Archives for: July 2007, 17


Permalink 09:04:06 pm, by fourth, 669 words, 1519 views   English (US)
Categories: General

NFL's fan patdown policy sustained in California

The First Appellate District of California Tuesday upheld the San Francisco 49ers patdown policy adopted by the NFL. The challenge was under the California Privacy Initiative to avoid the Fourth Amendment. Sheehan v. The San Francisco 49ers, Ltd., 153 Cal. App. 4th 396, 62 Cal. Rptr. 3d 803 (1st Dist. 2007):

In the fall of 2005, in response to an inspection policy promulgated by the NFL, the 49ers instituted a patdown inspection of all ticket holders attending the 49ers’ home games at Monster Park as a condition for entry to the games. The patdowns were conducted by private screeners who, according to the NFL mandate, were instructed to physically inspect by “touching, patting, or lightly rubbing” all ticket holders entering the stadium. The 49ers’ specific practice consisted of screeners running their hands around ticket holders’ backs and down the sides of their bodies and their legs. Officers of the San Francisco Police Department stood nearby during these inspections. The Sheehans are 49ers season ticket holders and were subject to patdowns throughout the 2005 season before each game at Monster Park.

. . .

We concur with the trial court’s decision that the Sheehans have no reasonable expectation of privacy because, by attending the 2005 season games, they had advance notice of the patdown policy and thereafter impliedly consented to the patdowns by voluntarily purchasing the 2006 season tickets. In assessing whether one has a reasonable expectation of privacy, we are mindful that this “is an objective entitlement founded on broadly based and widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) Thus, customs and physical settings of certain activities may impact an individual’s reasonable expectation of privacy. (Id. at p. 36.) Moreover, a plaintiff’s expectation of privacy may be diminished by advance notice of a potential invasion of a privacy interest and by subsequent voluntary consent to the privacy invasion. Further, “[i]f voluntary consent is present, a defendant’s conduct will rarely be deemed ‘highly offensive to a reasonable person’ so as to justify tort liability.” (Id. at p. 26.)

In this case the Sheehans were subject to the patdowns by private screeners when they attended 49ers’ games in the 2005 season. Because the season had ended by the time the demurrer was heard, a standing issue developed. Without objection, the Sheehans amended their complaint, affirming that they had bought tickets for the upcoming 2006 season. Thus, there is no question that they had full notice of the patdown policy and the requirement of consenting to a patdown prior to entering the stadium for a game. With notice and knowledge of this prospective intrusion, they nevertheless made the decision to purchase the 2006 season tickets. By voluntarily re-upping for the next season under these circumstances, rather than opting to avoid the intrusion by not attending the games at Monster Park, the Sheehans impliedly consented to the patdowns. On these undisputed facts we determine, as a matter of law, that the Sheehans have no reasonable expectation of privacy. Furthermore, the trial court did not abuse its discretion by not allowing leave to amend because there is no reasonable possibility that the Sheehans could amend their complaint to state sufficient facts to establish this element.

It also bears noting that the Johnston II court [the Tampa stadium case from the 11th Cir.], although resolving a Fourth Amendment challenge to the NFL patdown policy, not a Privacy Initiative claim, specifically took issue with the district court’s finding that the plaintiff did not voluntarily consent to the patdown searches: “[T]he Court concludes that Johnston voluntarily consented to pat-down searches each time he presented himself at a Stadium entrance to attend a game. The record is replete with evidence of the advance notice Johnston was given of the searches including preseason notice, pregame notice, and notice at the search point itself. It was clear error for the district court to find that Johnston did not consent to the pat-down searches which were conducted.” Johnston II, supra, ___ F.3d at p. ___ [2007 WL 1814197,*4].)

