBay when this case started to smell. I'm wearing it to work tomorrow.
The defense lawyers for the lacrosse players? They are the heroes here because they kept plugging away for their clients so "the truth will out." They make me proud.
Defendant was arrested at his house after police entered. They saw him at the top of the stairs and ordered him to come down the stairs, which he did. Officers then went upstairs and searched. The upstairs could not be searched incident to his arrest because he left the area, and no justification was shown for a need for a protective sweep of the upstairs (which one deputy admitted in his testimony). State v. McGrane, 733 N.W.2d 671 (Iowa Sup. 2007).
Defendant was being watched by the police and had traveled from California to Arkansas and was believed to be collecting drug debts. They had reasonable suspicion for his stop based on several factors about money movements, and the incriminating nature of a wad of money ($11k) in his pocket was immediately apparent. United States v. Collins, 2007 U.S. App. LEXIS 14134 (8th Cir. June 14, 2007)* (unpublished).
Stop did not occur when officers got out of their police car to talk to the defendant. Over the course of the brief discussion, however, they reasonably suspected that he might have a gun on him, and he was patted down. The frisk constituted a seizure, but it was reasonable. While carrying a concealed weapon is not a crime in Massachusetts, various factors may indicate a crime in the making. "Here the Officers relied on additional factors to form their reasonable suspicion that the defendant was carrying an illegal gun. The defendant was in a high crime area shortly after midnight and walking with a 'straight arm' gait. Most persuasively, the defendant continually attempted to hide his pocket from the officers' view. When a person attempts to conceal something from the police, that concealment can contribute to the reasonable suspicion necessary to support a stop." Commonwealth v. Depeiza, 449 Mass. 367, 868 N.E.2d 90 (2007).* (Comment: Apparently "acting funny" in a high crime area is reasonable suspicion in Massachusetts, which is overrationalization to get out from under the fact that a mere concealed weapon is not a crime; it is the potential intent to use it, e.g., being seen loading one in a high crime area at 2 a.m. as stated in one of the cases relied upon by the court.)
Open container violation justified a search incident to the arrest. State v. Gutierrez, 2007 UT App 196, 2007 Utah App. LEXIS 205 (June 7, 2007). (Comment: This is an issue that is state law dependent; i.e., does state law make it a citation offense or a mere violation or is it a misdemeanor?)
Officers were conducting a missing persons and drug investigation involving the defendant as a target. After a few months, the officers decided to do a trash pull on defendant's house. Searching the trash revealed drug evidence, and that was used to get a search warrant for his house. No reasonable suspicion was required for the trash pull, despite language in another case where there was reasonable suspicion. Defendant failed to show that there was a sufficient privacy interest involved. Trial court's suppression order reversed. State v. Stevens, 2007 SD 54, 734 N.W.2d 344 (2007), relying on State v. Schwartz, 2004 SD 123, P17, 689 NW2d 430, 435-36 (2004).*
Defendant's stop in a convenience store was justified. Police received a 911 call about a man with a gun who was wanted, and they were dispatched to the store, and two men were found talking to each other who split up when they saw the officer. The officer believed that one passed a gun to the other, and he ordered them to put their hands on the counter. This was reasonable for officer safety. State v. Hendricks, 213 Ore. App. 360, 160 P.3d 1014 (2007).*
"Under Utah law, the odor of marijuana is enough to create a reasonable articulable suspicion of criminal activity that justifies law enforcement's brief detention of an individual for investigatory purposes." Therefore, the defendant's detention was reasonable. State v. Parkin, 2007 UT App 193, 2007 Utah App. LEXIS 206 (June 7, 2007).*
The trial court's suppression of the evidence was sustained in this case because the officer testified that he smelled marijuana during defendant's traffic stop, and that justified the search of defendant's car. But, on cross, he admitted that he never mentioned it in any of his five reports or to other officers. The trial court's order suppressing the evidence on the officer's credibility was not clearly erroneous. State v. Hamilton, 227 S.W.3d 514 (Mo. App. 2007).
Minnesota declines to grant probationers greater rights under the state constitution. There was reasonable suspicion, and the search was valid under Knights. Defendant made no showing that the federal constitutional protection here was inadequate. "The Supreme Court's decision in Knights does not appear to be a sharp or radical departure from its previous decisions or a retrenchment on its Fourth Amendment jurisprudence with respect to probation searches. Moreover, we are not convinced that federal precedent inadequately protects our citizens' basic rights and liberties. Accordingly, we decline Anderson's invitation to deem the search of his residence unreasonable under the Minnesota Constitution." State v. Anderson, 733 N.W.2d 128 (Minn. 2007).*
Officers had a search warrant for defendant's house and vehicle. After the raid, they saw a co-defendant's car illegally parked outside and used a flashlight to see small quantities of marijuana on the console. State v. Beavers, 2007 Ohio 2915, 2007 Ohio App. LEXIS 2698 (8th Dist. June 14, 2007):
The Euclid detective explained that Beavers' car was parked illegally on a public street. The detective shone his flashlight in the car and saw marijuana and marijuana cigarettes in plain view on top of the console in Beavers' car. This alone gave the detective probable cause to seize the marijuana. The issue is whether the detective had probable cause to further search the trunk of the car. After a review of the record, we find three separate justifications for the search of Beavers' car. Each alone supports probable cause.
The police had no probable cause or other justification to search defendant's dorm room for further identification evidence, so the trial court erred in not suppressing the evidence. Also, the inevitable discovery doctrine would not save the search because the state could not show that the investigation was progressing such that the evidence would be found anyway. Commonwealth v. Jones, 2007 PA Super 181, 928 A.2d 1054 (2007).*
Plaintiff was arrested in her house and removed to the street in a short nightgown. She asked to be allowed to dress before going outside, and her request was denied. She was seen by her neighbors outside in her nightgown being arrested, apparently without cause. She was taken in and questioned. "Plaintiff was released from custody after about four hours, at approximately 10:30 a.m. Plaintiff, still in her nightgown and blanket, was left in the lobby of the sheriff's office waiting for her sister to arrive to provide transportation back to her home. See Docket No. 11 & Docket No. 39 at 2. Plaintiff avers that, at some point after she was taken to the sheriff's office for questioning, she returned to her home and witnessed her 'property  covered with news media personnel, along with numerous law enforcement agents. The house was wide open and people were traveling in and out of the residence, carrying bags of unknown property and articles of clothing.' PSOF, Exh. B. Plaintiff later 'observed live news broadcasts from my home on several local television stations, stating that the property was used to conduct a jet ski chop shop.' Id., Exh. B. However, there is no evidence presented to the Court that Defendants invited the news media onto Plaintiff's property or facilitated their activities, if that in fact occurred." The front door was broken and could not be locked because of damage from the battering ram used to break down the door. Bettin v. Maricopa County, 2007 U.S. Dist. LEXIS 42979 (D. Ariz. June 11, 2007):
Plaintiff's detention outside her residence in her nightgown, notwithstanding her request to dress, while boorish and unprofessional, did not exceed the scope of detention authorized by Summers. However, Defendants did not continue to detain Plaintiff at the scene of the search. Defendants removed Plaintiff from her home and took her to the sheriff's office for questioning without placing Plaintiff under arrest and without having a reasonable belief that Plaintiff was suspected of criminal activity. At that time, any reliance defendants might have had upon a Summers detention evaporated. Ganwich, 319 F.3d at 1124.
. . .
Taking the facts in the light most favorable to Defendants for the purpose of Plaintiff's motion for summary judgment, at best Defendant Hayman suspected Plaintiff, as Mr. Jorgensen's girlfriend, might be a witness to Mr. Jorgensen's alleged criminal acts. Defendants could have served Plaintiff with a grand jury subpoena and obtained whatever information she might have possessed through her grand jury testimony. In this manner, Plaintiff's Fourth Amendment rights would not have been violated. However, Defendants did not exercise this option. The Court concludes Defendants violated Plaintiff's Fourth Amendment right to be free of an unreasonable seizure by taking her into investigative custody without reasonable suspicion of her criminal conduct or probable cause to arrest her. See Heitschmidt, 161 F.3d at 838-39. Additionally, Plaintiff's detention was unnecessarily degrading, and prolonged, and it involved an undue invasion of Plaintiff's privacy
Detention of 16 minutes during traffic stop was not unreasonable, and the use of a dog during that stop was also not unlawful. United States v. Montes, 2007 U.S. Dist. LEXIS 43029 (N.D. Okla. June 13, 2007).*
Plaintiff alleged a claim for excessive force for allegations that he was unnecessarily choked for 30-40 seconds while being arrested. The only claims to survive were individual claims against the officers there. Hamilton v. City of Jackson, 508 F. Supp. 2d 1045 (S.D. Ala. 2007).*
City's entry onto property that the plaintiff loan company was going to sell to another potentially violated the rights of the seller (some views were made from off the property and were objectively reasonable, other views from within, but with alleged consent), but the plaintiff was denied summary judgment and the defendants granted summary judgment because of apparent authority of persons on the premises to allow the entry. Lincoln Loan Co. v. Brown, 2007 U.S. Dist. LEXIS 43218 (D. Ore. June 13, 2007).*
A traffic stop led the officer to observe a marijuana pipe in plain view, and that justified a search of the car. Glenn v. State, 285 Ga. App. 872, 648 S.E.2d 177 (2007).*
The facts apparent to the officers at the time of the third party's consent showed she had apparent authority to consent. United States v. Hilliard, 490 F.3d 635 (8th Cir. 2007):
Viewing the facts known to the officers at the time of the search, we conclude the officers reasonably believed Cole resided in the Arden residence and had authority to consent to the search. Cole's invitation to the officers to enter the Arden residence and to follow her into the bedroom, her collection of pieces of clothing off the floor to dress herself, and Cole's instantaneous retrieval of the contraband evidenced Cole's familiarity with the premises and the items contained and concealed therein. Cole's conduct, along with the visible presence of women's clothing and other personal items strewn about the residence, bolstered the reasonableness of the officers' belief Cole resided in the house. Although Hilliard was present and had the opportunity to object, he never opposed Cole's invitation to the officers to enter the residence or Cole's request that Officer Church follow her into the bedroom. Hilliard's silence in the face of events taking place before him in his own residence gave the officers no reason to believe Hilliard had a superior privacy interest or to doubt Cole's authority over the Arden residence.
Comment: This case assumes too much: such as the fact a suspect is supposed to know that he has to voice objection to the presence of officers in his house when they were let in by another. Just how much did the police tell him when he saw they were there? "She let us in." Then what is he supposed to say? How is a citizen supposed to know he can object to armed police officers in his house unless he is a criminal defense lawyer or prosecutor? Trained police officers are not always charged with knowledge of all the nuances of the Fourth Amendment, hence the good faith exception, but the courts seem to require citizens to be. This case is such an example. The courts put the burden on the defendant to confront officers at the scene. Remember Bumper v. North Carolina, 391 U.S. 543, 548-59 (1968)? "This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." The next case shows somewhat what happens when one objects and then runs.
Officer entered a shed without a warrant looking for the defendant in a child neglect case where children were unattended and the father had not been seen, and the defendant was seen sitting with another guy. When the officer was seen, the defendant reached down and his hands were not visible to the officer, and the officer feared he was hiding contraband or reaching for a gun. He drew his weapon and ordered the defendant to put his hands up, and he did not. "Officer Sweetin drew his service revolver and ordered the defendant to his feet. The defendant jumped out of his chair, headed towards the officer and yelled that the officer should 'Get out.' Officer Sweetin told the defendant to turn around and that he was under arrest, but the defendant did not comply with this order. He became even more excited, and headed for the rear door of the shed, saying that the officer should leave. Officer Sweetin again directed the defendant to stop, but he did not comply. The defendant attempted to remove a wood 2 x 4 which barred the rear door. Officer Sweetin holstered his weapon. The defendant managed to get the door open, but Officer Sweetin was able to stop and restrain him by using a taser." The entry was valid under exigent circumstances. United States v. Venters, 2007 U.S. Dist. LEXIS 43094 (S.D. Ill. June 14, 2007).*
Defense counsel filed an Anders brief on the search question, and the search issue was frivolous. United States v. Neuby, 2007 U.S. App. LEXIS 13977 (3d Cir. June 13, 2007)* (unpublished) (citing only Anders and no cases on the merits).
Police were permitted in a hotel room to look for contraband. The way the defendant moved toward a chair in the room caused them to suspect that there might be something there, and they moved the cushion and found a gun. The investigative defenant was reasonable under the circumstances. United States v. Msugar, 236 Fed. Appx. 929 (5th Cir. 2007)* (unpublished).
The search of defendant's car after a traffic stop was justified by his custodial arrest as either search incident to his arrest or an inventory. United States v. Shaw, 2007 U.S. Dist. LEXIS 43145 (S.D. Fla. June 14, 2007).*
Consent of driver to search car did not extend to a passenger's purse. Smith v. Smith, 2007 Iowa App. LEXIS 730 (June 13, 2007):
We conclude under the specific facts and circumstances here that it was not reasonable for Officer Bovy to believe the consent given by Montgomery to search the vehicle authorized a search of the purse. The purse was found by Bovy sitting on the front passenger seat where Smith, the only female in the vehicle, had been sitting immediately before he asked her to exit the vehicle. Thus, all of the facts available to Bovy at the time of the search supported a conclusion that Smith had placed the purse on the seat as she got out of the vehicle and it belonged to her, not Montgomery. We agree with the district court that "it should have been clear to the officer that the purse belonged to the passenger and not the driver." Accordingly, we conclude it was unreasonable for Bovy to believe the purse belonged to anyone other than Smith or that anyone other than she had actual or apparent authority to consent to a search of the purse.
Patdown revealed a hard object which defendant volunteered was a knife, and the officer was justified in reaching into his pocket for it. "The fact that the object was in fact a marijuana pipe does not change the result. The district court erred in granting the motion to suppress." State v. Shine, 2007 Iowa App. LEXIS 711 (June 13, 2007).*
Defendant failed to show that the officer's affidavit was made recklessly. Parsing the words in the affidavit did not show recklessness in the choice of words. Omission of reference to a pathway from the marijuana grow operation added nothing to defendant's challenge. State v. Blow, 2007 Iowa App. LEXIS 747 (June 13, 2007).*
Telling the defendant that the officer need to talk to him outside was a stop because no reasonable person would feel able to just ignore it and walk away. State v. Roark, 229 S.W.3d 216 (Mo. App. 2007):
In response to Barklage's request that Roark return to the parking lot, Roark asked for an explanation. Barklage declined that request, saying that he would explain outside. At this point in the encounter, a reasonable person in Roark's position would not have felt free to disregard Barklage and "go about his business." Bostick, 501 U.S. at 434. We therefore determine that by the time that Roark and Barklage arrived outside, a Fourth Amendment stop had occurred and turn to the question of what articulable facts support the State's assertion that Barklage had a reasonable suspicion that Roark was involved in criminal activity.
