Archives for: September 2007


Permalink 08:28:58 pm, by fourth, 518 words, 907 views   English (US)
Categories: General

Reasonable belief arrestee is inside is enough under Payton and Steagald

A reasonable belief that the person named in the arrest warrant is inside is all that is required for qualified immunity in a civil case over the alleged unlawful entry. This is a question left unanswered by both Payton and Steagald. Solis-Alarcon v. United States, 514 F. Supp. 2d 185 (D. P.R. 2007):

What neither Payton nor Steagald address is what occurs when the police mistakenly believe that the house in which they seek to execute the arrest warrant is the arrestee's residence. Several circuits have addressed that vacuum, among them the Tenth Circuit, which has stated:

In a Payton analysis, this court recognizes a two-prong test: officers must have a reasonable belief the arrestee (1) lived in the residence, and (2) is within the residence at the time of entry. Valdez v. McPheters, 172 F.3d 1220, 1224-25 (10th Cir. 1999) (rejecting argument "reasonable belief" standard is the equivalent of "probable cause"). Thus, whether Steagald or Payton applies is resolved under the first prong of the test.

U.S. v. Gay, 240 F.3d 1222, 1226 (10th Cir. 2001).

A number of circuits--the Second, Third, Fifth, Sixth, Eighth, Eleventh, and D.C. Circuits--are in accord that the police will have acted in a manner consistent with Payton so long as they have a reasonable belief that the person for whom they have an arrest warrant resides at the home where they seek to execute the warrant and is present therein at the time. See, U.S. v. Barrera, 464 F.3d 496 (5th Cir. 2006); U.S. v. Pruitt, 458 F.3d 477 (6th Cir. 2006); U.S. v. Thomas, 368 U.S. App. D.C. 285, 429 F.3d 282 (D.C. Cir. 2005); U.S. v. Bervaldi, 226 F.3d 1256 (11th Cir. 2000); U.S. v. Lovelock, 170 F.3d 339 (1999); U.S. v. Route, 104 F.3d 59 (5th Cir. 1997); U.S. v. Risse, 83 F.3d 212 (8th Cir. 1996); U.S. v. Magluta, 44 F.3d 1530 (11th Cir. 1995); U.S. v. Lauter, 57 F.3d 212 (2nd Cir. 1995); U.S. v. Edmonds, 52 F.3d 1236 (3rd Cir. 1995), vacated in part on other grounds, 80 F.3d 810 (3rd Cir. 1996). The Ninth Circuit adheres to a stricter view, requiring the equivalent of probable cause to believe that the arrestee lives at a residence and is present therein at the time the police seek to execute the arrest warrant. See, U.S. v. Gorman, 314 F.3d 1105 (9th Cir. 2002). See also, U.S. v. Harper, 928 F.2d 894 (9th Cir. 1991) (requiring probable cause to believe that the subject of arrest warrant lives at a residence in order to execute the arrest warrant at that residence.). While the First Circuit has yet to face this issue, it has made some statements in passing that lend support to the reasonable belief standard espoused by the Second, Third, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits. See, U.S. v. Weems, 322 F.3d 18, 22 (1st Cir. 2003) (citing U.S. v. Gay, 240 F.3d 1222); U.S. v. Calderon, 77 F.3d 6, 9 n.1 (1st Cir. 1996) (leaving open the possibility that the resident's consent to the search was not necessary and noting that the police believed that the purported arrestee, for whom the police had an arrest warrant, also lived at the residence; citing U.S. v. Lauter, 57 F.3d 212).

Permalink 03:41:25 pm, by fourth, 212 words, 916 views   English (US)
Categories: General

Oregon medical marijuana's overpossession search warrant suppressed as too vague on probable cause

The state obtained a search warrant for alleged overpossession of marijuana by a medical marijuana licensee based on an informant saying defendant had "way over" the amount permitted. Because the statement "way over" was so vague, and a licensee has a right to possess medical marijuana, the trial court's finding that it was too vague is affirmed. While the court on appeal might draw a different conclusion, that is not the standard of review. State v. Castilleja, 215 Ore. App. 235, 168 P.3d 1177 (2007) (en banc) (7-3).*

Defendant's traffic stop was extended because of his markedly red eyes, and that was reasonable under the circumstances.
State v. Gomez, 144 Idaho 865, 172 P.3d 1140 (2007).*

Traffic stop led officer to see a baggie of marijuana in the ashtray, and that was probable cause. Calling a drug dog was not unreasonable. State v. Brown, 966 So. 2d 727 (La. App. 2d Cir. 2007).*

Defense counsel was not ineffective for not filing a motion to suppress that was, at best, a "toss up" when he successfully negotiated a reduction from three felonies to one misdemeanor. State v. Brown, 2007 Ohio 5002, 2007 Ohio App. LEXIS 4462 (4th Dist. September 21, 2007).*

While no individual factor may have been reasonable suspicion, the collective information developed during the traffic stop indicated that defendant's vehicle likely contained drugs. Marquez-Guitierrez v. State, 2007 WY 155, 167 P.3d 1232 (2007).*


Permalink 09:13:05 am, by fourth, 578 words, 1315 views   English (US)
Categories: General

GWU room search was done by an administrator and not campus police, so no state action

George Washington University room was searched for marijuana by a college supervisor with campus police (actually special police officers (SPOs) of D.C. with limited authority to arrest) standing by outside. The search was valid as campus administrative search without state action. The SPOs are only acting as police when they arrest. Here, they were standing by outside. Limpuangthip v. United States, 932 A.2d 1137 (D.C. App. 2007):

We have not articulated what is required to create a nexus with the state where the SPO has not made an arrest. However, in determining whether state action exists, we have not focused on the fact of an arrest alone. For instance, although an arrest took place in Lucas v. United States, 411 A.2d 360, 362 (D.C. 1980) [cited in Treatise], we determined whether SPOs were public officers by focusing broadly on whether they were performing their "police" functions. In that case, two SPOs employed by a department store approached and questioned a customer, inquired whether she had receipts, and conducted a search after the plastic tags in her bag set off a "sensormatic device," which the SPOs monitored. Id. at 362. We held that the SPOs were acting as agents of the state "because of the nature of their duties." Id. We further stated that "when they are performing their police functions, they are acting as public officers and assume all the liabilities attaching thereto." Id. We also concluded that the SPOs were significantly involved in the use of the sensormatic device because they operated and monitored it. Id. Thus, we held that there was sufficient state action to trigger Fourth Amendment protections.

. . .

In this case, the SPOs were "deputized" with special legal powers pursuant to D.C. Code § 23-582(a); however, their actions were directed and controlled by the University whose administrative official, Ms. Davis, made the decision to conduct the search. From the moment Ms. Davis telephoned the SPOs and asked them to accompany her to room 715, Ms. Davis was in control of the situation. She alone spoke to appellant and conducted the search, while the SPOs took little, if any, initiative. They accompanied Ms. Davis to room 715 at her request, produced a master key and evidence bags for her use, and held the evidence bags while she conducted the search. We have held that SPOs are not in all their actions equated with regular police officers. Woodward & Lothrop v. Hillary, supra, 598 A.2d at 1146 (citing Alston, supra, 518 A.2d at 443). Rather, the relevant circumstances surrounding the actions in question must be weighed. While the fact that an SPO wore a uniform and carried a baton and a radio, as occurred here, may be a relevant factor, see Williams, supra, 341 U.S. at 99 (fact that SPO "went about flashing his badge" relevant to whether he acted under color of law), it does not of itself amount to an assertion of state authority. More is required.

In contrast to the passive behavior of the SPOs in this case, in each of the cases discussed above in which a court found that the SPOs acted as state agents, the SPOs were actively asserting their authority from the state to a significant degree at the time of the challenged act.

Comment: So, under Lewis, if the SPOs came in the room, it would have tranformed the search from private action of GWU to state action. They obviously were trained to know their limits, and their merely standing by is not aiding in the search.


Permalink 11:20:53 pm, by fourth, 340 words, 729 views   English (US)
Categories: General

Officers ask about drugs for no apparent reason other than to see if the driver gets nervous

Defendant was asked for consent to look for drugs during an otherwise valid traffic stop. The officer testified he was trained to ask the question just to see the response, and defendant became nervous. The request was reasonable, and defendant's consent was valid. United States v. Lax, 2007 U.S. Dist. LEXIS 71143 (W.D. Ky. September 24, 2007):

In this case, Starks decided to ask Lax if there were any illegal substances or drugs in his vehicle, a question which was unrelated to the purpose of the stop-Lax's failure to stop at a stop sign. Starks testified at the Suppression Hearing that he had been trained to ask that type of question during a traffic stop. When Starks mentioned drugs, Lax's mannerisms became very suspicious. He began fidgeting and looked away when answering. Starks testified that in his experience, such a response usually indicates that something is wrong. Starks asked Lax for consent to search the vehicle, and Lax gave him verbal consent to do so. Starks did not threaten any kind of retaliation if Lax refused to answer his questions or objected to the search. Under these circumstances, Starks' request was reasonable.

Affidavit for warrant was sufficient for probable cause. The CI provided information of buys from defendant within the last 48 hours. "First hand observation of drug transactions constitutes a sufficient basis for the informant's knowledge." The officer stated that the informant had provided reliable information in the past without detailing it. Nevertheless, it was sufficient to show probable cause. United States v. Underwood, 2007 U.S. Dist. LEXIS 71184 (E.D. N.C. May 26, 2007) (Comment: This comes really close to just stating a conclusion that the informant is reliable. "In the instant case, the information [the officer] provided with respect to the informant's past cooperative efforts is neither detailed nor the beacon of clarity. However, his submission under oath that the informant had in the past provided reliable information provided a basis from which the magistrate could deduce that the information provided by the CSI with respect to Underwood was reliable as well.").

Permalink 11:20:42 pm, by fourth, 357 words, 814 views   English (US)
Categories: General

Search of parolee's residence was valid even though it was never disclosed to PO

Parolee defendant claimed he was homeless, and later his PO discovered he might be living in a hotel. When homeless, the defendant was told to report his whereabouts ever night. He never reported. The officer's information defendant was in a hotel was sufficient for reasonable suspicion of a search of his "residence" under state law so the residence search is valid. United States v. Franklin, 2007 U.S. Dist. LEXIS 71531 (E.D. Wash. September 25, 2007).

Plaintiff barely stated a claim for relief for entry of his home without a search warrant when the SWAT team showed up because a Verizon telephone worker told the police that plaintiff had threatened him with a rifle. After a 12 hour standoff with plaintiff demanding a warrant, the police told the plaintiff to come out or they were coming in and somebody inside might get hurt in the process. Maloney v. County of Nassau, 2007 U.S. Dist. LEXIS 71162 (E.D. N.Y. September 24, 2007):

Several circuit courts have applied Payton in instances in which the police never physically crossed the threshold but, through threats of force, compelled an individual to exit his home and surrender. See Sharrar v. Felsing, 128 F.3d 810, 819-20 (3d Cir. 1997); United States v. Maez, 872 F.2d 1444, 1450-51 (10th Cir. 1989); United States v. Al-Azzawy, 784 F.2d 890, 893 and n.1 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986); United States v. Morgan, 743 F.2d 1158, 1164 (6th Cir. 1984), cert. denied, 471 U.S. 1061 (1985). All of these cases are similar to the case at bar in that they involved instances in which the police surrounded the defendants' home, then used actual or implied threats of violence to coerce a surrender outside of the home.

. . .

Plaintiff expressly alleges that it was "[t]he continued threat of such harm to Plaintiff's family" that caused plaintiff to leave his home and surrender to the police. Id. at P 41. In addition, plaintiff alleges that the police "performed the aforesaid acts under non-exigent circumstances." Id. at P 49. In light of these allegations and the arguable nature of plaintiff's Payton claim, the County Defendants' motion to dismiss the first and third causes of action on the ground that plaintiff fails to state a federal Constitutional violation is denied.

Permalink 11:00:49 pm, by fourth, 394 words, 932 views   English (US)
Categories: General

MI statute on searches of minors for alcohol without probable cause unconstitutional

Michigan statute that permitted searches of minors for alcohol without probable cause was unconstitutional. Platte v. Thomas Twp., 504 F. Supp. 2d 27 (E.D. Mich. 2007):

The conclusion is inescapable here as well that section 436.1703(6) authorizes police officers to perform a search of minors without a warrant or a legal excuse for not obtaining one, and therefore the statute "endorses procedures to authorize a search that clearly do not comport with the Fourth Amendment." Warshak, 490 F.3d at 477. The statute, Michigan Compiled Laws § 436.1703(6), therefore is unconstitutional on its face. To the extent that the state defendants' defense is based on the validity of this statute, it must fail.

Officers had a valid search warrant issued on probable cause for the search of plaintiff's apartment for identity theft. Plaintiff was admittedly asleep when the entry occurred and that did not make a fact question sufficient to rebut the officers' claim they knocked and announced before entering. Abdullah v. Fetrow, 2007 U.S. Dist. LEXIS 71370 (M.D. Pa. September 26, 2007)*:

The court finds Abdullah's allegations insufficient to create a genuine dispute of fact as to whether the officers knocked and announced their presence. In reaching its decision, the court is persuaded by the reasoning of the United States Court of Appeals for the Seventh Circuit in Molina ex rel. Molina v. Cooper, 325 F.3d 963 (7th Cir. 2003). In that case, the plaintiff was asleep when the defendant-police officers entered her residence to execute a search warrant. Id. at 972. The plaintiff claimed that the officers failed to knock and announce and testified that she "awoke to 'screaming and yelling' but could not understand what was being said." Id. The Seventh Circuit held that because the plaintiff was asleep at the time the warrant was executed, her assertions could not create a "genuine dispute as to whether the officers 'knocked and announced." Id. Like the plaintiff in Molina, Abdullah admits that he was asleep in his bedroom at the time of the officers' entry.

Plaintiff is incarcerated as a sexually violent predator in Missouri who claimed a pat search was conducted on him that involved touching his genitals. "As a result, Plaintiff claims that he has suffered emotional distress and extreme headaches." Suit was filed the next day. His generalized claim of a touching in prison is insufficient to state a claim. Carter v. Chamberlin, 2007 U.S. Dist. LEXIS 71073 (E.D. Mo. September 25, 2007).*


Permalink 07:49:23 am, by fourth, 564 words, 729 views   English (US)
Categories: General

SCOTUS cert grants: Is a violation of state law also a Fourth Amendment violation? and a generic consent case

The Supreme Court has granted cert in Virginia v. Moore (06-1082) on whether a violation of state law is a Fourth Amendment violation. This is an issue of first impression, and it involves tension between Knowles v. Iowa and Atwater v. City of Lago Vista (a particularly insideous and perplexing decision in itself).

Under Virginia law, driving on a suspended license is a class 1 misdemeanor, and the officers should have written a citation. Instead, Moore was arrested. After his arrest, he was Mirandized and a consent to search his hotel room was obtained.

The officers were authorized to issue only a summons to Moore for the offense of operating a vehicle on a suspended license since none of the exceptions in Code § 19.2-74 were present. Thus, under the holding in Knowles, the officers could not lawfully conduct a full field-type search. We find Knowles and Lovelace controlling and hold that the search of Moore was not consistent with the Fourth Amendment. Accordingly, we will reverse the judgment of the Court of Appeals and dismiss the indictment against Moore.

Moore v. Commonwealth, 272 Va. 717, 636 S.E.2d 395, 400 (2006).

See SCOTUSBlog with commentary and links to the petition and response.


Cert was also granted in United States v. Rodriguez (06-1646) involving the Armed Career Criminal Act which has included in the cert grant a consent search issue of no real import. SCOTUSBlog did not feel like expounding, but the petition and response are there. The case below is United States v. Rodriguez, 464 F.3d 1072, 1077-78 (9th Cir. 2006):

Based on the totality of the circumstances and after considering the applicable factors, we conclude that Tammi voluntarily consented to the search. As to the first factor, the district court concluded, and Rodriquez conceded in his brief, that Tammi was not in custody when she consented to the search. Second, the court determined that there was no "indication that firearms were exhibited or drawn," a conclusion with which Rodriquez also agreed. Third, because Tammi was not in custody, "Miranda warnings were inapposite ..." Id. at 504 (citation omitted). Fourth, the court found, and Rodriquez acknowledged, that Tammi knew she had the right to refuse consent. "Knowledge of the right to refuse consent is highly relevant in determining whether a consent is valid." Id. (alteration and citations omitted). Moreover, where, as here, "the officers themselves informed [Tammi] that she was free to withhold her consent," "the probability that their conduct could reasonably have appeared to her to be coercive "is "substantially lessened." United States v. Mendenhall, 446 U.S. 544, 559, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (emphasis added).

Fifth, Deputy Thompson told Tammi that, if she chose not to consent, he could apply for a search warrant and secure her apartment. A "statement indicating that a search warrant would likely be sought and the [apartment] secured could not have, by itself, rendered [Tammi's] consent involuntary as a matter of law." United States v. Whitworth, 856 F.2d 1268, 1279 (9th Cir. 1988) (citations omitted). Rather, application of this factor "hinges on whether [Tammi was] informed about the possibility of a search warrant in a threatening manner." Soriano, 361 F.3d at 504 (citations omitted). "Even assuming, however, that [Deputy Thompson's statements] were made in a threatening manner so as to imply the futility of withholding consent, when probable cause to justify a warrant exists, the weight of the fifth factor is significantly diminished." Id. at 504-05 (citations omitted).

Probable cause to justify a warrant existed in this case. ...

Permalink 07:28:05 am, by fourth, 392 words, 913 views   English (US)
Categories: General

Parts of PATRIOT Act unconstitutional for lack of probable cause

In the Brandon Mayfield civil case in the District of Oregon, the judge there yesterday ruled parts of the PATRIOT Act unconstitutional for not requiring probable cause. Findlaw, via AP: "U.S. District Judge Ann Aiken ruled Wednesday that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, 'now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment.'"


“For over 200 years, this nation has adhered to the rule of law — with unparalleled success,” Judge Aiken’s opinion said in finding violations of the Fourth Amendment prohibitions against unreasonable search and seizure. “A shift to a nation based on extraconstitutional authority is prohibited, as well as ill advised.”

The ruling is a new chapter in a legal battle that began after the Spanish police found a plastic bag with detonator caps in a van near the bombings, which killed 191 people and left 2,000 injured in the deadliest terrorist attack in Europe since World War II.

Initially, the F.B.I. found no match for the fingerprints. But after reviewing a digitally enhanced set of the prints, the agency identified 20 possible matches, including Mr. Mayfield.

Though Spanish officials had doubts about the match, federal agents began surveillance on him and his family, using expanded powers under the Patriot Act. Mr. Mayfield was jailed for two weeks before a federal judge threw out the case.

Mr. Mayfield, 38, who was born in Oregon and brought up in a small town in Kansas, converted to Islam in 1989. He was a lawyer in a child custody case for Jeffrey Leon Battle, who had been convicted of conspiring to aid the Taliban and Al Qaeda.

Mr. Mayfield said his religion and legal work had led investigators to be overzealous in connecting him to the Madrid plot.

Mr. Mayfield sued the government, which apologized and agreed to a $2 million settlement last November. The settlement included an unusual condition that freed the government from future liability with one exception. Mr. Mayfield was allowed to continue a suit seeking to overturn parts of the Patriot Act.

(Comment: The first question I had was whether this is an advisory opinion, and thus no standing under Art. III, since the case was settled. The issue is highly likely to recur, but not with Mr. Mayfield.)

Permalink 07:06:51 am, by fourth, 275 words, 830 views   English (US)
Categories: General

Looking in windows at night in a neighborhood with a string of burglaries is reasonable suspicion

Reasonable suspicion was based on defendant's being dressed in black and looking in windows of houses at night in an area that had seen a string of burglaries. When confronted, defendant was evasive and nervous [the latter only adding to the reasonable suspicion; the former was plenty]. Baldwin v. State, 237 S.W.3d 808 (Tex. App.—Houston (14th Dist.) 2007):

Here, appellant contends the woman who reported him to Deputy Smith was not known to be credible. More specifically, appellant claims her report was no more reliable than an anonymous tipster. However, Deputy Smith did not detain appellant based on the woman's report. Rather, he detained appellant only after a personal encounter with appellant on the street. Appellant's nervousness, shuddering, evasiveness, refusal to identify himself to a police officer, and manner of wearing all black clothing at 10:30 p.m. in a neighborhood where there had been a recent string of burglaries, coupled with the woman's report that she had seen appellant looking into houses, are indicative of criminal activity.

Defendant's arrest and removal from his vehicle did not nullify the officer's ability to conduct a search incident of a tobacco pouch in the vehicle. Officers had made an arrest of one of defendant's drug customers, and she had an identical pouch and said she bought from him at least 100 times in the last few years. Alternatively, an inventory would have been proper. Phinizee v. State, 983 So. 2d 322 (Miss. App. 2007).*

Defendant failed to produce evidence of diminished capacity at suppression hearing to show that he could not consent, so the trial court properly denied the motion. Evans v. State, 984 So. 2d 308 (Miss. App. 2007), cert. den. 2008 Miss. LEXIS 289 (June 12, 2008).*

Permalink 06:35:30 am, by fourth, 534 words, 943 views   English (US)
Categories: General

Unauthorized subpoena to appear was not a seizure

An unauthorized subpoena to appear at a state administrative hearing to testify is not a search and seizure under the Fourth Amendment. Older case law from SCOTUS in point is less than clear, but, applying modern case law, plaintiff cannot prevail because appearing under a subpoena to testify just will not be found to be an unreasonable seizure. Caldwell v. Jones, 2007 U.S. Dist. LEXIS 70702 (N.D. Ind. September 21, 2007):

In the instant matter, like Dawson in Wheeldin, to the extent that Caldwell alleges a Fourth Amendment violation based on the mere issuance and service of the threatening "subpoena" on him, without reference to the fact that he attended the administrative hearing and gave testimony, Caldwell's Fourth Amendment claim must fail. In their briefs, Defendants correctly note that, like Dawson in Wheeldin, Caldwell was neither arrested, detained, nor held in contempt as a result of the "subpoena." However, unlike Dawson, Caldwell did respond to the "subpoena" by attending the administrative hearing and giving testimony. See Wheeldin, 373 U.S. at 649-50.

Nevertheless, the Supreme Court's cursory Fourth Amendment analysis in Wheeldin is limited to the paragraph cited above, and the court's decision does not provide any further guidance on its reasoning as to what would have been required to constitute a Fourth Amendment violation. Moreover, Wheeldin was decided in 1963, prior to the series of cases that has led to the Supreme Court's current Fourth Amendment "seizure" jurisprudence, including Terry v. Ohio in 1968, Mendenhall in 1980, and Hodari D. in 1991, the relevant holdings of which are cited above. No explanation is given in Wheeldin as to why the court considered an unauthorized administrative subpoena from the House Un-American Activities Committee as the potential basis for a Fourth Amendment seizure.

Under the modern standards of Mendenhall and Hodari D., Caldwell has not stated a claim for a Fourth Amendment seizure because there was not a sufficient show of authority. Although Caldwell responded to the "subpoena" by attending the hearing, the only threat or show of authority that compelled him to appear at the hearing was the administrative "subpoena" and the threat of possible disciplinary action by his employer. However, the threat of job loss is not protected by the Fourth Amendment. See Driebel v. City of Milwaukee, 298 F.3d 622, 642 (7th Cir. 2002) (citing INS v. Delgado, 466 U.S. 210 (1984)). There was no additional threat from law enforcement or other governmental body that would have restrained Caldwell's freedom had he not appeared at the hearing. In addition, he could have taken other steps prior to the hearing to challenge the "subpoena;" in fact, he could have simply ignored the "subpoena," not presented himself at the hearing, and faced the employment consequences of refusing to appear.

When contrasted with the issuance of an arrest warrant, the threat of the "subpoena" served on Caldwell is too feeble to constitute a Fourth Amendment show of authority. In Albright v. Oliver, the Supreme Court in both the plurality opinion and the concurrence opined that the issuance of an arrest warrant coupled with a subsequent self surrender to authorities constituted a seizure under the Fourth Amendment, with the issuance of the arrest warrant equaling a "show of authority" for the purposes of the Fourth Amendment. 510 U.S. at 271, 276.

Permalink 06:08:39 am, by fourth, 306 words, 720 views   English (US)
Categories: General

Officer had reasonable suspicion for detention of passenger as well as driver

Defendant passenger had standing to challenge his own detention under Brendlin, but the officer had reasonable suspicion for further detention of the passengers. United States v. Davis, 2007 U.S. Dist. LEXIS 70758 (D. Kan. September 24, 2007).*

Officer had reasonable suspicion to believe that defendant was driving the SUV he stopped based on information from an informant under Adams v. Williams. United States v. Moran, 503 F.3d 1135 (10th Cir. 2007).*

Bail pending appeal is denied because the suppression question to be raised on appeal will likely fail. Inevitable discovery saved the search here: "The Government showed that the police would have discovered the cocaine legally, without the police misconduct; the police possessed leads making the discovery of the cocaine inevitable at the time that Defendant's cooperation was illegally coerced; and the search was already underway at the time of the police misconduct." United States v. Alexander, 2007 U.S. Dist. LEXIS 70842 (N.D. Ohio September 25, 2007).*

Case was time barred under Wallace v. Kato. Issuance of legal process ends the false imprisonment, and that was at the beginning of plaintiff's criminal case. Whitfield v. Wilmington Police Dep't, 2007 U.S. Dist. LEXIS 70985 (D. Del. September 25, 2007):

"False arrest and false imprisonment overlap; the former is a species of the latter." Wallace v. Kato, -- U.S. --, 127 S.Ct. 1091, 1094 (2007). Limitations begin to run against an action for false imprisonment when the alleged false imprisonment ends." Id. (citations omitted). A false imprisonment ends once the victim becomes held pursuant to legal process. Id. at 1096. If there is a false arrest claim, damages for that claim cover the time of detention up until issuance of process or arraignment, but not more. Id. (citations omitted); Montgmery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998).

Civil case that directly attacks a state criminal conviction is Heck barred. Bowman v. City of Middleburg Heights, 2007 U.S. Dist. LEXIS 70664 (N.D. Ohio September 24, 2007).*


Permalink 06:54:30 am, by fourth, 1120 words, 1301 views   English (US)
Categories: General

E.D. N.Y. Magistrate Judge questions foundation of automobile exception

Defendant had been arrested and separated from his vehicle. Because there was probable cause for a search of the car, the automobile exception applied. The court questions the automobile exception. United States v. Strese, 2007 U.S. Dist. LEXIS 70254 (E.D. N.Y. August 8, 2007):

2. Concerns About The Applicability Of Controlling Precedent In This Case

The government's search of Strese's SUV falls squarely within both aspects of the automobile exception to the warrant requirement as it has been applied in controlling cases, as cited above, that have interpreted the rule in the aftermath of Carroll. As a result, the only remaining issue before the court is whether there existed probable cause to search Strese's SUV at the time the agents did so, which I address in the next section of this discussion. Nevertheless, while I must recommend that the court adhere to the controlling law of this circuit, I must also report that in my view, the case law that extends to this case the automobile exception to the presumptive warrant requirement misapplies the rationale for that exception, and therefore allows the government in this case to use evidence that I believe it seized in violation of the Fourth Amendment. Accordingly, before proceeding to an analysis of the probable cause issue, I briefly set forth my concern about the case law in the event that the court considers it relevant to the disposition of this motion.

As noted above, the automobile exception to the presumptive warrant requirement rests on two independent rationales: first, that the "readily mobile" nature of an automobile is a form of exigency that normally excuses the warrant requirement, on the ground that the automobile could be moved while the warrant application is pending; and second, that the diminished expectation of privacy in an automobile renders the presumptive warrant requirement inapposite. The circumstances of this case show why those rationales do not always apply in full force when agents wish to search the contents of an automobile and have probable cause to do so.

The "readily mobile" justification for the automobile exception should not apply here for several reasons. First, the rule that the defendant's arrest is no bar to the application of the exception--on the theory that a confederate could have access to the vehicle--is overbroad, in that it applies even where, as in this case, the circumstances suggest that there is no reasonable likelihood of the existence of such a confederate. Second, it also impermissibly relieves the government of its burden of establishing the reasonableness of the warrantless search: if the government could demonstrate probable cause to believe that Strese or a confederate was in a position to remove the car while a warrant was being sought, the rule would make sense--but that is a showing that the government should bear the burden of making if it seeks to be relieved of its normal obligation to obtain a warrant.