(Hat tip to reader Jeffrey Lewis, Palos Verdes Peninsula, CA,

Permalink 06:28:18 am, by fourth, 445 words, 1760 views   English (US)
Categories: General

Invalid state contempt arrest warrant was saved by the good faith exception; defendant allowed officers in on their demand

Officers' reliance on an apparently invalid under state law, but facially valid, "violation of court order" (VCO) arrest was saved by the good faith exception. The officers used the order to make an arrest by getting defendant to open his front door, not enter the house. None of the exceptions to the good faith exception applied to this arrest. The factual basis for the VCO was explored at the hearing to show its basis. The issuing state judge did not abandon his judicial role, and it was not so facially deficient that it could not be relied upon. The VCO was treated like an arrest warrant, and it was not used as a search warrant. United States v. Floyd, 247 Fed. Appx. 161 (11th Cir. 2007) (unpublished):

Here, Floyd's assertion that the officers violated his Fourth Amendment rights by inducing McCray to open the front door without consent is meritless. It is noteworthy that Floyd is not arguing that the officers gained non-consensual entry into his home, but rather that they induced a non-consensual opening of his front door. However, it is not unconstitutional for an officer to approach an individual's home and knock on the door when the officer has an arrest warrant for that individual. See, e.g., United States v. Bervaldi, 226 F.3d 1256, 1263, 1267 (11th Cir. 2000) (holding that police officers did not violate a person's Fourth Amendment rights by entering the person's home where the officers had an arrest warrant for a suspect, went to the address that they believed was the suspect's home, believed the suspect was inside the home, knocked on the door, and later entered the house); see also Payton v. New York, 445 U.S. 573, 602-03, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980) (holding that, once an arrest warrant has been issued, it is constitutionally reasonable to require the suspect to open the doors of his home to police officers because "for Fourth Amendment purposes, an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within"). ...

Alaska again avoids having to decide whether to follow Whren on pretext stops because this stop was not pretextual. Morgan v. State, 162 P.3d 636 (Alas. App. 2007):

We did not have to resolve this issue in Nease, and we conclude that we need not resolve this issue in Morgan's case either. Even if we were to adopt a "pretext stop" limitation on traffic stops, that doctrine would not apply to the facts of Morgan's case.

We reach this conclusion mainly because we disagree with Morgan's contention that DUI enforcement was an "improper motivation" for the stop of Morgan's vehicle.

Permalink 06:11:15 am, by fourth, 1288 words, 2734 views   English (US)
Categories: General

10th Cir.: "Consent once removed" does not give informants the power to consent

Consent once removed does not permit an informant to invite in the police. There is a significant difference between consent once removed initiated by officers rather than informants. The government even offered a lame policy argument. Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007) [free link not yet on CA10's website]:

We find the distinctions between an officer and an informant summoning additional officers to be significant. Had the person inside Mr. Callahan's home been an undercover officer, no extension of our case law would be necessary. Mr. Callahan would have consented to opening his home to the police. Consent is a well-established method of conducting a reasonable search, despite lacking a warrant. United States v. Ringold, 335 F.3d 1168, 1174 (10th Cir. 2003) ("It has long been established that an officer may conduct a warrantless search consistent with the Fourth Amendment if the challenging party has previously given his or her voluntary consent to that search."). Tenth Circuit precedent permits the police to use deception to gain such consent. See Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989). ... Once lawfully inside the home, an officer may effect a warrantless arrest that is supported by probable cause. United States v. Cruz-Mendez, 467 F.3d 1260, 1269 (10th Cir. 2006). We have never drawn a constitutional distinction between an entry or search by an individual police officer and an entry or search by several police officers. Thus, the consent granted to the hypothetical undercover officer would have covered additional backup officers without any need for additional exceptions to the warrant requirement.

On the other hand, the invitation of an informant into a house who then in turn invites the police, which are the present facts, would require an expansion of the consent exception. In this context, the person with authority to consent never consented to the entry of police into the house. Other courts have overcome this distinction by noting that a state may grant the power to arrest to the police as well as its citizens, and if the informant has the power to arrest, then an informant must be capable of summoning the police. Yoon, 398 F.3d at 810-11. This logic is unconvincing. That a citizen has the power to arrest does not grant the citizen all of the powers and obligations of the police as agents of the state. Cf. Arnsberg v. United States, 757 F.2d 971, 979 (9th Cir. 1985) (law enforcement officers have "obligations, such as the duty to execute warrants, which private citizens lack; those obligations make the law of the citizen arrests an inappropriate instrument for determining FTCA liability"); Caban v. United States, 728 F.2d 68, 73-74 (2d Cir. 1984) (immigration officers have different privileges and duties than private individuals, and therefore citizen's arrest statute does not apply to such officers); United States v. Hillsman, 522 F.2d 454, 461 (7th Cir. 1975) (discussing the differences between a private citizen's right to make an arrest and that of a police officer). These distinct obligations and powers must also be reflected in a distinction between inviting a citizen who may be an informant into one's house and inviting the police into one's house.