"We hold the Fourth Amendment does not require police to corroborate an anonymous tip before seeking consent to enter and search a residence. Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search." People v. Rivera, 41 Cal. 4th 304, 59 Cal. Rptr. 3d 473, 159 P.3d 60 (2007).
Defendant parolee moved in with his girlfriend without telling his parole officer. The parole officer confirmed defendant lived there, so he conducted a parole search, which was valid. State v. Cruz, 144 Idaho 906, 174 P.3d 876 (2007):
We hold that Cruz was entitled to no greater Fourth Amendment protections as a house guest in his girlfriend's apartment than he would have received in his own home. See Taylor, 482 F.3d at 318. Because a search supported by a reasonable suspicion of possible parole violations would have been upheld had it occurred at Cruz's own residence, Cruz cannot obtain suppression of the items seized in his girlfriend's apartment. In sum, Cruz's Fourth Amendment rights were not violated because the government's substantial interest in supervising parolees outweighs Cruz's significantly diminished expectation of privacy in his girlfriend's apartment.
Officer had reasonable suspicion based on numerous factors for detaining the defendant. United States v. Bivins, 2007 U.S. Dist. LEXIS 42695 (M.D. Ala. June 11, 2007)*:
Here, however, Trooper Burch had much more than a mere hunch. He knew that Bivens had lied to him about his criminal history for drug offenses, and he knew that Bivens was not listed on the vehicle's rental agreement for reasons which Burch knew were not valid. n3 These indicators in addition to the other indicators fully establish the necessary articulable and reasonable suspicion necessary to support Burch's continued questioning of Bivens after the reason for the stop was concluded.
Court analyzes in detail the facts of consent and compares the credibility of the witnesses, finding the officers more credible for several reasons. United States v. Burns, 2007 U.S. Dist. LEXIS 42618 (D. Ore. June 11, 2007).*
The defendant filed a two page motion to suppress and memorandum in support that relied on the presumption of unreasonableness of a warrantless search, but that did not compel that there be a hearing. The cryptic motion did not justify a hearing, and the motion to suppress was denied. United States v. Thompson, 2007 U.S. Dist. LEXIS 42917 (N.D. Ill. June 12, 2007):
The tacit premise of Mr. Thompson's motion is that an evidentiary hearing is required whenever a warrantless search is conducted. No case supports that proposition. Where a court has before it all the material facts, and they are not disputed, a hearing is not necessary. United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991). An evidentiary hearing is only required when the defendant alleges specific, definite, detailed, and non-conjectural facts, which, if proven, would justify the relief sought. United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993); United States v. Randale, 966 F.2d 1209, 1212 (7th Cir. 1992).
These fundamental principles were recently reaffirmed by the Seventh Circuit:
"Evidentiary hearings are not required as a matter of course; a district court need conduct a hearing only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material facts which will affect the outcome of the motion. United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see also Juarez, 454 F.3d at 720; United States v. Martin, 422 F.3d 597, 602-03 (7th Cir. 2005), cert. denied, 74 U.S.L.W. 3424 (Jan. 23, 2006) (No. 05-8234). We have emphasized the necessity of materiality in any factual disputes that are presented to the district court as a predicate for an evidentiary hearing. Villegas, 388 F.3d at 324; Juarez, 454 F.3d at 720; United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991).
"Mr. McGaughy's briefing and argument on the motion to suppress do not identify any specific 'material factual dispute' requiring resolution through an evidentiary hearing. In the district court, Mr. McGaughy did claim the information from Doe was up to two weeks old and therefore stale, and, on reply, added his claims that personal bias motivated the complaining officer in seeking the warrant. Mr. McGaughy did not make any serious effort to articulate what facts had to be adduced at an evidentiary hearing to inform the court's analysis; furthermore, Mr. McGaughy did not articulate in what manner the district court's ultimate determination of probable cause would have been different if his version of the facts were accepted. See Juarez, 454 F.3d at 720."
United States v. McGaughy, __ F.3d ___, 2007 WL 1374758, *3-4 (7th Cir. 2007). See also Bradley v. United States, 2007 WL 956901 at *2 (7th Cir. 2007)("before an evidentiary hearing will be granted, the appellant must provide a detailed and specific affidavit").
The USMJ's credibility determinations show that the search was justified. There was nothing inherently incredible or implausible about the testimony for an appeals court to reverse. United States v. Biggs, 491 F.3d 616 (7th Cir. 2007).*
Defendant was being arrested on an unrelated warrant, and he gave the keys to the officer before being taken in. The vehicle was inventoried before towing. The search was not challenged in the District Court, and, on plain error review, the search was valid on the policy. United States v. Carlton, 237 Fed. Appx. 530 (11th Cir. 2007)* (unpublished).
Warrant did not discuss weapons, but the warrant was valid, and weapons in plain view could be seized. United States v. Jarvis, 237 Fed. Appx. 636 (2d Cir. 2007)* (unpublished).
The standard of review for a consensual encounter is not different than a traffic stop. United States v. Torres, 237 Fed. Appx. 337 (10th Cir. 2007)* (unpublished).
Defendant's disclaiming ownership of a car in an apartment complex denied him standing to challenge the search of the vehicle, even though the keys were found on him. United States v. Russell, 2007 U.S. Dist. LEXIS 42744 (W.D. Mich. June 13, 2007).*
The Washington Post today has posted this article: FBI Finds It Frequently Overstepped in Collecting Data:
An internal FBI audit has found that the bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years, far more than was documented in a Justice Department report in March that ignited bipartisan congressional criticism.
The new audit covers just 10 percent of the bureau's national security investigations since 2002, and so the mistakes in the FBI's domestic surveillance efforts probably number several thousand, bureau officials said in interviews. The earlier report found 22 violations in a much smaller sampling.
The vast majority of the new violations were instances in which telephone companies and Internet providers gave agents phone and e-mail records the agents did not request and were not authorized to collect. The agents retained the information anyway in their files, which mostly concerned suspected terrorist or espionage activities.
But two dozen of the newly-discovered violations involved agents' requests for information that U.S. law did not allow them to have, according to the audit results provided to The Washington Post. Only two such examples were identified earlier in the smaller sample.
Your USA Patriot Act at work. The government got its wish list for domestic surveillance then treated, and still does, the Constitution like it no longer matters. Who polices the FBI?
Where do we go to get our rights back? Not Congress. Maybe the courts? Too little, too late.
Defendant with a 62 IQ could still consent to a search, and the same analysis was applied for waiving Miranda rights. United States v. Jennings, 2007 U.S. Dist. LEXIS 42344 (M.D. Ala. March 2, 2007):
As the standard that a consent to searches be made voluntarily, knowingly and intelligently, is the same as for the waiver of defendant's Fifth Amendment right regarding self-incrimination under Miranda, see Barbour, 70 F.3d at 585 and Colorado v Connelly, 479 U.S. 157, 169-70, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986); and similar forms, essentially, were used with some modification as to place or item to be searched; the analysis of defendant's behavior, intellect and understanding of the consequences of his actions as to the searches is the same. The forms used n18 for the consent to search were simplistic and concrete; they were not lengthy; they were read by the detective to defendant; defendant was asked if he understood them, and after indicating his verbal understanding, signed the three forms. Neither Dr. Dana or Dr. Boyer review these particular forms with defendant. Thus, it is our finding that given the testimony presented as to defendant's capabilities, his understanding of simple concepts and verbal explanations as indicated by the experts, the government met its burden of showing that defendant consented to the search of his personal bag and it contents.
Defendant has no standing to challenge the finding of his cellphone number in another person's cellphone call history. United States v. Redd, 2007 U.S. Dist. LEXIS 42330 (N.D. Ill. June 11, 2007).*
Franks challenge failed where defendant could only show that he disagreed with the affidavit. United States v. King, 2007 U.S. Dist. LEXIS 42496 (S.D. Fla. June 1, 2007):
Here, Cameron alleges falsities in the affidavit with respect to the reliability of the confidential informants referred to in the affidavit; information obtained (or not obtained) from the informants (i.e., no statement by the informant that he purchased cocaine from Cameron); and the source of money used to purchase the cocaine (i.e., no "Official Miami-Dade County Funds" were used to purchase the cocaine). However, Cameron offers no proof of these alleged misrepresentations in the affidavit other than his own reading of the affidavit and records he apparently obtained from the Miami-Dade Police Department with respect to two earlier sales of narcotics by Cameron to different informants being used by other police officers at the subject residence. Thus, Cameron fails to make a "substantial showing" of falsehood in the search warrant affidavit or reckless disregard for the truth which would warrant a Franks hearing under the circumstances of this case.
Plaintiff's apparently swallowing a handcuff key while in jail justified x-rays and a forced enema when he refused to voluntarily produce the key. He had an escape attempt history, and that justifiably concerned the jailers. Faircloth v. Lee, 2006 U.S. Dist. LEXIS 96328 (E.D. N.C. November 20, 2006).*
(And this is all the cases for today.)
International (and some domestic) wire transfers go throught the S.W.I.F.T. system, and the government accessed the system by subpoena to look for terrorist movement of money, but SWIFT overproduced what was sought. When this was revealed in an article in the N.Y. Times, suit was filed for permitting the government access without valid legal process. On the Fourth Amendment claim, the case survives summary judgment: Miller shows there is no reasonable expectation of privacy in the records, but it was alleged that SWIFT provided more than the subpoenas sought, and that stated a claim. Walker v. S.W.I.F.T., 491 F. Supp. 2d 781 (N.D. Ill. 2007):
SWIFT is an international cooperative consortium based in Brussels, with its principal American place of business in northern Virginia. (Dkt. No. 16 at 1). SWIFT's services include "supplying secure, standardized messaging services and interface software to 7,800 financial institutions in more than 200 countries." (2d Am. Compl. P 3). SWIFT routes more than 11 million financial transactions each day, and "virtually every major commercial bank, as well as brokerage houses, fund managers and stock exchanges, uses its services." (2d Am. Compl. P 14). At issue in this case is SWIFT's response to subpoenas issued by the Treasury Department under the International Emergency Economic Powers Act, 50 U.S.C. § 1701, et seq, through a program that eventually became known as the "Terrorist Finance Tracking Program." (2d Am. Compl. PP 2, 13; Article at 8). Plaintiffs allege that SWIFT's initial response to the government's requests for information was overbroad, in that SWIFT turned over to government officials "the entire SWIFT database." (2d Am. Compl. P 14; Article at 8).
. . .
In Count II of their Second Amended Complaint, Plaintiffs argue that SWIFT "violated [their] reasonable expectations of privacy and denied ... their right to be free from unreasonable searches and seizures as guaranteed by the Fourth Amendment to the Constitution of the United States." (Compl. P 47). In United States v. Miller, the Supreme Court held that individuals have no legitimate expectation of privacy regarding financial information "voluntarily conveyed to ... banks and exposed to their employees in the ordinary course of business." United States v. Miller, 425 U.S. 435, 442-43 (1976). The Court concluded that "[s]ince no Fourth Amendment interests of the depositor are implicated ..., this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of [the depositor.]" Miller, 425 U.S. at 444. It thus is clear that private citizens have no Fourth Amendment rights in financial records created and shared in the ordinary course of business.
However, it is also apparent that there may be limitations to the scope of Miller's holding. In both Miller and its predecessor case, California Bankers Ass'n. v. Shultz, 416 U.S. 21 (1974), the Supreme Court implied in dicta that unfettered government access to the bank records of private citizens could be considered constitutionally problematic.
. . .
Furthermore, Plaintiffs have alleged that SWIFT disclosed more information than was requested by the government subpoenas, as discussed in detail below. This, too, brings the case outside the bounds of "existing legal process." The majority in Miller specifically distinguished that case from the case of Burrows v. Superior Court, 529 P.2d 590 (Cal. 1974), on the grounds that "the bank records of respondent's accounts were furnished in response to 'compulsion by legal process' in the form of subpoenas Duces tecum" unlike Burrows, where "the bank ... provided the statements to the police in response to an informal oral request for information." Miller, 425 U.S. at 445 n.7. This distinction is included in the Supreme Court's analysis of whether the subpoena in Miller should have been subject to "more stringent Fourth Amendment requirements than is the ordinary subpoena." Id.
Based on the foregoing analysis, the court finds SWIFT's argument that Miller necessarily precludes Plaintiffs' Fourth Amendment claims to be unpersuasive. On its face, Miller does not preclude Plaintiffs' Fourth Amendment claims as set forth in the Second Amended Complaint. SWIFT's motion to dismiss Count II on these grounds is therefore denied.
The defendant was arrested, and his vehicle was impounded under a city police policy for impoundment on any custodial arrest. The policy is invalid because it allows impoundment with complete discretion of the officer. [The fact the policy was written does not end the inquiry; it starts there.] United States v. Osborne, 489 F. Supp. 2d 860 (C.D. Ill. 2007):
The Government argues that since the Police Department has adopted a set of written, standard guidelines and because those guidelines were followed when the officers impounded and searched Osborne's vehicle, the impoundment and search were valid. The Court disagrees.
The facts of the instant case do not meet any of the conditions that would trigger a valid tow under the "General Guidelines" subsection of the Police Department's tow policy or under the officers' "community care-taking" functions. Therefore, the instant case is distinguished from U.S. v. Cherry. In Cherry, the court found that the vehicle did present a safety hazard because it was located on the side of an interstate highway, and the [*9] court's analysis did not proceed beyond that point. 436 F.3d 769, 773-774 (7th Cir. 2006). Osborne's vehicle was not left on the street and did not present any sort of safety hazard; it was parked on the private property of an autobody shop and did not present any hazards to the public.
Therefore, this situation must fall under the "Custodial Arrest" subsection. While the provisions of the "Custodial Arrest" subsection technically constitute a policy, for all practical purposes, it is no policy at all. The subsection sets forth no criteria by which the decision to impound is to be made. Essentially, it provides for unfettered police discretion in making impoundment decisions. A police department tow policy cannot delegate enforcement of the Fourth Amendment to the discretion of police officers.
Defendant filed a motion to suppress a warrantless entry, which the government first opposed and then assented to. The arrest inside, however, was lawful. Later, defendant disputed money found in his pants at booking, pants he put on when arrested after the entry the government conceded was unlawful. The court applied the general rule that book-in searches were valid, unless manipulated, and here it was not. United States v. St. Pierre, 488 F.3d 76 (1st Cir. 2007):
Therefore, the circumstances by which the pants came to be on St. Pierre are important. If it were the case that the police, knowing that the evidence found in the apartment search was likely to be suppressed, conspired to stash the $380 in the pocket of a pair of pants and then coerce St. Pierre into wearing them, this would be a very different case. Here, however, St. Pierre has not alleged any bad faith by the agents, nor is there any evidence of such. Furthermore, having the consent of the girlfriend to search the apartment, the agents had no reason to believe that the evidence they discovered would be suppressed. Finally, given St. Pierre's condition, it was entirely reasonable for all parties, himself included, to want him to be given pants, and there is no evidence that he protested or asked for a different pair of pants. Thus, under these somewhat unusual circumstances, a search of St. Pierre's pants at booking was proper, and we see no error in the denial of the motion to suppress the $380.