Moreover, even if reliance on the existence of a wholly imagined confederate would justify the exception in circumstances where the car remains where it was found, it makes no sense where, as here, government agents seize the car and maintain it in their custody. In the latter circumstances, the readily mobile nature of the vehicle plainly justifies the seizure only, and not the subsequent search. There is simply no reason why the latter cannot await the issuance of a warrant as the Fourth Amendment presumptively requires whenever the government wishes to search a person's "effects." See Cady v. Dombrowski, 413 U.S. 433, 439 (1973) (vehicles are effects within the meaning of the Fourth Amendment); cf. California v. Acevedo, 500 U.S. 565, 588 (1991) (differentiating between effects and vehicles).

The reliance on a lowered expectation of privacy in a vehicle is likewise overbroad and, in the circumstances of this case, unreasonable. I agree that members of our society can have no reasonable expectation that items within the cabin of an automobile, or even in the trunk, will remain private. Such items are necessarily and regularly exposed to the scrutiny of others in the course of using a vehicle to transport them. But if a person creates a secure storage space in an automobile for the transportation of sensitive private materials, I am less confident that society will reject as unreasonable that person's expectation of privacy. For example, a doctor who works out of both a home office and a hospital may need to transport privileged medical records between the two, and may for that purpose take precautions against such records being visible during transportation--either by maintaining a locked container within the car, or even going so far as to create a hidden compartment that will be less likely to be found if vandals break into the car. The expectation that such a storage space should remain private seems to me to be no more or less reasonable than the expectation that a sealed envelope in which such records could alternately be mailed should also be subject to the Fourth Amendment's presumptive warrant requirement. See United States v. Jacobsen, 466 U.S. 109, 114 & n.7 (1984).

Thus, the case law on which I rely for my recommendation creates boundaries on the "automobile exception" - specifically, that the search of a vehicle may be as broad as that which a magistrate could authorize on an adequate showing of probable cause, see Ross, 456 U.S. at 823-24--that fail to safeguard individual rights against official mistakes. The rule essentially puts an individual's privacy rights at the mercy of a law enforcement officer's subjective assessment of whether a locked container contains contraband rather than on the mediating consideration of a detached and neutral magistrate. I believe that such a departure from the normal requirements of the Fourth Amendment is not justified either by a theoretical (but in this case demonstrably non-existent) possibility that a vehicle can be moved while a warrant application is pending, or by an artificially narrow assumption about the reasonableness of a vehicle occupant's expectation of privacy. Further, such a broad application of the automobile exception creates a class of unquestionably private materials that cannot effectively be transported with a reasonable expectation of privacy--a class that is disturbingly larger for those of lesser economic means who cannot afford alternate shipping options.

The cases upon which I rely in recommending that the court deny the motion do not square such concerns with the rationale for the automobile exception. They simply announce a rule that plainly excuses the agents' decision in this case not to seek a warrant that was easily available. I have no authority to recommend departure from that rule simply because I believe it produces a result that seems inconsistent with the Fourth Amendment. I therefore proceed to an analysis of the probable cause issue.

Permalink 06:42:50 am, by fourth, 246 words, 774 views   English (US)
Categories: General

Search of curtilage for hidden drugs was unreasonable

Officer's search of curtilage for hidden drugs after defendant's arrest for battery violated the Fourth Amendment. They were not on him, and they were not in plain view. Probable cause alone was not enough. Rivers v. State, 287 Ga. App. 632, 653 S.E.2d 78 (2007).*

Defendant's IAC claim fails because defendant would have lost on the merits of the search claim, which the court examines in great detail. The officers had reasonable suspicion that the toolboxes in defendant's hands when he was first encountered which he put on the ground were stolen. People v. Richardson, 376 Ill. App. 3d 612, 876 N.E.2d 303, 315 Ill. Dec. 303 (1st Dist. 2007).*

Defendant's stop was based on a lane change without signalling, and that violated state law, so the stop was valid. People v. James, 2007 NY Slip Op 27384, 17 Misc. 3d 623, 842 N.Y.S.2d 859 (Queens Co. 2007).*

Defendant was subjected to what was apparently an unlawful entry on a misdemeanor warrant that should not have been served at home. This assault on the officers was not privileged and would not be suppressed even if the entry was unlawful. Therefore, defense counsel's failure to file a suppression motion could not be ineffective assistance. State v. Flesher, 2007 Ohio 4982, 2007 Ohio App. LEXIS 4406 (7th Dist. September 21, 2007).*

Defendant was stopped after furtive movements on the street as officer was responding to a domestic violence call and defendant generally matched the description of the assailant. A patdown for weapons after that was justified. In re Jackson, 2007 Ohio 4955, 2007 Ohio App. LEXIS 4418 (11th Dist. September 21, 2007).*

Permalink 06:05:48 am, by fourth, 382 words, 947 views   English (US)
Categories: General

Actual and apparent authority to consent are separate questions

In some circuits, there is a presumption from relationships that a cotenant has common authority to consent, and this presumption may be rebutted by defendant's actions. Here, the presumption does not apply to defendant's sister who lived in the same house with him. While her actual authority may be lacking, however, she had apparent authority. United States v. Gonzalez, 2007 U.S. Dist. LEXIS 70162 (E.D. Wis. September 20, 2007):

As to these factors, this court finds that Gonzalez is able to present evidence that controverts that his sister or mother had the actual authority to consent to a search. First, Ms. Gonzalez testified that the doors to Gonzalez's room were consistently closed. (Tr. 126.) Additionally, Ms. Gonzalez stated that she didn't have access to her brother's room; she would only enter if her three-year-old daughter happened to run into his room. (Tr. 130.) She also testified that Gonzalez "doesn't like anybody invading his privacy [or] anyone going in his room," and that they were like "four strangers living in a house." (Tr. 130.) These factors significantly militate against a finding that either Ms. Gonzalez or her mother had the actual authority to consent to a search of Gonzalez's room. The court finds they evidence a desire on behalf of Gonzalez to restrict access to his room, and it also shows that his family members were aware of his desire to do so. Accordingly, the court finds that neither Gonzalez's mother nor sister had the actual authority to consent to a search of his bedroom.

However, and significantly, despite the court finding that there was not actual authority to search, it does find that there was the apparent authority to search, and therefore the police acted upon what they thought was a valid third-party consent.

Defendant passenger in a vehicle stopped on an interstate, and he tried every argument that his detention was exploited to find the drugs in the car. That is, he would have to have shown that he would have been able to leave on his own in the driver's car, and he could not. United States v. Salas, 248 Fed. Appx. 906 (10th Cir. 2007).*

Suit over search warrant fails because the plaintiff failed to show that the warrant was issued without probable cause. Simms v. City of Harrodsburg, 2007 U.S. Dist. LEXIS 70250 (E.D. Ky. September 21, 2007).*


Permalink 07:50:06 am, by fourth, 419 words, 866 views   English (US)
Categories: General

Collateral estoppel did not apply to co-defendant's appeal

Defendant's codefendant's suppression motion was denied and affirmed on appeal. When defendant's case came up, the state pled offensive collateral estoppel to defendant's motion to suppress. Since the parties were different, collateral estoppel did not apply. Commonwealth v. Rabb, 70 Mass. App. Ct. 194, 873 N.E.2d 778 (2007):

These basic principles give context and perspective to the collateral estoppel claim before us, and inform our analysis. They contemplate protection of the defendant's interests in the critical stages of the criminal process, effective assistance of counsel, and, implicitly, the meaningful [*9] opportunity of the defendant to participate in the litigation of his defense. In criminal proceedings we emphasize that each defendant is entitled to individual consideration and to effective representation by individual counsel, and is further entitled to press litigation strategies with that counsel. There is no reason that these basic principles should not pertain to the litigation of a motion to suppress evidence. Moreover, even if we accepted the collateral estoppel argument in theory, as a matter of practical reality we would not conclude that the defendant and Wynn had such a close identity or mutuality of interests that it could be said that Wynn's litigation of the motion to suppress accorded the defendant a full and fair opportunity to litigate the matter. While each may have had the same goal -- the suppression of the evidence found in the motel room -- they differed in their alleged involvement in the cocaine distribution scheme, in the evidence attributed to each, and in their connection to the motel room. They may very well have differed in their knowledge of the facts, in their potential ability to assess the representations in the search warrant affidavit, and in their ability to suggest to counsel avenues of attack on that warrant. In sum, the defendant should not be foreclosed from litigating the validity of the search warrant.

Seatbelt violation permitted officer to stop the defendant, and the fact that defendant was a suspect in a violent crime justified a patdown for officer safety. United States v. Jackson, 249 Fed. Appx. 130 (11th Cir. 2007)* (unpublished).

Sexual abuse by a school custodian was not "state action" for purposes of § 1983 claim for a Fourth Amendment violation. K.K. v. Weeks, 2007 U.S. Dist. LEXIS 70004 (M.D. Pa. September 21, 2007).*

Georgia sustains its DNA challenge against a Fourth and Eighth Amendment challenge. Quarterman v. State, 282 Ga. 383, 651 S.E.2d 32 (2007)* (Comment: Remember, I have been ignoring DNA cases for quite a while unless something is unique. This is the first I recall with an Eighth Amendment challenge.)


Permalink 08:19:37 am, by fourth, 331 words, 730 views   English (US)
Categories: General

Officer's "stop" of parked car with blue lights was a detention without reasonable suspicion

Defendant's car was seen in a rest area several times over two days. The officer pulled up behind the car, and the dome light was turned off. The defendant explained she was not home because of marital difficulties, and she wanted to leave, but the officer wanted to look around the inside of the car with a flashlight. Balloons were found, and the officer suspected drug use. He also suspected, without any factual support, that she might have been abused. Franks v. State, 241 S.W.3d 135 (Tex. App.—Austin 2007):

However, the initial encounter between LaHood and appellant progressed to an investigative detention when LaHood refused appellant's request to leave. Before LaHood told appellant, "[N]o, you can't go," he knew only that she was crying and that she was seated in a car that he thought he had seen several times at the rest area. He did not testify about specific facts leading him to suspect that appellant was, had been, or soon would be engaged in criminal activity. Although LaHood wondered whether the car might have been stolen, he never questioned appellant about the car's ownership, and he did not state that appellant was detained because he suspected that she was a car thief. Instead, he told her that she could not leave and that he wanted to find out why she was upset.

Plaintiff alleged seizure of property in 2004 (outside limitations) was still retained in 2006 in violation of the Fourth Amendment. The plaintiff is directed to better explain the issue to see whether limitations has expired or not. Herndon v. City of Park City, 2007 U.S. Dist. LEXIS 69927 (D. Kan. September 20, 2007).*

Police were given information from an informant that defendant was in possession, and the officers sought him out and arrested him for disorderly conduct because he was under the influence of alcohol. The appellate court found the arrest without probable cause, to the search of his person was invalid. State v. Graves, 2007 Ohio 4904, 173 Ohio App. 3d 526 (8th Dist. 2007).*

Permalink 07:39:41 am, by fourth, 224 words, 709 views   English (US)
Categories: General

Arrest of defendant in possession of drugs in car supported probation search of house

Defendant was arrested for driving on a suspended license, and a search of his vehicle produced 53 pounds of marijuana and a gun. That supported a probation search of his premises. State v. Sowards, 2007 Ohio 4863, 2007 Ohio App. LEXIS 4321 (4th Dist. September 17, 2007).*

Defendant was sitting in his car talking on a cellphone when a police officer pulled up and activated the blue lights, directing he get off the call. This was without suspicion of any crime and could not possibly be justified under the community caretaking function because there was nothing to care for [my words, not the court's]. State v. Waters, 2007 Tenn. Crim. App. LEXIS 746 (September 21, 2007).*

Officer got consent to enter from the tenant of the residence, and he had probable cause to arrest the defendant inside based on strong reason to believe that the defendant was involved in a shooting, driving a car that was registered to the tenant and the car was found outside. United States v. Orejuela, 2007 U.S. Dist. LEXIS 69716 (D. Del. September 20, 2007).*

Plaintiff was arrested by the defendant who procured a warrant for the plaintiff for practicing psychology without a license. In the papers in the civil case against the defendant, the plaintiff admitted there was probable cause for the arrest, so the officer was entitled to summary judgment. Alexander v. Harrington, 2007 U.S. Dist. LEXIS 69879 (W.D. Ky. September 19, 2007).*

Permalink 06:30:22 am, by fourth, 296 words, 1698 views   English (US)
Categories: General

Stabbing call was exigent circumstances when the police could see the victim on the floor; defendant even called the police

Defendant called the police to a stabbing, and the police saw the stabbing victim on the floor unresponsive. The police entry was based on exigent circumstances. The officers could reasonably have believed that it was an emergency and that the victim, and perhaps the caller, were in peril and in immediate need of aid. Upon observing the stab wound and speaking with defendant, they were authorized to retrieve the weapon in order to avoid further injury. No general search was conducted. State v. Williams, 2007 Ohio 4845, 2007 Ohio App. LEXIS 4329 (8th Dist. September 20, 2007).*

Plaintiff denied a preliminary injunction from code enforcement searches where the city photographed outbuildings. It is unlikely that he will prevail on the merits. Hale v. City of Tukwila, 2007 U.S. Dist. LEXIS 69561 (W.D. Wash. September 19, 2007).*

Defendant's acceptance of probation conditions made his search valid under Knights. All the officers needed was reasonable suspicion, which they had. United States v. Williams, 2007 U.S. Dist. LEXIS 69473 (W.D. Wis. September 17, 2007).*

Officers had a search warrant for defendant's premises and arrested him there. Within six feet of where he was found was an open walk-in closet, and a weapon was found there. The weapon was validly found during a protective search of the closet. State v. Rankin, 2007 Ohio 4844, 2007 Ohio App. LEXIS 4334 (8th Dist. September 20, 2007).* (Comment: The court made the issue more complicated than it had to be. The officers had a search warrant, and that justified the entry and search for evidence of a robbery which included a gun and clothing worn. Even mentioning protective search was unnecessary. Yes, it would be a valid alternative ground, but even going to that extreme might add confusion to those who are unaware of the scope of search under a search warrant, such as the defendant in this case.)


Permalink 08:36:50 pm, by fourth, 478 words, 1032 views   English (US)
Categories: General

U.S. Government collecting personal information on all international travelers via Customs searches and all computer records of travel

From Saturday's Washington Post: Collecting of Details on Travelers Documented / U.S. Effort More Extensive Than Previously Known. The article is about international travelers and what Customs officers see in their luggage, which is noted and secretly logged. It came to light when travelers sought their own records. They claim that the collection of this information violates the Privacy Act. It was disclosed on Friday on Wired News: Carrying Subversive Literature on Int'l Flights Will Get You Noticed, But Tom Clancy's OK For Now. If you get a chance, read both articles.

From the WaPo post:

The U.S. government is collecting electronic records on the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried, according to documents obtained by a group of civil liberties advocates and statements by government officials.

The personal travel records are meant to be stored for as long as 15 years, as part of the Department of Homeland Security's effort to assess the security threat posed by all travelers entering the country. Officials say the records, which are analyzed by the department's Automated Targeting System, help border officials distinguish potential terrorists from innocent people entering the country.

But new details about the information being retained suggest that the government is monitoring the personal habits of travelers more closely than it has previously acknowledged. The details were learned when a group of activists requested copies of official records on their own travel. Those records included a description of a book on marijuana that one of them carried and small flashlights bearing the symbol of a marijuana leaf.

The Automated Targeting System has been used to screen passengers since the mid-1990s, but the collection of data for it has been greatly expanded and automated since 2002, according to former DHS officials.

Officials yesterday defended the retention of highly personal data on travelers not involved in or linked to any violations of the law. But civil liberties advocates have alleged that the type of information preserved by the department raises alarms about the government's ability to intrude into the lives of ordinary people. The millions of travelers whose records are kept by the government are generally unaware of what their records say, and the government has not created an effective mechanism for reviewing the data and correcting any errors, activists said.

The activists alleged that the data collection effort, as carried out now, violates the Privacy Act, which bars the gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate. They also expressed concern that such personal data could one day be used to impede their right to travel.


Permalink 10:04:20 am, by fourth, 211 words, 1406 views   English (US)
Categories: General

Strip search at school for drugs was justified under T.L.O.

Plaintiff's daughter's strip search at school was justified under T.L.O. criteria because the school officials had reasonable suspicion she was in possession of drugs, and a less intrusive search first of her backpack produced nothing. Redding v. Safford Unified School District #1, 504 F.3d 828 (9th Cir. 2007).*

Defendant's consent was voluntary. While he was yelled at by a mall security officer a half hour earlier, that person was not present when the consent was granted, and there was no indication that it was otherwise involuntary. [Stated in the facts, but not in the discussion is the fact that defendant was taking the blame so others would not be implicated in his own conduct.] United States v. Brown, 243 Fed. Appx. 544 (11th Cir. 2007).*

Plaintiff's Bivens action fails for a First and Fourth Amendment retaliation conspiracy when he could not show that the search warrant issued for him lacked probable cause. O'Neil v. Kiser, 2007 U.S. Dist. LEXIS 69368 (E.D. Mich. September 20, 2007).*

Search warrant application provided a substantial basis for concluding that there was probable cause to believe that evidence would be found in the place to be searched and adequate nexus was shown. Thus, the good faith exception would save the search, too. United States v. Jackson, 508 F. Supp. 2d 422 (M.D. Pa. 2007).*

Permalink 08:49:39 am, by fourth, 166 words, 755 views   English (US)
Categories: General

No apparent authority where mother had no key to padlocked closet

Mother of adult son had no apparent authority to consent to a search of a padlocked closet in their house. When asked for consent, she said that only he had the key. People v. Snipe, 2007 NY Slip Op 27375, 17 Misc. 3d 571, 841 N.Y.S.2d 763 (Bronx Co. 2007).*

Defendant's wife, co-owner of their truck, had apparent authority to consent to a search of it. Howard v. State, 239 S.W.3d 359 (Tex. App. — San Antonio 2007).*

"Based on the record before us we conclude that the encounter between the officer and appellant was a consensual encounter and did not change into an investigatory stop upon the officer asking P.W. for consent to conduct a pat down." P.W. v. State, 965 So. 2d 1197 (Fla. App. 4DCA 2007). (Comment: Like a minor really knows he has a choice to refuse consent?)*

Officer's mistake as to speed limit where he stopped the defendant who legally was not speeding was a stop without probable cause. State v. McLamb, 186 N.C. App. 124, 649 S.E.2d 902 (2007).*

Permalink 07:32:10 am, by fourth, 524 words, 753 views   English (US)
Categories: General

Even though officer quickly determined no traffic offense occurred, he could still do a DL check

Drug dog's arrival in 3-5 minutes did not unduly prolong the stop. Also, even though the officer quickly determined that the driver was not guilty of a traffic offense, he could still ask for the driver's license and run it. Hart v. State, 235 S.W.3d 858 (Tex. App. – Eastland 2007):

It appears from our record that Officer Bryan's initial conversation with Hart did not last much more than a minute. Her computer check of Hart, conducted after she learned that he was driving with an expired driver's license, lasted less than three minutes. While Officer Bryan was in the process of writing Hart a citation for driving with an expired license, the canine unit she requested arrived in three to five minutes. We hold that all of Officer Bryan's conduct was reasonable under the circumstances and did not unduly prolong Hart's detention.

Hart correctly notes that many jurisdictions have held that, once an officer has ascertained that the motorist is not guilty of the violation for which he or she was originally stopped, the officer must release the motorist at that time and may not ask to see the motorist's driver's license. ...

However, as previously noted, the Texas Court of Criminal Appeals has held that, in applying the general rule, an investigative stop can last no longer than necessary to effect the purpose of the stop; it should be remembered that a check for driver's license and warrants is an additional component to a routine traffic stop. Kothe, 152 S.W.3d at 63. The court appeared to discount the suggestion that a license check is unreasonable if it is conducted after the officer has determined that the motorist is not guilty of the violation for which he or she was originally stopped. Id. at 66. It noted that the order of events, while relevant to the legal determination of reasonableness, is not determinative. Id. The courts of other states have also held that it is not unnecessarily unreasonable for a police officer who has made a valid traffic stop to ask the motorist for his or her driver's license, even though the officer knows that the motorist is not guilty of the violation that served as the initial basis for the stop. ... We choose to follow Kothe and this line of cases in holding that, where the initial traffic stop is valid, a license check of the driver, even if conducted after the officer has determined that the motorist is not guilty of the violation for which he or she was originally stopped, is not unreasonable so long as it does not unduly prolong the motorist's detention. Inasmuch as the license check in the case at bar did not unduly prolong Hart's detention, we hold that it was not unreasonable.

Failure to file motion to suppress did not affect defendant's guilty plea that was otherwise voluntary. State v. Carroll, 2007 Iowa App. LEXIS 1006 (September 19, 2007).*

Where the search warrant affidavit showed probable cause for child pornography and firearms in the house, the search warrant properly included computers, storage devices, and magazines with child porn and firearms. State v. Hinahara, 2007 NMCA 116, 142 N.M. 475, 166 P.3d 1129 (2007), certiorari denied 166
P.3d 1089 (N.M. 2007).*


Permalink 10:48:07 am, by fourth, 520 words, 747 views   English (US)
Categories: General

Magistrate need not determine defendant inside under Payton; officers do

An independent finding of probable cause by a magistrate that defendant is in the house is not required. Payton only requires that the officers have reason to believe that the defendant is inside. Brown v. United States, 932 A.2d 521 (D.C. App. 2007):

Appellant argues that even if Payton is applicable by extension, the Payton warrant exception requires an independent magistrate to determine that appellant is in the dwelling to be entered. See Steagald, 451 U.S. at 214 n.7 ("[T]he magistrate, rather than the police officer, must make the decision that probable cause exists to believe that the person or object to be seized is within a particular place."). Because an independent magistrate did not determine that there was probable cause to believe that appellant was in Ms. Powell's home, appellant argues, his Fourth Amendment rights were violated.

We find this argument unpersuasive. Payton mandates that officers have a "reason to believe the suspect is within." 445 U.S. at 603. As the United States Court of Appeals for the Fifth Circuit has observed, while

Probable cause . . . must always be determined by a magistrate unless exigent circumstances excuse a warrant. . . . Reasonable belief embodies the same standards of reasonableness but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate.

United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977) (internal citation and quotation omitted). See also United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997). We agree with the United States Court of Appeals for the Sixth Circuit and other courts that a "reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant ...." Pruitt, 458 F.3d at 482. See also Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir. 1999) (identifying several factors that could indicate that a defendant was on the specified premises); Route, 104 F.3d at 62 n.3 (collecting cases adopting the "reasonable belief" standard from the Second, Third, Eighth, Tenth, and Eleventh Circuits); United States v. Magluta, 44 F.3d 1530, 1534-35 (11th Cir. 1995) (quoting Woods, 560 F.2d at 665); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (detailing the evidence officers used to conclude there was a "reasonable basis for believing" appellant was in the apartment).

In this case, two undercover police officers actually saw appellant in Powell's apartment and stood only about five feet away from him. Investigator Parker knew appellant from previous police contact. On his way from the apartment, Parker even addressed appellant by name and appellant responded. When he returned to his vehicle, Parker radioed the arrest team and mentioned appellant by name. This was sufficient evidence to provide the investigators and arrest team with a reasonable belief that appellant was in Powell's apartment.

Defendant's stop by a park ranger was not unreasonable because the ranger was unaware of which person in the car was involved in an altercation. There is no requirement for the reasonable suspicion standard that it be based on personal knowledge. Knowledge from another law enforcement officer suffices. United States v. Cuesta, 2007 U.S. Dist. LEXIS 69293 (E.D. Cal. September 13, 2007).*

Permalink 07:53:02 am, by fourth, 447 words, 831 views   English (US)
Categories: General

Parallel FBI investigation that would have led to a federal search warrant was independent source

Police adequately corroborated informant by reviewing chat logs to determine that there might be evidence on defendant's computer. Therefore, the warrant was issued with probable cause. In addition, the independent source doctrine would apply because the FBI was conducting its own investigation, and it would have obtained a search warrant, too. United States v. Shuler, 2007 U.S. Dist. LEXIS 69114 (N.D. Iowa September 17, 2007):

By the time Special Agent Kitsmiller contacted Cedar Rapids law enforcement in May 2007, they had already obtained and executed the March 16, 2007, state court Search Warrant. Special Agent Kitsmiller testified at the instant Hearing that if the computers and related materials had not previously been seized by the Cedar Rapids Police Department, then he would have sought a search warrant based on the information gathered on the Bettendorf complaint. Bettendorf authorities had been provided copies of the child pornography which originated at Defendants' home, and the Court believes that there would have been probable cause to support a search warrant based on the Bettendorf information.

In summary, the Court concludes that even if the state court Search Warrant obtained by the Cedar Rapids Police Department was not supported by probable cause, the computers and related materials would have been obtained by the FBI pursuant to its independent investigation of a separate complaint. That is, the actions by the FBI in seeking a search warrant based on the Bettendorf information would be independent of any information obtained by the state court Search Warrant. Since probable cause existed for a second search warrant, independent of the information obtained in the first search warrant, the independent source doctrine applies.

An official's refusal to return property lawfully seized does not make a reasonable seizure unreasonable. Certified v. Stetler, 2007 U.S. Dist. LEXIS 69255 (N.D. Ill. September 14, 2007):

Moreover, the Seventh Circuit has rejected the idea that a state actor's refusal to return once lawfully obtained property can amount to an unreasonable seizure (i.e, that the refusal can transform the seizure from reasonable to unreasonable). See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003) ("Soldal's 'meaningful interference with a possessory interest' definition is limited to an individual's interest in retaining his property"; "once an individual has been meaningfully dispossessed, the seizure of property is complete, and once justified by probable cause, that seizure is reasonable."). Thus, the fact that Director Creedon failed to return the Rio--in fact, turned it over to Pugi--does not give rise to a constitutional violation. In fact, given the police report, the defendants were under no obligation to investigate Mr. Kramer's claim that Certified, not Pugi, was lawfully entitled to possession of the Rio. See Reynolds, 488 F.3d at 766; Pasiewicz, 270 F.3d at 524.

Permalink 07:21:52 am, by fourth, 285 words, 1231 views   English (US)
Categories: General

"Attentativeness" during search is not proof of constructive possession

The fact the defendant was "attentive" during the search of his car was not proof that he was in constructive possession of a gun found in the car. United States v. Bethly, 511 F. Supp. 2d 426 (D. Del. 2007):

The government relies heavily on Bethly's conduct during the search of his car, noting that he was very attentive and was watching the officers very closely. The government does not specifically argue, but seems to imply that this behavior constitutes suspicious conduct. As previously mentioned, suspicious conduct is a proper factor to consider in the constructive possession calculus. See Bellinger, 461 F. Supp. 2d at 347; Iafelice, 978 F.2d at 97. This court, however, is not willing to make the leap the government urges. That is, the court is reluctant to find that a person's attentiveness to a search of his or her vehicle alone is necessarily the behavior of someone who has hidden contraband in the vehicle, and is concerned about its discovery. This court hopes that a person would take an interest in a search of his vehicle by police. In fact, this Judge would be very attentive and watch police officers very closely if they were conducting a search of his own vehicle, and he would expect the same of his fellow citizens. The court, therefore, gives little weight to the government's argument regarding Bethly's conduct during the search of his vehicle.

Officer was on notice that the person he was seeking consent from was without apparent authority. Therefore, the purported consent is invalid. United States v. Washington, 2007 U.S. Dist. LEXIS 69303 (S.D. Ohio September 19, 2007).*

Estranged wife did have apparent authority to consent to a search. United States v. Stone, 2007 U.S. Dist. LEXIS 69210 (D. Conn. September 18, 2007).*

Permalink 06:54:05 am, by fourth, 410 words, 1028 views   English (US)
Categories: General

Accidental shooting was a seizure; officer thought he pulled Taser

Accidentally shooting a man fleeing from an arrest when the officer thought he pulled out a Taser is unquestionably a stop with force "intentionally applied" under Brendlin. The case was remanded for further discovery on the officer's training on the use of handguns and Tasers for qualified immunity purposes. Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007):

Having identified the relevant facts, we now turn to the question of whether these facts establish that Purnell seized Henry within the meaning of the Fourth Amendment. "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied." Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 2405 (2007) (citations and internal punctuation omitted) (emphasis in original). Purnell unquestionably terminated Henry's freedom of movement by means of physical force when he shot him; however, he contends that because he intended to shoot Henry with the Taser, rather than the Glock, he did not terminate Henry's freedom of movement "through means intentionally applied." The district court rejected this argument, as do we.

. . .

