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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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
"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)