Dog bite on arrest is not always excessive force. Balancing the three Graham factors on excessive force, the court concludes that the force used in this case was reasonable under the totality of the circumstances. Here, the plaintiff's injuries were exacerbated by his efforts to flee the dog and extricate himself from the first bite. Pace v. City of Palmetto, 489 F. Supp. 2d 1325 (M.D. Fla. 2007):
While Pace's injuries were severe, the undisputed material facts demonstrate that the use of K-9 force and the severity of Pace's injuries were the direct result of Pace's decision to flee and hide in the dark, densely vegetated mangrove swamp to avoid apprehension. Brix attempted to apprehend Pace in the manner in which he had be trained, namely, the bite and hold method. (Ahler Depo I, p. 207). Under this method, a dog is trained to subdue a suspect by biting his arm or leg, but if a leg or arm is unavailable, the dog is trained to apprehend the suspect by biting any area of his body exposed. If the suspect breaks free, the dog is trained to reestablish the bite. As a result, suspects often suffer serious injury from multiple bites received during the course of an apprehension. Kerr v. City of West Palm Beach, 875 F.2d 1546, 1550 (11th Cir. 1989). The bite and hold training method is not unconstitutional. Nor is it objectionable unreasonable. See Kerr, 875 F.2d at 1550 (recognizing the constitutionality of using police dogs trained in the bite and hold method when an officer is placed in a threatening situation); see also Kuha v. City of Minnetonka, 365 F.3d 590, 599-600 (8th Cir. 2004) ("mere use of a police dog trained to bite and hold does not rise to the level of a constitutional violation" and does not constitute deadly force).
When I started this blog in February 2003, my goal was to post everything for that day before 9 a.m. ET. That worked for about two years, and then the number of cases that Lexis was gathering from the federal district court system doubled. Plus, I'm busy doing my regular job, and that sometimes gets me out of the house before 7 a.m. to drive to court.
Somedays this blog takes two hours or more to digest the cases and summarize the ones worth posting. If in doubt, I post it.
I posted this morning and again at 8:30 p.m. CT. There is a statistics page I looked at, and 30 people accessed the website in the 20 minutes prior to that post. When a page says "# views," that means registered users, of which there are not many. This site averages about 3200 visits a day.
So, if you visit once a day, there may be a post later in the day. I just cannot get it all done in the morning.
A person is under arrest, for Fourth Amendment purposes, when he is asked to step out of his car and placed in handcuffs, when no special circumstances, such as a risk of flight or danger to the police officers, exists justifying the use of handcuffs. Longshore v. State, 399 Md. 486, 924 A.2d 1129 (2007).
Defendant failed to plead sufficient discrepancies of material fact to get a suppression hearing. The discrepancies were minor and did not undermine the government's version sufficient to change the outcome. United States v. Dewar, 489 F. Supp. 2d 351 (S.D. N.Y. 2007).*
Plaintiff stated a claim for his detention for an hour and a half based on a stop for a broken side mirror. At the least, discovery will have to occur. Aikman v. County of Westchester, 491 F. Supp. 2d 374 (S.D. N.Y. 2007).*
Florida reaffirms that no suspicion is required to run wants or warrants during a stop. Mays v. State, 959 So. 2d 216 (2007), following Golphin v. State, 945 So. 2d 1174 (Fla. 2006), petition for cert. filed, 75 U.S.L.W. 3512 (U.S. Mar. 9, 2007).*
Ohio holds that a stop for riding a bicycle on the sidewalk justified running wants or warrants and an FTA warrant appeared, and defendant was searched incident to that arrest. State v. Groce, 2007 Ohio 2874, 2007 Ohio App. LEXIS 2664 (10th Dist. June 12, 2007).*
Terry frisk did not produce a weapon, but the officer searched the pockets anyway. The search was invalid. Commonwealth v. Wilson, 2007 PA Super 175, 927 A.2d 279 (2007).*
(About 25 cases today which makes up for yesterday's lack of cases. This will take awhile.)
Plaintiff was on the premises when a search warrant was executed, and the officers only had reasonable suspicion as to him. He was patted down and nothing was found, so they unconstitutionally strip searched him. Burton v. Spokane Police Dep't, 2007 U.S. Dist. LEXIS 42101 (E.D. Wash. June 11, 2007):
Accordingly, because the strip search was not a Terry stop, nor was it justified as a search incident to arrest, the officers were required to obtain a warrant before conducting a strip search, absent exigent circumstances. Id. at 1449.
Here, Defendants have not argued that exigent circumstances existed that would justify the warrantless strip search. In Fuller, the circuit held that no exigent circumstances were present in that case because there was no risk that the alleged stolen property, a ring, would have been discarded or destroyed if hidden in a body cavity. Id. at 1450. It noted that in a custodial setting, the police could have easily guarded against the possibility that the defendant would have removed the ring from her body cavity by observing her while the warrant was obtained. Id. The circuit also concluded that the ring was not likely to pose any health risk to an individual secreting it within her body. Id.
As in Fuller, no exigent circumstances were present to excuse Defendant Bowman's failure to obtain a warrant to conduct the strip search. Plaintiff was handcuffed and he could have easily been observed while the officers obtained a warrant to conduct a strip search. As such, the warrantless strip search conducted in the field was unconstitutional.
(2) Qualified Immunity
Defendant Bowman would enjoy qualified immunity from liability in connection with the strip search of Plaintiff if a reasonable police officer could have believed that searches were lawful, in light of clearly established law and the information he possessed at the time. Fuller, 950 F.2d at 1450.
As noted above, Robinson, Giles, and Fuller clearly established that strip searches in the field, absent a warrant or exigent circumstances, are unconstitutional. Robinson was decided in 1973; Giles was decided in 1984; and Fuller was decided in 1991. The Court finds that the law regarding strip searches was clearly established and Defendant Bowman is not entitled to qualified immunity.
Not a search and seizure case, but a § 1983 case on malicious prosecution and due process: A grand jury indictment is prima facie probable cause for arrest, but it can be rebutted. Here, it wasn't, despite Brady claim. However, the officer's withholding Brady information before indictment that led to plaintiff's acquittal at trial was sufficient to defeat summary judgment. "Parties are encouraged to discuss settlement." Carvajal v. Dominguez, 2007 U.S. Dist. LEXIS 42115 (N.D. Ill. June 11, 2007).*
No IAC for defense counsel's failure to get a plea agreement for defendant where the defendant never wanted to plead guilty. There was also a waiver of his search and seizure claim. United States v. Diaz-Ramirez, 2007 U.S. Dist. LEXIS 42122 (S.D. Tex. June 11, 2007).*
Prosecuting Attorney who advised an officer that the officer should arrest plaintiff for an allegation of sexual abuse had qualified immunity based on the facts known at the time. Barela v. City of Woodland, 2007 U.S. Dist. LEXIS 42154 (W.D. Wash. June 11, 2007).*
Officer was entitled to qualified immunity for plaintiff's arrest for solicitation because there was cause for the initial stop and the investigation turned to the solicitation charge. Gonzalez v. Order City of Federal Way, 2007 U.S. Dist. LEXIS 42156 (W.D. Wash. June 8, 2007).*
Moving defendant's car during a stop was a separate seizure that was unreasonable under the circumstances. United States v. Virden, 488 F.3d 1317 (11th Cir. 2007):
The seizure here was unreasonable absent probable cause because of its scope and intrusiveness. While not unduly lengthy, the seizure was accomplished by the taking of Virden's vehicle to a new location for the purposes of investigation. We have frowned upon the movement of individuals for such purposes. [citations omitted] Furthermore, to effectuate this seizure the officers handcuffed Virden, and without formally arresting him, drove him to another location. Such a seizure exceeds the boundaries of a Terry stop.
. . . [If probable cause existed, a seizure would be appropriate.]
The officers lacked the requisite probable cause to seize Virden's car while at the gas station. At the time of the seizure, the officers were aware of the following suspicious facts about Virden: (1) he left a location of suspected drug activity, (2) he appeared to have control over the garage because the garage door closed without anyone else being seen, and (3) he misstated exactly where he had been to the police. However, neither Virden nor his vehicle were known to the investigation, despite more than year of detective work. Cf. United States v. Tamari, 454 F.3d 1259, 1262-64 (11th Cir. 2006) (finding probable cause exists where driver arrives on rural scene of drug activity driving a vehicle associated with the head of the drug conspiracy). Additionally, we have consistently held that mere presence at a crime scene without more is insufficient to establish probable cause. Holmes v. Kucynda, 321 F.3d 1069, 1081 (11th Cir. 2003). Without more, the facts in the officers' knowledge at the time of seizure were insufficient to give rise to probable cause.
. . .
Here, the prosecution cannot evade the suppression of the evidence by utilizing the inevitable discovery exception to the exclusionary rule, because it cannot show that officers were actively pursuing any lawful means at the time of the illegal conduct. . . .
Officer's probable cause to arrest plaintiff for DUI entitled him to qualified immunity in § 1983 suit. Wilder v. Turner, 490 F.3d 810 (10th Cir. 2007).*
Defense counsel's failure to file a suppression motion that certainly would fail was not IAC. Till v. United States, 2007 U.S. Dist. LEXIS 42219 (W.D. Mich. June 11, 2007).*
The government established consent by the preponderance of the evidence, the court reciting 13 findings of fact supporting consent. United States v. Plugh, 2007 U.S. Dist. LEXIS 42199 (W.D. N.Y. June 11, 2007).*
The Lexis morning update never arrived. It seems inconceivable that no search and seizure cases came down Monday or were new in the Lexis system Monday. Could this be a glitch? We'll see tomorrow. (Updated at 10:50 p.m. CT.)
(Sorry for the delay in posting, but I had an early drive for court that turned out to be a complete waste of time, and I had to e-file a pleading tonight that I've been working on for three days.)
The Texas Third District Court of Appeals at Austin sustained a computer search in a strangulation murder case where the appellant conceded probable cause and only challenged exceeding the scope of the warrant. Russo v. State, 228 S.W.3d 779 (Tex. App. — Austin 2007). The opinion is interesting if only for those interested in computer searches. The police had a search warrant for the computer and found information that appellant had visited a subscription website named www.necrobabes.com which the state contended dealt with strangulation death. [I visited the website, and it describes itself as "erotic humor for men" and has a disclaimer, including: "These sites deal with very politically incorrect fantasies. If you do not have these sorts of fantasies, you will likely find them shocking, if not offensive--our sites are not for you, please go away." It has links for posed death scenes including asphyxia.] The police thought this was relevant to the strangulation investigation. The court found the searches valid, and the evidence relevant.
Appellant does not complain of the admission of all the evidence taken from his computer. Further, he does not challenge the probable cause underlying the search warrant issued June 18, 2003, and under which the computer was seized. He urges that the execution of the search of the computer's contents exceeded its scope with the search of a computer file relating to "necrobabes.com." It is argued that the search should have been limited to the computer's contents involving real estate as authorized by the search warrant of June 18, 2003.
Another search warrant was issued on November 18, 2003, expressly authorizing the search of the "necrobabes.com" computer file. It does not appear that appellant challenges the validity of this warrant or its execution. The State contends that the evidence shows that the computer file in question was not itself searched until after the issuance of the search warrant on November 18, 2003.
The essence of appellant's complaint is that the police exceeded the scope of the search under the June 18 warrant when the police "used" information that they learned from the computer's Internet history to "discover private information on appellant's computer." On appeal, appellant simply states: "[A]ppellant's objections and argument are located at R. Vol. 9, 4-5, 75, 81 [pretrial]; R. Vol. 37, 205." 15 Detective Roy Rector, a forensic computer examiner with the Austin Police Department, first made a copy of the computer's hard drive, which is protocol for forensic computer examination. Rector examined the computer with a program called "Encase," which is designed to recover any data located on a hard drive, whether it is an active computer file or a previously deleted file. Rector then performed some keyword searches on the hard drive copy using "Diane Holik," "Pathfinder," and "Lakki Brown" (Holik's realtor). There were no positive hits on these terms. Rector was then requested by a prosecutor to conduct a more thorough search to look for Internet activity related to real estate.
Officer was performing community caretaking function for entering business premises that was months behind on lease payments because the landlord was afraid of who or what he may encounter. The entry was on behalf of the landlord who had a right of entry, not the tenant. State v. Albaugh, 2007 ND 86, 732 N.W.2d 712 (2007):
[*P13] The essential inquiry is whether Zeeb had the right to enter the shop. The district court found "Officer Zeeb entered the premises through an open and unlocked door at the request of the landlord. ..." (Emphasis added). By the tenant's concession and the terms of the lease, the landlord had the right to enter the shop. The tenant, Albaugh's brother, testified he was three months behind in rent and acknowledged the landlord had the right of entry if he defaulted on the terms of the lease. The landlord was the individual for whom Zeeb was performing the community caretaker function. The landlord requested Zeeb to be present in case he encountered a tenant or problems arose. Officer Zeeb had a reasonable belief that the shop was expected to be empty and in the event the landlord encountered someone in the shop, his assistance would be needed. Zeeb waited outside the shop, which, according to Detective Berg, was "a public business," with one door "apparently for public access to what appeared to be a public business."
Patdown produced a lighter and the officer saw a straw protruding from the pocket. In the watch pocket was a folded dollar bill. Despite the fact the officer knew that dollar bills could be folded and contain drugs, the inherently legal nature of the dollar bill prohibited the officer from searching it. Grandison v. Commonwealth, 274 Va. 316, 645 S.E.2d 298 (2007).
Defendant's patdown was unjustified under the circumstances, and consent was sought at the same time. When a consent to a search is preceded by a violation of the Fourth Amendment to the United States Constitution, the State, in addition to proving the voluntariness of the consent, must also establish a break in the causal connection between the illegality and the evidence thereby obtained. When a request for consent is virtually simultaneous with an illegal pat-down search and there is no break in the activity between the pat-down search and the consent, the consent is not voluntary as a matter of law, and the evidence must be suppressed as fruit of the poisonous tree under Wong Sun. State v. Burton, 37 Kan. App. 2d 916, 159 P.3d 209 (2007).
In a post-conviction proceeding, the defendant carries the burden of showing why a Fourth Amendment claim was not raised. Otherwise, relitigating it is barred by res judicata. State v. King, 2007 Ohio 2810, 2007 Ohio App. LEXIS 2605 (5th Dist. May 30, 2007).