We are not presented with a case where police stopped someone by mere happenstance, such as the passerby who is pinned when a police car slips its brake, or by the unintended consequences of an attempted seizure, such as the fleeing suspect who crashes his vehicle. Instead, the undisputed evidence in the record establishes that Purnell's specific intent was to stop Henry from fleeing by means of firing a weapon, and Henry was in fact stopped by the very instrumentality (i.e., the Glock) that Purnell set in motion. We recognize that Purnell did not intend to use the Glock, but we are also mindful of the Brower Court's admonition that we should not draw too fine a line in determining whether the means that terminate a person's freedom of movement is the very means that an officer intended. If, as the Court noted, a seizure would occur when a person is stopped by the accidental discharge of a gun that an officer meant to use only as a club, then we believe that a seizure surely occurred here where Purnell intended to stop Henry by firing a weapon at him and succeeded in doing so. Accordingly, we affirm the portion of the district court's order finding that Purnell seized Henry. See 428 F. Supp. 2d at 395-96.


Permalink 07:35:51 pm, by fourth, 394 words, 777 views   English (US)
Categories: General

Fear of booby traps is an exigency, but one that dissipates; failure to read search warrant denies reliance on Leon

Concern for booby traps was exigent circumstances for nature of entry, but it was a limited exigency that dissipated as soon as officers determined there were no booby traps. "Because [the executing officer] did not read the warrant, his reliance on it was not reasonable or in good faith. The court concludes that Leon does not protect the search and seizure from suppression in this case." United States v. Cofield, 2007 U.S. Dist. LEXIS 68720 (M.D. Ala. February 23, 2007) (USMJ R&R):

In the instant case, Jordan testified that as he approached the shed, he smelled ammonia. He also observed that the shed had motion sensors, closed circuit surveillance cameras, and power running to the shed. According to Jordan, the officers were concerned about the possibility of the shed being booby-trapped.

Once we began smelling the ammonia, found the tank, saw the camera systems and knew we had power going to the trailer, and that it was - the standard door was locked from the inside, we weren't sure what the safest method would be to breach the door and make entry. I consulted with Mr. Maddox and he stated that he had a high pressure water cannon system that they use. They are able to breach windows without detonating anything that might be attached and then we could use a mirror system to look around the inside and see if anything appeared booby trapped to the doors.

(Supp. Evid. H'rg Tr. at 17).

The officers were able to use the water cannon to breach the window and determine that the shed was not booby-trapped. (Id. at 24). Certainly, the potential harm to officers and others of booby traps is the type of circumstance that permitted the officers to breach the shed windows with the water cannon. However, once the officers determined that the shed was not booby-trapped, the exigency ended and there was no reasonable basis for the officers to continue their intrusion. Accordingly, because there were no exigent circumstances when they entered the shed and searched, the warrantless search was not justified. In short, all of the evidence seized as a result of the search of Jason's shed is due to be suppressed unless Leon's good faith exception applies. The court turns to that question now.

And, since the officer did not read the search warrant, he could not claim good faith reliance on it.

Permalink 05:24:53 pm, by fourth, 350 words, 920 views   English (US)
Categories: General

Totality did not add up to reasonable suspicion

The officer did not have reasonable suspicion on the totality of circumstances for the continued detention. United States v. Jackson, 517 F. Supp. 2d 859 (W.D. La. 2007):

The totality of factors or indicators relied upon by Trooper Nash do not amount to reasonable suspicion of drug trafficking or other illegal behavior. Most people are nervous when they are stopped by police on an unfamiliar highway while traveling away from home. It is common for someone to demonstrate some nervousness, i.e., shaking of the hand, when handing the trooper his or her driver's license. The recording of the stop, however, shows that any nervousness on the part of Defendant quickly subsided. He responded to Trooper Nash's questions with complete answers, he was not evasive and his eye contact increased as the stop went on. When Trooper Nash was running Defendant's information through the computer, Defendant stood in front of Trooper Nash's car (after having declined the invitation to sit and wait in his own car), looking back in Trooper Nash's direction and calmly smoking his cigarette.

Government showed probable cause for a search of defendant's house for evidence of arson. "In this case, the affidavit establishes that defendant Mayneng Xiong was an owner of the David Street residence, as well as the TMS Mays Supermarket. She was identified as the woman who purchased 12 bottles of isopropyl alcohol, an ignitable liquid that is sometimes used in incendiary fires. Ten of the 12 bottles were recovered after the arson at defendant Mayneng Xiong's store. She had provided false information to the investigating officers about her whereabouts on the evening of January 8, 2006. The officers established that defendant Mayneng Xiong drove a Dodge truck and that the truck was registered to her at 310 David Street." In any event, the good faith exception would save the search. United States v. Mayneng Xiong, 2007 U.S. Dist. LEXIS 68999 (E.D. Wis. September 14, 2007).*

Officer had a lawful basis for a stop of defendant who fled on foot discarding a gun. He was not seized when he tossed the gun. United States v. Davis, 2007 U.S. Dist. LEXIS 68881 (D. Del. September 14, 2007).*

Permalink 08:45:44 am, by fourth, 1244 words, 1222 views   English (US)
Categories: General

Government access to all post-cut-through dialed digits under pen/trap statute would violate Fourth Amendment

The government sought an order for access to all post-cut-through dialed digits under pen/trap statute. A U.S. M.J. for the E.D. N.Y. held such an order would violate the Fourth Amendment. "Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD." In the Matter of Applications of the United States of America for Orders (1) Authorizing the Use of Pen Registers and Trap and Trace Devices and (2) Authorizing Release of Subscriber Information, 515 F. Supp. 2d 325 (E.D. N.Y. 2007):

The Government also argues that there is no reasonable expectation of privacy in PCTDD because the information is voluntarily conveyed to a third party, the telephone company. This assumption of risk argument has been adopted by the Supreme Court in a variety of contexts. See, e.g., United States v. Miller, 425 U.S. 435, 442-44 (1976) (no legitimate expectation of privacy in bank records); Couch v. United States, 409 U.S. 322, 335-36 (1973) (no legitimate expectation of privacy in financial records submitted to taxpayer's accountant); United States v. White, 401 U.S. 745, 752 (1971) (no legitimate expectation of privacy in taped conversations to third party). It was also a component of the majority's reasoning in Smith.

"In Smith, the Court noted that all telephone users realize that they must 'convey' telephone numbers to the telephone company so that their calls can be completed, that records of their calls are kept for billing purposes, and that such records can be used to detect fraud and harassment and thus [are] potentially available to law enforcement and other investigators." Beckwith v. Erie County Water Authority, 413 F. Supp. 2d 214, 223 (W.D. N.Y. 2006) (citing Smith, 442 U.S. at 742). When the petitioner in Smith "used his phone, [he] voluntarily conveyed numerical information to the telephone company and 'exposed' that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed." Smith, 442 U.S. at 744. Under this logic, even if a person harbored some subjective expectation that the phone numbers he dialed would remain private, this expectation is not "one that society is prepared to recognize as reasonable." Katz, 389 U.S. at 361.

Miller also addresses the Fourth Amendment and the risk assumed when information is conveyed to an institutional third party. 425 U.S. 435. In Miller, the Supreme Court rejected a defendant's challenge to the use of grand jury subpoenas to obtain banking records from his bank, concluding that no legitimate expectation of privacy existed in the contents of the bank records. Id. at 442. An individual "takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government." Id. at 443. The Court reasoned: "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." Id. at 442 (emphasis added).

The Government argues for an extension of the logic behind these cases, but ignores the important distinctions between them and the instant application for PCTDD. Unlike the dialed digits discussed in Smith and the bank records addressed in Miller, PCTDD are not kept in the "ordinary course of business," see Smith at 744 and Miller at 442, nor do they appear on a user's monthly bill. The Government argues that these distinguishing facts are inconsequential and that by dialing digits into a phone, a telephone user has "assumed the risk" that the telephone company, capable of accessing all digits dialed, will do just that and relinquish the information to the Government.

The Sixth Circuit recently spoke to this issue in the context of email content and held that: "It is true ... 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." Warshak v. United States, 490 F.3d 455, 470 (6th Cir. 2007). However, "[t]he same does not necessarily apply ... to an intermediary that merely has the ability to access the information sought by the government." Id. Indeed, the "assumption of risk" so trumpeted by the Government, is far from absolute. "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." Id. These consequences of an extension of the assumption of risk doctrine are not acceptable under the Fourth Amendment. A 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." Warshak, 490 U.S. at 470 (citing Katz, 389 U.S. at 352). The same can be said for PCTDD that contain content.

. . .

C. Level of Intrusion

"Courts judge the reasonableness of a search 'by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.'" Cassidy v. Chertoff, 471 U.S. at 652-53 (citing Vernonia Sch. Dist. v. Acton, 515 U.S. 646, 652 (1995) (internal quotation marks omitted)). Thus, the level of intrusion is a factor to be considered when addressing constitutionality under the Fourth Amendment.

"[S]uspicionless searches ... are highly disfavored since they dispense with the traditional rule that a search, if it is to be deemed reasonable, must be either supported by a warrant based on probable cause, or justified by evidence establishing individualized suspicion of criminal misconduct." United States v. Amerson, 483 F.3d 73, 77-78 (2d Cir. 2007) (citing City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.")). Government installed pen registers were held to be permissible warrantless searches in Smith because, by their nature (their inability to collect content), they were minimally intrusive. Today's pen registers, as advocated by the Government in the instant application, have the potential to be much more intrusive than when their constitutionality was first examined. The evolution of technology and the potential degree of intrusion changes the analysis.

. . .

I am sympathetic to the Government's pleas of necessity. That there is no technology available that can sort content from non-content is unfortunate, but it is not for this Court to fashion a solution. Rather, this is an issue for Congress to address, particularly in light of sophisticated criminals who will soon be wise, if they are not already, to this investigative loophole. Despite the investigative benefit which would come from access to all PCTDD, the Government cannot bootstrap the content of communications, protected by the Fourth Amendment, into the grasp of a device authorized only to collect call-identifying information. Until the Government can separate PCTDD that do not contain content from those that do, pen register authorization is insufficient for the Government to obtain any PCTDD.


Because the Government's request for access to all post-cut-through dialed digits is not clearly authorized by the Pen/Trap Statute, and because granting such a request would violate the Fourth Amendment, the Government's application is denied.

Permalink 08:19:59 am, by fourth, 331 words, 1126 views   English (US)
Categories: General

Stone v. Powell bars relief against probation arrest warrant

Habeas petitioner actually got a certificate of appealability to challenge denial of relief against a probation arrest warrant under Stone v. Powell. The Tenth Circuit held that Stone covers all Fourth Amendment claims, including probation arrest warrants, and petitioner got to litigate that issue in the state courts. Cappelli v. Zavaras, 249 Fed. Appx. 52 (10th Cir. 2007).

Grabbing plaintiff and then letting her go was a seizure but it was not excessive force. Massey v. Hess, 2007 U.S. Dist. LEXIS 68786 (E.D. Tenn. September 17, 2007):

There is a "built-in measure of deference to the officer's on-the-spot judgment about the level of force necessary in light of the circumstances of the particular case." Graham, 490 U.S. at 396; accord Saucier v. Katz, 533 U.S. 194, 205, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001); Burchett, 310 F.3d at 944. "Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers," violates the Fourth Amendment. Graham, 490 U.S. at 396. The reasonableness inquiry allows for the fact that police officers must often make split-second judgments about the necessary amount of force. Id.

In the first seizure, Defendant Oelschlegel grabbed Plaintiff and then released her. It was an extremely minor use of force and there was no injury suffered. The Sixth Circuit does not require that excessive force claims allege excessive marks or extensive physical damage. Ingram v. City of Columbus, 185 F.3d 579, 597 (6th Cir. 1999) (upholding excess force claim where plaintiff was struck and thrown against a couch); .... But neither of those cases support a claim of excessive force in this case, where Defendant Oelschlegel merely grabbed Plaintiff's sweater, which is almost no force at all. Although injury is not required to support an excessive force claim, there must be sufficient force. De minimus force is insufficient. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000); .... The extremely minor force here does not qualify as excessive force.

Defendant officer's writing a parking ticket was not a seizure. Tomaino v. Williams, 2007 U.S. Dist. LEXIS 68962 (E.D. N.Y. September 14, 2007).*


Permalink 08:09:06 am, by fourth, 495 words, 1022 views   English (US)
Categories: General

CA: Subpoena for occupancy tax audit did not violate Fourth Amendment

Administrative subpoenas for motel occupancy tax audit purposes were not a violation of the Fourth Amendment under Oklahoma Press. Administrative search cases are "inapt." [This subject is discussed at length in Ch. 39 of the Treatise.] City of Santa Cruz v. Patel, 155 Cal. App. 4th 234, 65 Cal. Rptr. 3d 824 (6th Dist. 2007):

"As regulatory schemes have become increasingly important in enforcing laws designed to protect the public's health and welfare, reliance on 'probable cause' as a means of restraining agency subpena power has all but disappeared. (See United States v. Morton Salt Co. (1950) 338 U.S. 632, 641-643; see also 1 Davis, Administrative Law Treatise (2d ed. 1978) Investigation, § 4.2, pp. 228-232.)" (Craib v. Bulmash (1989) 49 Cal.3d 475, 481.) Okla. Press Pub. Co. v. Walling (1946) 327 U.S. 186 (Oklahoma Press) explained the interaction between Fourth Amendment principles and administrative investigations. Oklahoma Press was discussed in detail in Craib v. Bulmash, supra, 49 Cal.3d 475. Because it is so directly pertinent to the issue at hand, we quote at length from that discussion.

. . .

"Accordingly, Oklahoma Press articulated a test which applied Fourth Amendment requirements only by analogy. The notion that a subpena could be enforced only where a specific charge or complaint is pending was explicitly rejected. Instead, said the court, the investigation need only be for 'a lawfully authorized purpose, within the power of [the legislative body] to command.' (327 U.S. at p. 209, italics added.) In addition, the requirement of '"probable cause, supported by oath or affirmation," literally applicable in the case of a warrant,' is satisfied as long as the subpenaed documents are 'relevant' to the inquiry. (Ibid., italics added.) 'Beyond this the requirement of reasonableness, including particularity in "describing the place to be searched, and the persons or things to be seized," also literally applicable to warrants, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry.' (Ibid., italics added.) In a later case, the court emphasized that, while the subpena may be issued and served by the agency, the subpenaed party must have the opportunity for judicial review before suffering any penalties for refusing to comply. (See v. City of Seattle (1967) 387 U.S. 541, 544-545 [in dictum].) [P] This test has been routinely applied by the high court to reject various Fourth Amendment challenges to official demands for records." (Craib v. Bulmash, supra, 49 Cal.3d at pp. 481-482, fn. omitted.)

The government had reasonable suspicion for a stop of the defendant's vehicle with blacked out windows on the border near Calexico, California. This was reasonable suspicion under Arvizu: "The scouting activity, the manner in which the Honda SUV was being operated, the vehicle's appearance all fit the familiar and specific profile for drug smuggling. The determination of the agents was buttressed by their experience in which virtually every vehicle of the many vehicles stopped under similar circumstances had been determined to be smuggling narcotics. Reasonable suspicion abounded to strip the vehicle on Interstate 8 and detain Defendants." United States v. Payan-Valenzuela, 2007 U.S. Dist. LEXIS 68360 (S.D. Cal. September 14, 2007).*

Permalink 06:14:27 am, by fourth, 360 words, 794 views   English (US)
Categories: General

Video voyeurism search warrant was based on probable cause and fairly included search of computer

Defendant was accused of surreptitiously videotaping women at his house when they disrobed. This authorized a search warrant for his computer because of intricate wiring described to the officers for recording, storage, and display of videos. This led to discovery of child porn on defendant's computer, and a second search warrant was issued for that. He argued that the search warrant for the videos lacked probable cause based on a tortured reading of the statute that essentially would have any woman in an intimate setting not having an expectation that she would not be recorded. The court would not accept such a construction because it would nullify the statute. The officers showed enough to get to the computer because they could not predict how the images were recorded and stored. United States v. Alexander, 2007 U.S. Dist. LEXIS 68290 (W.D. Mo. September 14, 2007)*:

The affidavit supports the inference that Alexander used a variety of means to record and store images. At the time the officers applied for the warrant, they knew only that potential incriminating evidence of invasion of privacy existed; they did not know the particular electronic format in which the evidence may have been maintained by Alexander. That evidence may have been hard copy videotapes or DVDs or digital feed into a computer. See United States v. Summage, 481 F.3d 1075, 1079 (8th Cir. 2007). The search for evidence of invasion of privacy on the computer was within the scope of the warrant which led to Judge Midkiff's second warrant to search for child pornography.

Defendant officers lose on apparent authority for consent search claim where the person they claimed had authority had no key, said she lacked authority, and, at their request, went in through a window she had to break, setting off a burglar alarm. Alternatively, there were no exigent circumstances for the entry by the time they decided to enter. "If so, there would have been sufficient time to obtain a search warrant, rendering both prongs of Defendants' exigent circumstances argument little more than post hoc rationalizations for the search." Defendants' motions for summary judgment denied. Plevritis v. City of Chicago, 2007 U.S. Dist. LEXIS 68518 (N.D. Ill. September 17, 2007).*


Permalink 08:26:20 am, by fourth, 382 words, 914 views   English (US)
Categories: General

General consent to search a car for drugs permitted search of containers

The court found that the defendant granted a general consent to search his validly stopped car for drugs, and that permitted a search of any container in which drugs would be found. United States v. Burnett, 2007 U.S. Dist. LEXIS 68218 (E.D. Ark. September 13, 2007):

As for the scope of the search, immediately before Burnett gave his consent, Coleman asked him whether he was transporting drugs or guns, and Burnett answered, "No." Accordingly, it was objectively reasonable for Coleman to believe that Burnett's consent extended to any area or container where drugs or guns might be stored. See Florida v. Jimeno, 500 U.S. 248, 251-52 (1991)(consent to search car included consent to search containers that might hold drugs).

Furthermore, before Coleman cut the money bag with a knife, he asked Burnett if he had the key, and Burnett replied "No." Burnett voiced no objection to Coleman cutting the bag, and it was objectively reasonable for Coleman to believe that cutting the bag was within the scope of consent. See U.S. v. Siwek, 453 F.3d 1079, 1086 (8th Cir. 2006) ("Siwek argues that he effectively withdrew any consent to search the truck bed when he informed Goltz that he lacked the key to the tonneau cover. We do not agree that this statement amounts to a withdrawal of consent to search, which can only be accomplished by an unequivocal act or statement.").

Court finds that probable cause for child porn at defendant's house was lacking. The defendant was accused of being a child molester, and the uncle of one of the alleged victims said that the child told him that the defendant had pictures at home of nude children. This made it into the affidavit, but there was no reference to time. Because of this, the court determined that there was no probable cause for the warrant for child porn in the house. The good faith exception, however, was enough to save the search because there was no contention that the affidavit was facially deficient. United States v. Doyle, 2007 U.S. Dist. LEXIS 68228 (W.D. Va. September 14, 2007). (Comment: Based on other cases, the court could, and maybe should, have found that there was, in fact, probable cause because time in child pornography cases is extremely flexible because child porn is likely to be kept for a long time.)


Permalink 08:06:14 am, by fourth, 128 words, 729 views   English (US)
Categories: General

Ordering driver from car for no apparent reason was unreasonable

Once the officer determined that defendant's vehicle registration was valid and suggested he go to the DMV to straighten out a paperwork area, the stop should have ended, and the officer directed the defendant to get out of his vehicle without justification. Only then did the officer smell alcohol on him. The trial court's motion to suppress was validly granted. State v. Weaver, 2007 UT App 292, 169 P.3d 760, 586 Utah Adv. Rep. 11 (2007).*

Delay during traffic stop was caused by the passenger's lack of ID, which the officer could ask for because of his failure to have a seatbelt on when the car was stopped. A warrant on the passenger justified a search incident of the passenger compartment under Belton. United States v. Kissell, 2007 U.S. Dist. LEXIS 68064 (D. Utah September 13, 2007).*

Permalink 07:27:34 am, by fourth, 726 words, 977 views   English (US)
Categories: General

There is no difference between a "search" and a "seizure" under community caretaking function

Maryland holds that there is no constitutional difference between a search and a seizure under the community caretaking function. Here, the defendant's freedom from personal interference was outweighed by the government's interest in checking on his welfare. Wilson v. State, 176 Md. App. 7, 932 A.2d 739 (2007):

Although our appellate courts have not directly addressed the issue of whether the caretaking function extends beyond searches to seizures of persons as well, there is no basis, rooted in logic or policy, for drawing a distinction between searches and seizures for purposes of the community caretaking function. In fact, the same policy that underlies the community caretaking searches--protecting citizens from likely physical harm--justifies seizures of individuals for that same purpose. Although the United States Supreme Court has not applied the community caretaking function to seizures, lower federal courts have. See, e.g. United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) (holding that detaining an intoxicated man "slumped over" in a field was proper under the police's community caretaking function); United States v. King, 990 F.2d 1552 (10th Cir. 1993) (concluding that an officer's initial detention of a motorist at an accident site to advise him of hazardous conditions and to ask him to stop honking his horn was proper pursuant to the community caretaking function); United States v. Rideau, 949 F.2d 718 (5th Cir. 1991), rev'd en banc on other grounds, 969 F.2d 1572 (5th Cir. 1992) (observing that officers' "stop" of a man wearing dark clothing and standing and stumbling in a road at night was proper under the caretaking function; in fact, the officers "would have been derelict in their duties had they not stopped [him] to check on his condition").fn2

2. The community caretaking function has also been recognized by federal courts in civil cases. See Winters v. Adams, 254 F.3d 758 (8th Cir. 2001) (holding that officers, accused of conducting unreasonable seizure and use of excessive force, acted lawfully pursuant to the community caretaking function in detaining a driver who was in an "agitated" and "extremely hyper" state and who appeared to be intoxicated, to ensure that "he would not be able to drive and hurt someone"); Samuelson v. City of New Ulm, 455 F.3d 871 (8th Cir. 2006) (upholding grant of summary judgment in favor of police officers, accused in part of unreasonable seizure for transporting a private citizen to the hospital where, under the community caretaking function, "a jury could not find the officers' actions objectively unreasonable," given that the citizen was incoherent and appeared to be hallucinating); Tinius v. Carroll County Sheriff Dept., 321 F. Supp. 2d 1064 (N.D. Iowa 2004) (granting summary judgment in favor of police officers accused of unlawful detention for detaining a private citizen and transporting him to a hospital, as well as assisting in his involuntary catheterization because, under the community caretaking function, the officers' conduct was reasonable since the citizen was walking along a roadway in rural Iowa in winter without a jacket, not carrying identification, and was incapable of carrying on a conversation with an officer).

United States v. Garner, 416 F.3d 1208 (10th Cir. 2005) is particularly instructive on this point as it is factually similar to the case at bar and provides a useful three-prong test for determining whether such detention falls within this function. In Garner, police were informed that a man was unconscious in a "half-sitting, half-slumped-over position" in a field near an apartment complex for several hours. Garner, 416 F.3d at 1211. [Lengthy discussion of Garner and comparision of this case omitted.]

New Mexico maintains a truck inspection station near the Mexican border, and defendant's truck was stopped for inspection. After viewing the log book, the inspector had the back of the truck opened and the officer suspected that there was a false front in the truck. A drug dog was called and alerted. Under New Mexico law, there is no automobile exception, so the officer had to extend the stop to get a search warrant. That extension of the stop was reasonable. United States v. Michael, 2007 U.S. Dist. LEXIS 67951 (D. N.M. June 22, 2007).*

In another regulatory stop case in New Mexico, the court held that the government failed in its burden of proving a justification for the stop because the officer's testimony changed on the basis for the stop to the point the court could no longer find the officer credible. United States v. Landell, 2007 U.S. Dist. LEXIS 67950 (D. N.M. June 22, 2007).*


Permalink 12:18:49 pm, by fourth, 1403 words, 1804 views   English (US)
Categories: General

VA upholds taking of DNA on arrest

Virginia law provides that persons arrested for certain violent felonies shall have DNA samples taken on their arrest. Va. Code Ann. § 19.2-310.2:1:

Every person arrested for the commission or attempted commission of a violent felony as defined in § 19.2-297.1 or a violation or attempt to commit a violation of § 18.2-31 [capital murder], 18.2-89 [burglary], 18.2-90 ["Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson"], 18.2-91 [same; "with intent to commit larceny, assault and battery or other felony"], or 18.2-92 [same; other misdemeanor], shall have a sample of his saliva or tissue taken for DNA (deoxyribonucleic acid) analysis to determine identification characteristics specific to the person. After a determination by a magistrate or a grand jury that probable cause exists for the arrest, a sample shall be taken prior to the person's release from custody. The analysis shall be performed by the Department of Forensic Science or other entity designated by the Department. The identification characteristics of the profile resulting from the DNA analysis shall be stored and maintained by the Department in a DNA data bank and shall be made available as provided in § 19.2-310.5. (bracketed material added)

The Virginia Supreme Court, relying on all cases permitting the taking of DNA samples after conviction [indeed, no case has found taking DNA after conviction unconstitutional], and finding the taking of DNA no different than fingerprinting, finds the taking of DNA on arrest to be minimally intrusive and not a violation of the Fourth Amendment. Defendant was linked to a rape occurring in 1991 after his DNA was taken when he was arrested for rape in 2003. Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007), aff'g 48 Va. App. 704, 718, 634 S.E.2d 372, 379 (2006):

Some state appellate courts have also concluded that DNA samples should be treated like fingerprints. See State v. Raines, 857 A.2d 19, 33 (Md. 2004) ("The purpose [of the DNA profile] is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity."); State v. O'Hagen, 914 A.2d 267, 280 (N.J. 2007) ("We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person .... [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one's photograph that a person must already undergo as part of the normal arrest process."); and State v. Brown, 157 P.3d 301, 303 (Or. Ct. App. 2007) ("Because [using a swab to take a DNA sample from the mucous membrane of an arrestee's cheek] is akin to the fingerprinting of a person in custody, we conclude that the seizure of defendant's DNA did not constitute an unreasonable seizure under [the Constitution.]").

Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means "is justified by the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution." 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 168 (4th ed. 2004).

offenses involved in this appeal. He maintains that the taking of saliva was a "suspicionless" seizure[fn2] contrary to the Fourth Amendment and that all evidence flowing from such a search must be suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). In support of his argument, Anderson cites City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000), wherein the Supreme Court of the United States held that "[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints ... stops can only be justified by some quantum of individualized suspicion."

2. While Anderson refers to the taking of buccal swabs as a "seizure," it is more appropriately referred to as a "search." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-17 (1989); Cupp v. Murphy, 412 U.S. 291, 295 (1973); Schmerber v. California, 384 U.S. 757, 767-68 (1966). See also United States v. Amerson, 483 F.3d 73, 77 (2nd Cir. 2007).

Further, Anderson relies upon Ferguson v. City of Charleston, 532 U.S. 67 (2001), for the proposition that searches conducted for general law enforcement purposes cannot be excepted from requirements of probable cause. Ferguson involved a cooperative program between hospital authorities and law enforcement officers to gather evidence of pregnant women using illegal drugs. Id. at 69-73. The analysis used by the Court focused upon a line of cases comprising the so-called "special needs doctrine" justifying suspicionless searches in narrowly defined circumstances. The Court, in Ferguson, rejected the argument that the cooperative program between hospital personnel and law enforcement officers met the test of the "special needs doctrine." Id. at 84.

Anderson's reliance upon Edmond and Ferguson is misplaced. As previously established, the taking of a DNA sample pursuant to § 19.2-310.2:1 is permissible as a part of routine booking procedures. As such, no "additional finding of individualized suspicion" much less probable cause, must be established before the sample may be obtained. Jones, 962 F.2d at 306.

Comment: Taking of DNA is hard to compare to fingerprinting. But, that was the easiest way for this court to affirm. As the Supreme Court said in Arizona v. Hicks, 480 U.S. 321, 325 (1987), "A search is a search, even if it happens to disclose nothing but the bottom of a turntable." If we look at Skinner v. Railway Labor Executives Assn., 489 U.S. 602 (1989), a BAC test of a railroad worker was a search, but it was reasonable if conducted on suspicion after an accident:

Unlike the blood-testing procedure at issue in Schmerber, the procedures prescribed by the FRA regulations for collecting and testing urine samples do not entail a surgical intrusion into the body. It is not disputed, however, that chemical analysis of urine, like that of blood, can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic. ...

Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, the Federal Courts of Appeals have concluded unanimously, and we agree, that these intrusions must be deemed searches under the Fourth Amendment.

The Skinner Court held that:

This governmental interest in ensuring the safety of the traveling public and of the employees themselves plainly justifies prohibiting covered employees from using alcohol or drugs on duty, or while subject to being called for duty. This interest also "require[s] and justif[ies] the exercise of supervision to assure that the restrictions are in fact observed." Griffin v. Wisconsin, supra, at 875. The question that remains, then, is whether the Government's need to monitor compliance with these restrictions justifies the privacy intrusions at issue absent a warrant or individualized suspicion.

