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.