Defendant's car parked 30-40 yards from his house was not within the curtilage, and the police could walk up and look in the windows. Opening the doors, however, violated the Fourth Amendment. United States v. Manning, 2007 U.S. Dist. LEXIS 41699 (M.D. Tenn. June 7, 2007):
In this case, the four factors indicate that the Nissan was not within the curtilage of the home. It was parked approximately 30-40 yards from the house and out in the open off the side of a long driveway leading to the house. No steps were taken to shield the area from observation and, in fact, the Nissan was visible from the road. See, United States v. Lakoskey, 425 F.3d 965, 973 (8th Cir. 2006)(expectation of privacy cannot be extended to driveway, walkway, or front door area); United States v. Hatfield, 333 F.3d 1189, 1194 (10th Cir. 2003)("an owner does not have a reasonable expectation of privacy and ... police observations made from the driveway do not constitute a search); United States v. Reyes, 283 F.3d 446, 465 (2d Cir. 2002) ("driveways that are readily accessible to visitors are not entitled to the same Fourth Amendment protections as are the interiors of defendants' houses"); United States v. Smith, 783 F.2d 648, 651 (6th Cir. 1986) (no expectation of privacy in driveway which was not obstructed and where there was no effort made to screen off or enclose area). Because the Nissan was not within the curtilage of the home and further because the officers were executing a valid arrest warrant, they had a right to walk by or stop next to the vehicle and look inside. However, they had no right to simply open the doors to the vehicle and search inside.
. . .
"The plain view exception to the warrant requirement applies when (1) the officer did not violate the Fourth Amendment in arriving at the place where the evidence could be plainly viewed, (2) the item is in plain view, and (3) the incriminating character of the evidence is immediately apparent.'" United States v. Calloway, 116 F.3d 1129, 1133 (6th Cir. 1997). Here, the officers did not violate the Fourth Amendment by being next to and looking into the vehicle since the vehicle was not within the curtilage and the officers had a warrant for Defendant's arrest. However, this Court has found as a matter of fact that neither weapon was in plain view and therefore their incriminating nature could not have been apparent. Accordingly, Defendant's Motion to Suppress Evidence will be granted and the shotguns seized on August 22, 2006 will not be admitted at trial.
Defendant's argument that his stop was invalid was frivolous. He claimed on appeal that manufacturer's tinting was exempt from state law, and that made the stop illegal, but it did not. Reasonable suspicion on the detention was a closer question, but the government got the benefit of the doubt on that. On the last question, a 90 minute delay for a drug dog to arrive was not unreasonable on these facts because the police were not delaying the stop. United States v. Leal, 235 Fed. Appx. 937 (3d Cir. 2007)* (unpublished).
Defendant was already known to be a felon and a carrier of weapons when he was stopped, and a furtive motion was made. That justified the officer looking for a gun. United States v. Horn, 234 Fed. Appx. 466 (9th Cir. 2007)* (unpublished).
Alaska holds that there is no reasonable expectation of privacy in trash left out for collection under the State Constitution. The court relied on a police dumpster diving case, Smith v. State, 510 P.2d 793 (Alaska 1973), cert. denied, 414 U.S. 1086 (1973), for authority. State v. Beltz, 160 P.3d 154 (Alas. App. 2007).*
Ohio court goes straight to good faith exception and does not bother to determine the question of probable cause. Instead, [like a scoring game of darts where the wall counts as well as the target and hitting the wall is good enough to win,] the showing of probable cause is "not so lacking" as to render reliance unreasonable so the good faith exception would save the search in any event. State v. Frankenhoff, 2007 Ohio App. LEXIS 2604 (5th Dist. June 1, 2007). (Comment: Anybody who has been reading this blog for more than a few months has seen the rants against courts too lazy to decide probable cause for posterity or even for the officers' edification. This court can now be included as one of the lazy ones.)
On review of a USMJ's R&R, the court finds that there was overwhelming probable cause for the search warrant and states that the defense misstated the evidence. United States v. Sprague, 2007 U.S. Dist. LEXIS 41303 (E.D. Tenn. June 6, 2007).*
Plaintiff, a frequent courthouse visitor for disorderly conduct charges, was removed from a NYC courtroom because of a bulge in his sock, and officers thought he might have a weapon or a recording device. Plaintiff claimed he was slammed into a wall while being searched. While "not every push or shove" is unreasonable, fact questions remained on whether excessive force was used on him. Lederman v. Giuliani, 2007 U.S. Dist. LEXIS 41490 (S.D. N.Y. June 4, 2007).*
Defendant consented to extension of the traffic stop for a drug dog. "The testimony of Officer Bradish revealed that although he made no specific request to do so, Mr. Davis encouraged Officer Bradish to 'go ahead and use your dog' well within the time limits of the traffic stop. Consequently, Mr. Davis consented to an extension of the traffic stop for the canine sniff before the purposes of the stop had been completed. Therefore, the canine alert and subsequent search were lawful." Davis v. State, 2007 Ark. App. LEXIS 436 (June 6, 2007).*
Defendant's vehicle was impounded after he came to his ex-wife's apartment and got into an altercation. They impounded the vehicle essentially to deny him transportation to come back. That was sufficient "other good cause" under the Arkansas rule for impoundment of a vehicle which led to an inventory finding crack. Pittman v. State, 2007 Ark. App. LEXIS 434 (June 6, 2007) (4-2).*
Defendant passenger in a car owned by another, which he claimed, but failed to prove, he otherwise had access to as a driver by the owner, had no standing to challenge a search of the trunk. Campos v. State, 867 N.E.2d 76 (Ind. App. 2007).*
A custodial arrest for a misdemeanor traffic violation supports a search incident. State v. McKiry, 2007 Ohio 2762, 2007 Ohio App. LEXIS 2555 (8th Dist. June 7, 2007).
Because court finds that officer was not credible on whether the license plate was properly illuminated for the basis of the stop, the court also finds the rest of his testimony not credible on the alleged swerving in the lane and suppresses the search. United States v. Walters, 492 F. Supp. 2d 754 (W.D. Mich. 2007).* (Comment: This case is interesting because the officer's strained efforts to manufacture justification for the stop, belied by photographs, tainted all his testimony. Why can't they just be content with the truth? Apparently they can't when they make up facts to justify a stop.)
Government's certification motion for an interlocutory appeal was not even filed until after the appeal was argued orally and got onto that issue. The government's failure was not in bad faith, and did not affect the substantial rights of the defendant. On the merits, from all indications (fake ID, on a drug courier route, hands shaking uncontrollably, etc.) the officer had reasonable suspicion to detain briefly for a drug dog. United States v. Newland, 246 Fed. Appx. 180 (4th Cir. 2007)* (unpublished).
Stop based on partially obstructed license plate was valid under state law, and reasonable suspicion developed after that. United States v. Fleetwood, 235 Fed. Appx. 892 (3d Cir. 2007)* (unpublished).
During a traffic stop, the officer saw over the defendant's ear what was obviously a blunt, and that was plain view. United States v. Stanyard, 2007 U.S. Dist. LEXIS 41564 (M.D. Ala. June 7, 2007).*
The testimony of the officer was sufficient to show that the roadside questioning of the defendant was not unreasonable. "The facts elicited from Officer Connell, the sole witness at the hearing, fail to show that he extensively questioned or requestioned of Heathman or asked questions unrelated to the purpose for the stop. No evidence supports defendant's contention that the stop was appreciably lengthened by any questions unrelated to the stop, nor do other facts show that defendant's detention was unreasonable." United States v. Johnson, 2007 U.S. Dist. LEXIS 41392 (D. Kan. June 6, 2007):
This court's examination is clear.
"... we need not make a time and motion study of traffic stops; we consider the detention as a whole and the touchstone of our inquiry is reasonableness. ...we must consider the individual circumstances that confronted the troopers, using 'common sense and ordinary human experience' to determine whether 'the police acted less than diligently, or ... unnecessarily prolonged [the] detention.' United States v. Sharpe, 470 U.S. 675, 685, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985)."
United States v. Patterson, 472 F.3d 767, 776 (10th Cir. 2006).
The Tenth Circuit recently rejected a challenge similar to the one made by this defendant in these words:
"Even if this task might have been performed slightly faster had [the officer] not been asking questions, the time involved was not 'beyond the time reasonably required to complete that [task].' Caballes, 125 S. Ct. at 837; see United States v. Martin, 422 F.3d 597, 601-02 (7th Cir. 2005) ('A traffic stop does not become unreasonable merely because the officer asks questions unrelated to the initial purpose for the stop, provided that those questions do not unreasonably extend the amount of time that the subject is delayed.'); United States v. Childs, 277 F.3d 947, 949 (7th Cir.2002) (en banc) ('questions that do not increase the length of detention (or that extend it by only a brief time) do not make the custody itself unreasonable'). Therefore, this questioning was lawful."
Alcaraz-Arellano, 441 F.3d at 1259.
The Ninth Circuit held Friday, in a well reasoned opinion because of the reasonabless of the accident without injury, that the DEA could effect a stop and seizure of a vehicle by the ruse of a traffic accident because they already had probable cause. The "unorthodox method" of this stop was to maintain the cover of an undercover operation, which the Ninth Circuit found reasonable. United States v. Alverez-Tejeda, 2007 U.S. App. LEXIS 13378 (9th Cir. June 8, 2007):
The parties agree that the DEA agents had the right to seize the car without a warrant .... The agents had probable cause to believe that the car had been "used for carrying contraband" because they had purchased drugs from inside it as part of their investigation. They also had probable cause to believe the car was carrying contraband on the day of the seizure based on several intercepted phone calls and direct surveillance. The only issue in doubt is whether their unorthodox method of seizing the car was constitutional.
An otherwise lawful seizure can violate the Fourth Amendment if it is executed in an unreasonable manner. See United States v. Jacobsen, 466 U.S. 109, 124 (1984). "To assess the reasonableness of th[e] conduct, [a court] must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 125 (internal quotation marks omitted). While agents have discretion to decide "how best to proceed" in conducting a covert operation, they must abide by the "general" protections of the Fourth Amendment. Dalia v. United States, 441 U.S. 238, 257 (1979).
The benchmark for the Fourth Amendment is reasonableness, which requires us to weigh the government's justification for its actions against the intrusion into the defendant's interests. Jacobsen, 466 U.S. at 125. The government here certainly had important reasons for employing this unusual procedure in seizing the car. First, the agents wanted to stop the drugs before they reached their ultimate destination--a patently important goal. Second, they wanted to protect the anonymity of the ongoing investigation--another vital objective. The Supreme Court has emphasized "the necessity for some undercover police activity," Lewis v. United States, 385 U.S. 206, 208-09 (1966), and explained that "[a]rtifice and stratagem may be employed to catch those engaged in criminal enterprises[;] ... to reveal the criminal design; [or] to expose the illicit traffic, ... the illegal conspiracy, or other offenses," id. at 209 n.5 (quoting Sorrells v. United States, 287 U.S. 435, 441-42 (1932)) (first alteration in original). Protecting the secrecy of an ongoing investigation is a well-recognized consideration in the administrative seizure process. See 18 U.S.C. § 983(a)(1)(D)(v) (providing for an extension not to exceed 60 days for notifying interested parties where more prompt notice would "seriously jeopardiz[e] an investigation").
At the same time, the intrusion into Alverez-Tejeda's Fourth Amendment interests was relatively mild. First, Alverez-Tejeda argues that the agents were unreasonable in using force to seize the car. While the police may not use excessive force in conducting a search or seizure, see, e.g., Winterrowd v. Nelson, 480 F.3d 1181, 1184, 1186 (9th Cir. 2007), the force here was minimal. The district court found that the agent in the truck bumped the stationary car with "enough force ... so that the tap was felt by Defendant to the extent that it caused him to get out of his car and examine his bumper" (emphasis added), but the truck was moving at only 1 to 2 miles per hour and the tap caused no harm to the couple and left no scratch on the car. A tap is a use of force, to be sure, but it is hardly excessive. The staged collision involved just enough force to pull off the "drunk driver" ruse, without causing physical injury to the suspects.
This would be a different case if the government's tactics created a serious risk of bodily injury or escalation of violence, which might well have outweighed the interest in protecting the investigation. The balance may well be different if the police simulated a car heist by running Alverez-Tejeda off of the road or staged a car-jacking by holding him up at gunpoint. In this case, however, the use of force and potential for physical harm were within reasonable bounds.
Burden was not shifted to the defendant to prove that the search was illegal; it was merely required to show what his basis for claiming the search was. State v. Stanley, 2007 Ohio 2786, 2007 Ohio App. LEXIS 2538 (10th Dist. June 7, 2007):
[*P24] "[T]he state has the burden of going forward with evidence to show probable cause once the defendant has demonstrated a warrantless search or seizure and has raised lack of probable cause as a ground for attacking the legality of the search or seizure." Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889. However, "the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search." Id. at 218. The court in Wallace found that Crim.R. 47 "requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged." Id. at 219. The court further noted that the rule is not solely for the benefit of the prosecution, but also serves to permit the trial court to prepare for a hearing. "[T]he court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits." Id. Therefore, the court placed the burden upon the defendant in a criminal case to "make clear the grounds upon which he [or she] challenges the submission of evidence pursuant to a warrantless search." Id. Consequently, the "[f]ailure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal." Id.
[*P25] In his motion to suppress, defendant did not challenge the accuracy or reliability of the drug-detection dog that sniffed the vehicle. Accordingly, we find that defendant's arguments regarding the accuracy and reliability of the dog are waived for purposes of appeal. See State v. Bennett, Cuyahoga App. No. 86962, 2006 Ohio 4274 (finding that the defendant, who did not challenge the reliability of the dog or whether it alerted, waived these arguments for purposes of appeal).
[*P26] For the above reasons, we overrule defendant's first assignment of error.
Defendant being a passenger in a vehicle owned and driven by a relative does not grant the defendant standing. Benitez v. State, 2007 Ark. App. LEXIS 414 (May 30, 2007).*
Officer observed defendant put something in his pants when pulled over. A patdown for weapons produced nothing, so the officer went after what she suspected would be drugs. Motion to suppress granted. People v. Dobson, 2007 NY Slip Op 4846, 2007 N.Y. App. Div. LEXIS 6971 (2d Dept. June 5, 2007).*
Defendant was a passenger in a taxicab stopped for a traffic offense, and the officer developed reasonable suspicion as to the passenger, which justified the detention. State v. Fry, 2007 Ohio 2734, 2007 Ohio App. LEXIS 2532 (9th Dist. June 6, 2007).*
Defendants' stop lacked any basis in probable cause or reasonable suspicion, so the motion to suppress was properly granted. Even though the car was going slower than the other cars on the road, it was not "impeding" traffic. State v. Hannah, 2007 Tenn. Crim. App. LEXIS 441 (June 6, 2007):
Viewing the totality of the circumstances, Officer Shaw did not have a reasonable suspicion, supported by specific and articulable facts, to believe the defendants had committed a crime or were about to commit a crime when he initiated the traffic stop. Prior to stopping the defendants' vehicle, the officer did not observe any traffic violations, such as running a stop sign or red light, or weaving across lanes into oncoming traffic. Neither did he witness any equipment failures, such as a non-working headlight or taillight. Nor was there any evidence that the vehicle lacked tags or had expired tags. Officer Shaw did not testify that it was his belief that the individuals in the car were perpetrating a crime or had just committed a crime.