Our cases indicate that even a search that may be performed without a warrant must be based, as a general matter, on probable cause to believe that the person to be searched has violated the law. See New Jersey v. T.L.O., supra, at 340. When the balance of interests precludes insistence on a showing of probable cause, we have usually required "some quantum of individualized suspicion" before concluding that a search is reasonable. See, e. g., United States v. Martinez-Fuerte, 428 U.S., at 560. We made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable. Id., at 561. In limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. We believe this is true of the intrusions in question here.

Also, Ferguson v. City of Charleston, 532 U.S. 67 (2001), distinguished by the Virginia court, almost compels the opposite result. That court found reliance "misplaced" but then utterly fails, without any convincing language, to say why.

What happens when the cold case is solved based on an arrest and the person is tried on the cold case first? The defendant should get to try the suppression hearing of the current case in the cold case, but it does not really matter to Virginia because the question of probable cause or reasonable suspicion is irrelevant. The accused would have to be acquitted of the current crime to suppress. Even then, I am sure the Virginia court would find a way around that.

Obviously a dangerous precedent.

Permalink 10:40:25 am, by fourth, 197 words, 766 views   English (US)
Categories: General

Plaintiff who suppressed evidence twice did not get benefit of collateral estoppel bar in civil case against officers

The plaintiff in a § 1983 case won his suppression motion in state court, and then he filed his civil case in 2005. After that, he was indicted federally for the same search and seizure, and that motion to suppress was granted, too. The government moved to dismiss the indictment. Then, he was indicted for a drug conspiracy that did not include the unlawfully seized evidence, and he was convicted and sentenced to 120 months. On the officers' motion for summary judgment in the § 1983 case, it was held that the different parties precluded the use of collateral estoppel because of the different parties. Pair v. Wilson, 2007 U.S. Dist. LEXIS 67921 (N.D. Fla. July 27, 2007).*

On remand for taking of additional evidence on a suppression issue, the law of the case doctrine generally prohibits reopening the suppression motion for other matters already determined. United States v. Wecht, 2007 U.S. Dist. LEXIS 67795 (W.D. Pa. September 13, 2007): "Defendant proffers no new evidence, new law or other extraordinary reasons why this Court should not follow the law of the case, except with regard to those matters that have been 'reopened' by the decision of the Court of Appeals and this Court's sua sponte scheduling order."

Permalink 10:09:40 am, by fourth, 223 words, 899 views   English (US)
Categories: General

Warrant checks during any traffic stop are permissible

Warrant checks during any traffic stop are permissible under the Fourth Amendment. People v. Bailey, 375 Ill. App. 3d 1055, 314 Ill. Dec. 575, 874 N.E.2d 940 (1st Dist. 2007), relying on People v. Roberson, 367 Ill. App. 3d 193, 201, 304 Ill. Dec. 975, 854 N.E.2d 317 (1st Dist. 2006).

A DNA sample obtained by warrant for one investigation can be used in another without violating the particularity clause of the warrant. State v. Glynn, 38 Kan. App. 2d 437, 166 P.3d 1075 (2007).

Claimant had standing to challenge a forfeiture when the funds were removed from him. United States v. United States Currency in the Amount of Five Hundred Ninety-Eight Thousand Eight Hundred Twenty Six Dollars, 2007 U.S. Dist. LEXIS 67938 (E.D. N.Y. September 13, 2007):

It is undisputed that Cardona was in possession of both the $50,000 in the plastic bag he was carrying on the street, and the $468,826 stored in a duffle bag in a closet of his apartment. See Pl. Rule 56.1 Stat. P61 and P64.

The court finds that possession and injury from being denied the funds is sufficient to allow Cardona to assert Article III standing.

Defendant's live-in girlfriend had common authority to consent, and defendant did not show that his duffle bag and a box were exclusively his such that she could not consent to a search of them as well. United States v. Eastom, 2007 U.S. Dist. LEXIS 67899 (N.D. Okla. September 12, 2007).*

Permalink 09:12:32 am, by fourth, 254 words, 763 views   English (US)
Categories: General

No privacy interest in exterior of a package

Defendant has standing only as to the contents of a package, not the exterior. United States v. Villalobos, 2007 U.S. Dist. LEXIS 67451 (D. Ore. September 5, 2007)*:

An addressee has both a possessory and a privacy interest in a mailed package; a possessory interest in the timely delivery of the package, U.S. v. Hernandez, 313 F.3d 1206 (9th Cir. 2002), and a privacy interest in the contents, but not the exterior, of the package, United States v. Jacobsen, 466 U.S. 109, 114 (1984). In this case only Villalobos' possessory interests in the letter are at issue, as Villalobos concedes, and the law is clear, that she did not have a privacy interest in the exterior of the envelope. See e.g. Katz v. United States, 389 U.S. 347, 351 (1967) ("[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection").

Defendant found to have voluntarily consented to a search. She also gave a statement, and she was never in custody when she gave the statement. Indeed, she was free to leave and did leave after the statement. United States v. Manning, 2007 U.S. Dist. LEXIS 67597 (D. Haw. September 11, 2007).*

"When a defendant seeks to suppress evidence allegedly obtained as a result of an illegal seizure, the burden of proving that a seizure occurred is on the defendant." Here, the defendant proved it was, and the government failed to prove that the officers had reasonable suspicion for detaining him. His consent, therefore, was invalid. State v. Zapata-Reyes, 2007 Ida. App. LEXIS 83 (September 14, 2007).*


Permalink 06:25:55 pm, by fourth, 169 words, 690 views   English (US)
Categories: General

Government misses a standing challenge, and defendant prevails in a government authorized private search

Defendant received a package at work that apparently was intended for him but did not have his name on it. In it was marijuana. A private search occurred, but at the insistence of a government agent, so the Fourth Amendment applied, and there was no exception to the warrant requirement. [The government glaringly did not claim lack of standing, which it should have because standing generally requires both the defendant's name be on the box as a sender or recipient.] United States v. Penass, 2007 U.S. Dist. LEXIS 67611 (E.D. Wis. September 12, 2007).*

"Where a motion to suppress evidence obtained from the execution of a warrant does not present a novel question of law that should be decided in order to guide future law enforcement officers and magistrates, it is appropriate for the reviewing court to turn directly to consideration of the officers' good faith reliance on the warrant. [Leon] at 925." [Of course,] the good faith exception applies. United States v. Preciado-Avila, 2007 U.S. Dist. LEXIS 67637 (E.D. Pa. September 12, 2007).*

Permalink 11:57:29 am, by fourth, 555 words, 1792 views   English (US)
Categories: General

Fire inspector's administrative warrant "to get to know the property" sought under city fire code was valid

The Cleveland fire department obtained an administrative warrant pursuant to a city code provision to inspect industrial property "to get to know the property" so they would be aware of what was there and whether hazardous materials were present should they ever have to respond to an emergency there. The parties agree that probable cause in the "criminal law sense" was not required. Engineering & Manufacturing Services, LLC v. Ashton, 2007 U.S. Dist. LEXIS 67784 (N.D. Ohio September 13, 2007):

In the instant matter, Plaintiff, Engineering & Manufacturing Services, LLC, admits for the sake of argument (without conceding this warrant's validity) that an administrative warrant does not require probable cause in the criminal law sense. Rather, administrative probable cause, justifying the issuance of a warrant, "may be based not only on specific evidence of an existing violation but also on a showing that 'reasonable legislative or administrative standards for conducting an … inspection are satisfied with respect [*7] to a particular establishment.'" Trinity Industries, Ine. v. Occupational Safety and Health Review Comm 'n, 16 F. 3d 1455, 1463 (6th Cir. 1994) (Batchelder, J., concurring), quoting Marshall v. Barlow's Inc., 436 U.S. 307, 320 (1978). "A warrant … would provide assurances from a neutral officer that the inspection is reasonable under the Constitution, is authorized by statute, and is pursuant to an administrative plan containing specific neutral criteria." Barlow's, 436 U.S. at 323. The parties agree this warrant application did not allege specific evidence of an existing violation. The parties also concur that the property owner's refusal to allow entry to fire inspectors (admittedly recited in Ashton's affidavit) cannot provide the basis for probable cause to issue the warrant. Still, Plaintiff insists the affidavit of Battalion Chief Ashton. presented to Judge Pianka, was a mere "bare bones" affidavit. Plaintiff argues the affidavit contains no supporting information, and is based upon the Chief's conclusory beliefs and suspicions. Plaintiff likens it to the deficient affidavit in United States v. Laughton, 409 F. 3d 744 (6th Cir. 2005), which mentioned no address and made no connection between the defendant and the address nor between the address and the illegal activity.

This Court finds the grievous defects cited in the Laughton case are not present here. The affidavit Judge Pianka reviewed provides the identity and qualifications of the affiant. Chester Ashton is the chief of the battalion closest to the industrial premises; and the firefighters he supervises would "be responsible for responding to a fire at this address if one were to occur." Reference is made to Cleveland Codified Ordinance § 381.04, authorizing the Fire Chief or his representatives to enter during reasonable hours "to examine and inspect for hazardous or dangerous conditions, equipment, materials, liquids, gases or accumulations; obstructions to or on fire escapes and other means of egress; and for the maintenance of fire protection equipment." In addition, paragraphs # 3 and # 4 mention the Fire Department's annual inspections of industrial sites, to "get to know the property" and "make certain there are no hazardous or dangerous conditions inside that would pose a threat to firefighters in the event of a fire." Considering the totality of the circumstances, therefore, probable cause for the administrative warrant existed: 1) Battalion Chief Ashton was competent to make the sworn declarations in the search warrant application; 2) a valid city ordinance authorized an administrative search, such as the one conducted here; and 3) annual inspections of industrial premises for fire safety concerns are reasonable and neutral.

Permalink 11:51:53 am, by fourth, 160 words, 696 views   English (US)
Categories: General

Reasonable suspicion can be based on public intoxication

Reasonable suspicion can be based on public intoxication. A patdown became justified. United States v. Salter, 255 Fed. Appx. 355 (11th Cir. 2007)* (unpublished).

Helicopter flyover saw several marijuana plants in open fields around defendant's property, and that supported a search warrant. United States v. Nichols, 248 Fed. Appx. 105 (11th Cir. 2007)* (unpublished).

Officer's testimony credited that he had probable cause to believe that defendant's window tinting was too dark under state law. The officer asked for consent and got it. United States v. Russo, 2007 U.S. Dist. LEXIS 67678 (S.D. Fla. September 13, 2007):

Here, the defendant argues that Trooper Volk's question, "You don't have a problem if I search, do you?" was somehow more coercive than a straightforward request for permission to search. The undersigned does not believe that the form of the question was coercive in any way. Moreover, it was clear from the DVD that the trooper was polite and the defendant immediately agreed to the search and signed the consent to form.

Permalink 09:25:05 am, by fourth, 559 words, 771 views   English (US)
Categories: General

Property check of home by conservation officer not an unreasonable search

Under the "no good deed goes unpunished" category:

A Michigan homeowner sued a conservation officer who came onto his unoccupied property after seeing tiretracks stop and footprints continue in the snow. The officer conducted a property check to assure himself that the house had not been broken into because the curtains were open and unoccupied houses usually have the curtains drawn, and open curtains could indicate a burglar inside looking for approaching persons. The officer determined there was no break-in, but left his business card. The plaintiff had a security video running, and he sued the officer for nominal damages. The defendant agreed in the district court that the homeowner had a reasonable expectation of privacy, but determined that the officer's entry onto the land and even looking in the windows was such a low level of intrusion that it did not satisfy the second Katz requirement. Taylor v. Mich. Dep't of Natural Res., 502 F.3d 452, 2007 FED App. 0377P (6th Cir. 2007):

The nature of the property in which plaintiff claims an expectation of privacy weighs in favor of finding that society is willing to recognize that expectation as reasonable. After all, Officer Rose's "property check" entailed observation of the interior of the home, "the prototypical and hence most commonly litigated area of protected privacy." Kyllo v. United States, 533 U.S. 27, 34 (2001). However, it is important to note that Officer Rose did not enter the plaintiff's home. Rather, he checked the doors and windows to assure that they were secure, and he engaged in a relatively unintrusive view into the building's interior, per departmental custom. His survey of the premises lasted only around five minutes. "[T]he Fourth Amendment has drawn a firm line at the entrance to the house," requiring exigent circumstances to justify a warrantless search. Payton v. New York, 445 U.S. 573, 590 (1980) (emphasis added).

There is even an exception to this rule based on suspicion of burglary. Past cases reveal an "established precedent that the police may 'enter a residence ... [if they] believe that there is a burglary in progress." United States v. McClain, 430 F.3d 299, 304-305 (6th Cir. 2005), (citing United States v. Reed, 141 F.3d 644, 649 (6th Cir. 1998)). While such cases have indicated that probable cause and exigency are both required to justify warrantless entry, it makes sense for the law to impose a greater burden on officers entering a home to ensure its safety than it demands to justify looking inside through open windows. Officer Rose did not enter plaintiff's home. He observed the interior of the house and its exterior from the outside only. The Supreme Court has stated that even the fact "that [an] area is within the curtilage does not itself bar all police observation." Ciraolo, 476 U.S. at 213. Thus it becomes critical to examine the extent of the government intrusion, which Widgren has prescribed should include an inquiry into the methods used and purpose for the conduct at issue. Widgren, 429 F.3d at 583.

Considering Officer Rose's limited methods of observation and the purpose of his conduct, we conclude that this "property check" is not a Fourth Amendment search. In terms of methods, existing Fourth Amendment jurisprudence distinguishes between cases in which officers engaged in "ordinary visual surveillance" and those in which the officers employ "technological enhancement of ordinary perception." Kyllo, 533 U.S. at 31, 33. ... Officer Rose, however, engaged in only a brief, minimally intrusive visual inspection.

Permalink 09:08:00 am, by fourth, 475 words, 1233 views   English (US)
Categories: General

City ordinance requiring certificate of inspection of rental units does not involve governmental searches

A City of Pasco city ordinance requires landlords to get a certificate of inspection of rental property, and the certificate is obtained from private inspectors, not governmental agents. The Washington Supreme Court held that the ordinance did not implicate the Fourth Amendment or the privacy provision of the State Constitution: City of Pasco v. Shaw, 161 Wn. 2d 450 (2007) (concurrence; dissent):

¶18 The Pasco ordinance requires a landlord to submit a certificate of inspection, but it does not authorize the city itself to search for housing violations. The petitioners point to Kuehn v. Renton School District No. 403, 103 Wn.2d 594, 600, 694 P.2d 1078 (1985), in which we held that parent chaperones of a high school student trip acted with enforcement authority of school officials when they searched student bags. However, under the Pasco ordinance a landlord can engage private inspectors in order to further the private objective of obtaining a certification needed to maintain a business license. Significantly, if a private inspector finds code violations, the ordinance does not require the inspector to turn his or her findings over to the city. Thus, a landlord can remedy any violations found by an independent inspector, submit to another inspection, and obtain a license based on the new inspection, without the city ever being notified of the original violations. The city insists only upon the certificate that an inspection has been successfully completed. Landlords first and foremost further their own ends when they engage in the inspections contemplated by the ordinance. In sum, the petitioners have not met their burden of showing that landlords and their privately engaged inspectors are state actors. Absent state action, neither the Fourth Amendment, nor article I, section 7 was violated.

¶19 We also note that RCW 59.18.150(1) already provides that a tenant cannot unreasonably withhold consent to the landlord to enter into the rental unit in order to inspect the premises, and the act allows some third parties to accompany the landlord upon entrance.

Police surveilled a building about which they heard crack was being sold. They stopped a person leaving with a bag in hand. The stop was without reasonable suspicion that the defendant was committing a crime, and the motion to suppress should have been granted. State v. Parish, 2007 Ohio 4686, 2007 Ohio App. LEXIS 4211 (5th Dist. September 10, 2007).*

Police dog's inadvertent attack on plaintiff could be shown to be no more than mere negligence, so summary judgment granted for the officer. Walker v. Yates, 2007 U.S. Dist. LEXIS 67204 (E.D. Okla. September 10, 2007).*

Officer's "silence and his body language in response to defendant's inquiry regarding whether he had a choice to consent, and by what he describes as his reasonable belief that he would immediately be arrested if he declined to consent. Even assuming that Settell's demeanor was as described by defendant, it was not sufficiently coercive to render his consent to search involuntary." State v. Dunlap, 215 Ore. App. 46, 168 P.3d 295 (2007).*


Permalink 07:44:46 pm, by fourth, 417 words, 723 views   English (US)
Categories: General

Anonymous tip as to public details did not support finding of probable cause

An anonymous tip as to public details did not support finding of probable cause that the defendant was paying young girls for sex. Nothing corroborated the crime; not even a showing of affection in public with a young female with whom he was seen. Nevertheless, the officer was acting in good faith and qualified immunity protects him from suit. Mason v. City of Indianapolis, 2007 U.S. Dist. LEXIS 67349 (S.D. Ind. September 11, 2007)*:

While this court has determined that probable cause was lacking to issue the search warrant, there is nothing in this case to indicate that the officers did not act in good faith in their investigation of Mason or in preparing the probable cause affidavit.

Comment: This inquiry is missing the last step. Sure it was in good faith. The question is whether it was "arguable probable cause" and the court fails to ever address it. One could conclude that it was wholly lacking in probable cause, notwithstanding good faith. Officers often are acting in good faith, but completely wrong. Their "good faith" is really just overzealousness, and that was about all there was here. Whether this will withstand appeal is another matter because the appellate court might make the determination itself that the officer had arguable probable cause. At any rate, this case needs to be appealed.

Officers who were called to a doctor's office when he was on vacation and saw blasting caps, ammunition, and similar paraphernalia, all from a private search, got a warrant for the doctor's home. While the blasting caps were not explosive devices under Texas law and a search warrant should not have issued, the officer's actions were objectively reasonable in reliance on it. Therefore, the district court erred in not granting them qualified immunity. Zarnow v. City of Wichita Falls, 500 F.3d 401 (5th Cir. 2007).*

Consent search led to seeing corner of package of drugs sticking out of glove box. A dog was brought in and then alerted, and the search of the glove box was justified by practically everything that happened. United States v. Oates, 514 F. Supp. 2d 1131 (D. Conn. 2007).*

Plaintiff's action against his probation officers for excessive force and unlawful search and seizure failed because they had reasonable suspicion for their actions, including pulling a gun on plaintiff because they thought he was armed and he reached for his back pocket. Taking the claims most favorably to the plaintiff, he could not prevail. Smith v. Dauphin County Adult Prob. Dep't, 2007 U.S. Dist. LEXIS 67400 (M.D. Pa. September 12, 2007).*

Permalink 10:17:23 am, by fourth, 247 words, 979 views   English (US)
Categories: General

NC: No need required to test an alleged sex offender for HIV or Hep B

Neither probable cause nor reasonable suspicion is required to test an accused sex offender for HIV or Hepatitis B. State v. Houey, 375 S.C. 106, 651 S.E.2d 314 (2007):

Where the privacy interests implicated by the search are minimal, and where an important non-criminal governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion. Skinner, supra at 624. Such is the case here. The State's interest in these cases would be jeopardized by requiring individualized suspicion because it would be nearly impossible to show probable cause that an offender suffers from HIV or Hepatitis B, since neither disease usually manifests clear outward symptoms. Thus, the statute does not violate the Fourth Amendment by failing to require probable cause that the offender has HIV or Hepatitis B before a court may order testing pursuant to § 16-3-740(B).

Informant's credibility was enhanced by the fact he was subject to criminal penalties if he lied to the officers. State v. Tarver, 2007 Ohio 4659, 2007 Ohio App. LEXIS 4197 (4th Dist. September 7, 2007).* (Comment: Like a snitch would ever be prosecuted for that. Another legal fiction indulged in by the courts. I have never heard of it happening, so that proves it is a bogus rationale.).

An officer's pointing a gun at plaintiff to get him to comply with an order to stop was not excessive force, and the officer gets qualified immunity. Tyler v. Kyler, 15 Neb. App. 939, 739 N.W.2d 463 (2007).*

Permalink 08:05:46 am, by fourth, 827 words, 1382 views   English (US)
Categories: General

Protective sweep does not require "articulable facts" other than character of the event

Massachusetts holds that the character of the person pursued and event are controlling for a protective sweep and not whether there are "articulable facts" supporting it. The violent fugitive apprehension team of the State Police entered on an arrest warrant and also looked in the basement for others, finding a dismantled gun. The sweep was proper. Commonwealth v. Dejesus, 70 Mass. App. Ct. 114, 872 N.E.2d 1178 (2007):

It is clear in this case from the judge's findings that the violent fugitive apprehension section of the State police employed the protective sweep protocol based on the character of the fugitive they were called on to apprehend. Trooper Sullivan, an officer of twenty-three years with the State police department, in recent years had the apprehension of violent fugitives as his sole activity within the department. Asked to explain why the section used protective sweeps, he testified:

"A. Well, officers' safety is our number one issue. Everyone is going to come to work and everyone is going to go home. When we go into an apartment, we have to clear the apartment for people, for everyone's safety. Someone could sneak up from behind us with a gun. They could jump on top of us. People are hiding all the time in closets, underneath beds, in between bed frames and mattresses, just for everyone's safety, the entire apartment is going to be clear. . . .

"Q. And in your five years on this fugitive [apprehension unit], how many times have you had occasion or individuals at -- hidden or come out from places when you were doing the sweep?

"A. Numerous times, well over hundreds."

We do not read Maryland v. Buie to require necessarily that the findings of "articulable facts" justifying a protective sweep be separate from the violence implicit in the crime for which the defendant is sought and the violence implicit in his criminal history. A violent criminal record can, in our view, constitute the separate basis called for by Maryland v. Buie and result in a commonsense application of the overarching constitutional principle of reasonableness. In the Supreme Court's decision Justice White, speaking for the majority, stated:

"The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry [Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)] or Long [Michigan v. Long, 463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983)] frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's 'turf.' An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings."

Maryland v. Buie, 494 U.S. at 333.

The "articulable facts" that justified the sweep are, in our view, found in the violent crime (armed carjacking) for which the defendant's arrest warrant was issued and in his record of violent felonies and firearm possession charges. There is nothing at variance with this conclusion in the Dubois case, that involved no suggestion of criminal violence, or in the Nova case, where the arrest had been completed and the defendant removed from the scene before the police returned to the apartment and executed a protective sweep. Here the police had an objective concern for their safety -- a concern rooted in the articulable facts of the defendant's criminal history. The defendant's motion to suppress the evidence of the handgun found in plain view in the basement should have been denied.

Order allowing motion to suppress reversed.

IRS subpoena issued under 26 U.S.C. § 7602 was not an invasion of plaintiff's privacy because it was not overbroad and was within the IRS's jurisdiction. Evangelist v. IRS, 2007 U.S. Dist. LEXIS 66946 (D. Md. August 20, 2007):

This Circuit has noted that a subpoena duces tecum can exceed the confines of the Fourth Amendment, but only when it is not sufficiently tailored to the investigation. In re Subpoena Duces Tecum, 228 F.3d 341, 347 (4th Cir. 2000). However, "there is no unreasonable search and seizure, when a subpoena, suitably specific and properly limited in its scope, calls for the production of documents which, as against their lawful owner to whom the writ is directed, the party procuring its issuance is entitled to have produced." Id. In this case, the IRS sought financial records to assist in its calculation of Evangelist's tax deficiency. The Court concludes that plaintiff's financial records were relevant to this analysis. Without additional facts or allegations concerning the Government's actions, the Court concludes that the IRS did not infringe on plaintiff's right to privacy. Thus, Evangelist's claim for invasion of privacy must fail under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

Permalink 06:54:02 am, by fourth, 348 words, 713 views   English (US)
Categories: General

Internet traveler case supported automobile exception search of defendant's car

A defendant accused as an internet traveler for enticement of a minor under 18 U.S.C. § 2422(b) who said "that he was going to bring condoms, an iPod and a black nightie to his liaison" in his chat sessions justified a search of the car when he showed up. United States v. Collins, 515 F. Supp. 2d 891 (N.D. Ind. 2007).

Randolph does not require that the defendant be asked for consent first.
United States v. Lopez, 2007 U.S. Dist. LEXIS 66937 (D. Conn. September 12, 2007).*

Merely knocking on the door is not a police created exigency. The officers had credible evidence that defendant fled into a motel room with a gun. United States v. Bullock, 2007 U.S. Dist. LEXIS 67098 (W.D. Pa. September 11, 2007):

Here, it was reasonable for the officers to conclude that evidence could be destroyed, that an injured victim or accomplice could be inside the room, or that the officers or other people inside the hotel were in danger. Although there was an intense police presence inside, and around the hotel, such that defendant likely could not have left the hotel undetected, it is possible that evidence, such as blood evidence, could have been destroyed inside the hotel room. In addition, defendant's demeanor, his being connected to the crime scene by an inhaler, the blood on the carpet outside his door, and a gun missing from the scene of the shooting could all lead the officers to reasonably conclude that a person inside the room was in distress, or that the hotel guests and officers, could be in danger. For all these reasons, the officers' entry into the room was justified by exigent circumstances.

Not putting on evidence at a suppression hearing is not IAC where there was no showing as to what should have been put on that was not that would influence the outcome. Berthelot v. United States, 2007 U.S. Dist. LEXIS 67070 (E.D. Tex. September 10, 2007). (Comment: This merely states the obvious. In many search issues, the only evidence to come directly from the defendant is standing, and even that can often be proved through the officers.)


Permalink 09:10:28 am, by fourth, 272 words, 812 views   English (US)
Categories: General

Consent to look in a closet for ID did not prohibit looking in a plastic bag

Consent to search a closet for identification was not limited to looking in pockets. Officers looked in a plastic bag and found contraband. United States v. Romero, 247 Fed. Appx. 955 (10th Cir. 2007) (unpublished):

In this case, a reasonable person would have understood the exchange between Sgt. Espinoza and Mr. Romero to mean that Mr. Romero was granting permission to search anywhere in the closet for identification. The plastic shopping bag discovered by Sgt. Espinoza in the closet reasonably could have contained a receipt or other identifying information. Mr. Romero disputes that one could reasonably believe that identifying information could be found where Sgt. Espinoza discovered the bag -- that is, among folded (possibly clean) clothes. But we do not share Mr. Romero's doubt.

"At the time that the computer checks on Flores were completed, Livingston was aware that (1) Flores initially told an implausible story of his itinerary, and subsequently changed his story; (2) Flores had lied about his arrest record; (3) Flores had lied about his time of entry into the United States; and (4) Flores had recently crossed the border from Mexico, a common origin of illicit drugs. These circumstances are sufficient to create reasonable suspicion of drug trafficking." United States v. Rodriguez-Flores, 249 Fed. Appx. 317 (5th Cir. 2007)*(unpublished).

Plain view of 1700 pounds of marijuana in the back of a pickup truck near the Mexican border was all that was needed for a seizure. United States v. Anaya-Sanchez, 242 Fed. Appx. 215 (5th Cir. 2007)* (unpublished).

Plain view through a window of a store room supported Customs seizure of counterfeit goods. Its incriminating nature was immediately apparent to the Customs officer. United States v. Alim, 256 Fed. Appx. 236 (11th Cir. 2007)* (unpublished).

Permalink 08:41:06 am, by fourth, 548 words, 693 views   English (US)
Categories: General

Defendant consented to entry, and officer could not stop him from going to his room because he was free to leave

Defendant was convicted of resisting a law enforcement officer, and it was based on his refusal to respond to the officers' requirement that he stop in his own home. Defendant's roommate brought police on a "standby" to defendant's home to get his stuff. Defendant let them in and walked back to his room, and officers tried to stop him because of a hunch [no reason to believe] he had a gun back there. Their grabbing him was constitutionally unjustified in this case. Briggs v. State, 873 N.E.2d 129 (Ind. App. 2007):

The State does not dispute Briggs's contention that when the officers entered his apartment, he "was not under arrest, [in] custody, or under suspicion for a crime." Appellant's Br. at 14. As such, their encounter was consensual, and Briggs remained free to disregard the officers, walk away, or even order them to leave his home. At trial, Officer Evans testified that he asked Briggs to stop walking toward the back bedroom because, "you know, it's America. People have the right to keep and bear arms and I [didn't] know what's in that dark apartment." Id. at 26. Officer Evans got it half right: not only do Americans enjoy a constitutional right to keep and bear arms, but they also enjoy a constitutional right to be secure in their persons and private dwellings against unreasonable intrusions by government agents. Here, the officers detained Briggs based solely on a hunch that he could have a weapon in his bedroom. This amounted to an unreasonable seizure in violation of the Fourth Amendment. See State v. Atkins, 834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) ("Officer safety is always a legitimate concern, but standing alone officer safety cannot form the basis for a valid investigatory stop."), trans. denied. Therefore, we conclude that the officers were not lawfully engaged in the execution of their duties and reverse Briggs's resisting law enforcement conviction for insufficient evidence.