The officers also ask this court to adopt the "consent-once-removed" doctrine based on policy considerations. They argue that without this doctrine law enforcement will be severely hampered in its pursuit of drug traffickers because the use of informants is vital, and requiring officers to obtain a warrant whenever an informant was in a home would jeopardize personal safety and cause delays. This argument fails for two reasons. First, this contradicts the nature of the exceptions based on exigent circumstances requiring that the police may not manipulate or abuse the circumstances creating the exigency. Zogmaister, 90 Fed. Appx. at 330 (citing Aquino, 836 F.2d at 1272). Second, as recently restated by the Supreme Court in Georgia v. Randolph, "[a] generalized interest in expedient law enforcement cannot, without more, justify a warrantless search." 126 S. Ct. 1515, 1524 n.5 (2006); Coolidge, 403 U.S. at 481 ("The warrant requirement ... is not an inconvenience to be somehow 'weighed' against the claims of police efficiency.")

Thus, while our case law would support a holding that the Fourth Amendment allows an undercover officer to summon backup officers within a home after that officer has been invited with consent, neither the case law nor a rational extension of the case law would support including officers summoned by an informant within a home. Based on this, we hold that entering Mr. Callahan's home based on the invitation of an informant and without a warrant, direct consent, or other exigent circumstances, the task force officers violated Mr. Callahan's constitutional rights under the Fourth Amendment.

Tasering a handcuffed and compliant arrestee states a claim that survives summary judgment on an excessive force claim. King v. Shoar, 2007 U.S. Dist. LEXIS 50876 (M.D. Fla. July 13, 2007).*

The jury's verdict in an excessive force claim was not excessive, was internally consistent with the jury instructions read as a whole, and the motion for new trial was denied. The sleeping plaintiff was attacked by a police dog apparently because they wanted to issue him a traffic ticket. Rogers v. City of Kennewick, 2007 U.S. Dist. LEXIS 50882 (E.D. Wash. July 13, 2007).* The first two paragraphs describe the claim:

In the early morning hours of a midsummer's night, Ken Rogers, a working man innocent of any wrongdoing, was lawfully sleeping in the back yard of his stepson's home when out of the darkness and without warning, a large, vicious dog attacked him. Mr. Rogers was then beaten by unknown assailants with knees, fists, and flashlight while the dog continued to bite him. The dog was a Kennewick Police Department "bite-and-hold" K-9; the assailants were law enforcement officers of the City of Kennewick and a Benton County deputy sheriff.

This misfortune was the conclusion of a chain of events that began at about 1:00 a.m. on July 13, 2003, when Sergeant Dopke of the Kennewick Police Department activated his overhead lights and followed a man riding a miniature motor scooter without a helmet or lights for a very short distance and time to a residence where the motorist entered the garage of a home in a residential neighborhood. The garage door was shut behind him by a female resident of that home. The residents of the home described the motorist as a person named "Troy", last name unknown, who happened to be walking by the house late that night, saw them outside, asked if he could take the scooter for a ride and was permitted to. One of the women explained that she closed the garage door because "Troy" asked her to. The two male residents denied being "Troy;" "Troy" was said to have run through the house and out the back door into the yard and then over the back fence. Though Sgt. Dopke repeatedly told the residents that he was only interested in issuing the man a traffic citation and leaving, the residents persisted in this story. He then called out a bite-and-hold K-9 that could only detect scent by air sniffing, not sniffing an object such as the miniature motor scooter or the floor of the house or the grass of the backyard. When the K-9 reacted to the area of the backyard adjacent to the yard where Mr. Rogers was then sleeping oblivious to these events, Officer Kohn, the K-9 officer, and two other law enforcement officers were directed by Sgt. Dopke to search for and apprehend "Troy", the traffic violator. It was in following that order that Officer Kohn later unleashed the K-9 when reacting to scent in the driveway of the backyard of the house where Mr. Rogers was lawfully sleeping with the permission of the owner, his stepson. The above-described encounter followed. Much later, "Troy" was determined to have been one of the male residents of that house.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

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

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

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
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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 property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

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

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

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

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

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

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

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

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

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

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

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


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