Hot pursuit for fleeing from an obstructing an officer misdemeanor does not justify a warrantless entry in hot pursuit. State v. Sanders, 2007 WI App 174, 304 Wis. 2d 159, 737 N.W.2d 44 (2007):
P22 On appeal, the state relied upon the hot pursuit doctrine to justify the warrantless entry. Id., P12. We held that the entry violated the Fourth Amendment. See id., P17. We explained that in United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), the United States Supreme Court held that a suspect could not defeat an arrest that has been set in motion in a public place by escaping to a private place. We then interpreted Welsh as limiting Santana to the hot pursuit of fleeing felons. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, P17, 647 N.W.2d 421. Because the police pursued Mikkelson for obstructing an officer, a misdemeanor, we determined they were not permitted to enter the residence without a warrant. Id.
P23 We have a strikingly similar fact pattern in this case. As in Mikkelson, we have an uncooperative defendant who engaged in what officers believed was suspicious behavior. We have a defendant who, like Mikkelson, disregarded a police order to stop and proceeded into a residence. Finally, as in Mikkelson, the officers pursued Sanders for obstructing an officer, a misdemeanor offense. Applying Mikkelson and its construction of the post-Welsh exigent circumstances factors, we hold that the officers illegally entered Sanders' residence.
Defendant did a drug deal outside his trailer, and he saw the police and ran inside, with the police in hot pursuit. The police entry was justified. United States v. Echevarria, 2007 U.S. App. LEXIS 13087 (11th Cir. June 6, 2007)* (unpublished):
Additionally, Echevarria instigated the hot pursuit justifying Philippe's warrantless entry, rather than Philippe and Detective Dorcely having created the exigent circumstances, because he first became aware of police presence and his impending arrest while he was outside of his trailer, and subsequently decided to walk quickly into his trailer. The fact Echevarria decided to flee into his trailer after having conducted a drug transaction and then observing the police, only made it more likely he would have destroyed the drugs or fled the area, which, in turn, made it more reasonable for Philippe to fear the destruction or removal of the evidence before a warrant could be secured. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991). Accordingly, Echevarria's argument the police created the exigent circumstances is meritless. n1 We conclude Philippe's entry into Echevarria's trailer to arrest him was valid, and the drugs and gun that were found were admissible. See United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999) (stating, in reviewing a motion to suppress, that factual findings should be reviewed for clear error and the application of the law to the facts should be reviewed de novo.").
Five controlled buys gave the police plenty of time to get a search warrant, so they could not rely on exigent circumstances to justify their entry after a knock and talk. They also claimed that local magistrates preferred arrests on probable cause rather than bothering them with warrant requests, and that was rejected, too. United States v. Khut, 490 F. Supp. 2d 35 (D. Mass. 2007).
A person near the detainee could be detained, too, when there is reasonable suspicion as to the companion. United States v. Kinzalow, 236 Fed. Appx. 414 (10th Cir. 2007)* (unpublished):
In the instant case, the evidence in the record, viewed in the light most favorable to the government, leads us to conclude that Mr. Kinzalow was seated in an area immediately adjoining Miron Moaning when he was arrested. Thus, pursuant to Buie and Maddox, Mr. Kinzalow could be detained for officer safety purposes regardless of whether the officers possessed a reasonable suspicion that he posed a danger.
The officers came to execute a search warrant and they entered and grabbed the defendant who showed up at the door with a hammer in his hand. Because he had no prior history of violence and they really did not know what the hammer meant, the entry without announcement was a violation of defendant's statutory and constitutional rights. However, the court applies Hudson to sustain the search. State v. Gilbert, 2007 Ohio 2717, 2007 Ohio App. LEXIS 2520 (4th Dist. May 30, 2007).*
Comment: This court never addresses the "useless gesture" exception to knock and announce: The defendant saw the officers when he came to the door. Therefore, if the defendant knew who they were, then the useless gesture exception clearly applies, so why did they have to announce? This is just a shameless excuse to apply Hudson where the facts do not justify it. Ohio defense lawyers should be concerned with this court's rush to jump on the Hudson bandwagon where the facts clearly do not justify it.
Pennsylvania adopts the federal plain view standard for its state constitutional standard, and then holds that the facts here justified a plain view of a pill bottle in a car stopped for a traffic offense. Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007).
A valid traffic stop justifies checking the passengers for the officer's own safety, and that produced a shotgun. The finding of the gun was reasonable. State v. Canezaro, 957 So. 2d 136 (La. 2007).*
Encountering the defendant at home, the officer could smell burning marijuana "emanating from the partially open door." A warrantless entry was justified. Hardy v. Broward County Sheriff's Office, 238 Fed. Appx. 435 (11th Cir. 2007)* (unpublished):
The Deputies therefore had probable cause to believe that someone inside the apartment had been smoking cannabis and that this cannabis could be found somewhere inside the apartment. Moreover, had the Deputies delayed entering the apartment, they risked the "loss, destruction, removal, or concealment of evidence" of this suspected crime, thereby creating exigent circumstances. See id. Thus, even had the cocaine-filled, plastic bags not been "in plain view" from outside the partially open door of the apartment (that is, even had the ceramic bowl been covered with a lid as Hannah alleged), the Deputies had probable cause to believe that cannabis could be found somewhere inside the apartment (including inside the ceramic bowl), and there was a risk that Hannah would remove or destroy this cannabis (or the possible vestiges thereof). This combination of probable cause and exigent circumstances justified the Deputies' warrantless search of Hannah's apartment, and therefore, the cocaine found inside the ceramic bowl was properly seized. That the Deputies did not find any cannabis is of no moment, especially where following Hannah's arrest, he admitted that he had smoked cannabis inside the apartment just before the Deputies arrived.
Swearing match between plaintiff and defendant officer over whether officer struck plaintiff in the face with a flashlight while plaintiff was handcuffed was sufficient to deny summary judgment for unreasonable and excessive force. Jones v. Wheeler, 2007 U.S. Dist. LEXIS 40313 (E.D. Ark. June 1, 2007).*
Excessive force claim fails where force used was less than that found in an Eleventh Circuit case to be insufficient. Manning v. City of Atlanta, 2007 U.S. Dist. LEXIS 40276 (N.D. Ga. June 1, 2007)*:
Here, the facts show that Defendant Price and the other officers used far less force than in Nolin. The officers handcuffed Plaintiff, and upon being informed that he was injured, the officers called for an ambulance. When the ambulance arrived, the officers placed Plaintiff on a bed sheet and dragged him up the hill because the paramedics were unable to reach Plaintiff with a gurney. The court finds that the officers' actions were objectively reasonable considering the context and facts of the situation.
Summary judgment against false arrest action denied. Saucier analysis is problematic and expected at this point in the case. Questions of fact remained on cause for arrest. Friermuth v. City of Puyallup, 2007 U.S. Dist. LEXIS 40352 (W.D. Wash. June 1, 2007):
It is not unusual for the Saucier test to be problematic. This case is no exception. The tension between the directive to make an early determination, and the "reasonableness" of the officer's actions in the context of summary judgment can be difficult. That is especially true in this case where plaintiff's explanation for defendant Pihl's behavior appears to be that he was deliberately untruthful, as opposed to being negligent or mistaken in his judgment. The basis of this credibility characterization is based, in part, on plaintiff's position that Pihl's reported observations of plaintiff's behavior could not be true given the subsequently revealed alcohol and drug test results. This is important given the admonition by the Saucier Court that the court must consider the right in the context of the case.
Because the court is satisfied that the alleged constitutional right to be free from an unlawful search and seizure was well known to defendant Pihl, and because there are questions of fact as to whether or not the arrest was reasonable defendant Pihl's motions for summary judgment and qualified immunity are denied.
Prison inmate's claim of Fourth Amendment violation failed as frivolous because he never alleged that they were unreasonable, which would be incredibly hard anyway. Creer v. Caldwell Corr. Ctr., 2007 U.S. Dist. LEXIS 40187 (W.D. La. April 5, 2007).*
A police officers' search of an arrestee is unreasonable when the officers conduct a highly intrusive strip search in the parking lot of a public business in the presence of others and there were no exigent circumstances requiring an immediate search. Paulino v. State, 399 Md. 341, 924 A.2d 308 (2007).
Photographs taken during the search of a home by a police officer who entered and searched the home under the emergency-aid exception to the warrant requirement are inadmissible under the emergency-aid exception to the warrant requirement if taking the photographs was not related to the purpose for which the officer entered the home. In re The Welfare of J.W.L., 732 N.W.2d 332 (Minn. App. 2007).
Because an ineffective assistance claim on a Fourth Amendment claim would fail as a matter of law, post-conviction relief on that ground would be denied. Correa v. Comm'r of Corr., 101 Conn. App. 554, 922 A.2d 289 (2007).*
Furtive gesture in a car justified officer reaching where the person reached. State v. Weidner, 2007 NMCA 63, 141 N.M. 582, 158 P.3d 1025 (2007):
The State argues that in the present case, exigent circumstances existed justifying the seizure of the methamphetamine, given that Defendant was still in the vehicle, which could have been driven away, and that he could easily access the methamphetamine, which was within arm's reach. We find this argument persuasive. The exigency in the present case is stronger than it was in Garcia or Gomez, because in this case Defendant was still behind the steering wheel and within arm's reach of the methamphetamine. Defendant even attempted to conceal the methamphetamine by quickly flipping up the visor. Officer Ahlm testified that he did not believe it would be prudent to tell the other officer about the methamphetamine, as opposed, it appears, to immediately seizing it himself, because Defendant was still sitting behind the steering wheel of the vehicle. The officer was relying on more than just the inherent mobility of the vehicle in acting to seize the contraband. He was also relying on the fact that Defendant was in a position to operate the vehicle, and thereby evade the officers and remove or destroy the evidence. While the inherent mobility of the vehicle itself, alone, did not give rise to the exigency in this case, the fact that Defendant was still sitting behind the wheel of the vehicle supports the existence of the requisite exigency. See Gomez, 1997 NMSC 6, P 44 (noting that in most cases involving an automobile there may be an exigency, but requiring a case-by-case analysis of whether the exigency exists).
The fact the police surrounded a car did not make it "immobile" such that the automobile exception would not apply. State v. Willard, 374 S.C. 130, 647 S.E.2d 252 (2007):
Willard argues because the officers surrounded his vehicle, it was not "mobile" under Carney. However, temporary immobility may still be considered readily mobile so as to qualify for the automobile exception. See Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (cases cited therein).
N.D. Cal. holds that a search incident of a cellphone was contrary to purposes of search incident in Chimel, recognizing that it was departing from United States v. Finley, 477 F.3d 250 (5th Cir. 2007). This is a really interesting discussion and far more sensitive an inquiry into reality and technology than the Fifth Circuit bothered to give the issue in Finley. United States v. Park, 2007 U.S. Dist. LEXIS 40596 (N.D. Cal. May 23, 2007):
Neither the Supreme Court nor the Ninth Circuit has addressed whether officers may search the contents of a cellular phone as a search incident to arrest, and the Court is aware of only one circuit court case on the issue, United States v. Finley, 477 F.3d 250 (5th Cir. 2007). In Finley, officers arrested the defendant and a passenger in the defendant's car after effecting a traffic stop. Officers seized the defendant's cellular phone at the time of the arrest, and then transported the defendant to the passenger's residence; while at the residence, officers searched the call records and text messages on the defendant's cellular phone, and questioned him about those records and messages. The Finley court held that although the police had moved the defendant, the search was "still substantially contemporaneous with his arrest," and therefore permissible. Id. at 260 n.7. The court also held that "Finley's cell phone does not fit into the category of 'property not immediately associated with [his] person' because it was on his person at the time of arrest." Id. (quoting Chadwick, 433 U.S. at 15).
The facts in Finley differ slightly from the facts here, since in Finley the search of defendant's cell phone at the passenger's residence was "substantially contemporaneous" with defendant's arrest; here, the search of the cell phone was not contemporaneous with arrest. More fundamentally, however, this Court finds, unlike the Finley court, that for purposes of Fourth Amendment analysis cellular phones should be considered "possessions within an arrestee's immediate control" and not part of "the person." Chadwick, 433 U.S. at 16 n. 10. This is so because modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. n6 Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages.
n6 In this case, two of the searched phones were T-Mobile Sidekick IIs; in addition to address books, these phones feature e-mail accounts, text messaging, cameras, instant messenging, Internet capability, and video caller ID. The Court takes judicial notice of these features. See http://www.t-mobile.com/shop/phones/detail.aspx?tp=tb2&device=154e9bca-a74c-4299-99eb-48a1159c922b.
Any contrary holding could have far-ranging consequences. At the hearing, the government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information -- such as emails or messages -- stored in the cell phones. In addition, in recognition of the fact that the line between cell phones and personal computers has grown increasingly blurry, the government also asserted that officers could lawfully seize and search an arrestee's laptop computer as a warrantless search incident to arrest. As other courts have observed, "the information contained in a laptop and in electronic storage devices renders a search of their contents substantially more intrusive than a search of the contents of a lunchbox or other tangible object. A laptop and its storage devices have the potential to contain vast amounts of information. People keep all types of personal information on computers, including diaries, personal letters, medical information, photos and financial records." United States v. Arnold, 454 F. Supp. 2d 999, 1004 (C.D. Cal. 2006).
The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. See generally Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). Inspector Martinovich stated that he initiated the searches because "evidence of marijuana trafficking and/or cultivation might be found in each of the cellular telephones." Martinovich Decl. P 6. Officers did not search the phones out of a concern for officer safety, or to prevent the concealment or destruction of evidence. Instead, the purpose was purely investigatory. Once the officers lawfully seized defendants' cellular phones, officers could have sought a warrant to search the contents of the cellular phones.