A credible report that defendant had pointed a gun from his car made the car a virtual crime scene, and that justified a protective search of the car. (Alternatively, it was justified as a search incident.) State v. Glenn, 140 Wn. App. 627, 166 P.3d 1235 (2007):

¶12 Importantly, in each case, a “determination of the reasonableness of an officer's intrusion depends in some degree on the seriousness of the apprehended criminal conduct. An officer may do far more if the suspected misconduct endangers life or personal safety than if it does not.” State v. Rice, 59 Wn. App. 23, 27, 795 P.2d 739 (1990) (citing State v. McCord, 19 Wn. App. 250, 253, 576 P.2d 892 (1978)). Additionally, “[t]here is no constitutional violation in allowing a police officer to assume a citizen's report has some basis when he is conducting an initial investigation of that complaint.” State v. Rice, 59 Wn. App. at 28.

¶13 A stop based on a report of a weapon sighting is markedly different from investigative stops based on reports of drug-related activities or traffic infractions. The latter were held lawful based on the suspects' furtive movements and the presence of a passenger or the need to return to the vehicle to facilitate the investigation. But here, because the police received a legitimate citizen's report that a driver had pointed a gun from his vehicle, no furtive movements were necessary to justify the belief that Glenn's suspected misconduct endangered the safety of the officers. ...

Permalink 08:16:34 am, by fourth, 776 words, 1331 views   English (US)
Categories: General

When is the passenger free to leave if the driver is detained?

In an interesting twist to Brendlin on the stop of the driver being a stop of the passenger, Arizona speaks to when the passenger is free to leave, if separate from the driver. Here, the officer ordered defendant out of the car for reasons completely unrelated to the purpose of the initial stop and patted him down without regard to any claim of safety. Therefore, the patdown was suppressed. State v. Johnson, 217 Ariz. 58, 170 P.3d 667, 512 Ariz. Adv. Rep. 3 (2007), cert. gr 2008 U.S. LEXIS 5208 (June 23, 2008):

P18 We have found no case law governing when the seizure of passengers in a vehicle, incident only to a driver's traffic violation, terminates. See Maryland v. Wilson, 519 U.S. 408, 415 n.3, 117 S. Ct. 882, 886 n.3 (1997) (declining to reach this issue). However, common sense suggests that at some point during the encounter the passengers in the vehicle must be free to leave--their fate is not entirely tied to that of the driver. Obviously, if a driver is arrested and taken to the police station, innocent passengers will not also be taken into custody or required to accompany the driver. If the passengers are told they are free to leave and do so, it is clear they are no longer seized; it is equally clear that, if they are being questioned about the reason for the stop, they remain seized. It is less clear when passengers' seizures terminate under factual situations that lie within the extremes of these examples, but we must be guided by reasonableness. See Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996) ("The 'touchstone of the Fourth Amendment is reasonableness.' Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances."), quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991).

. . .

P20 When we examine whether Trevizo's encounter with Johnson evolved into a consensual encounter, we note that Trevizo's interaction with Johnson and her questions to him were wholly unrelated to the purpose of the traffic stop. Trevizo testified that she and her team "were not investigating gang activity as part of the traffic stop," stating she spoke with Johnson solely because she "wanted to gather intelligence about the gang he might be in," "a choice [she] made to further [the] mission of [her] task force."

P21 Had Trevizo wanted to order Johnson out of the car after it had been stopped, she could have done so. See Wilson, 519 U.S. at 415, 117 S. Ct. at 886 ("[A]n officer making a traffic stop may order passengers to get out of the car pending completion of the stop."). However, Trevizo did not do so. As we already noted, Trevizo conceded that, as far as she was concerned, Johnson "certainly" "could have refused" her request to get out of the car.

. . .

P23 And, most importantly, neither Trevizo nor the other officers ordered all the occupants to get out of the vehicle during the traffic stop for officer safety reasons. Indeed, the front seat passenger remained in the car throughout the encounter. This fact lends further support to the conclusion that Trevizo's questioning of Johnson was wholly unrelated to the stop and constituted a separate, and consensual, encounter.

. . .

P27 We find that Trevizo's initial lawful seizure of Johnson incident to the traffic stop of the driver evolved into a separate, consensual encounter stemming from an unrelated investigation by Trevizo of Johnson's possible gang affiliation and that, under the circumstances of this case, a reasonable person in Johnson's position would have felt free to remain in the vehicle. The state has admitted the officers had no reason to believe Johnson was involved in criminal activity when Trevizo searched him. Trevizo's request that Johnson step out of the car to discuss gang activity, and not for officer safety purposes, was part of a consensual encounter. Accordingly, she had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous. See Ilono H., 210 Ariz. 473, P11, 113 P.3d at 699. Accordingly, the trial court erred in denying Johnson's motion to suppress the evidence found. See Moody, 208 Ariz. 424, P62, 94 P.3d at 1140.

Brendlin was cited and briefly discussed, and it was decided after submission of the case. The court concluded that Brendlin did nothing to answer the question there.

Defendant has already been held to lack standing to contest the search of the motel room he was in. His second motion to reconsider does no better because claiming it was an invalid probation search misses the mark. United States v. Molsbarger, 2007 U.S. Dist. LEXIS 66448 (D. N.D. September 6, 2007).*

Defendant's continued detention was based on [really thin] reasonable suspicion. Consent thereafter was valid. Lane v. State, 287 Ga. App. 503, 651 S.E.2d 798 (2007).*


Permalink 09:31:57 am, by fourth, 301 words, 1354 views   English (US)
Categories: General

Warrant issued under statute later declared unconstitutional would not be suppressed

Warrant issued under the Stored Communications Act held unconstitutional in the Sixth Circuit in Warshak v. United States, 490 F.3d 455 (6th Cir. 2007), did not mean that a warrant issued prior to that should be suppressed. The exclusionary rule will not be applied. United States v. Ferguson, 508 F. Supp. 2d 7 (D. D.C. 2007):

The Fourth Amendment's exclusionary rule does not apply where the challenged evidence was obtained by an officer acting in objectively reasonable reliance on a statute even if that statute was later determined to be unconstitutional. Illinois v. Krull, 480 U.S. 340, 349 (1987). It has long been established that the primary purpose of the exclusionary rule "'is to deter future unlawful police conduct and therefore effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures.'" Id. at 347 (quoting United States v. Calandra, 414 U.S. 338, 347 (1974)). It is not intended to cure the violation of a defendant's constitutional rights. Id.

The deterrence of unlawful police conduct is not advanced when an officer acts in objectively reasonable reliance on a statute. Id. at 349. [It was not clearly unconstitutional at the time.]

Probation search for defendant residing in an unapproved residence was valid because of reasonable suspicion. [Court also questions defendant's standing to contest the search, but the government did not raise it.] United States v. Manuel, 2007 U.S. Dist. LEXIS 66556 (E.D. Pa. September 7, 2007).*

San Diego's Sheriff cannot get summary judgment to get out of a strip search case from the jail because plaintiff has a claim that the jail is implementing the policies of the Sheriff. Bacon v. Kolender, 2007 U.S. Dist. LEXIS 66274 (S.D. Cal. September 6, 2007).*

Defendant was subjected to a private search by somebody acting without the encouragement of law enforcement, so the motion to suppress was denied. United States v. Sheridan, 2007 U.S. Dist. LEXIS 66460 (N.D. Iowa September 7, 2007).*


Permalink 11:37:40 am, by fourth, 106 words, 703 views   English (US)
Categories: General

Government claims new FISA law aided terrorist arrest, but not so

The NY Times reports today that the government claims that the new FISA law, signed August 5th by President Bush that sunsets six months after adoption, led to the arrest of participants in a UK terrorist cell. A source, however, said that the old FISA law was used. See New U.S. Law Credited in Arrests Abroad.

What this means, even to the uninitiated, should be obvious: The President is priming the pump to remove the sunset provision. Congress adopted the new law because of a secret perceived threat. By keeping the threat alive indefinitely, the Administration apparently thinks that Congess will buy into unsunsetting it.

Permalink 08:27:55 am, by fourth, 539 words, 731 views   English (US)
Categories: General

Religious defense to possession of marijuana was not cognizable in a challenge to a search warrant

Defendant challenged a search warrant for marijuana based on a religious defense raised under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. The district court held that the defense to possession was not cognizable in a motion to suppress the search because it would involve issuing magistrates in determining religious defenses first. United States v. Lepp, 2007 U.S. Dist. LEXIS 66311 (N.D. Cal. September 6, 2007):

To the extent that Lepp challenges the seizure of his marijuana plants as a violation of RFRA, such an argument is easily set aside. As an initial matter, in challenging the seizure of a religious article, such as a sacrament, Lepp invokes the protections of RFRA to the instant seizures; however, the government's interest overcomes Lepp's. The government's compelling interests in enforcing drug laws by executing valid search warrants in pursuit of that aim is long-established. Compare Rush, 738 F.2d at 512-13 (upholding conviction for marijuana possession under strict scrutiny analysis) with Navajo Nation v. United States Forest Service, 479 F.3d 1024, 1044 (9th Cir. 2007) ("We are unwilling to hold that authorizing the use of artificial snow at an already functioning commercial ski area in order to expand and improve its facilities ... is a governmental interest of the highest order.") (citation and quotations omitted). Nor does this case present the type of narrow tailoring challenge that the Court confronted in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U. S. 418 (2006). The O Centro Espirita court admonished the government for its failure to analyze the requested religious exemption and its effects on the particular claimant. Id. at 431. Here, the government has not resorted to the slippery-slope argument exclusively, which the O Centro Espirita court rejected, but instead has provided argument that the system proposed by Lepp would be unworkable. Magistrates would have to scrutinize all warrant applications for possible indications of religious exercise. "[T]he government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the required religious accommodation would seriously compromise its ability to administer the program." O Centro Espirita, 546 U.S. at 435 (citing cases in which such a showing was made). It is clear that the government had no more narrowly tailored alternative for executing a search warrant and enforcing the criminal laws than to seize the marijuana plants on both occasions. Lepp continued to cultivate marijuana after the first seizure. Indeed, there is some evidence that Lepp told agents that he would begin replanting marijuana immediately after a seizure of some of his plants. February 11, 2005 Aff. P 8. Additionally, unlike the religious exception granted to certain Schedule I substances under the Controlled Substances Act, 21 U.S.C. section 801 et seq., there is no evidence that the Attorney General has granted exemptions for other religious uses of marijuana or similar drugs. O Centro Espirita, 546 U.S. at 434-36.

Finally, Lepp asks the court to fashion an exclusionary remedy under its power to grant "appropriate relief" for violations of RFRA. 42 U.S.C. § 2000bb-1(c). Because the court has concluded that no such violation occurred, the court declines Lepp's invitation to expand the exclusionary rule. Nor is such an invitation appropriate. The court can find no authority for suppressing evidence on the basis of a RFRA violation.

Permalink 08:15:10 am, by fourth, 292 words, 670 views   English (US)
Categories: General

E.D. Cal.: Probable cause decided first, good faith exception as an alternative basis

The E.D. Cal., in a forfeiture case based on a search warrant, determines the question of probable cause first, and then finds the good faith exception applicable as an alternative basis. United States v. Approximately $15,630.00 in United States Currency, 2007 U.S. Dist. LEXIS 66298 (E.D. Cal. September 7, 2007):

In sum, claimants' argument is an attempt to engage the court in a technical review of the affidavit, rather than the practical, common-sense approach mandated by Gates. Because the court concludes that the search of Wahidi's residence did not violate the Fourth Amendment in that the search warrant showed probable cause for the seizure of the items from Wahidi's residence, or in the alternative, that the good faith exception to the exclusionary rule applies, claimants' motion to suppress is DENIED.

A failure to file a motion to suppress under F.R.Crim.P. 12 is a waiver of the issue. That is sufficient to resolve the appeal, and it saves for later whether a failure to file a suppression motion deprives the appellate court of jurisdiction to decide the question on appeal. United States v. Collier, 246 Fed. Appx. 321, 2007 FED App. 0631N (6th Cir. 2007)*(unpublished).

Reasonable suspicion existed: "The specific, articulable facts indicated that Johnson had committed at least one of the above crimes. Moreover, the time of day, the high-crime area, and the suspicious actions and condition of Johnson, support the finding that the officers had reasonable suspicion that criminal activity had occurred." United States v. Johnson, 246 Fed. Appx. 982, 2007 FED App. 0653N (6th Cir. 2007)* (unpublished).

Defense counsel's failure to appeal denial of suppression motion was hardly prejudicial in light of the facts developed at the hearing which showed defendant would not prevail on appeal. Middleton v. Quarterman, 2007 U.S. Dist. LEXIS 66276 (W.D. Tex. September 7, 2007).*

Permalink 07:36:07 am, by fourth, 781 words, 762 views   English (US)
Categories: General

9th Cir.: PC is subsumed into good faith exception and "colorable probable cause" is enough

At the government's invitation, Ninth Circuit takes good faith exception question first and does not decide probable cause except as ancillary to whether there is good faith. [Taking up the GFE tells you the outcome: They wouldn't be doing it if they had not already decided that it applied, and all it takes is "colorable probable cause" in the Ninth Circuit.] United States v. Crews, 502 F.3d 1130 (9th Cir. 2007):

For the good faith reliance exception to apply, the officers must have relied on the search warrant in an objectively reasonable manner. United States v. Clark, 31 F.3d 831, 835 (9th Cir. 1994). The affidavit "must establish at least a colorable argument for probable cause" for the exception to apply. United States v. Luong, 470 F.3d 898, 903 (9th Cir. 2006). Therefore, if there is a colorable argument that the search of Apartment 3 was supported by probable cause, the officer's reliance on the search warrant was objectively reasonable. This ends the inquiry without having to belabor the issue of whether the affidavit stated probable cause.

There are four circumstances in which the good faith exception does not apply because reliance is per se unreasonable: (i) where an affiant misleads the issuing magistrate or judge by making a false statement or recklessly disregarding the truth in making a statement; (ii) where the magistrate or judge wholly abandons her judicial role in approving the warrant, acting only as a "rubber stamp" to the warrant application rather than as a neutral and detached official; (iii) where the warrant is facially deficient in detail as to the place to be searched or the things to be found that the officers could not reasonably presume it to be valid; or (iv) where the affidavit upon which the warrant is based is so lacking in indicia of probable cause that no reasonable officer could rely upon it in good faith. Leon, 468 U.S. at 923-26.

The district courts below found that the good faith reliance exception was inapplicable because the affidavit was so lacking in indicia of probable cause that the police officers should have known that the search was illegal and because the officer's affidavit misled the issuing state judge. Specifically, the courts found that the officers were objectively unreasonable in believing they would find additional evidence of the crime of "felon in possession of a firearm" because the affidavit did not sufficiently link Crews to Apartment 3. We disagree. For the following reasons, the district courts erred in failing to apply the good faith reliance exception.

On its face, the affidavit was not so lacking in indicia of probable cause as to render reliance upon it objectively unreasonable. For probable cause, an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched. United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). It need only be reasonable to seek the evidence at the location indicated in the affidavit. United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993). The affidavit showed indicia of such a reasonable nexus between the crime of "felon in possession of a firearm" and Apartment 3 by demonstrating a sufficient link between Crews, Manus, firearm evidence, and Apartment 3 such that an officer could have reasonably relied upon it in good faith.

Comment: This has annoyed me since 1984, and I write about it in § 5.11 of the Treatise: Subsuming PC into the GFE provides no guidance to law enforcement or the courts as to what is probable cause. It tells us what is "colorable probable cause" and that is as far as they need to inquire. Colorable probable cause is good enough if a search warrant was issued on the affidavit. Those in favor of this view see absolutely nothing wrong with it because they do not care what is or is not probable cause. Officers in warrantless searches need to know, and the existence of probable cause has to be determined there. This creates a great irony in the law: courts spend time parsing the facts [as in other posts today] over whether reasonable suspicion or probable cause exists, but they shirk their responsibility on probable cause when there is a warrant. And why? Experience shows that probable cause is not that hard to show, and the defendant, law enforcement, and the public are entitled to know that there was probable cause or not.

In the past, I have analogized probable cause to a game of darts: The government scores if it hits the target, and a bullseye is never required, but the points do add up much faster. Under the GFE, if the government just hits the wall holding the target, it scores. The defendant in the same dart game, however, has to hit the target to score.


Permalink 02:44:21 pm, by fourth, 170 words, 713 views   English (US)
Categories: General

NY Times: Court Cloaked in Secrecy Shows a Hint of Openness

The has this column today: Court Cloaked in Secrecy Shows a Hint of Openness (sub. req.). It is on the ABA Journal's website as: Wiretap Court Flexes Judicial Muscle:

The court that considers foreign intelligence wiretap applications is showing hints of an independent streak.

The Foreign Intelligence Surveillance Court has operated in secret, even as federal officials disclosed that the court had limited the government’s ability to conduct warrantless wiretaps of overseas communications that are routed through the United States.

“In recent weeks, however, there have been signs of a new independence, perhaps prompted by the administration’s selective disclosures of aspects of the court’s orders,” Adam Liptak writes in his Sidebar column for the New York Times (sub. req.).

Last month, the intelligence court asked the government to respond to a request for release of its secret rulings limiting wiretaps. And the court took the further step of asking the Justice Department to make its responding brief public absent court permission to file under seal.

Permalink 11:10:50 am, by fourth, 398 words, 1780 views   English (US)
Categories: General

"Fruit of the poisonous tree" doctrine does not apply in § 1983 claims

The "fruit of the poisonous tree" doctrine does not apply in § 1983 claims. Cannon v. Christopher, 2007 U.S. Dist. LEXIS 66146 (N.D. Ind. September 6, 2007):

Defendants contend that probable cause existed from the events occurring after the stop even if the initial stop was lacking reasonable suspicion and/or probable cause as found by the state court. To this end, Defendants cite Townes v. City of New York, 176 F.3d 138 (2d Cir. 1999) wherein the Second Circuit concluded that the exclusionary rule and the related doctrine of fruit of the poisonous tree did not apply to a civil rights action brought under § 1983. As is the case here, the plaintiff in Townes was allegedly subjected to an illegal search and seizure that led to the discovery of handguns which, in turn, led to the plaintiff's arrest, incarceration, and subsequent conviction. On appeal, the conviction was reversed and the appellate court determined that the officers lacked probable cause to stop and search him. The plaintiff then sought damages for injuries "derivative" of the search and seizure including his arrest and incarceration.

According to the Townes court, the plaintiff could not state a claim for false arrest because although the defendants lacked probable cause to stop and search him, they "certainly had probable cause to arrest him upon discovery of the handguns." Id. at 149. The Second Circuit explained that, "a § 1983 action, like its tort analogs, employs the principle of proximate causation," and that adopting the fruit of the poisonous tree doctrine in a § 1983 action would, "impermissibly recast the relevant proximate cause injury to one of taint and attenuation" and serve to "elongate the chain of causation." Id. at 141. Thus, the court concluded that "the lack of probable cause to stop and search does not vitiate the probable cause to arrest." Id. at 149.

Defense counsel was not ineffective for not more aggressively pursuing probable cause issue because it would not have changed the outcome. Mathurin v. United States, 2007 U.S. Dist. LEXIS 66055 (S.D. N.Y. September 4, 2007).*

Informant privilege prevailed because the informant was not the source of information for the search. Indeed, the informant never mentioned the defendant. Kennard v. State, 933 A.2d 1250 (Del. 2007).*

Defendant subjected to a customs search en route from Atlanta to St. Thomas showed his intent to leave the customs zone. United States v. Mark, 2007 U.S. Dist. LEXIS 66165 (D. V.I. September 5, 2007). (So the Virgin Islands is foreign territory?)

Permalink 10:38:25 am, by fourth, 379 words, 733 views   English (US)
Categories: General

"Any and all persons present" violates particularity without nexus being shown

A provision in a search warrant to search "any and all persons present" failed particularity for lack of nexus as to anybody other than the defendant. (Also, the telephonic warrant was properly reconstructed by the testimony of the officer and magistrate and admission of the officer's notes when the recording failed.) State v. Garcia, 140 Wn. App. 609, 166 P.3d 848 (2007):

Here, there is nothing to establish individualized probable cause for "any and all" of the persons who may have been present in the motel room where drug activity was suspected to occur. While the police may have had generalized suspicions regarding the presence of other persons and their possible involvement, this is not sufficient to create the required nexus. The "any and all persons present" warrant in this case violated the Fourth Amendment's requirement of particularity.

The State argues that, even if the warrant for all persons present is invalid, the police nonetheless had the lawful authority to be present based on the search warrant. Upon discovering criminal activity inside the motel room, the police then had independent probable cause to arrest Mr. Munoz Garcia.

A warrant that authorizes the search of both a person and a place may be severed, and a court may uphold one portion of the warrant even if the other is later determined to be defective. ...

References to "known drug users" in the affidavit for search warrant was conclusory. Otherwise, however, the information in the affidavit was sufficient for self-verifying detail from informants and first hand information from the officers. Abeyta v. State, 2007 WY 142, 167 P.3d 1 (2007).*

Anonymous tip was insufficient in this case. United States v. Crandell, 2007 U.S. Dist. LEXIS 65962 (D. N.J. September 7, 2007):

The question presented is whether an anonymous tip that "a black male with dreadlocks and blonde tips[,] wearing a tan shirt and blue jeans" was carrying a gun in the small of his back is, without more, sufficient to justify a police officer's stop and frisk. This Court finds that it is not. The stop and frisk violated Defendant's Fourth Amendment right to be free from unreasonable search and seizure. The fruits of the stop and frisk, namely a handgun, were tainted by the unconstitutionality of the stop. Defendant's motion to suppress the evidence seized after the stop shall be granted.

Permalink 10:14:18 am, by fourth, 793 words, 1256 views   English (US)
Categories: General

WA concludes that a misdemeanor arrest warrant authorizes an entry to arrest only; pretextual searches will not be tolerated

The Washington Supreme Court held that a misdemeanor arrest warrant authorizes police to enter to make an arrest, but only an arrest. It finds it cannot distinguish Payton from misdemeanor arrest warrants because a neutral and detached magistrate made a probable cause finding. The court added, however, that it will not permit the use of misdemeanor arrest warrants as a pretext for search of a home. State v. Hatchie, 161 Wn. 2d 390m 166 P.3d 698 (2007). This is an interesting holding that merits reading, but here is just a part:

Here the warrant was issued by a neutral and detached magistrate. A judicial officer determined there was probable cause to believe a crime was committed and Schinnell committed that crime. This determination constitutes authority of law that justifies an intrusion into the suspect's home to execute the arrest under limited circumstances. Hatchie, on the other hand, essentially asks us to hold police may never enter a residence on a misdemeanor arrest warrant.

Considering we have held felony arrest warrants provide limited authority to effect an arrest in the home, we see no way to distinguish a misdemeanor arrest warrant to not provide similar authority of law. To do so would create a system whereby some warrants provide authority of law and some do not. As we see it, an arrest warrant is either authority of law to invade the home or it is not.

Of course, but for that warrant, police entry into a private home to make a misdemeanor arrest is per se invalid. As our Court of Appeals said, "When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." Welsh, 466 U.S. at 750 (footnote omitted); see id. at 749 n.11 ("Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.").

Of course, there is room for the police to abuse this authority. Therefore, we take pains to point out an arrest warrant does not allow for a general search of the premises. Rather, it allows the police only the limited ability to enter the residence, find the suspect, arrest him, and leave. Police action that deviates from the narrow bounds of this authority has no authority of law. In the past we have carefully scrutinized police conduct when they effectuate an arrest warrant, and we have not hesitated to suppress evidence gained from unauthorized extensions of an officer's arrest authority. See Chrisman II, 100 Wn.2d at 820; State v. Kull, 155 Wn.2d 80, 118 P.3d 307 (2005). In Chrisman II, we considered whether an officer's search incident to arrest violated article I, section 7. 5 We focused on the officer's actions after he arrested the suspects. We "recognized that the presence of an officer, which is initially lawful, can be rendered unlawful by his movement." Chrisman II, 100 Wn.2d at 820. But here we are asking if the officers' initial presence was lawful, not if some later act after the arrest exceeded the officers' scope of their authority. ...

Similarly, the police cannot use an arrest warrant--misdemeanor or otherwise--as a pretext for conducting a search or other investigation of someone's home. As the American Civil Liberties Union of Washington (ACLU-WA) points out in its amicus brief, there are thousands of misdemeanor arrest warrants in the state that have not been served. Amicus Curiae Br. of ACLU-WA at 9-10. Here while Hatchie at times alluded to a pretext argument, he never specifically raised such an argument so we do not consider it. But we do note that the police cannot use arrest warrants as a guise or pretext to otherwise conduct a speculative criminal investigation or a search. State v. Michaels, 60 Wn.2d 638, 644, 374 P.2d 989 (1962) ("An arrest may not be used as a pretext to search for evidence." (citing United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877 (1932); Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961))); see Ladson, 138 Wn.2d at 353 ("Just as an arrest may not be used as a pretext to search for evidence, a traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further."). A sounder practice would be for police to secure a search warrant for a particular premise. A neutral magistrate's determination that police have probable cause to search a particular residence gives police broader authority when they enter a home and also negates any suspicion of a pretextual intrusion to effectuate an investigation.

Permalink 07:55:37 am, by fourth, 173 words, 876 views   English (US)
Categories: General

OK: Exigent circumstances are no longer required for an automobile search

Oklahoma determines that separate exigent circumstances are no longer required for a search under the automobile exception under the state constitution, and it follows Ross and Dyson. Gomez v. State, 2007 OK CR 33, 168 P.3d 1139 (2007):

[*P16] Because we believe the United States Supreme Court's decisions in Ross and Dyson rest on sound principles, we are persuaded they should inform our construction of Article 2, § 30. We therefore hold that a warrantless search of a vehicle is not unreasonable under Article 2, § 30, of the Oklahoma Constitution in the absence of a showing of exigent circumstances when police have probable cause to believe that evidence of a crime is present. To the extent that Davis, Whitehead, and Lawson hold to the contrary, they are overruled.

There was probable cause on the totality, considering the deference that search warrants get, and the trial court erred in suppressing. State v. Edwards, 185 N.C. App. 701, 649 S.E.2d 646 (2007).*

Defendant's employer could consent to search of work computers for child porn. United States v. Bassignani, 2007 U.S. Dist. LEXIS 65648 (N.D. Cal. August 20, 2007).*

Permalink 07:35:52 am, by fourth, 677 words, 962 views   English (US)
Categories: General

Consent was the product of interrogation and coerced where defendant started off telling officers she did not want to consent

Consent to search of defendant's home was the product of coercion on the totality of the circumstances after 90 minutes of interrogation. State v. Munson, 339 Mont. 68, 2007 MT 222, 169 P.3d 364 (2007):

[*P55] Having considered the foregoing arguments and the record before us, we conclude that the totality of the circumstances weighs in Munson's favor. Although there unquestionably are circumstances supporting both sides of the consent issue, we consider the following facts to be most significant.

[*P56] First, Munson indicated to the Officers upon their arrival that she did not want to visit with them at that time, but they insisted on visiting with her "right now," thereby creating a coercive dynamic at the outset of the interview. Second, Munson unequivocally refused twice at the outset of the questioning to consent to a search of her apartment, but the Officers nevertheless pressured her to change her mind, thereby conveying that they would not take "No" for an answer. In this regard, we are not persuaded by the emphasis the State places on the Officers' altruistic motive in going to Munson's apartment "to help [her] get out of the pattern of drug use"--a characterization that is dubious in light of Basnaw's statement, upon the Officers' arrival, that he and Johnson were there to "follow up" on allegations of criminal activity involving Munson and her apartment. Indeed, the State's portrayal of the events is belied by Basnaw's own characterization (while requesting transportation of Munson) of what had just transpired:

Hi Hillary it's Jase. Good. Hey that female I talked to ya' about I'm at her house now. We did a consent to search and I'm gonna' end up takin' her to jail. Yeah. We got a little bit o' meth and meth paraphernalia. She's got a 1-year-old and a 5-year-old. So how do ya' like that? Hahaha. Made to order.

[*P57] Third, the Officers employed what could fairly be characterized as psychological tactics to obtain Munson's consent. Cf. Schneckloth, 412 U.S. at 229, 93 S. Ct. at 2049 ("In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents."). For instance, Johnson told Munson that "[t]here's some pretty bad stuff goin' on here," opined that she was at "a fork in the road," offered ideas on how she might change her life, and then suggested that signing the consent form would be the wise choice for her to make, noting that "[t]he decision you make today is gonna' determine where your children are raised." As a result, Munson's consent ultimately was given while she was in an extremely emotional state brought on by the Officers' lecturing her at length about her lifestyle, her children, and her future. For this reason, we cannot agree with the State that "[t]his is not a case in which the police wore down a suspect." To the contrary, our review of the thirty-one-page transcript covering the approximately one hour and forty-five minutes that the Officers were at Munson's apartment leads inescapably to the conclusion that Basnaw and Johnson's approach achieved exactly what they had intended: to wear Munson down to the point where she made inculpatory statements and yielded to their warrantless search of her home.

[*P58] Lastly, although the Officers did indeed tell Munson that she did not have to sign the Consent to Search form, they also told her that she did have to sign the form. As a matter of fact, the transcript reflects virtually simultaneous contradictory statements by the Officers in this regard; at the very least, their statements to Munson that she did not have to sign the form were equivocal.

[*P59] Based on the totality of the circumstances, we conclude that Munson's consent was not given freely and voluntarily and without duress or coercion. Thus, all evidence seized by the Officers under the guise of Munson's consent is inadmissible. We accordingly reverse the District Court's order denying Munson's motion to suppress that evidence.

Permalink 07:24:24 am, by fourth, 904 words, 777 views   English (US)
Categories: General

Kan.: SCOTUS consent after stop jurisprudence criticized, but followed; consent found

Supreme Court's consent after a valid traffic stop jurisprudence is criticized. "The factually driven inquiry means that the test is difficult to apply." State v. Thompson, 184 Kan. 763, 166 P.3d 1015 (2007):

As the parties suggest, this divergence of opinion reflects the inherently factual nature of the inquiry. The factually driven inquiry means that the test is difficult to apply. This difficulty leads to imprecision which has led commentators to criticize the United States Supreme Court's consent search jurisprudence. Commentators, in addition to noting the difficulty in applying the case law relating to consensual searches to specific fact situations, argue that the Court's analysis utilizes an ill-crafted paradigm. See, e.g., Williams, Misplaced Angst: Another Look At Consent-Search Jurisprudence, 82 Ind. L.J. 69, 69-71 (2007) ("No one seems to have a good word to say about consent-search jurisprudence"; it is a "problematic realm of Fourth Amendment law."); Note, The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2188 (2006) ("Most commentators agree that the Court's current approach is flawed, and even those commentators who defend the Court's holdings criticize its reasoning."); Simmons, Not "Voluntary" But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine, 80 Ind. L.J. 773, 773 (2005) (consent-search paradigm is a "triple inconsistency: the Court claims to be applying one test, but in reality is applying a different test-and neither test fully comports with the real-life confrontations"); Comment, "People, Not Places": The Fiction of Consent, The Force of the Public Interest, and the Fallacy of Objectivity in Police Encounters with Passengers During Traffic Stops, 7 U. Pa. J. Const. L. 1071, 1095 (2005) (because "[t]here is no such thing as a consensual encounter during a traffic stop," author argues "courts need a new standard"); LaFave, The "Routine Traffic Stop" from Start to Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 Mich. L. Rev. 1843, 1898 (2004) (argues officers can "obviate any and all time and scope limitations" by performing "the well-known Lt. Columbo gambit ['one more thing ...']" despite the reality that "any person who has been detained for a traffic violation is unlikely to so perceive the situation"); Chanenson, Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches, 71 Tenn. L. Rev. 399, 402 (2004) ("[A]lthough scholars have criticized the consent search doctrine for years, the Supreme Court has steadfastly defended it and sided with a pro-law enforcement approach."); Whorf, Consent Searches Following Routine Traffic Stops: The Troubled Jurisprudence of a Doomed Drug Interdiction Technique, 28 Ohio N.U. L. Rev. 1, 7 (2001) ("coercion inherent" in consent searches after routine traffic stop "must be addressed in some way"); Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J. Crim. L. and Criminology 437, 481-82 (1988) (argues test utilized by United States Supreme Court is unworkable because outcomes of cases turn on subtle factual distinctions that make it difficult for police officers to apply the standard in the field and adjust their conduct accordingly).

This criticism is valid in many respects. Because of the valid arguments raised, if we were to write on a clean slate, we would consider a different paradigm. We do not have this opportunity, however, because we are obligated to follow the United States Supreme Court's interpretation and application of the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 655-57, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, reh. denied 368 U.S. 871 (1961).


The facts of this case present circumstances somewhere in between these cited cases. The lights remained activated, a traffic warning was given, and Thompson was told to have a nice day, but there was no unequivocal signal that he was free to go. Also, the nighttime stop means the lights could have been left on for safety purposes. Given the ambiguity of the situation, the flashing emergency lights could be a factor in the totality of the circumstances relevant to a determination of whether an encounter with a law enforcement officer is consensual.

But, the subjective state of mind of the motorist is not determinative.

Here, some of these circumstances existed. The lights remained activated. We note, however, as previously discussed, the dark of night and the end of the traffic stop make the display of lights ambiguous and not a clear show of authority. In addition, Thompson pulled over in an alley, and two officers were present. Like Guerrero, 472 F.3d at 789, where the Tenth Circuit Court of Appeals found the presence of an additional officer a factor "only in the mildest of forms" because the officer was a distance away and had no contact with the defendant, in this case the trial court made the factual finding that Thompson was unaware of the back-up officer's presence. The back-up officer did not approach Thompson or Thompson's vehicle and had no contact with Thompson.

On the other hand, there was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no threat, no command, not even an authoritative tone of voice. Officer Weinbrenner did nothing to "convey a message that compliance with [his] requests [was] required." Florida v. Bostick, 501 U.S. 429, 435, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991). No factor would indicate that Thompson's will was "overborne and his capacity for self-determination critically impaired." See Bustamonte, 412 U.S. at 225. Nothing about the encounter indicated duress or coercion. We conclude that under the totality of the circumstances a reasonable person would feel free to decline the officer's requests or otherwise terminate the encounter.

The trial court correctly determined the detention was consensual.

Permalink 06:49:23 am, by fourth, 470 words, 748 views   English (US)
Categories: General

CDL holder reasonably subject to drug testing as "new" hire

A CDL license holder is reasonably subject to random drug testing under 49 C.F.R. § 382.305 whenever he becomes a "new employee," and plaintiff came back to work at the same company three times. There was no factual dispute he consented to the test. Fontaine v. Clermont County Bd. of Comm'rs, 2007 U.S. Dist. LEXIS 65877 (S.D. Ohio September 6, 2007):

Here, the job Plaintiff sought required that he operate equipment, including jet trucks, tractors, and backhoes (doc. 19, Exhibit H). The job further required that he maintain a CDL. (Id.). The Court concludes the Board's legitimate government interests in having drug-free employees operating such equipment, and its duty to conduct random testing on those employees holding CDL's, provide ample justification for the drug testing here that outweighs Plaintiff's Fourth Amendment interests. Skinner, 489 U.S. at 619. The Court simply cannot find unreasonable the drug testing under these circumstances.

Under § 1983, state tort limitations are borrowed, but plaintiff was barred by Heck as long as his conviction was in effect, so he could not bring his action until he set it aside about 16 years after his conviction. Cleary v. County of Macomb, 2007 U.S. Dist. LEXIS 65811 (E.D. Mich. September 6, 2007):

Plaintiff argues that he is asserting constitutional violations under both the Fourth and Fourteenth Amendments. Plaintiff contends that he has alleged a "continued detention without probable clause" claim in violation of the Fourth Amendment and due process violations under the Fourteenth Amendment, including "Brady violation[s] and [] fabrication of evidence claim[s] ...." (Pl.'s Resp. to Barone at 41-42.) Plaintiff argues that the statute of limitations did not begin to run on these claims until the charges against him were dismissed on February 2, 2005.

This Court agrees with Plaintiff. As provided in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), if Plaintiff would have brought his current Fourth and Fourteenth Amendment challenges while his conviction and sentence remained in effect, such a claim would have implied the invalidity of conviction or sentence requiring Plaintiff to "prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254." Heck, 512 U.S. at 486-87, 114 S. Ct. at 2372. Plaintiff was unable to make the requisite proof until February 2, 2005. Thus, the Court concludes that Plaintiff's remaining Fourth and Fourteenth Amendment claims against Defendants accrued on February 2, 2005. Because Plaintiff filed the present action on December 12, 2006, well within the three-year limitations period, his claims against Defendants are not time-barred.

Comment: I can't help but think that when Heck was decided, the Supreme Court thought that it was limiting claims, but now it is being used to extend the limitations period for those who could not have been brought when they were in jail.


Permalink 05:26:25 pm, by fourth, 141 words, 722 views   English (US)
Categories: General

Sea turtle search warrant

We are safer today. No, Osama bin Laden has not been found, and al Qaeda is not in check. But DoJ has found the resources to prosecute 54 counts in a sea turtle smuggling operation in Denver, indicting U.S. and Mexican citizens through the Environmental Crimes Section for violations of the Endangered Species Act. Undercover Sting Nets Five Individuals for Illegal Trade of Protected Sea Turtles and Other Wildlife:

Today’s arrests and the execution of search warrants in the United States and Mexico are the result of a joint operation between the Department of Justice; the U.S. Fish and Wildlife Service, Branch of Special Operations; and Mexican law enforcement authorities. This joint operation represents a significant milestone in the ongoing cooperation between United States and Mexican law enforcement agencies with respect to protecting both countries’ wildlife and natural resources.


Permalink 02:36:28 pm, by fourth, 1445 words, 1067 views   English (US)
Categories: General

S.D. N.Y. National Security Letter case: Doe v. Gonzales

The National Security Letter case reported yesterday is Doe v. Gonzales, 500 F. Supp. 2d 379 (S.D. N.Y. 2007):

. . . This Court, in a lengthy decision dated September 28, 2004, granted Plaintiffs' motion for summary judgment and declared § 2709 unconstitutional on its face, under the First and Fourth Amendments. See Doe v. Aschroft, 334 F. Supp. 2d 471 (S.D. N.Y. 2004) ("Doe I"). "Considering the implications of its ruling and the importance of the issues involved," the Court stayed enforcement of its judgment pending appeal. See id. at 526.

Shortly after this Court's decision, a court in the District of Connecticut enjoined the Government from enforcing the nondisclosure requirement of § 2709(c) insofar as it prevented the plaintiff in that case from revealing its identity as a recipient of an NSL, holding that § 2709(c) failed to satisfy strict scrutiny because it was not narrowly tailored to serve a compelling state interest. See Doe v. Gonzales, 386 F. Supp. 2d 66, 82 (D. Conn. 2005) ("Doe II").

While appeals in Doe I and Doe II were pending, Congress passed the USA Patriot Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, 120 Stat. 192. (Mar. 9, 2006) (the "Reauthorization Act."). The Reauthorization Act effectuated substantial changes to § 2709 and added several provisions 'relating to judicial review of NSLs which were codified at 18 U.S.C. § 3511 ("§ 3511"). As a result of these amendments, the Second Circuit remanded the Doe I appeal to enable this Court, if the parties were to continue the litigation in light of the amendments to the statute, to consider the validity of the revised § 2709(c) and the new procedures codified in § 3511. See Doe v. Gonzales, 449 F.3d 415, 419 (2d Cir. 2006).

The gag rule on NSL recipients violates the First Amendment:


The Court's analysis begins by noting that for the same reasons articulated in Doe I, see 334 F. Supp. 2d at 511-13, the nondisclosure provision of the revised § 2709, like its predecessor, embodies both a prior restraint and a content-based restriction on speech. The nondisclosure provision of the amended § 2709 still acts as a prior restraint because it still prohibits speech before it occurs. See id. at 511-12; see also Doe II, 386 F. Supp. 2d at 73. In granting the FBI authority to certify that an NSL recipient cannot disclose to any person information about receipt of the NSL, and in including this prescription in the actual NSL letter issued, the amended § 2709(c) "authorizes suppression of speech in advance of its expression." Ward v. Rock Against Racism, 491 U.S. 781, 795 n.5 (1989); see also Alexander v. United States, 509 U.S. 544, 550 (1993) ("The term prior restraint is used to 'describe administrative and judicial orders forbidding certain communications in advance of the time that such communications are to occur.'") (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, at 4-14 (1984)) (emphasis added in Alexander).

Additionally, the amended § 2709(c) continues to act as a content-based restriction on speech. In Doe I, the Government argued that § 2709(c) was not a content-based restriction because it prohibited disclosure irrespective of a speaker's viewpoint. See 334 F. Supp. 2d at 512. The Court disagreed, finding that although the pre-Reauthorization Act § 2709(c) was neutral with respect to viewpoint, it nonetheless functioned as a content-based restriction because it closed off an "entire topic" from public discourse. See id. at 513 ("'The First Amendment's hostility to content-based regulation extends not only to restrictions of particular viewpoints, but also to prohibition of public discussion of an entire topic.'") (quoting Consolidated Edison Co. of New York v. Public Serv. Comm'n, 447 U.S. 530, 537 (1980)). The nondisclosure requirement of the revised § 2709(c) continues to close off discussion of an entire topic. Prohibiting an NSL recipient from discussing anything about the NSL it received, including even the mere fact of receipt, means that "the first-hand experiences of NSL recipients," id. at 513, are completely excluded from the public debate. Likewise, the Doe II court, which also found § 2709(c) to be a content-based restriction, stated that it had "the practical impact of silencing individuals with a constitutionally protected interest in speech and whose voices are particularly important to an ongoing, national debate about the intrusion of governmental authority into individual lives." 386 F. Supp. 2d at 75. Indeed, Plaintiffs indicate that as a result of the nondisclosure requirement enforced in this case, they have been precluded from fully contributing to the national debate over the government's use of surveillance tools such as NSLs, perhaps most particularly consequential in inhibiting their ability to speak and inform public discourse on the issue during Congress's consideration of the Reauthorization Act.

Presumably, Congress's intention in amending 2709(c) to allow the FBI to certify on a case-by-case basis whether nondisclosure is necessary was to more narrowly tailor the statute to reduce the possibility of unnecessary curtailment of speech. Unfortunately, one necessary consequence of the resulting discretion now afforded the FBI is that the amended 2709(c) creates the risk not only that an "entire topic" of public debate will be foreclosed, but also the risk that the FBI might engage in actual viewpoint discrimination. By now allowing the FBI to pick and choose which NSL recipients are prohibited from discussing the receipt of an NSL, conceivably the FBI can engage in viewpoint discrimination by deciding to certify nondisclosure when it believes the recipient may speak out against the use of the NSL and not to require nondisclosure when it believes the recipient will be cooperative. Thus, the statute has the potential to "contravene the fundamental principle that underlies [the Supreme Court's] concern about 'content-based' speech regulations: that 'government may not grant the use of a forum to people whose views if finds acceptable, but deny use to those wishing to express less favored or more controversial views.'" City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49 (1986) (quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). The Government's position is that the FBI's discretion does not create the opportunity for viewpoint discrimination because the prohibition on nondisclosure is premised not on the content of any expected speech but on the circumstances of the counterterrorism or counterintelligence investigation, which may require secrecy in order to preserve the integrity of the investigation. Although this response suggests a relevant point, the Government's alleged concern solely with the effect of speech rather than the speech itself does not render 2709(c) any more content-neutral. See Forsyth County, 505 U.S. at 134 ("Listeners' reaction to speech is not a content-neutral basis for regulation.").

As a prior restraint and content-based restriction, the amended statute is hence subject to strict scrutiny. See Doe I, 334 F. Supp. 2d at 511. The Government indicates that, although it reserves the issue of the appropriate level of scrutiny for appeal, it does not argue this issue in light of the Court's prior determination in Doe I. (See Gov't Opp. 11.)

The statute can survive strict scrutiny only if it is "narrowly tailored to promote a compelling government interest," United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000), and there are no "less restrictive alternatives [that] would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." Reno v. ACLU, 521 U.S. 844, 874 (1997). Any restriction on speech which is content-based and acts as a prior restraint is presumed unconstitutional, and the government bears the burden of demonstrating that the provision satisfies strict scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) ("Content based restrictions are presumptively invalid."); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963) ("Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."); Playboy Entm't Group, 529 U.S. at 816 ("When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions.").

. . .

As was the case with the Court's initial decision, fundamentally this ruling is "about the process antecedent to the substance of any particular challenge." Id. at 475 (emphasis in original). Thus, the Court first considers whether the process relating to the issuance and review of an NSL requiring nondisclosure is sufficiently narrowly tailored to ensure that First Amendment rights are not unnecessarily abridged. When a statute confers discretion on government officials to suppress speech, as § 2709(c) does, that discretion must be reasonably limited by objective criteria. See Thomas v. Chicago Park Dist., 534 U.S. 316, 324 (2002). Moreover, the government must exercise its discretion within (a system that allows for "procedural safeguards designed to obviate the dangers of a censorship system." Freedman v. Maryland, 380 U.S. 51, 58 (1965). Such safeguards must include an opportunity for meaningful judicial review. Finally, even where the government has demonstrated a compelling interest justifying the restriction of expression, any such restriction must be narrowly tailored both in scope and duration. As detailed below, the nondisclosure provision of § 2709(c), even with the safeguard of the judicial review afforded by § 3511(b), prescribes a process that is constitutionally deficient under the First Amendment in several respects.

Permalink 12:50:50 pm, by fourth, 203 words, 678 views   English (US)
Categories: General

NY Times: F.B.I. Data Mining Went Beyond Targets posted this article 15 minutes before posted here: F.B.I. Data Mining Went Beyond Targets:

The F.B.I. cast a much wider net in its terrorism investigations than it has previously acknowledged by relying on telecommunications companies to analyze phone-call and e-mail patterns of the associates of Americans who had come under suspicion, according to newly obtained bureau records.

The documents indicate that the F.B.I. used secret demands for records to obtain data not only on the person it was targeting but also details on his or her “community of interest” — the network of people that the target in turn was in contact with. The F.B.I. recently stopped the practice in part because of broader questions raised about its aggressive use of the records demands, which are known as national security letters, officials said Friday after being asked about it.

The community of interest data sought by the F.B.I. is central to a data-mining technique intelligence officials call “link analysis.” Since the attacks of Sept. 11, 2001, American counterterrorism officials have turned more frequently to the technique, using communications patterns and other data to identify suspects who may not have any other known links to extremists.

Permalink 11:12:44 am, by fourth, 495 words, 827 views   English (US)
Categories: General

Plaintiff no longer on probation has no Heck bar to § 1983 case

A plaintiff no longer on probation has no Heck bar to his action. Abusaid v. Hillsborough County Bd. of County Comm'rs, 2007 U.S. Dist. LEXIS 65813 (M.D. Fla. September 6, 2007):

As discussed above, the Eleventh Circuit in its remand Order sua sponte raised the issue of whether the rule in Heck bars any or all of Plaintiff's claims. See Abusaid, 405 F.2d at 1315, n.9. It noted that a line of post-Heck cases leaves open the question of whether Heck bars § 1983 suits by plaintiffs who are not in custody and thus for whom habeas relief is not available. Citing Wilkinson v. Dotson, 544 U.S. 74 (2005), and Spencer v. Kemna, 523 U.S. 1 (1998), the court suggested that the Heck doctrine may now be understood to bar § 1983 relief only in cases when the alternative remedy of habeas relief is available, noting that in Spencer five justices (four concurring and one dissenting) concluded as much. Given the limited record before it and the need for resolution of certain factual matters, the court declined to weigh in on the matter further. Specifically, the court identified the following factual issues: whether Plaintiff was on probation at the time of filing his § 1983 action and therefore whether habeas relief is available to him; whether his arrest subsequent to filing this claim has any bearing on the issues; and whether any or all of the eighteen claims raised by Plaintiff necessarily imply the invalidity of his conviction or sentence.

Stone v. Powell bar applies to § 2255 proceedings, too. Estupian v. United States, 2007 U.S. Dist. LEXIS 65810 (M.D. Fla. September 6, 2007):

In Ground One of his motion, Mosquera Estupian complains of a Fourth Amendment violation in that his "conviction [was] obtained by [the] use of evidence obtained pursuant to an unlawful arrest." D-cv-1 at 4; D-cv-2 at 3-7. This claim is also not cognizable in this motion to vacate. Fourth Amendment violations are not cognizable on collateral review as long as the defendant had a "full and fair" opportunity to litigate the claim on direct appeal. See Stone v. Powell, 428 U.S. 465, 494 (1976) ("where the State has provided an opportunity to full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial"); see also, United States v. Ishmael, 343 F.3d 741, 742-43 (5th Cir. 2003) (citing United States v. Cook, 997 F.2d 1312, 1317 (10th Cir. 1993)) ("[I]t is clear that the [Supreme] Court intends for Fourth Amendment claims to be limited in § 2255 proceedings as they are limited in § 2254 proceedings--i.e., to be addressed only if a defendant has not had a full and fair opportunity to raise the claims at trial and on direct appeal); compare, Caver v. Alabama, 577 F.2d 1188, 1192 (5th Cir. 1978) ("But the applicability of Stone in § 2255 proceedings is somewhat unclear. While the Supreme Court has not definitively resolved the question, dicta in United States v. Johnson, 457 U.S. 537, 562 n. 20 (1982) indicates that the doctrine does apply here.").

Permalink 10:46:57 am, by fourth, 559 words, 1460 views   English (US)
Categories: General

6th Cir. adopts "extended border search" doctrine for somebody who cleared Customs

The Sixth Circuit, the first time it has faced the question, adopted the "extended border search" doctrine for somebody who cleared Customs, but her traveling companion had not and was being questioned. She was picking up luggage, and a Customs van went to get her 1500 feet from the Customs station at the Memphis airport. She had not been under surveillance after clearing Customs, but it was highly unlikely the condition of her belongings changed in the meantime. United States v. McGinnis, 247 Fed. Appx. 589, 2007 FED App. 0367P (6th Cir. 2007) (2-1):

In deciding whether to uphold an extended-border search as reasonable, courts generally have asked three questions: (1) did the individual cross the border? (2) did law enforcement seize the individual and her luggage sufficiently soon after the crossing to be reasonably confident that the condition of the individual and her luggage did not change after the border crossing? and (3) does law enforcement have a reasonable suspicion that the individual violated a criminal law? See, e.g., Yang, 286 F.3d at 945; see also United States v. Espinoza-Seanez, 862 F.2d 526, 531 (5th Cir. 1988) (applying similar test); Alexander v. United States, 362 F.2d 379, 382 (9th Cir. 1966). The salient question is whether "reasonable suspicion" of criminal activity exists, paying special attention to whether the suspected criminal activity relates to a recent border crossing (e.g., smuggling as opposed to a murder charge) and whether the search occurred sufficiently close in time to the border crossing as to eliminate the risk that the individual obtained the contraband after the crossing. Except for the dice-loading name of the rule--an "extended border search" doctrine suggests that suspicion is never required in the same way that an "extended house search" doctrine would suggest that probable cause is always required--we adopt our sister circuits' general approach to this issue.

The search of McGinnis satisfies these requirements. First, no one questions that McGinnis crossed the border. She had just traveled by plane from Amsterdam and crossed the "border" at the Memphis International Airport.

Second, the customs officials had a reasonable basis for concluding that the condition of McGinnis's luggage had not changed by the time of the search. The illegal contraband was the $17,358 in cash that McGinnis hid in her luggage and refused to declare when asked to do so. McGinnis never left the airport terminal. While waiting for Ely, she went to "get[] tickets for the next leg of her trip," JA 180, which at most would have permitted her to spend money, not to get more of it. It suspends reality to think that McGinnis could have acquired the necessary additional cash-over $7,000-to trigger the currency reporting requirement between the time she exited the inspection area and the time officers came to pick her up to take her back to customs--at most 1 hour and 35 minutes. See JA 125-26, 129-30, 144, 201. Obtaining more than $7,000 in an airport in general or at an ATM in particular in such a short time span strikes us as a daunting, if not a nearly impossible, task. See generally Yang, 286 F.3d at 948 (valid search even though defendant was not under surveillance in the airport for up to 45 minutes); United States v. Mejias, 452 F.2d 1190, 1192-93 (9th Cir. 1971) (valid search even though 90 minutes had elapsed since defendant, who was not under constant surveillance, passed through customs at airport); ....

Third, customs officials had reasonable suspicion that McGinnis had engaged in criminal activity. ...


Permalink 08:17:05 am, by fourth, 268 words, 763 views   English (US)
Categories: General

Judge voids NSLs granted by Patriot Act as abused by government

On, which is a more detailed article for lawyers, and and most newspapers today: Judge Voids F.B.I. Tool Granted by Patriot Act. The suit concerned National Security Letters, which have been greatly abused. The NY Times version:

A federal judge yesterday struck down the parts of the recently revised USA Patriot Act that authorized the Federal Bureau of Investigation to use informal secret demands called national security letters to compel companies to provide customer records.

The law allowed the F.B.I. not only to force communications companies, including telephone and Internet providers, to turn over the records without court authorization, but also to forbid the companies to tell the customers or anyone else what they had done. Under the law, enacted last year, the ability of the courts to review challenges to the ban on disclosures was quite limited.

The judge, Victor Marrero of the Federal District Court in Manhattan, ruled that the measure violated the First Amendment and the separation of powers guarantee.

Judge Marrero said he feared that the law could be the first step in a series of intrusions into the judiciary’s role that would be “the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

According to a report from the Justice Department’s inspector general in March, the F.B.I. issued about 143,000 requests through national security letters from 2003 to 2005. The report found that the bureau had often used the letters improperly and sometimes illegally.

The article notes that two other federal courts have had similar rulings.

Permalink 08:02:32 am, by fourth, 487 words, 728 views   English (US)
Categories: General

Claim that government agents had knowledge murder would happen and they failed to stop it did not state claim for relief

Allegations that government agents had knowledge that a murder would occur and did nothing to stop it did not state a claim for relief under Bivens. Padilla v. United States, 2007 U.S. Dist. LEXIS 65171 (W.D. Tex. August 20, 2007):

[T]he Court finds Plaintiffs have only produced unsupported allegations of constitutional liability coupled with conclusory assertions that should be dismissed in the face of Supreme Court and Fifth Circuit precedent.

Viewing the summary judgment evidence in the light most favorable to the Plaintiffs and resolving every doubt in their favor, the Court finds it should dismiss Plaintiffs' claims against all of the individual Defendants because they are entitled to qualified immunity. First, Plaintiffs fail the first prong of the qualified immunity framework, for they fail to sufficiently allege Defendants violated an actual constitutional right. Even if the Court were to find Plaintiffs sufficiently demonstrated a constitutional deprivation, the Court nonetheless finds Plaintiffs fail prong two of the qualified immunity analysis because Plaintiffs do not sufficiently allege any constitutional violations that were clearly established law at the time of the actions at issue.

Allegations in a motion to suppress were too vague to warrant a hearing. United States v. Rivera, 2007 U.S. Dist. LEXIS 65255 (N.D. Ind. August 31, 2007).*

Officers do not need reasonable suspicion to conduct a knock and talk. United States v. Coleman, 2007 U.S. Dist. LEXIS 65169 (W.D. La. August 31, 2007).*

Probable cause was slim, but sufficient on totality. The good faith exception would save the search in any event. United States v. Rossman, 2007 U.S. Dist. LEXIS 65319 (D. Utah August 31, 2007).*

Officer had reasonable suspicion of drug smuggling of defendant’s vehicle close to the border on a drug corridor. United States v. Avendano-Sanchez, 2007 U.S. Dist. LEXIS 65358 (W.D. Tex. August 28, 2007).*

Merely having the keys to a car did not show that defendant had standing to contest its search. Aragon v. State, 229 S.W.3d 716 (Tex. App.—San Antonio 2007):

Here, although Aragon had the keys to the car and was driving at the time of the incident, no evidence was admitted showing that he had permission to possess the vehicle or that he had an actual, reasonable, and subjective expectation of privacy in the searched vehicle. Aragon did not introduce evidence that he owned the vehicle or that the registered owner of the vehicle gave him consent to be in the car. In the absence of such evidence showing that he had a legitimate expectation of privacy in the vehicle, he lacks standing to complain of the search. See Rodriguez v. State, No. 01-04-00723-CR, 2005 Tex. App. LEXIS 9020, 2005 WL 2850234 *3 (Tex. App.-Houston [1st Dist.] Oct. 25, 2005, no pet.) (mem. op.). Accordingly, we hold that Aragon did not have a reasonable expectation of privacy in the vehicle and its contents so as to have standing to complain of the validity of any search or seizure of the blood and ballistics evidence in question. We overrule Aragon's second and third issues.

Permalink 07:41:12 am, by fourth, 522 words, 936 views   English (US)
Categories: General

Key word search on a computer helps prevent digital rummaging

A software copyright infringement case permitted a search of computers, despite defendant’s argument it was the digital equivalent of rummaging. The officer's intent to use a key word search to prevent rummaging was determinative. United States v. Bhownath, 2007 U.S. Dist. LEXIS 65320 (D. Utah August 31, 2007):

Bhownath contends that the warrants language allowed the agents to search for and seize a limitless array of computer files, not just those relating to the alleged crime. Bhownath relies on a Tenth Circuit case stating that "[a] sufficiently particular warrant [is such] that the officer is prevented from generally rummaging through a person's belongings." United States v. Patterson, 64 Fed. Appx. 727, 729 (10th Cir. 2003).