"Considering the arrest warrant affidavit in light of this authority, the court finds there was a substantial basis for finding probable cause for the warrant to issue. Significantly, a factual foundation, supported by bank records, is outlined for violations of 11 Del. C. §§ 841 and 861. Defendant's contention that the arrest warrant affidavit lacks probable cause because it details legal rather than illegal conduct is an issue for trial to determine defendant's intent and is inconsequential to this analysis." United States v. Flood, 2007 U.S. Dist. LEXIS 40709 (D. Del. June 5, 2007).*
A D.C. speeding and "safety and compliance checkpoint" was unconstitutional because it was set up ad hoc to check driver's licenses [and potentially pretextually to reduce speeding, for which no evidence was offered]. "Ultimately, however, it is not necessary for the Court to decide whether speed prevention was a 'subterfuge' for crime prevention. United States v. McFayden, 275 U.S. App. D.C. 207, 865 F.2d 1306, 1312 (D.C. Cir. 1989), abrogated in part by Davis, 270 F.3d at 981. For even accepting the assertion that the roadblock's primary purpose was to prevent speeding, the government has not met its burden of demonstrating that defendant's suspicionless stop was reasonable under Brown's three-part balancing test." On the proof, the roadblock failed all standards. United States v. Hudson, 2007 U.S. Dist. LEXIS 40538 (D. D.C. June 5, 2007).
NAMBLA had no reasonable expectation of privacy when it solicited persons to join and an FBI agent did. United States v. Mayer, 2007 U.S. App. LEXIS 13022 (9th Cir. June 6, 2007):
Here, NAMBLA invited Agent Hamer to join its group, participate in its holiday card program, attend its conferences, and participate in the privacy committee. He received access to other people, not access to files or information. In essence, NAMBLA invited Agent Hamer to join its social network; his conversations with other members were well within the scope of that invitation, and NAMBLA had no legitimate expectation of privacy in them.
In summary, Aguilar articulates a Fifth Amendment requirement of good faith and a Fourth Amendment warrant requirement. Neither requirement becomes more stringent in light of the threat to First Amendment values. Rather, the risk of a First Amendment violation is part of the analysis courts apply under the Fourth and Fifth Amendments. We hold that this investigation fell within these bounds.
§ 1983 claim for involuntary commmitment failed as a due process and Fourth Amendment claim because there was plenty of cause for the commitment, confirmed by several doctors. Fisk v. Letterman, 2007 U.S. Dist. LEXIS 40780 (S.D. N.Y. June 6, 2007).*
Removing a boisterous "patron" from the courthouse law library to a holding cell for a little while was not unreasonable. There had been a history of trouble between the plaintiff and courthouse security. Birhanzl v. Doe, 2007 U.S. Dist. LEXIS 40548 (D. Ore. May 30, 2007).*
A Utah officer observed a pickup truck with excessive window tinting, and he stopped it. During the stop, the officer learned of a "skelton file" on defendant for not having a U.S. license during a stop in Arizona. The window tinting justified a search incident because it was a class C misdemeanor in Utah. United States v. Velasquez-Rojo, 2007 U.S. Dist. LEXIS 40092 (D. Utah June 1, 2007).
Alleged exigency for entry into premises from defendant's use of his cellphone just as he was being arrested was belied by the fact the officers did not enter for two hours. United States v. De Arias, 510 F. Supp. 2d 969 (M.D. Fla. 2007):
Even assuming the agents did see Jenkins holding and manipulating a cell phone, at best, any exigency created by this alleged phone call was stale when the Agents arrived at the Residence about 2 hours later. TR at 189. Furthermore, exigency must be supported by facts, and Agent Locher testified that he was not aware of any unusual activity at the Residence between the time of the traffic stop and the time of the knock and talk, and that he did not know if anyone at the Residence had been "tipped off." TR at 100. None of the other Agents provided any evidence to the contrary.
Defendant was driving without seatbelts in a high crime area, so the officer decided to stop him because of their "professional relationship." ["I knew him [Mr. Bowers] on a professional basis, figured I could get more of a story, more of what's going on from him."] The officer asked the defendant about weapons and drugs, and conducted a patdown that led to a gun. While an alleged seatbelt violation is subject to abuse, this one was objectively reasonable.
Because of the late hour and place and knowledge of the defendant, "[i]n the circumstances, therefore, it was not unreasonable for Officer Stringer, an experienced officer, to simply ask whether either the driver or passenger had drugs or weapons in their possession and whether they would consent to a search." United States v. Bowers, 490 F. Supp. 2d 285 (D. Conn. 2007).*
While the same police conduct could lead a court to suppress a consent but not suppress a statement, compare United States v. Betters, 229 F. Supp. 2d 1103 (D. Ore. 2002), this is not such a case. The consent to search was shown to be voluntary as was the statement. United States v. Jennings, 491 F. Supp. 2d 1072 (M.D. Ala. 2007).
(A lot of cases today; more later.)
The District Court erred in suppressing a search of a car parked on the side of the New York State Thruway just because the driver was in custody at a State Police barracks and the vehicle was thus not "readily mobile." The inherent mobility of the vehicle still exists. Couple that with probable cause, and the police could search under the automobile exception, and a warrant was not required. United States v. Howard, 489 F.3d 484 (2d Cir. 2007):
The district court's finding that the defendants' temporary, voluntary presence in the police barracks for questioning pursuant to the ruse meant that the vehicles were not readily mobile, and that searches of them were therefore not within the automobile exception, was in error for two reasons. First, the district court erred in determining that the vehicles were not readily mobile within the meaning of the automobile exception simply on the ground that the drivers and passenger were with police officers at their barracks, undergoing questioning concerning the ruse developed by the officers. Whether a vehicle is "readily mobile" within the meaning of the automobile exception has more to do with the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, thereby precluding a search. See Chambers v. Maroney, 399 U.S. 42, 50-51, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970) (distinguishing a car, which is "readily movable," from a "fixed piece of property"). The district court's reading of "ready mobility" is in error because the district court appeared to regard the actual ability of a driver or passenger to flee immediately in the car, or the likelihood of him or her doing so, as a requirement for the application of the automobile exception.
We rejected such a reading of "ready mobility" in United States v. Vassiliou, 820 F.2d 28 (2d Cir. 1987). Vassiliou was a contractor working for the United States on a military base. Following a fight with a subcontractor while on the base, the two were led to the military police station to settle the dispute. The subcontractor alleged that Vassiliou had pulled a gun on him and then hid the gun in the car. Based on this information, the military police conducted a warrantless search of Vassiliou's vehicle and found the gun. Vassiliou sought to suppress the weapon, contending that the automobile exception did not apply "because his car was on a military outpost over which the military police had plenary jurisdiction and therefore was not mobile." Id. at 30 (internal quotation marks omitted). He argued that, "[b]ecause entry to and exit from the post were controlled by the military police ... he could not simply have driven away." Id. (internal quotation marks omitted). We rejected Vassiliou's argument and affirmed the district court's denial of Vassiliou's suppression motion because, regardless of the military's plenary control over the base, "Vassiliou could have left the military police station while a warrant was being obtained and disposed of the gun elsewhere on the base." Id. We determined that the facts presented comprised "precisely the sort of exigent circumstances resulting from the automobile's inherent mobility that the Supreme Court has recognized as justifying the automobile exception to the warrant requirement." Id.
Like the defendants in the instant case, Vassiliou effectively claimed that he could not have accessed his car because he was in police custody, and that the vehicle was therefore not "readily mobile" as contemplated by the automobile exception cases. And indeed, like Vassiliou's detention by military police on the base, the detention of the defendants in this case prevented them from accessing their vehicles. But just as the automobile exception was applicable in Vassiliou's case, it applies here. Even where there is little practical likelihood that the vehicle will be driven away, the exception applies at least when that possibility exists. In this case, the police could not lawfully have detained the defendants in the police station had they not consented to remain there. Furthermore, the possibility existed that confederates in another car, of whom the police were unaware, might have observed the police intervention and might drive the car away. The district court erred in determining that the relative inaccessibility of the vehicles, occasioned by the defendants' undergoing questioning at the police barracks, was sufficient to bring this search outside the ambit of the automobile exception.
The Coast Guard boarded and searched a vessel 180 nautical miles south of the Dominican Republic that was dead in the water, riding low, and without markings or a flag after the ship's master refused to identify it or himself. Inside was found $7.5M in marijuana. The crew was arrested and the ship, crippled anyway, was sunk. The Fourth Amendment was inapplicable. United States v. Bravo, 489 F.3d 1 (1st Cir. 2007):
For purposes of this case, therefore, if there was a constitutional violation of the Fourth Amendment, it occurred solely in international waters, where the search and seizure took place. But the Fourth Amendment does not apply to activities of the United States against aliens in international waters. See United States v. Verdugo-Urquidez, 494 U.S. 259, 267, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990). The Supreme Court's holding in Verdugo-Urquidez is clear that the actions of the United States directed against aliens in foreign territory or in international waters are not constrained by the Fourth Amendment. 494 U.S. at 267 ("There is ... no indication that the Fourth Amendment was understood by contemporaries of the Framers to apply to activities of the United States directed against aliens in foreign territory or in international waters."); see also United States v. Vilches-Navarrette, 413 F. Supp. 2d 60, 69 (D. P.R. 2006) ("In light of the Supreme Court's holding in Verdugo-Urquidez, it is pellucid that the Fourth Amendment does not apply to the search of non-resident aliens on a ship in international waters."). Accordingly, the district court was correct in denying Appellants' motion to suppress because the Fourth Amendment was inapplicable to the USCG's search of the vessel.
(Update, June 14: This case also appears at 2007 U.S. App. LEXIS 13797.)
Officers had information from a confidential informant that defendant was manufacturing illegal DVDs in his attic. The information about the premises was the same that could be seen by any passerby. The officers entered without a warrant and went to the attic to conduct a protective sweep. The court found that there was no exigency for the entry and no cause for a protective sweep. On the search warrant that had been issued, the court finds that there was no probable cause for the search warrant--it was nothing more than conclusions. The lack of probable cause was so obvious that the good faith exception did not apply. United States v. Pinder, 2007 U.S. Dist. LEXIS 40061 (E.D. Va. June 1, 2007):
Similar to Wilhelm, the Court finds that it was not objectively reasonable for the officers in this case to rely on an informant that simply told them that illegal DVDs and DVD manufacturing equipment was being produced out of the Defendant's attic without prior corroboration. The government contends, however, that Leon applies and cites United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). The government's reliance on Hyppolite is misplaced. The key distinction between Hyppolite and the present case is that, in addition to what was contained in the affidavit, the magistrate in Hyppolite was presented with and considered other factors in his determination of probable cause. The court in Hyppolite explained that the magistrate also considered the defendant's refusal to answer questions, his nervousness and aggressive behavior while he asserted his rights, etc. These facts, together with the affidavit, were not so lacking in indicia of probable cause as to render reliance unreasonable. In the instant case, there is no evidence on the record that the magistrate was presented with any additional information other than that contained in what this Court has determined is a "bare bones" affidavit.
One additional point bears on the Court's determination of the officers' reasonable reliance. It is uncontroverted that the entire chain of command had serious concerns that, given the facts and the information Officer Knorowski had received prior to arriving at the Defendant's residence, probable cause was lacking to conduct a search. It was precisely this "bare bones" information which was presented to the magistrate and served as the basis for the warrant. No other information was presented to the magistrate. The Court is not persuaded that given the officers' own doubts of the sufficiency of the basis for the protective sweep, it was objectively reasonable for the officers to then seek a warrant based on even less information, and then to rely on that warrant. Accordingly, the third exception to Leon applies-the affidavit was so facially deficient that the officers' reliance was unreasonable. The Court also finds that the magistrate acted as a "rubber stamp" in authorizing the warrant. Wilhelm, 80 F.3d 116 at 123. Defendant's motion to suppress the items recovered pursuant to the warrant is GRANTED.
Plaintiff was an armed IRS agent boarding a Southwest flight from Louisville, and he was removed from the plane because he got in a verbal altercation with a female passenger over his luggage not fitting overhead. Telling another passenger to "fuck off" apparently is reason to be removed from a flight in the pilot's discretion. He was. In the terminal, he refused to talk to anyone but Southwest's Ground Security Coordinator for Louisville. A heated exchange started in the gate area, and, when the Ground Security Coordinator reached for his arm to move to a different area away from the crowd, he reached for his right side, allegedly for his ID which he had declined to show. He also had his gun there. A police officer took him down. He loses on summary judgment over the seizure and qualified immunity. Fox v. Desoto, 489 F.3d 227 (6th Cir. 2007).*
In this article from Charleston, WV, with accompanying video from local TV news, a pizza delivery driver was stopped for no seatbelt at a seatbelt checkpoint and marijuana was found.
A Putam County man was arrested after city police said they found more than two pounds of marijuana his car during a seatbelt checkpoint.
Roger Lee Caldwell, 25, was arrested in Friday when police said they discovered the marijuana inside several pizza delivery bags, according to a release from the department.
Caldwell worked as a pizza delivery employee for a local pizza establishment, but police did not say which one.
Apparently a search incident to a seatbelt violation is permissible in West Virginia.
In the e-mail that brought this to my attention, the correspondent tells me that he came upon a seatbelt checkpoint at night on a bicycle, and the officers were wearing nightvision goggles and said they used to them see into the cars in the dark as the cars passed by.
Hawai'i declines to follow Harris v. New York under its state constitution. The police unlawfully entered defendant's house after an "'abuse-type' call" where the defendant's wife and daughters were outside. Harris is rejected because, in this court's view, it rewards violations of the law by police. State v. Marino, 114 Haw. 271, 160 P.3d 1258 (2007):
With all due respect, we disagree with the Harris Court. The rule in Payton was designed to protect, not just "the physical integrity of the home[,]" Id. at 17, 110 S. Ct. at 1643, although that is wherein the Fourth Amendment and Article I, section 7 find their highest expression, Id. at 18, 110 S. Ct. at 1643, but ultimately the constitutional right of the people to be free of unreasonable searches and seizures and invasions of privacy. For a house is just a house, and does not become a home in the constitutional sense unless so imbued by the inherent rights of the householder. It is not merely the materially limited and located "persons, houses, papers, and effects" that are constitutionally protected, but more profoundly, the immanent "right of the people to be secure" therein. Fourth Amendment; Article I, section 7. For this reason, the Harris Court's focus on the limits of the physical house to the exclusion of the metaphysical home feels, at first blush, foreboding.
For while there was probable cause to arrest Harris and the police could have done so lawfully on his doorstep or on the street, to say that "the legal issue is the same" once Harris was removed from his home, Id. at 18, 110 S. Ct. at 1643, is to be oblivious to the unlawful arrest which led to his removal and any aftereffect it may have had on his decision to talk:
"The majority's per se rule in this case fails to take account of our repeated holdings that violations of privacy in the home are especially invasive. Rather, its rule is necessarily premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his home. But the concerns that make a warrantless home arrest a violation of the Fourth Amendment are nothing so evanescent. A person who is forcibly separated from his family and home in the dark of night after uniformed officers have broken down his door, handcuffed him, and forced him at gunpoint to accompany them to a police station does not suddenly breathe a sigh of relief at the moment he is dragged across his doorstep. Rather, the suspect is likely to be so frightened and rattled that he will say something incriminating. These effects, of course, extend far beyond the moment the physical occupation of the home ends."