The warrant in this case allowed the agents to search all the data contained on Bhownath's computer. The court disagrees with Bhownath, however, that this is the digital era equivalent of rummaging. The agents must be allowed access to all files on a computer to search for files and folders relating to the case. The agents do so by searching all files for keywords. They then look at the files and folders that contain those keywords. The agents do not conduct a search by opening the first file, reading it, and then moving to the next. Searches of a computer are methodically done on an imaged hard drive.

Bhownath's position would unnecessarily curtail the search for keywords in any file on the computer. The agents are not in a position to know what type of file or folder a defendant may use to store relevant information. If the court were to find the warrant facially overbroad, it would allow defendants to hide evidence of illegal conduct in unlikely places on their computer and escape the parameters of a warrant. Such a position is unworkable and unnecessarily limiting in the context of a computer search in a case such as this where a defendant is selling illegal products from a website associated with his home address and shipping products through an address associated with his home address. There was probable cause to search the computers at the address associated with the website. Given the facts presented in the affidavit, the computer at the residence was the most relevant source for information relating to the alleged crime. Therefore, the court concludes that the warrant was not facially overbroad with respect to the search of Bhownath's computer.

Defendant's consent to a patdown that led to his trying to avoid having his pockets touched was not a true withdrawal of consent, but he did withdraw, after a plain feel revealed constraband. State v. Cochran, 2007 Ohio 4492, 2007 Ohio App. LEXIS 4050 (3d Dist. September 4, 2007).*

Consent to a BAC test is implied in Texas from operating a motor vehicle, and it can be ineffective if the defendant is misadvised of the consequences of refusal. Defendant was subject to arrest, but he was not told, and it was apparent to him that he was restrained and not free to leave. He volunteered he'd been drinking, and that, coupled with his conduct and demeanor, showed probable cause to believe he was under the influence. Washburn v. State, 235 S.W.3d 346 (Tex. App.—Texarkana 2007).*

Permalink 07:12:38 am, by fourth, 432 words, 2299 views   English (US)
Categories: General

Convicted sex offender gets injunction against police dept's proactive efforts to get him to register including home entries and stigmatizing him

Plaintiff, a convicted sex offender from the early '90s, sought a preliminary injunction claiming that the defendant police officers were stigmatizing him by their proactive efforts to get him to register by showing up at his house with marked police cars and efforts to enter his home to talk to him against his will. Doe v. Ladue, 514 F. Supp. 2d 1131 (D. Minn. 2007). He met the standards for a preliminary injunction:

Based on the facts before it, the court finds that OPD officers subjected Doe to searches and seizures absent requisite probable cause. As the Fourth Amendment right to be free from unreasonable search and seizure is a well-established right, even for predatory offender registrants, qualified immunity does not protect the defendant officers. Cf. Vincent, 167 F.3d at 530 (finding probationer's home protected by Fourth Amendment requirement that searches be reasonable). Although the officers acted pursuant to the BCA manual, the proactive procedures do not meet the Fourth Amendment reasonableness standard. Moreover, because Owatonna adopted and enforced a policy that was constitutionally infirm, the city is not protected by qualified immunity. See Szabla v. City of Brooklyn Park, Minn., 486 F.3d 385, 389-91 (8th Cir. 2007). Accordingly, plaintiffs have demonstrated a reasonable likelihood of success on the merits of their Fourth Amendment claim. For these reasons, this Dataphase factor supports the issuance of injunctive relief.

IV. Public Interest

As the fourth factor, the court considers the public interest. Defendants argue that because of the high risks of recidivism posed by predatory offenders, there is strong public interest in continuing their proactive compliance practices. The court acknowledges that there is great public interest in monitoring predatory offenders. However, there is an equally strong public interest in preserving constitutional rights. See Reinert v. Haas, 585 F. Supp. 477, 481 (S.D. Iowa 1984). Because the OPD has a means of monitoring predatory offenders without jeopardizing constitutional rights--by employing the reactive approach also advocated in the BCA training manual--the greater public interest is in issuing an injunction to protect plaintiffs' constitutional rights.

After a careful review of the file, record and issues raised at oral argument, the court determines that the Dataphase factors weigh in favor of plaintiffs.


Therefore, IT IS HEREBY ORDERED that:

1. Plaintiffs' motion for a preliminary injunction [Doc. No. 12] is granted.

2. Defendants and all those acting in active concert or participation with them, in verifying John Doe's compliance with Minnesota Statutes § 243.166, shall not engage in proactive monitoring practices--including in-person contact with Doe, random photographing of Doe's person and vehicles, and direct quarterly visits to Doe's residence--until plaintiffs' cause of action has been resolved by the court.

Permalink 07:01:29 am, by fourth, 973 words, 697 views   English (US)
Categories: General

Plaintiffs arrested at a Bush '04 election rally stated claims under First and Fourth Amendment for their arrests based on content of speech

Plaintiffs stated claims for relief for their arrests at a 2004 political rally for President Bush where they claim they were arrested for their political views. McCabe v. Macaulay, 515 F. Supp. 2d 944 (N.D. Iowa 2007). On the First Amendment claim of arrest for free speech:

The Plaintiffs' version of the events of September 3, 2004 is set forth at length in Part IV of the instant Order and need not be restated here. It suffices to say that, when Plaintiffs are afforded all reasonable inferences, the facts show that Plaintiffs' First Amendment rights were violated. Specifically, a reasonable jury could find that Macaulay ordered the arrests of Plaintiffs simply because he disagreed with their political viewpoints.

If a jury were to believe Plaintiffs and disbelieve the law enforcement officers, a reasonable jury could find that Plaintiffs were silent, respectful and well-mannered at all times and were peacefully protesting President Bush and his policies in a public place, a sidewalk. Where, as here, the sidewalk was not cordoned off and there was no visible indication that the sidewalk was a restricted area, Plaintiffs were entirely justified in standing on the sidewalk until Parker ordered them to move. See, e.g., Grace, 461 U.S. at 180 (holding that sidewalks surrounding Supreme Court's building were public fora, because "[t]here is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave"). A reasonable jury could also then find that Plaintiffs repeatedly and fully complied with the various law enforcement officers' orders to first move off the sidewalk and then move off of the strip of grass between the north sidewalk and 42nd Street NE once they were informed that such restrictions were in force. The court knows of no law that forbids Plaintiffs from politely requesting the identification of plainclothes officers and then asking why protestors were being asked to move and non-protestors were not. To the contrary, the Supreme Court long ago recognized:

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers .... The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.

City of Houston v. Hill, 482 U.S. 451, 461, 462-63 (1987).

A reasonable jury would not have to rely solely on Plaintiffs' own testimony to find that Macaulay targeted them on account of their viewpoint. Several third-party witnesses, a number of photographs and a videotape of the immediate aftermath of Plaintiffs' arrests tend to corroborate Plaintiffs' claims and contradict the claims of some of the law enforcement officers.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay's conduct violated Plaintiffs' First Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. It was abundantly clear at the time of the Rally that the First Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of their speech. ...

On the Fourth Amendment claim, the court held that there was no arguable probable cause that plaintiffs violated any law of obstructing state or federal officers in the performance of their duties:

As indicated, a reasonable jury could find that Plaintiffs repeatedly and fully complied with the various law enforcement officers' orders to first move off the sidewalk and then move off the strip of grass between the north sidewalk and 42nd Street NE. [18 U.S.C.] Section 3056 requires proof that the defendant "knowingly" and "willfully" "obstruct[ed], resist[ed], or interfer[ed] with" a Secret Service agent. Viewed in the light most favorable to Plaintiffs and affording them all reasonable inferences, the facts do not show any such actions on the part of Plaintiffs.

. . .

Here, Plaintiffs were not in a posted or cordoned off area when they were standing on the sidewalk near the Bus Entrance. At most, they were unwittingly standing in an "otherwise restricted area of a ... grounds where the President ... [would] be temporarily visiting." Id. However, on Plaintiffs' version of the facts, there is no evidence that Plaintiffs willfully and knowingly entered or remained in such a restricted area. Instead, Plaintiffs fully complied with the law enforcement officers' orders to move, once the law enforcement officers notified them of the security restrictions in place.

. . .

Having found that the facts, when taken in the light most favorable to Plaintiffs, show Macaulay's conduct violated Plaintiffs' Fourth Amendment rights, the court turns to consider whether such rights were clearly established in light of the specific context of the case. Scott, 127 S. Ct. at 1774. For the most part, Macaulay does not challenge the clearly established nature of Plaintiffs' Fourth Amendment rights on the facts as presented in this order. See, e.g., Barham, 434 F.3d at 575-76 (D.C. Cir. 2006); MacKinney, 69 F.3d at 1007.

Macaulay does specifically argue that Plaintiffs' Fourth Amendment rights cannot be "clearly established," because there is little existing precedent on some issues under Iowa Code section 719.1(1). See Lawyer, 361 F.3d at 1108 (lamenting "lack of detailed judicial guidance on the interplay among the statutory terms 'obstruct,' 'resist,' and 'verbal harassment'" in Iowa Code 719.1(1)). Even if Iowa Code section 719.1(1) is not a model of clarity, however, it was abundantly clear at the time of the Rally that the Fourth Amendment would not tolerate a federal law enforcement officer commanding state law enforcement officers to arrest a person based upon the content of her speech. Macaulay's apparent interpretation of the statute, which would criminalize asking law enforcement officers polite questions, is plainly unconstitutional under the First Amendment and wholly incompatible with precedent.


Permalink 03:30:51 pm, by fourth, 871 words, 2034 views   English (US)
Categories: General

Taking the SWAT team to a wholesale administrative search violated administrative warrant exception

Eleventh Circuit holds today that a Florida automobile salvager subjected to an administrative search by the local SWAT team should not have had his § 1983 case dismissed by the district court. Plaintiff sold a car that had a wrong VIN number on it [because the car came from a government seizure], and the chop shop investigators decided to conduct an administrative search. The "administrative search" here was too filled with discretion and went way too far for the limits imposed on an administrative search. Bruce v. Beary, 498 F.3d 1232 (11th Cir. 2007). This is an interesting and wonderful opinion. The facts are, in a word, startling:

The two officers decided to conduct an administrative inspection of the Premises, as authorized by Florida Statute § 812.055. The statute permits a warrantless physical inspection of salvage yards and repair shops (among other businesses) during normal business hours “for the purpose of locating stolen vehicles ...; investigating the titling and registration of vehicles ...; inspecting vehicles ... wrecked or dismantled; or inspecting records required [to be kept by such businesses]. Id.

On January 15, 2001, at about 10:30 in the morning, Root, Glantz, and Edward Kelly led a group of approximately twenty officers to the Premises. The officers arrived in unmarked trucks and SUVs, and surrounded the entire Premises, blocking all exits. Some of the officers were dressed in SWAT uniforms-–ballistic vests imprinted with SWAT in big letters, camouflage pants, and black boots. They entered the Premises with guns drawn – all were armed with Glock 21 sidearms; some carried Bennelli automatic shotguns. When the officers entered the Premises, they ordered the employees to line up along the fence. Vincent Lewis, who was working on a car, felt something touch his back and turned around to find an officer pointing a shotgun at him. The officers patted down and searched the employees. Pockets and purses were searched. The officers took at least Lewis’s driver’s license.

Judy Bass, the office manager, testified that she gave the officers paperwork showing that the car purchased by the complaining citizen had mismatched VINs because Bruce had purchased the car with the mismatched VINs from a government theft recovery program and was authorized to resell it that way. Root admitted receiving this paperwork during the search, but testified that it had “no bearing on his investigation.” Bruce arrived at the Premises about ten minutes after the officers. Kelly told him that the officers were there to do an administrative records check. Another officer asked Bruce if he had the titles to all the cars that he had on the lot. Bruce gave the titles to the officer.

. . .

At approximately 1:00 p.m., the officers began to thoroughly search the Premises. They went through every file, including tax, bookkeeping, and accounting records, and the office computer. They inspected all 150 plus vehicles on the lot-–cutting some open with chain saws. These activities-–including the detention of at least several employees-–continued until after 6:00 p.m.

The warrantless administrative inspection, however, remains an exception to the Fourth Amendment’s general rule that a warrant–-supported by probable cause and specifying what is to be seized-–is required when law enforcement seeks to search private property. The warrantless administrative inspection, however, remains an exception to the Fourth Amendment’s general rule that a warrant-–supported by probable cause and specifying what is to be seized-–is required when law enforcement seeks to search private property. The administrative search exception does not confer authority on law enforcement to ignore the requirement for a warrant where “the primary purpose [of the search or seizure] was to detect evidence of ordinary criminal wrongdoing.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). In Burger, the Court rejected the idea that an administrative inspection may be used to gather evidence as part of what is, in reality, a criminal investigation. 482 U.S. at 691 and 716 n. 27. The Court upheld the inspection of Burger’s automobile junkyard, in part, because “[t]here [was], furthermore, no reason to believe that the instant inspection was actually a ‘pretext’ for obtaining evidence of respondent’s violation of the penal laws.” Id. See also United States v. Johnson, 994 F.2d 740, 742 (10th Cir. 1993) (an administrative inspection is a “sham” where it is “a pretext solely to gather evidence of criminal activity”).

Furthermore, even when permitted, the Constitution requires that administrative inspections be “appropriately limited.” Edmond, 531 U.S. at 37. The authorizing statute must “carefully limit[] their time, place, and scope.” Burger, 482 U.S. at 718 (Brennan, J., dissenting, but noting no disagreement with the Court’s “general rule”).

Nor may an authorizing statute commit the conduct of such an inspection to the unbridled discretion of the inspector. Id. at 703. The statute must “limit the discretion of the inspecting officers” and the inspection must have a “properly defined scope.” Id. There must be “reasonable legislative or administrative standards for conducting an ... inspection.” Camara v. Municipal Court, 387 U.S. 523, 538 (1967). “Where a statute authorizes the inspection but makes no rules governing the procedures that inspectors must follow, the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering Corp. v. United States, 397 U.S. 72, 77 (1970). The fundamental function of these rules is to protect citizens from the “unbridled discretion [of] executive and administrative officers.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 323 (1978).

Permalink 08:38:19 am, by fourth, 173 words, 705 views   English (US)
Categories: General

Possession of a small quantity of marijuana on defendant's person did not justify search of vehicle

Possession of a small quantity of marijuana on defendant's person during a legitimate patfrisk (a Massachusetts word) did not justify search of his vehicle because there is no automatic nexus. Officers were, however, justified in a "protective search" of the vehicle for weapons, and the search was valid on that ground. Commonwealth v. Pena, 69 Mass. App. Ct. 713, 871 N.E.2d 531 (2007).

Odor of marijuana; United States v. Scott, 2007 U.S. Dist. LEXIS 64782 (N.D. Ohio August 31, 2007)*; or burnt marijuana; United States v. Hamilton, 2007 U.S. Dist. LEXIS 65082 (S.D. Ga. August 31, 2007)*; is probable cause for search of whole vehicle.

Officers had reasonable suspicion to stop defendant's car after it left a house to be searched under a warrant. There was a reasonable chain of inferences supporting possession in the car. United States v. Magana, 2007 U.S. Dist. LEXIS 64900 (E.D. Cal. August 16, 2007).*

The record supports the conclusion that the officer had reasonable suspicion to slightly detain the defendant and ask for consent during a traffic stop. Lindsey v. State, 287 Ga. App. 412, 651 S.E.2d 531 (2007).*

Permalink 07:13:04 am, by fourth, 422 words, 727 views   English (US)
Categories: General

Hudson becomes absolute: 2d and 9th Cir. weigh in

The issue was an alleged knock-and-announce violation, and Hudson was decided after appellant's briefs were filed but before argument. In an effort to avoid Hudson, appellant argued then that the federal violation of 18 U.S.C. § 3109 should be treated differently than a Fourth Amendment violation, but the Second Circuit disagreed. They are essentially the same and protect the same interests, and they should not be treated differently in application of the exclusionary rule. United States v. Acosta, 502 F.3d 54 (2d Cir. 2007) [This case may be known as United States v. Carvajal when published; it appears on the Second Circuit's website with that name. Carvajal was the only appellant of the three in the case when it came up with this issue; all three were in the government's cross-appeal, which it dismissed.]:

Given the common law origins of § 3109 and the Fourth Amendment's knock-and-announce principle, it is unsurprising that they overlap to a considerable extent. Indeed, we have often observed that the contours of § 3109 coincide with the reasonableness inquiry of the Fourth Amendment. ... Because § 3109 "codifies the common law in this area," while "the common law in turn informs the Fourth Amendment," Fourth Amendment cases necessarily "serve as guideposts in construing the statute." ...

Because of this cross-fertilization, both § 3109 and the Fourth Amendment knock-and-announce principle have been held subject to the same exceptions and found to protect similar interests. ...

In the Ninth Circuit, the court dealt with an alleged unreasonable search conducted under the aegis of a knock-and-announce violation that included alleged unnecessary use of force with a flash bang device and shooting up the place. The unreasonableness of the entry, if it was, was not causally related to the seizure of evidence under Hudson. United States v. Ankeny, 502 F.3d 829 (9th Cir. 2007) (amended and reissued):

Here, the discovery of the guns was not causally related to the manner of executing the search. The police had a warrant, the validity of which is not questioned, and the guns, money, and other contraband were not hidden. Even without the use of a flash-bang device, rubber bullets, or any of the other methods that Defendant challenges, "the police would have executed the warrant they had obtained, and would have discovered the [evidence] inside the house." Hudson, 127 S. Ct. at 2164; cf. United States v. Hector, 474 F.3d 1150, 1155 (9th Cir. 2007) (holding that suppression was inappropriate where "[t]he causal connection between the failure to serve [a] warrant and the evidence seized is highly attenuated, indeed non-existent"). Accordingly, we affirm the district court's denial of Defendant's motion to suppress the evidence.


Permalink 07:38:48 am, by fourth, 485 words, 737 views   English (US)
Categories: General

Standing no impediment to defendant's challenge to unlawful police entry that put him in possession of paraphernalia; exclusionary rule must apply

Police entered an apartment without cause or exigent circumstances and observed defendant passing a marijuana pipe to another person. The state argued the defendant lacked standing, but the court held that to reward the government's conduct here would "'emasculate'" the Fourth Amendment and State constitution. Commonwealth v. Arnold, 2007 PA Super 248, 932 A.2d 143 (2007):

[*P16] For these reasons, we conclude that the fact that Arnold was not a resident of the apartment is not relevant in the disposition of this matter. Indeed, to apply the reasoning of Millner under the facts found here would permit police officers to provide retroactive justifications and randomly invade homes on the pretense that any person found to be a non-resident after the fact could be searched. See Demshock, 854 A.2d at 556-57 (finding police must articulate exigent circumstances at time of entry and cannot provide retroactive justifications to demonstrate exigent circumstances). Allowing the Commonwealth to provide such justifications following a random invasion into a home without a warrant or probable cause and exigent circumstances would trivialize the protections afforded by the United States and Pennsylvania Constitutions. See Davis, 743 A.2d at 953 (reiterating that allowing the police to observe illegal activities by their own unlawful means "emasculates the protections afforded to appellant and all citizens by the United States and Pennsylvania Constitutions."). As the police officers did not legally enter the apartment, we conclude that the drug evidence and paraphernalia should have been suppressed as the fruits of an illegal entry and search. See Demshock, 854 A.2d at 559 (concluding that the entry and search of the apartment was unconstitutional and hence the fruits of the search should have been suppressed).

Comment: This has been a bone of contention for me for decades: When the defendant becomes a target of illegal police conduct, he should have standing to challenge blatantly illegal conduct directed at him because of "bad faith," notwithstanding the officer's subjective intent is irrelevant. But, can bad faith be proved objectively? Sometimes yes. Stated another way, suppose the police are willing to conduct an illegal stop and search of A with the purpose of gaining evidence against B, entirely willing to sacrifice the case against A because B is the "bigger fish." What then? This is the gist of "target standing," a concept that has long been rejected by SCOTUS. The question of standing here is factual and should not be "once removed"; i.e., the target defendant should be there and directly involved, not indirectly involved because the illegal search of a place where he had no standing reveals evidence against him that was left or is otherwise present when the defendant is not.

Officer's subjective intent to search the defendant was irrelevant when there was probable cause for a traffic stop and reasonable suspicion developed because of defendant's conduct during the stop and that led to a patdown. United States v. McMahan, 2007 U.S. Dist. LEXIS 64600 (N.D. Tex. August 30, 2007).*

Permalink 06:56:45 am, by fourth, 172 words, 1339 views   English (US)
Categories: General

Federal PV warrant issued under 18 U.S.C. § 4213 is an administrative, not judicial, warrant

Parole violator warrants under the old regime of 18 U.S.C. § 4213, still in place for older convicts, are administrative warrants issued outside of the Warrant clause of the Fourth Amendment. The court distinguished United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir. 2004), on warrants for revocation of supervised release, interpreting 18 U.S.C. § 3583(i) to incorporate the Fourth Amendment. Sherman v. United States Parole Comm'n, 502 F.3d 869 (9th Cir. 2007).

After defendant's stop, the officer noticed drugs in defendant's hand, and that justified a search of defendant's car under the automobile exception. (The government admittedly raised this argument because search incident was too tenuous to support a search of the vehicle.) United States v. Lawson, 2007 U.S. Dist. LEXIS 64628 (C.D. Ill. August 31, 2007).*

Habeas relief denied to an inmate who pro se claimed ineffective assistance for defense counsel's failure to object to the police listening in to his conversation with his wife with her permission where he confided in her about his crime. Palmisano v. Yates, 2007 U.S. Dist. LEXIS 64621 (S.D. Cal. August 31, 2007).*


Permalink 08:01:43 am, by fourth, 228 words, 855 views   English (US)
Categories: General

Suspended DL supported search incident, and probable cause developed for search of door panel

Defendant's indefinitely suspended driver's license supported a search incident, but there were unmistakable signs that the door had been tampered with, despite defendant's denials, and that gave probable cause to remove the door panel. United States v. Gillespie, 2007 U.S. Dist. LEXIS 64478 (W.D. Mich. August 30, 2007).*

While defendant's case had been remanded under Booker, it was not clear that he could have his search reconsidered under Randolph which was decided while the case was still not final. Nevertheless, inevitable discovery under Nix v. Williams because the officers had already "formed the intent" to get a search warrant and would have. They were securing the premises when consent was granted, as they could under Segura. United States v. Bowden, 240 Fed. Appx. 56, 2007 FED App. 0617N (6th Cir. 2007)* (unpublished).

Officers got a tip that a man was acting suspicious at a car wash and they found the defendant, without a car, with a latex glove on one hand feeding money into the change machine getting an "inordinately large number" of quarters. This was cause for a stop for "defrauding the change machine" because it appeared defendant was "laundering" the bills without leaving fingerprints. United States v. Jackson, 240 Fed. Appx. 88, 2007 FED App. 0622N (6th Cir. 2007)* (unpublished).

Defendant's conduct was sufficiently suspicious to a trained officer to constitute probable cause on the totality for his search. Commonwealth v. El, 2007 PA Super 275, 933 A.2d 657 (2007).*

Permalink 07:23:56 am, by fourth, 411 words, 1491 views   English (US)
Categories: General

Search incident may precede formal arrest

Defendant's stop was based on his being parked with his girlfriend and continued because of the smell of alcohol. He said they were going to have sex as his reason for being there. But his driver's license had expired. During the conversation about whether he had anything on him or in the vehicle, defendant took off his shirt, which the officers took as preparatory to a fight. One officer knew the other was going to arrest the defendant, so he initiated an immediate search of the vehicle. The search was justified by both search incident for the suspended driver's license and the automobile exception for a violation of the state open container law. The gun found was admissible. United States v. Black, 240 Fed. Appx. 95, 2007 FED App. 0627N (6th Cir. 2007) (unpublished):

The Supreme Court has explained that "when a [police officer] has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981). Further, the search may precede a "formal arrest" so long as the officers had probable cause to arrest prior to the search and the arrest "followed quickly on the heels of the challenged search." Rawlings v. Kentucky, 448 U.S. 98, 111 (1980); see also United States v. Montgomery, 377 F.3d 582, 587-88 (6th Cir. 2004). Here, at the time that Offenbacher conducted the search, he and Ragland had (1) smelled a strong odor of alcohol coming from the vehicle; (2) discovered an unsealed, partly empty, bottle of alcohol in the car; and (3) learned that Black's license was suspended. The officers thus had probable cause to arrest Black for driving while intoxicated, possessing an open alcoholic beverage container in an automobile, and driving with a suspended license. Furthermore, the record indicates that the officers handcuffed Black immediately after the gun was discovered in Black's car--in other words, little time elapsed between the officers' finding they had probable cause to arrest Black and their formal arrest of him. Therefore, Offenbacher's search of the car was justified as a search incident to Black's arrest.

A DWI roadblock violated some technical requirements of state law about the number of officers to be present, but there was no nexus to defendant's DWI [and no prejudice]. State v. Williams, 2007 VT 85, 182 Vt. 578, 933 A.2d 239 (2007).*

Defendant's own admissions to others he was "packing" supported a probation search with reasonable suspicion. United States v. Williams, 2007 U.S. Dist. LEXIS 64483 (W.D. Wis. August 28, 2007).*


Permalink 09:43:04 pm, by fourth, 506 words, 885 views   English (US)
Categories: General

Use of double hearsay to show initial private search at suppression hearing violated Confrontation Clause

The state's use of double hearsay concerning an alleged private search in Denver before the package arrived in New Mexico violated the defendant's right to cross-examine his accusers. This was no mere hearsay as a "basis for acting"; it went to the heart of the suppression issue. This court has previously held that double hearsay about apparent authority to consent to a search was a denial of confrontation in State v. Hensel, 106 N.M. 8, 738 P.2d 126 (Ct. App. 1987). State v. Rivera, 2007 NMCA 104, 142 N.M. 427, 166 P.3d 488 (2007), certiorari granted, No. 30,542, August 8, 2007:

[*16] We see no reason to distinguish Hensel from the facts of this case. The question in Hensel, whether the mother had authority to consent to the search, was no more fundamental than the question in this case, whether the package was opened by private parties in Denver. We agree with Defendant that the State had the burden to show, by means of competent evidence, that the package was opened by private parties with no state action in Denver.

[*17] Ordinarily, the defendant has the burden of showing a reasonable expectation of privacy that was breached by state action. ... Because the question of whether the package was opened by private parties in Denver implicates the reasonableness of Defendant's expectation of privacy, it would typically be Defendant's burden to show that the package was not opened by private parties, or that the package had been opened with state involvement. See Jacobsen, 466 U.S. at 119 ("[I]t hardly infringed respondents' privacy for the agents to reexamine the contents of the open package.").

[*18] But we believe that in this case the burden shifted to the State when it refused to provide the names of the bus station employees who were involved. When the state "has unique access to the pertinent information," and the state has refused to share its access with the defendant, principles of fairness dictate that the burden be shifted to the state. State v. Pennington, 115 N.M. 372, 379, 851 P.2d 494, 501 (Ct. App. 1993); see also Campbell v. United States, 365 U.S. 85, 96 (1961) ("[T]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary."); cf. Boone v. Lightner, 319 U.S. 561, 570 (1943) ("[A]ll evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other side to have contradicted.") (internal quotation marks and citation omitted). In this case, Defendant requested that the State disclose the names of the employees who opened the package, and the State refused. With the State failing to share its access to the relevant information, it became the State's burden to show that a prior search by private parties with no state involvement had taken place. Because the State had the burden to prove this key issue in the suppression hearing, and because the only evidence presented was in the form of double hearsay, we conclude that the result in Hensel must also prevail in this case.

Permalink 09:29:10 pm, by fourth, 225 words, 1071 views   English (US)
Categories: General

Search incident to civil offense is unconstitutional

After police officers observed a minor in possession of a cigarette in violation of state statute, a civil offense for which a citation may be issued, the officers' suspicion that the minor might be in possession of additional tobacco products did not justify their frisk and search of the minor's person. The minor moved to suppress the evidence of illegal drugs that the police discovered when they conducted their search. In re Calvin S., 175 Md. App. 516, 930 A.2d 1099 (2007). The search could not be considered as one for "contraband" or a Terry frisk because a Terry frisk is limited to weapons:

The State relies on Calvin's violation of CL § 10-108 as a valid basis for conducting the search of his person. We conclude, however, that the officers were not permitted to search Calvin incident to the citation issued for possession of tobacco products. The Supreme Court addressed an analogous issue in Knowles v. Iowa, 525 U.S. 113, 115 (1998), a case in which a police officer stopped a driver for speeding and issued the driver a citation. The officer then proceeded to conduct a full search of the vehicle, finding marijuana and drug paraphernalia. Id. The Supreme Court held that the driver's motion to suppress the drug evidence should have been granted, explicitly rejecting the argument that a "search incident to citation" is permitted by the Fourth Amendment. Id. at 118.