Id. at 28, 110 S. Ct. at 1648-49 (Marshall, J., dissenting). And while it may seem conceptually self-evident that suppression in a Harris situation would have minimal "incremental deterrent value" because police with probable cause "need not violate Payton in order to interrogate the suspect[,]" Id. at 20-21, 110 S. Ct. at 1644, the fact remains that the violation happened in Harris, and it happened again here.
When all is said and done, perhaps the most damning indictment of Harris is the powerful but perverse incentive it creates for police misconduct:
"More important, the officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today's decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest. Thus, the officer envisions the following best-case scenario if he chooses to violate the Constitution: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that he will avoid a major expenditure of effort, ensure that the suspect will not escape, and will see evidence in the house (which would have remained unknown absent the constitutional violation) that cannot be used in the prosecution's case in chief. The Court thus creates powerful incentives for police officers to violate the Fourth Amendment. In the context of our constitutional rights and the sanctity of our homes, we cannot afford to presume that officers will be entirely impervious to those incentives."
Id. at 32, 110 S. Ct. at 1650 (Marshall, J., dissenting) (footnote omitted). We must part ways with the Harris Court.
The Virgin Islands court encounters a Garrison-type situation: They investigated and determined that there was one dwelling at the address to be searched, but, on arrival at the property, they discovered that there were two and entered anyway. This violated the Fourth Amendment. People v. Kevin, 2006 V.I. LEXIS 32 (December 14, 2006):
C. Execution of Warrant
If the officers' execution of the warrant exceeded the scope of the warrant, the evidence recovered from the illegal search will be suppressed, even though the search warrant was validly issued. See, e.g., King, 227 F.3d at 751 ("a valid search warrant can turn into an invalid general search if officers flagrantly disregard the limitations of the warrant"). In Garrison, officers executed a search of the third floor of an apartment building pursuant to a warrant. 480 U.S. at 80. When they realized that the third floor consisted of two, not one, apartments, they immediately discontinued their search. The Court held that the officers acted properly. "[T]hey were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant." Id. at 87.
In Ritter, a search warrant was issued for a house, but when the officers arrived to conduct their search, they realized that the property's main structure was not a single dwelling, but rather consisted of at least four separate apartments. 416 F.3d at 260. The officers searched all of the apartments and seized contraband. The Third Circuit held that the search warrant was valid, but the officers' execution of the warrant required that the evidence be suppressed. "[O]nce the officers discovered that the house had multiple dwelling units, they could no longer rely on the warrant to justify their search of the building." Id. at 267.
The facts in Ritter are similar to the facts in this case. The officers arrived on the premises armed with a search warrant, and only upon arrival did they realize that there was more than one dwelling on the property. Just as the Court held in Ritter, the officers were required to discontinue their search once they realized that there was more than one dwelling unit involved. "It is settled that where ... a structure is divided into more than one unit, probable cause must exist for each unit." United States v. Gonzalez, 697 F.2d 155, 156 (6th Cir. 1983).
D. Good Faith Exception
. . .
Even if it was not immediately apparent to the agents that there were three unattached structures on the property, agents Charleswell and Freeman admitted that they had to walk out of Ms. Trotman's house and around it to get to Keith's house, and the same for Kevin's house. Agent Freeman admitted that he had to walk through a small gate to get to Keith's residence.
In King, the officer had a warrant to search the first floor of a two-unit house; he came upon a hallway where he found stairs that led to the basement. Relying on the warrant, the officer proceeded down the stairs and searched the basement. 227 F.3d at 737. The court found that the officer's decision to proceed without a warrant for the basement was flagrant and unreasonable, and the evidence seized from the basement was suppressed. Id. at 752.
Here, the officers had to walk outside of each dwelling to reach the next. There were no inner doors or stairways that provided access to the adjoining dwellings. Once the officers were forced to go outside and through a separate door, they were on notice that other dwelling units were involved, and they should have known that other warrants were needed.
Consent to search defendant's bicycle basket was by consent, and the trial court did not err by so concluding. State v. Texter, 923 A.2d 568 (R.I. 2007) [Caution: Lexis only has a summary online at this citation, so the official link to the opinion is provided.] Comment: This opinion almost implies that the defendant carried some burden of proof on the question of consent:
At the conclusion of the hearing on the defendant’s motion to suppress the tangible evidence seized by the police, the hearing justice addressed the defendant’s contention that he had given the police consent to search his bicycle baskets involuntarily, as a result of coercion. The hearing justice noted that the defendant had admitted that no one threatened him or “applied any form of physical stress upon him.” The hearing justice also noted that the defendant did not provide the court with any articulable basis in support of his contention that he could not have refused consent. He further noted that the defendant first gave oral consent and then later “followed up by giving written consent.” Consequently, the hearing justice rejected the defendant’s contention that he had been coerced, and he denied the defendant’s motion to suppress the tangible evidence. After independently reviewing the record, we agree with the hearing justice’s ruling in this regard. (emphasis added)
Defendant's being out of the vehicle for potentially hours denied the government any reliance on search incident because he was not a "recent occupant." Moreover, reliance on the automobile exception was denied, essentially because of staleness of the facts. United States v. Gable, 2007 U.S. Dist. LEXIS 39854 (M.D. Tenn. May 31, 2007):
Here, the proof does not establish the amount of time that had passed since Gable left his truck and the officers' arrival at Vines's residence. Given Vines's descriptions of the incident and Gable's prior conduct, the passage of time could be an hour or several hours. When the officers arrived, Gable was inside Vines's residence, where he was arrested. The Court concludes that the government has not established the facts necessary to invoke the Thorton rule requiring the defendant to have been a 'recent occupant' of the searched vehicle.
As to the search incident to probable cause, the government relies upon United States v. Swanson, 341 F.3d 524, 532-33 (6th Cir. 2003) and Smith v. Thornburg, 136 F.3d 1070, 1074 (6th Cir. 1998). In Swanson, the vehicle was used as an instrument of a crime and therefore, as a matter of law, was subject to seizure and search without a warrant. 341 F.3d at 532-33. ("First, the agents had probable cause to seize and search the vehicle. [The defendant] had used the Grand Am to deliver an automatic weapon thirty days earlier to a confidential informant ..."). In Smith, this rule was held to apply to a warrantless search of a "readily mobile vehicle". 136 F.3d at 1074. Gable's vehicle was parked and Gable was inside Vines's residence. Gable was initially in Vines's residence and at the time of the search was handcuffed in Mashburn's vehicle. There is not any proof that the Gable's vehicle was "readily mobile". Thus, Gable's truck was "readily mobile" when Mashburn searched the truck for a weapon. Thus, the Court concludes that Swanson and Smith are factually inapposite and the search incident to probable cause doctrine is inapplicable here.
Officer's failure to comply with Oregon law in informing a suspect he had a right to refuse consent was not relevant in federal court. United States v. Villanueva-Madriz, 234 Fed. Appx. 454 (9th Cir. 2007)* (unpublished).
Existence of a bench warrant saves the arrest as justified on probable cause, but material facts remain on whether the officer knew about it. Grindling v. Silva, 2007 U.S. Dist. LEXIS 39866 (D. Haw. May 30, 2007):
Defendant states in his declaration that Plaintiff also was arrested on an outstanding bench warrant, but, according to Plaintiff, that bench warrant did not come to light for another six hours. The existence of a bench warrant of which officers are not aware at the time of an arrest will not retroactively justify the arrest. See Moreno v. Baca, 431 F.3d 633, 638-41 (9th Cir. 2005). Thus, the bench warrant would "save" the arrest only if Defendant was aware of it at the time of the arrest. Defendant's knowledge of the bench warrant is unclear at this time.
Sending a car at a border crossing to a secondary inspection area did not require reasonable suspicion. Here, the officer noticed the carpet of the car had been tampered with, and that was reason enough. United States v. Morales, 489 F. Supp. 2d 1250 (D. N.M. 2007):
Border patrol agents have virtually unlimited discretion to refer cars to the secondary inspection area and may do so in the absence of individualized suspicion. Id. (internal quotations omitted). This is "because the public has a substantial interest in protecting the integrity of our national borders, and the intrusion upon one's right to privacy and personal security by a routine border inspection is minimal ...." United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993). Agents' "virtually unlimited discretion" is, however, limited in one important respect--the overall detention cannot exceed a routine checkpoint stop if probable cause, consent, or reasonable suspicion does not exist. Rascon-Ortiz, 994 F.2d at 753. Such a limit is necessitated by the Fourth Amendment's key principle of reasonableness and the Supreme Court's analysis in Martinez-Fuerte. But "[w]hether the routine checkpoint stop is conducted at primary, secondary, or both is irrelevant to Fourth Amendment concerns."
Id. Instead, the true focus is the reasonable suspicion that must exist when a detention is prolonged beyond the scope of a routine checkpoint stop. Id. As the Tenth Circuit has stated,
"[o]bviously, if a secondary inspection area is such that it causes the detention to exceed a routine checkpoint stop because it is overly intrusive or lengthy, the secondary inspection becomes relevant in a Fourth Amendment analysis; however, the relevancy would still be based upon the reasonableness of the detention as determined by balancing Fourth Amendment interests, and not merely because the detention occurred at secondary."
Id. n.8 (emphasis added). Or, as the Fifth Circuit has phrased it, "[t]he constitutionality of a seizure at a checkpoint stop depends on its duration, not its location." United States v. Machuca-Barrera, 261 F.3d 425, 435 n.35 (5th Cir. 2001).
The government failed in its burden to show consent to search because the situation involved coercion. The search, however, was alternatively valid under the automobile exception because there was probable cause. United States v. Cabrera, 2007 U.S. Dist. LEXIS 39656 (M.D. Pa. May 31, 2007).*
Plaintiff's decedent was suicidal and potentially homicidal, and police officers entered to arrest him and ended up shooting him. There was cause to enter, and the use of force was reasonable under the circumstances. [This opinion was 100 pages long.] Estate of Bennett v. Wainwright, 2007 U.S. Dist. LEXIS 39631 (D. Me. May 30, 2007).*
Agreeing to get one's ID is a "thin reed" on which the government can support an entry by the police to follow the person to get it. However, the totality of the circumstances showed consent. As the officers kept walking with her, they could smell raw marijuana. They asked if they could sit down, and she agreed, and scales and paraphernalia were laying around. United States v. Nelson, 489 F. Supp. 2d 309 (S.D. N.Y. 2007):
The facts also do not support any purported claims of coercion. Madden testified that she was "nervous" and "frightened" when she signed the consent-to-search form. (Tr. 142). While such an emotional state is understandable given the events occurring in Madden's home at the time, it does not rise to coercion and does not place the consent provided by way of her signature into question. See United States v. Watson, 423 U.S. 411, 424 (1976) (finding consent to search voluntarily offered despite formal arrest); see also United States v. Marin, 669 F.2d 73, 82 (2d Cir. 1982) (same); Garcia, 56 F.3d at 423 (finding that the presence of three law enforcement officers does not lend significant support to a claim of coercion). Madden does not claim that she was threatened, physically restrained, or otherwise forced to sign the document; hence, her consent cannot be challenged on the basis of coercion. See United States v. Lavan, 10 F. Supp. 2d 377, 384 (S.D. N.Y. 1998) (listing show of force, use of handcuffs, previous refusal to consent, and threat of more expansive search warrant as factors in determining the voluntariness of consent).
Finally, the Court finds that the timeline [of the consent and the search] put forth by Madden is not credible.
When government appeals grant of a suppression motion as to one issue (a statement) under 18 U.S.C. § 3731, the defendant cannot cross-appeal under that statute another issue he lost on (denial of suppression of a search). The defendant must wait for the conclusion of the case. The district court's order of suppression was clearly erroneous on the causation question for the statement. United States v. Marasco, 487 F.3d 543 (8th Cir. 2007):
Harms cannot satisfy her burden of establishing the causal nexus between the illegal search of her purse and her statements. At best, Harms shows that it is remotely possible that she made her statements after the search of her "stuff" began. The record indicates that Simones informed Harms that methamphetamine and items used to manufacture methamphetamine were in the motel room, and then Harms made incriminating statements. Harms argues that these referenced items were discovered during the search of her purse, but there is nothing in the record to indicate that the referenced items came from the search of Harms's "stuff." These items could have been those observed in plain view (the pipes and scale), those legally seized from Marasco incident to his arrest (the bags of methamphetamine), those discovered during the search of the room, or those found in Harms's "stuff." Harms's scenario is the least likely to have occurred because although the record is unclear on when the search of the room began, the record indicates that most of the search occurred while Simones was questioning Harms.
Because the record lacks support for Harms's contention that Simones confronted her with evidence obtained during the illegal search of her purse before she made the incriminating statements, the District Court's finding that Harms's statements were "given immediately after the search" is clearly erroneous.
Magistrate's interlineations on affidavit showed, not that the magistrate was not neutral and detached, but that he was fulfilling his judicial role by questioning the factual scenario. Also, the continuous nature of the allegations was sufficient to overcome defendant's claim of staleness of information. United States v. Uhrich, 228 Fed. Appx. 248 (4th Cir. 2007)* (unpublished):
Simply stated, Johnston's bare allegation that the interlineations demonstrate that the Magistrate Judge lacked objectivity, without more, is an insufficient basis for us to find that the search warrant was invalid. In fact, and as posited by the government, we are of the firm belief that the interlineations in the affidavit establish not that the Magistrate Judge ceased being "neutral and detached" but instead that the Magistrate Judge carefully considered the affidavit before deciding whether to issue the search warrant.
Defendant clearly consented by his words, and failure to object during the search as to a scope issue is also a showing of consent. United States v. Thaqui, 2007 U.S. Dist. LEXIS 39669 (E.D. Mo. May 31, 2007):
When asked if they were carrying any illegal contraband, Defendant said, "If you want to search the vehicle go ahead. The quicker you search, the quicker we can go." Defendant clearly consented to the search. The consent included the hole near the rear driver's side wheel-well. None of the occupants objected at the time when Detective Pratt looked in the hole and saw something wrapped in cellophane that did not look natural. Nor did the occupants voice any objection upon further inspection with the screwdriver. Based on the totality of the evidence, the Court finds that the officers had the legal right to search the vehicle, including the search of the hole.
Indiana holds that a search warrant based on a trash pull in violation of Litchfield but otherwise in good faith under Leon would not be suppressed. Bowles v. State, 867 N.E.2d 242 (Ind. App. 2007):
We conclude that police lacked reasonable suspicion to search Bowles' trash as is required under Litchfield and, therefore, issuance of a search warrant based on what was found in the trash was improper. However, the good faith exception to the exclusionary rule fully applies in this case because police clearly relied on the warrant in objective good faith under the legal standards in existence at the time. The trial court did not err in admitting the evidence recovered under the search warrant.
Fourth Amendment claim by state prison inmate concerning a search of his cell for his legal materials fails as a matter of law because the Fourth Amendment does not apply in prison. McNeil-El v. Digulielmo, 2007 U.S. Dist. LEXIS 39528 (E.D. Pa. May 30, 2007):
[T]he Amended Complaint describes an incident in which Officers Soto and White searched Plaintiff's prison cell and seized certain materials. n9 It is clear, however, that "the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell." Hudson v. Palmer, 468 U.S. 517, 526 (1984). This is because the traditional notion of a right of privacy "is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." Id. at 527-28. The Supreme Court held that "wholly random searches are essential to the effective security of penal institutions," and do not violate an inmate's Fourth Amendment rights. Id. at 529. Therefore, Plaintiff's Fourth Amendment claim must fail.
Motion to suppress sending seized clothing to the crime lab for testing raised during trial was determined by the trial court to be untimely and unmeritorious. The trial court did not abuse its discretion in determining the motion was waived. Young v. State, 2007 Ark. LEXIS 340 (May 31, 2007). Comment: Waiver for an untimely motion should not woodenly be applied, for that was an issue in Kimmelman v. Morrison, where a motion was raised during trial when a newly discovered fact arose. Here, it would have been better to have just denied the motion on the merits because it was clearly unmeritorious.
Viewing the VIN of a vehicle that required opening the door of a car was reasonable under the Idaho Constitution, following New York v. Class. State v. Metzger, 144 Idaho 397, 162 P.3d 776 (2007).*
Gunshot fired from an upstairs bedroom of a house justified its entry, twice. United States v. Yanez, 2007 U.S. Dist. LEXIS 39389 (S.D. Tex. May 31, 2007):
Here, before the officers entered defendant's home, they faced a fluid, fast-moving situation in which the safety of the public was at risk as an unknown gunman fired a weapon from an upstairs bedroom. Such a situation presents the paradigmatic instance of exigent circumstances, in which the officers reasonably acted with haste to enter the premises and stop a shooting spree they reasonably believed was endangering neighborhood citizens. Accordingly, while warrantless entries into a home are presumptively unreasonable, see Payton, 445 U.S. at 586, the court finds that the Government's claim of exigent circumstances rebuts the presumption and renders the initial entry a reasonable one. After the officers entered the home, they found the defendant's two sisters, removed them from harm's way, and escorted them outside. This action was clearly motivated by the need to protect those inside who could have been shot by the as-yet unidentified shooter or shooters. This entry into defendant's home does not run afoul of the Fourth Amendment.
. . .
The case at bar presents very similar circumstances to those in Pringle. Here, the officers approached a small bedroom from which they reasonably believed the shots were fired. They found two persons who cautiously emerged into the hallway, understandably raising the officers' suspicion. At the time, the officers had no way to know whether one or both of the suspects had been firing the weapon. They only knew that a firearm had been discharged several times, but not by whom. As the officers came upon the room, it was thus reasonable for them to believe that either or both of the suspects had fired the weapon or had engaged in a joint venture to violate the law. Accordingly, the officers had probable cause to believe that this defendant, Gabriel Yanez, was guilty of an offense, and his arrest did not contravene the protections of the Fourth Amendment.
Videotape of the stop supports the government's claim of consent. United States v. Brown, 2007 U.S. Dist. LEXIS 39539 (S.D. Ohio May 31, 2007).*
Tazering of plaintiff during his fingerprinting was not unreasonable, and summary judgment was granted against him. He continued to resist during book-in. Price v. Austin Police Dep't, 2007 U.S. Dist. LEXIS 39378 (W.D. Tex. May 31, 2007).*
Qualified immunity is tough to be applied at the pleading stage against the plaintiff, but it can be. Here, it could not be applied. Horton v. Williams, 2007 U.S. Dist. LEXIS 39201 (M.D. Ala. May 30, 2007):
At the motion-to-dismiss stage, a complaint should not be dismissed on qualified-immunity grounds unless its allegations, on their face, show that qualified immunity bars recovery. Marsh, 268 F.3d at 1022. Applying that standard here, the court does not believe that Horton's Fourth Amendment claim against Shockley should be dismissed. Horton alleges that on August 2, 2005, Shockley caused a warrant to be issued for Horton's arrest for furnishing a false report to a law enforcement officer even though he had evidence that proved her report was not false and even though the evidence was clear that she had not committed a criminal offense. Compl. PP 16-17, 22. Faced with such evidence, a reasonable officer could not have believed that probable cause was present, and a reasonably well-trained officer would know that there was a lack of probable cause for an arrest warrant. Accordingly, Shockley's qualified-immunity defense does not defeat Horton's Fourth Amendment claim at the motion to dismiss stage, and his motion to dismiss on that ground will therefore be denied, albeit with leave to renew the qualified-immunity defense on a motion for summary judgment.
N.D. Ill. decides that a former Mexican police officer had to know that he was not in custody when he made admissions to the police and consented to the search of his house. United States v. Gonzalez-Villa, 2007 U.S. Dist. LEXIS 39394 (N.D. Ill. May 31, 2007):
The officers' use of a protective pat-down and handcuffs were reasonably necessary to assure both the officers' and Gonzalez-Villa's safety, and did not amount to a custodial arrest. Once Agent Vargas arrived, he immediately questioned Gonzalez-Villa in a language that Gonzalez-Villa understood, a few car-lengths away from his vehicle. Neither of the two officers in Gonzalez-Villa's immediate vicinity had their weapons drawn. At the time, Gonzalez-Villa was thirty-six years of age, and a former Mexican police officer. In examining the totality of the circumstances, a reasonable thirty-six year old former Mexican police officer would have understood his situation to not have equated to being in custody before or during Agent Vargas's questioning. Therefore, the statements Gonzalez-Villa made to Agent Vargas were not given in violation of his Fifth Amendment rights.
. . .
Gonzalez-Villa argues that his statements should be suppressed as involuntary. As noted above, although Gonzalez-Villa was handcuffed, he was not in such an inherently coercive environment as to be considered in custody.
. . .
Further, Gonzalez-Villa gave the police consent to search his residence approximately twenty minutes after the investigatory stop took place, and only minutes into the conversation between Agent Vargas and Gonzalez-Villa. In addition, the consent form that Gonzalez-Villa signed was written in Spanish, and stated that Gonzalez-Villa gave his consent to search his residence "freely" and that he had "not been threatened nor forced in any way" to give his consent. (T. 28-29).
Comment: What is the cultural belief of a former Mexican police officer about U.S. constitutional rights? I personally find that fact irrelevant. The only time I was in Mexico as an adult, and it was only in February, there were drug roadblocks within miles of the border, and they weren't stopping Anglos. What a former Mexican police officer thinks is relevant to what he or she understands is a lack of an ability to object to a request for consent. There is not one word in the opinion about cultural beliefs and understandings of the defendant, a Mexican national, who would have a completely different understanding of law, police officer or not. Consent now gets total deference to the police and government.
For those interested in cultural issues in criminal defense, including suppression issues, see Linda Friedman Ramirez, Cultural Issues in Criminal Defense (2d ed. 2007).
NJ holds, recognizing contrary authority, that there is no constitutional reason to justify a rule that limits search incident to custodial offenses. They can occur on citable offenses, too. This is an interesting opinion, decided under the Fourth Amendment and the state constitution, leaving open SCOTUS review. State v. Daniels, 393 N.J. Super. 476, 924 A.2d 582 (2007):
It is true that other states have limited searches incident to arrest to Terry-type frisks, State v. Paul T., 1999 NMSC 37, 128 N.M. 360, 993 P.2d 74, 78-79 (N.M. 1999) (violation of juvenile curfew ordinance); People v. Maher, 17 Cal. 3d 196, 550 P.2d 1044, 130 Cal. Rptr. 508 (Cal. 1976) (arrest for public intoxication); Hawaii v. Rosborough, 62 Haw. 238, 62 Haw. 689, 615 P.2d 84 (Haw. 1980) (arrest for marijuana possession); see also Middleton v. State, 577 P.2d 1050, 1055 (Alas. 1978). Others, however, have adopted the more expansive position espoused herein. State v. Florance, 270 Ore. 169, 527 P.2d 1202 (Ore. 1974) (arrest for menacing an officer); Hughes v. State, 1974 OK CR 98, 522 P.2d 1331 (Okla. App. 1974) (arrest for reckless driving and driving without valid license); People v. Weintraub, 35 N.Y.2d 351, 320 N.E.2d 636, 361 N.Y.S.2d 897 (N.Y. 1974) (arrest for criminal trespass).
The only question is whether the very minor nature of this offense, being the lowest on the scale of violations covered by the Code, should invoke a different rule. We think not. It would simply be too impracticable to differentiate the scope of a search incident to arrest depending on the degree of the violation, other than motor vehicle offenses or, possibly, municipal ordinance violations. Cf. State v. Hurtado, 219 N.J. Super. 12, 23-28, 529 A.2d 1000 (App. Div. 1987) (Skillman, J.A.D., dissenting), rev'd o.b. on dissent, 113 N.J. 1, 549 A.2d 428 (1988) (discussing authority of police to arrest for municipal ordinance violation). We consider it unlikely that the police will decide to take more people arrested for minor offenses into custody in order to search them than would otherwise be the case. The police power to arrest in the first instance for these minor offenses is restricted to non-pretextual arrests, Dangerfield, supra, 171 N.J. at 463, 795 A.2d 250, but once the decision is made to take the person into custody and transport him to police headquarters, a full search should be permitted.
Applied to the facts of this case, there is no doubt that the search of defendant's person was permissible. Indeed, even if a Terry frisk limitation were imposed, the patdown here went no further than permitted under that rationale. The officer felt a hard object in defendant's pocket that he felt might be a knife. Even putting aside the officer's subjective belief, he had the right to examine the object to determine if it might be a weapon, regardless of what type of weapon. In retrieving the item, which turned out to be a lighter, the plastic bag came into view. There is no basis to conclude, given these facts, that defendant's rights, under either the Fourth Amendment or our State Constitution, N.J. Const. art. I § 7, were violated.
Montana holds that an arrest for truancy justified a search incident. In re Z.M., 2007 MT 122, 337 Mont. 278, 160 P.3d 490 (2007).
A fire scene search was valid where the senior fireman on the scene allowed his Captain to enter as well. The fire appeared to be out, but they were looking for the cause of the fire. At one point, the firemen invited a police officer in because they saw marijuana seeds in the house. The fire scene search was valid, and the defendant did not separately challenge the officer's entry. State v. Smith, 2007 Ida. App. LEXIS 45 (May 25, 2007).*
Officers had probable cause for issuance of search warrant, and the owner alternatively consented to the search. State v. Hendrickson, 138 Wn. App. 827, 158 P.3d 1257 (2007).*
Defendant's 26-minute roadside investigation did not violate the Fourth Amendment where it was expanded beyond the initial reason for the stop when the nervous defendant driver failed to produce a license or insurance card and did not know who owned the car. Reasonable suspicion developed. State v. Baum, 393 N.J. Super. 275, 923 A.2d 276 (2007).*
Defendant was patted down for weapons, and a matchbox was removed from his pocket. Its content was not immediately apparent to contain contraband, and it certainly did not contain a weapon. Mason v. State, 285 Ga. App. 596, 647 S.E.2d 308 (2007).
Entry into a vehicle to neutralize weapons that were there was reasonable. Also, the vehicle would be impounded, so the weapons would have inevitably be discovered. Stringer v. State, 285 Ga. App. 599, 647 S.E.2d 310 (2007).*
A USMJ finds a consent search of a vehicle valid on the totality of circumstances, despite the number of officers around. United States v. Moody, 2007 U.S. Dist. LEXIS 38830 (W.D. La. April 20, 2007).*
Plaintiff's pro se claim from jail that his house was searched without cause or consent survived screening for defendants to answer. Swift v. City of Milwaukee, 2007 U.S. Dist. LEXIS 38891 (E.D. Wis. May 27, 2007).*
Plaintiff stated a claim for relief in a § 1983 case for officers' entering his home without exigent circumstances. They entered because they heard a woman crying, but she was only mourning the death of a loved one. "Exigent circumstances is a fact-intensive analysis that is not properly resolved on a motion to dismiss. Dennis Ostini has successfully pleaded a claim for unlawful entry." Ostini v. City of Burlingame, 2007 U.S. Dist. LEXIS 39090 (N.D. Cal. May 17, 2007).*
Plaintiff's previous § 1983 case was dismissed under Heck v. Humphrey, but he later overturned the conviction, and that enabled the suit to be refiled and go foward. Skinner v. Chapman, 489 F. Supp. 2d 298 (W.D. N.Y. 2007).*
Informant's detailed information about the defendant, including his "gold gun" corroborated by the police was probable cause. United States v. King, 233 Fed. Appx. 969 (11th Cir. 2007)* (unpublished).
Defendant was an internet traveler coming to Georgia from Florida allegedly to have mother-daughter sex with a 9 year old. The FBI staged an arrest of the "mother" (a female FBI agent) too, and took the defendant in for questioning. His car was driven in and searched at the FBI headquarters. The search was justified both as under the automobile exception and inventory. United States v. Grossman, 233 Fed. Appx. 963 (11th Cir. 2007)* (unpublished).
Person who had no discernable property interest in a home who was constructively evicted had no Fourth or Fourteenth Amendment claim. Sullivan v. Stein, 487 F. Supp. 2d 52 (D. Conn. 2007).*
Post-conviction claim for failing to file a motion to suppress failed where the search claim itself would fail on consent grounds, which was alternatively decided on the merits. Chico-Polo v. Metrish, 2007 U.S. Dist. LEXIS 38931 (E.D. Mich. May 30, 2007).*
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Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, 2013 U.S. LEXIS 4165, 2013 WL 2371466 (June 3, 2013) (ScotusBlog)
Missouri v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17, 2013) (ScotusBlog)
Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19, 2013) (ScotusBlog)
Florida v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19, 2013) (ScotusBlog)
Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26, 2013) (ScotusBlog)
Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
City of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)
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—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
—Katz v. United States, 389 U.S. 347, 351 (1967)
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration camp]
—Pepé Le Pew
"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)
General (many free):
Congressional Research Service:
"If it was easy, everybody would be doing it. It isn't, and they don't."
"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."
"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."
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
"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."
"The great end, for which men entered into society, was to secure their
"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
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
"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."
“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.”
“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.”
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
"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."
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."