Permalink 02:09:31 pm, by fourth, 527 words, 747 views   English (US)
Categories: General

Shipper whose name was not on a box shipped by UPS had no standing to challenge its search

Defendant lacked an expectation of privacy in a package that was shipped between the continental U.S. and Puerto Rico and subjected to an inspection where he put another person's name on it as both shipper and recipient. United States v. Colon-Solis, 508 F. Supp. 2d 186 (D. P.R. 2007). Comment: The district court, in an extremely long footnote (n. 2), noted that packages shipped between the U.S. and P.R. are not subject to border inspection because P.R. is a part of the U.S. The government, however, conducts limited inspections for a non-customs purpose. The issue remains open, but the court expressed doubt as to the legality of those inspections:

The legality of the search itself turns on whether U.S. Customs agents were statutorily authorized to conduct random, warrantless searches on items imported to Puerto Rico from the continental United States. The government maintains their ability to search such packages is rooted in the regulations mandating the filing of a Shippers Export Declaration ("SED"). They claim U.S. Customs and Boarder Protection ("CBP") agents are authorized to conduct random searches for SED verification and enforcement purposes. The SED is a dual purpose document used by the Census Bureau for statistical reporting purposes only, and by the Bureau of Industry and Security and other government agencies for export control purposes. 15 C.F.R. § 30.4. It is this dual use that creates a novel legal issue not previously addressed in the First Circuit or elsewhere. Though the SED is required under two separate agencies and for completely separate purposes, the same form is used for both. A problem arises in that one agency, the Census Bureau, requires the SED to be filed for shipments from the United States to Puerto Rico while the other agency, the Bureau of Industry and Security, excludes Puerto Rico-bound shipments from the SED requirement. Moreover, the provisions governing the use of SEDs are unique to each agency and at times contradictory. (See i.e. 15 C.F.R. § 30.4(a) (designating that the SED provisions of that part apply only to the statistical reporting requirements and not to the export control requirements)). It is drafting such as this that breeds confusion.

Consent to "look around" authorized a search for guns and drugs. United States v. Cole, 246 Fed. Appx. 112 (3d Cir. 2007)* (unpublished).

Assuming, without deciding, that defendant's stop was illegal, his flight was an intervening act that purged the taint. United States v. Jackson, 246 Fed. Appx. 478 (9th Cir. 2007)* (unpublished). The First Circuit had a similar case a few days later, and defendant was never seized until after flight. United States v. Holloway, 2007 WL 2460035 (1st Cir.(Mass.) Aug 31, 2007).

Officers had reasonable suspicion for a probationer search from information from an informant that provided "rich detail" that was corroborated on important points. Most importantly, "the suppression analysis could have begun and ended with this fact: before the search began, Loranger admitted that the probation officers would find marijuana at his place. Statements against penal interest are presumed reliable. ... Loranger essentially volunteered probable cause to believe that evidence of a crime would be found on the premises." United States v. Jeffery, 2007 U.S. Dist. LEXIS 64374 (W.D. Wis. August 30, 2007).*

Permalink 01:02:52 pm, by fourth, 838 words, 1461 views   English (US)
Categories: General

Putting traffic detainee in back of police car was investigative technique but without justification

The defendant was stopped for going 8 mph over the speed limit, so he did not contest his stop. He was put in the back of the police car because it was raining, but the officer's own video of the three days surrounding that event showed he did it to most people he stopped. He admitted that it was an "investigative technique" to see if the driver got excessively nervous. This was tantamount to an arrest. While Pennsylvania v. Mimms allows an officer to order a motorist out of the car and a patdown can be done when the officer has safety reasons, here there was no justification. State v. Berrios, 235 S.W.3d 99 (Tenn. 2007):

On the other hand, the placement of a driver into the backseat of a patrol car cannot be described as "de minimus" or a "mere inconvenience." A process involving a frisk and placement into the back of a locked patrol car is more akin to a full-scale arrest than the brief detention generally incident to an ordinary traffic stop. After a traffic violation, a driver can generally expect "to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way." Berkemer v. McCarty, 468 U.S. 420, 437 (1984). "The government's general interest in criminal investigation, without more, is generally insufficient to outweigh the individual interest in ending the detention." United States v. Holt, 264 F.3d 1215, 1221 (10th Cir. 2001).

. . .

In Wilson v. State, 745 N.E.2d 789 (Ind. 2001), the Indiana Supreme Court observed that it could "envision various particularized circumstances (including, for example and without limitation, inclement weather, the lack of available lighting for paperwork, the need to access equipment with the detained motorist, etc.) that may make it reasonably necessary for police to require a stopped motorist to enter a police vehicle," but nevertheless concluded that "[a]n officer is not using the least intrusive means to investigate a traffic stop if, without a particularized justification making it reasonably necessary, he places a person into his patrol vehicle and thereby subjects the person to a pat-down search." Id. at 793. Similarly, the Minnesota Supreme Court has ruled that "a reasonable basis must exist" for an officer to ask a driver to wait in the patrol car during a routine traffic stop. See State v. Varnado, 582 N.W.2d 886, 891 n.4 (Minn. 1998).

As to the frisk, the United States Supreme Court has granted "narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." Terry, 392 U.S. at 27. The Court has ruled that there is no justification for an exception to the warrant requirement for a search incident to a traffic stop, observing that "[t]he threat to officer safety from issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest." Knowles v. Iowa, 525 U.S. 113, 117 (1998). The Court concluded that the interest of officer safety was sufficiently protected in a traffic stop setting through the search power permitted under Terry. See id. at 117-18; see also LaFave, 102 Mich. L. Rev. at 1869 (for a discussion of this doctrine). That is to say, an officer may conduct a pat-down for weapons if he has reasonable suspicion that the driver may be armed. Knowles, 525 U.S. at 117-18.

. . .

While in this case Officer Nichols' intuition and persistence frustrated the illegal activities of the Defendant, a fact that would otherwise merit praise, our approval of this particular "frisk and sit" would deviate from generations of law in this area. The Supreme Court has warned that "illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, 116 U.S. 616, 635 (1886). Moreover, those jurisdictions that permit a detention like this during a routine traffic stop do not allow a pat-down for weapons in the absence of reasonable suspicion. See, e.g., Lozada, 748 N.E.2d at 524 ("[D]uring a routine traffic stop, it is unreasonable for an officer to search the driver for weapons before placing him or her in a patrol car, if the sole reason for placing the driver in the patrol car during the investigation is for the convenience of the officer."). Other jurisdictions have concluded that a pat-down for weapons is permissible before placing a person into a patrol car so long as there was a reasonable basis for the placement. As stated by one New York court, "Although a police officer may reasonably pat down a person before he places him in the back of a police vehicle, the legitimacy of that procedure depends on the legitimacy of placing him in the police car in the first place." People v. Kinsella, 527 N.Y.S.2d 899, 899 (N.Y. App. Div. 1988).

Permalink 11:57:14 am, by fourth, 359 words, 949 views   English (US)
Categories: General

Shoplifting arrest that left defendant's car in a shopping center parking lot did not support its impoundment

Shoplifting arrest led to impoundment of defendant's vehicle, but there was no legal justification for doing so, so the inventory search under the impoundment was unconstitutional. State v. Huddleston, 2007 Ohio 4455, 173 Ohio App. 3d 17, 877 N.E.2d 354 (10th Dist. 2007):

[*P18] Regarding the unwritten procedure of the Gahanna Police Department as testified to by Officer Engram, we find that simply because the police department may have a procedure that calls for the impoundment of a vehicle under the circumstances found in this case, that does not render the impoundment constitutionally reasonable.

[*P19] According to the state, the impoundment was reasonable under the cirumstances. In support of this contention, the state points to the fact that the police unsuccessfully attempted to contact the rental company regarding the vehicle, as well as the fact that there was no evidence that any authorized person was with defendant at the time of the arrest who could have driven the vehicle from the parking lot. ...

[*P21] In the case at bar, the state fails to direct this court to, and our independent research fails to reveal, any statute or ordinance authorizing the impoundment under the facts found in this case. Moreover, while the issue of whether another person was available and authorized to drive the vehicle off the parking lot is relevant to determining whether the impoundment was reasonable, it does not change the fact that defendant was in the store, and away from the vehicle, when she was arrested for misdemeanor shoplifting. After obtaining the keys to the vehicle as a result of the search incident to defendant's arrest for misdemeanor shoplifting, an officer took the keys from the police station to the store parking lot to locate the vehicle and impound it. Furthermore, there is no indication that the vehicle was potential evidence in a criminal case, that the vehicle was used to commit a crime, that the vehicle was obtained with funds derived from criminal activity, or that the vehicle was unlawfully parked or impeding traffic. In view of these facts, we resolve that the seizure of the vehicle in this case was unreasonable under the Fourth Amendment to the United States Constitution.

Permalink 08:28:14 am, by fourth, 341 words, 1927 views   English (US)
Categories: General

Conclusory allegations of probable cause with corroboration of innocent details was not enough for good faith exception

Police corroborated only innocent details of the informant's tale and no criminality. It was otherwise conclusory: "While the amount of detail contained in Nicholson is not always necessary for a valid search warrant, it is preferable to only the blanket claim here, that the sources have been 'proven reliable through independent investigation.'" The officer here, with 19 years experience, could have no reasonable basis for concluding that there was probable cause, and the good faith exception should not be applied. State v. Williams, 2007 Ohio 4472, 173 Ohio App. 3d 119, 877 N.E.2d 717 (6th Dist. 2007):

We find that the affidavit is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The affiant himself states that he has been a police officer for more than 19 years, a narcotics investigator for more than ten years, received extensive training and has extensive experience. There is no question that this officer is more than reasonably well-trained and certainly has more than the minimum level of knowledge. He would have known, and should have known, that this affidavit was not sufficient. Therefore, we find that the "good faith" test does not apply.

Comment: Officers almost always mention their experience in search warrant applications to support why they think the issuing judge should find the officers' assessment of probable cause reasonable. Here, ironically, the officers' experience was used as support for why he should have known there was no probable cause.

Paper temporary tag in back window of SUV was not "conspicuously displayed" as required by state law because the numbers were not readily visible, and that supported the stop of the defendant and the consent he gave. Gonzales v. State, 963 So. 2d 1138 (Miss. 2007).*

The defendant was not actually stopped because officers followed him from a drug house for which a warrant was in the process of issuing to a darkened private residence. When defendant got out of the car, officers had reasonable suspicion. Crack was in plain view on the driver's seat. State v. Birky, 2007 Ohio 4470, 2007 Ohio App. LEXIS 4035 (6th Dist. August 31, 2007).*


Permalink 01:27:59 pm, by fourth, 598 words, 945 views   English (US)
Categories: General

Broad warrant in diet pill case was not unconstitutionally overbroad

Diet pill overprescription case with 476 counts resulted from a search warrant for voluminous medical records, and the inclusiveness did not make the warrant defective. It was broad, but not unconstitutionally overbroad. United States v. Kofsky, 2007 U.S. Dist. LEXIS 64161 (E.D. Pa. August 28, 2007):

2. The List of Items to Be Seized Did Not Render the Warrants Executed on April 13, 2006 General Warrants

In the first Motion to Suppress, defendant argues that the five warrants executed on April 13, 2006 were unconstitutional "general warrants" in violation of the Fourth Amendment. In support of this argument, defendant asserts that the twenty-six categories of evidence to be seized were "[t]oo [a]ll-[i]nclusive" to satisfy the Fourth Amendment. The Court disagrees.

The five warrants at issue contained identical lists of twenty-six "Items to Be Seized." This list of items described "in both specific and inclusive generic terms what is to be seized." Christine, 687 F.2d at 753. Indeed, the Third Circuit has held that warrants authorizing the seizure of similar items are permissible. Specifically, the court has held that a warrant authorizing the seizure of "[a]ll drugs, drug paraphernalia, cash money, [and] weapons" is not "constitutionally infirm." United States v. Williams, 3 F.3d 69, 71 n.1 (3d Cir. 1993). Likewise, the Third Circuit ruled that the seizure of "all folders ... all checks ... all general ledgers (and) all correspondence" is valid under the Fourth Amendment. Christine, 687 F.2d at 753. Under this authority, the list of items to be seized in this case was constitutionally permissible.

In reaching this conclusion, the Court recognizes that the list of items to be seized was extensive, and included "[a]ll controlled substances," "[a]ll patient charts, logs and/or profiles," and "[a]ll financial records, documents and materials relating to the personal finances of Albert Kofsky," without time limitations. Def.'s Mot. Suppress Evidence Seized April 13, 2006, Ex. 1 PP1, 2, 16. However, the fact that the warrants at issue authorized the seizure of a long list of items does not make them unconstitutional general warrants. See United States v. Ninety-Two Thousand Four Hundred Twenty-Two Dollars and Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002) ("Although the scope of the warrant was certainly extensive, the warrant was not general."); see also United States v. Conley, 4 F.3d 1200, 1208 (3d Cir. 1993) ("[U]se of the word 'all', in and of itself, does not render a warrant a general warrant."). In short, the list of items to be seized was descriptive and did not "vest the executing officers with unbridled discretion to conduct an exploratory rummaging" through defendant's belongings. Christine, 687 F.2d at 753.

B. The Failure to Specify the Alleged Criminal Activity Is Not Fatal

The search warrants executed on April 13, 2006 did not describe the alleged criminal activity on their face, or in either of the two incorporated attachments (descriptions of the premises to be searched and items to be seized). In the first Motion to Suppress, defendant argues that this "failure to specify the crime, in the warrant itself or by incorporation, is fatal." Def.'s Mem. Law Supp. at 8. The Court disagrees with this characterization of the law.

. . . Specifically, a description of the criminal activity alleged serves to limit the discretion of the agents performing the search, and in this way may support the position that a search warrant is not a general warrant. . . .

The court also conflated the question of probable cause and the good faith exception, which is the norm in the Third Circuit. It found probable cause and good faith exception as to each challenge to the warrant, including looking for cash because the affidavit for the warrant referred to alleged under reporting of income.

Permalink 12:48:47 pm, by fourth, 325 words, 716 views   English (US)
Categories: General

S.D. Ind. grants class certification in a strip search case

Class certification is granted in a strip search case where nonviolent, nondrug felony suspects were subjected to strip searches as a matter of course without reasonable suspicion. Smith v. Dearborn County, 244 F.R.D. 512 (S.D. Ind. 2007):

Plaintiff has satisfied all of the requirements for class certification. Plaintiff's Motion for Class Certification is GRANTED.

The class is defined as follows: All pretrial detainees who were subjected to a strip search upon intake into the Dearborn County Jail during the two year period prior to the filing of the Complaint, and for which the records indicate were strip searched solely because they were charged with a felony and despite no specific articulable individualized reasonable suspicion that they were secreting weapons or contraband.

A § 1983 claim for failing to provide medical services is hardly a Fourth Amendment claim. Willis v. Charter Township of Emmett, 2007 U.S. Dist. LEXIS 64345 (W.D. Mich. August 30, 2007).*

The U.S. government cannot be sued in a § 1983 claim for alleged unconstitutional searches. Kamar v. Krolczyk, 2007 U.S. Dist. LEXIS 64230 (E.D. Cal. August 29, 2007).*

Owner of car not present when it was searched had no standing to contest the search in a § 1983 case. He did, however, have standing to question unnecessary damage to the vehicle during the search. The driver, his son, made a fact question for trial on consent for the search of the car, but there was reasonable suspicion for the stop. Levy v. Kick, 2007 U.S. Dist. LEXIS 64117 (D. Conn. August 29, 2007).*

The limited record provided for the appeal still supports the trial court's conclusion that the defendant consented to a search despite his alleged limited knowledge of English. United States v. Nguyen, 246 Fed. Appx. 557 (10th Cir. 2007)* (unpublished).

Defendant made a Franks challenge to a search warrant. Talking the allegations as true, defendant would not prevail, and the motion to suppress is denied without a hearing because there was ample probable cause. United States v. Carroll, 2007 U.S. Dist. LEXIS 64086 (D. Utah August 28, 2007).*

Permalink 12:13:48 pm, by fourth, 826 words, 750 views   English (US)
Categories: General

Heat of kidnaping investigation justified warrantless entry of hotel safe

Government agents were in the heat of a kidnapping investigation, trying to locate the victim. They had consent to enter defendant's hotel room from his girlfriend, but she did not know the combination he picked for the hotel safe. Her consent to enter did not extend to the hotel safe, but the officers had exigent circumstances to get into the safe with the help of the hotel without a warrant to look for anything that might assist in locating the kidnapping victim. United States v. Bell, 500 F.3d 609 (7th Cir. 2007):

In this particular case, there was no question that the police were entitled to enter and search Bell's hotel room. Disregarding any potential exigent circumstances, Bell's girlfriend consented to the search of the hotel room, and the prohibition on warrantless searches does not apply to situations in which voluntary consent has been obtained, either from the individual whose property is searched, or from a third party who shares, or is reasonably believed to share, authority over the area. Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515, 1518 (2006); Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). In this case, there is no dispute that Bell's girlfriend could and did consent to a search of the hotel room. Likewise, there is no dispute that she lacked access to or authority over the safe and could not, therefore, consent to its search.

The only question, therefore, is whether the government can bear the burden of demonstrating that the police faced exigent circumstances when they searched the safe. See United States v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998). Exigent circumstances exist if a officer had an objectively "reasonable belief that there was a compelling need to act and no time to obtain a warrant." United States v. Andrews, 442 F.3d 996, 1000 (7th Cir. 2006). Bell argues first that any exigencies dissolved once the police arrived and realized that the kidnapping victim, Colon, was not and never had been in the room. Furthermore, he argues that the police had ample time to obtain a warrant.

The question as to whether exigent circumstances exist is viewed through the eyes of a reasonable police officer. Stuart, 126 S. Ct. at 1948. When the officers arrived, they did indeed conclude that Colon was not in the room and never had been there. That conclusion, however, did not eviscerate the exigency. When the officers arrived at the Holiday Inn at 1:30 a.m., Colon was still missing and the ransom was four hours late. The kidnappers, who had already threatened to kill Colon, had called the victim's family again demanding to know why the ransom had not yet been paid. Police officers also knew that the kidnappers were conducting counter-surveillance and that they probably knew that Bell had been arrested.

Bell argues that because Colon himself could not have been hidden in the small safe there were no exigencies that permitted a search of the safe. Although it is true that there was no evidence that Colon had ever been in the room, there was a great deal of evidence to suggest that Bell had been in the room and the officers had compelling reasons to suspect that Bell was involved in the kidnapping. They did not believe that the kidnappers would have trusted a complete stranger to pick up $100,000 in ransom, and the force with which Bell resisted arrest made the officers believe that he knew he was on the hook for a serious crime. By the time they found the safe, the officers knew that Bell had lied about being homeless (they knew that, at a minimum, he had been renting a hotel room for a long time and paying in cash), that he lied about having checked out of the Holiday Inn, and that he had tried to conceal the location of the Holiday Inn in which he had been staying. Of course Colon himself could not have been concealed in the safe, but it could have contained phone numbers to reach accomplices, maps to a hide-out location, notes about the kidnapping plan, or Mr. Colon's wallet or car keys or other personal effects that would have confirmed Bell's knowledge of Colon's whereabouts.

Comment: This is the classic sliding scale of exigent circumstances referred to by Justice Jackson dissenting in Brinegar v. United States, 338 U.S. 160, 183 (1949):

If we assume, for example, that a child is kidnaped and the officers throw a roadblock about the neighborhood and search every outgoing car, it would be a drastic and undiscriminating use of the search. The officers might be unable to show probable cause for searching any particular car. However, I should candidly strive hard to sustain such an action, executed fairly and in good faith, because it might be reasonable to subject travelers to that indignity if it was the only way to save a threatened life and detect a vicious crime. But I should not strain to sustain such a roadblock and universal search to salvage a few bottles of bourbon and catch a bootlegger.

Permalink 11:43:47 am, by fourth, 308 words, 694 views   English (US)
Categories: General

6th Cir.: Probation search can include use of program to scan computer

Tennessee probation search of defendant's computer was based on reasonable suspicion, and it was not unreasonable on the totality to use a program designed to scan the private spaces of the computer for illicit images. United States v. Herndon, 501 F.3d 683, 2007 FED App. 0353P (6th Cir. 2007):

The requisite weighing of Herndon's diminished privacy interest in his computer activities and the government's comparatively substantial interest in monitoring probationers' activities leads us to the conclusion that Harrien required no more than reasonable suspicion to conduct a check of Herndon's computer. Knights, 543 U.S. at 119-21. On this issue, Herndon contends that the information possessed by Harrien did not provide him with the necessary reasonable suspicion to conduct a check under Directive 5. The Supreme Court has directed reviewing courts making reasonable suspicion determinations to consider "the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted); see also Payne, 181 F.3d at 788. "[T]he likelihood of [wrongdoing] need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 274.

A federal inmate was entitled to a hearing on whether the government still possessed evidence that he was allegedly entitled to recover, even though he is doing life plus 327 months. United States v. Stevens, 500 F.3d 625 (7th Cir. 2007).*

Inquiry about drugs in defendant's house when police were in it caused defendant to reach for his pocket, and that led the officer to grab defendant's arm as he attempted to pass by, resulting in their both falling on the couch. The attempt to patdown for officer safety was justified. The granting of defendant's motion to suppress was reversed. United States v. Ellis, 501 F.3d 958 (8th Cir. 2007).

Permalink 11:03:00 am, by fourth, 560 words, 720 views   English (US)
Categories: General

Exclusionary rule not applied to "inadvertent illegal behavior"

Stop based on no plates but with knowledge derived from what was later conceded by the state to be an illegal wiretap that defendant would have drugs on her person would not be excluded because the taint was dissipated. Moreover, exclusion here would serve no purpose of the exclusionary rule because it was "inadvertent illegal behavior." Hall v. State, 2007 WY 138, 166 P.3d 875 (2007):

[*P10] Appellant was in violation of the law. The truck she was driving did not have valid plates. The officer had the clear right to be where he was (on a public street) when he observed that violation. He acted appropriately and according to protocol by pulling Appellant over, and by arresting her when he discovered she was driving with a suspended license. Nothing in the record suggests he lacked probable cause for that stop. He then followed the standard procedure by taking Appellant to the jail, where she was processed and booked as normal. The fact that the officer's initial observation of Appellant was motivated by information garnered through an illegal wiretap does not change the fact that the evidence at issue was properly gathered during a stop and arrest fully supported by probable cause. This evidence, unlike the excluded evidence related to the drug sting, was a product of the traffic stop and subsequent pat-down booking search. As such, it need not be excluded as fruit of the poisonous tree.

[*P11] Even were it possible to apply the exclusionary rule to this evidence, there would be very little incentive for a court to do so under these facts. The purpose of the exclusionary rule is to deter law enforcement from obtaining evidence through illegal means. Wong Sun, 371 U.S. at 485-86, 83 S.Ct. at 416. However, the public has a vital "interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." United States v. Ceccolini, 435 U.S. 268, 276, 98 S.Ct. 1054, 1060, 55 L.Ed.2d 268 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174-75, 89 S.Ct. 961, 967, 22 L.Ed.2d 176 (1969)). "[A]pplication of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." Ceccolini, 435 U.S. at 275, 98 S.Ct. at 1060 (quoting United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 (1974)). "The penalties visited upon the Government, and in turn upon the public because its officers have violated the law, must bear some relation to the purposes which the law is to serve." Ceccolini, 435 U.S. at 279, 98 S.Ct at 1061-62.

[*P12] Application of the exclusionary rule and extension of the fruit of the poisonous tree doctrine would serve no purpose here. Law enforcement officers believed they were working pursuant to a valid, statutorily authorized wiretap. As the 10th Circuit Court of Appeals stated when it rejected a claim based on ineffective assistance of counsel for failure to notice the expiration of the wiretapping statute, "the Wyoming Attorney General's Office, several state district court judges, the Wyoming Supreme Court, the United States District Court for the District of Wyoming, dozens of defense attorneys, the Wyoming Legislature, the United States Attorney's Office, and the Natrona County District Attorney's Office also failed to notice the expiration of the statute." United States v. Salazar, 323 F.3d 852, 857 (10th Cir. Wyo. 2003) (quotation marks omitted). We fail to see how law enforcement can be deterred from inadvertent illegal behavior.

Permalink 10:39:18 am, by fourth, 672 words, 986 views   English (US)
Categories: General

Lifting car cover in a parking lot looking for vehicle involved in hit and run did not violate an expectation of privacy

The police did not violate defendant's reasonable expectation of privacy in lifting the cloth car cover on his car in an apartment complex parking lot, and the trial court erred in suppressing the observation. The officer was looking for a vehicle involved in a hit and run, and he traveled through the parking lot, and saw the defendant's partially covered car, stopped, and lifted the car cover seeing damage. State v. Allen, 216 Ariz. 320, 166 P.3d 111 (2007):

P15 However, the fact that Allen sought to hide the damage to his vehicle by using a car cover does not determine whether he had an objectively legitimate expectation of privacy in the exterior appearance of his car. "The test of legitimacy is not whether the individual chooses to conceal assertedly 'private' activity," but instead "whether the government[al] intrusion infringes upon the personal and societal values protected by the Fourth Amendment." Oliver v. United States, 466 U.S. 170, 182-83, 104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984); see also New York v. Class, 475 U.S. 106, 114, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986) ("We have recently emphasized that efforts to restrict access to an area do not generate a reasonable expectation of privacy where none would otherwise exist."). Whether a particular expectation of privacy is recognized by society as objectively reasonable is a matter of constitutional law that we consider de novo. State v. Adams, 197 Ariz. 569, 572, P16, 5 P.3d 903, 906 (App. 2000).

P16 The United States Supreme Court has never held that there is a reasonable expectation of privacy in the exterior of a vehicle. To the contrary, in Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974), a plurality of the Court, after noting that "insofar as Fourth Amendment protection extends to a motor vehicle, it is the right to privacy that is the touchstone of our inquiry[,]" id. at 591, held that "the examination of [a] tire ... and the taking of paint scrapings from the exterior of [a] vehicle" do not implicate any cognizable Fourth Amendment privacy interest. Id. The plurality reasoned that no reasonable expectation existed in the exterior of an automobile because an automobile "seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and contents are in plain sight." Id. at 590. In concluding that no Fourth Amendment violation occurred, the plurality stated:

In the present case, nothing from the interior of the car and no personal effects, which the Fourth Amendment traditionally has been deemed to protect, were searched or seized and introduced in evidence. With the "search" limited to the examination of the tire on the wheel and the taking of paint scrapings from the exterior of the vehicle left in the public parking lot, we fail to comprehend what expectation of privacy was infringed. Stated simply, the invasion of privacy, "if it can be said to exist, is abstract and theoretical."

Id. at 591-92 (citation and footnotes omitted).

P17 Twelve years later, in New York v. Class, a majority of the Court expressly endorsed the Cardwell plurality's conclusion that an examination of the exterior of a vehicle "does not constitute a [Fourth Amendment] 'search'" because the exterior of a vehicle "is thrust into the public eye." 475 U.S. at 114. In explaining that a motorist stopped for traffic violations does not have a constitutionally protected privacy interest in a VIN located in the interior of the vehicle on the dashboard but obscured from view by papers, the Court observed that the "VIN's mandated visibility makes it more similar to the exterior of the car than to the trunk or glove compartment." Id. Thus, the court concluded, it was only when an officer actually reached into the interior of the vehicle to move papers that obstructed the VIN that a search under the Fourth Amendment occurred. Id. at 114-15. The Court went on to find that the search was not "unreasonable" under the Fourth Amendment because it was "no more intrusive than necessary" to fulfill the lawful objective of viewing the VIN. Id. at 118-19.

Permalink 10:19:10 am, by fourth, 396 words, 744 views   English (US)
Categories: General

Fresno homeless sweep case certified as a class action

The Fresno homeless person property destruction case has been certified as a class action. The differences in damage claims was not enough to defeat Kincaid v. City of Fresno, 244 F.R.D. 597 (E.D. Cal. 2007):

This case concerns a number of clean-up operations (sweeps) conducted by Defendants. For more than a year, Defendants implemented a policy of seizing and immediately destroying personal property of homeless individuals in an effort to clean up the City of Fresno. (Doc. 113, SAC, 1 38.) A number of these clean up efforts occurred on property belonging to Caltrans, including the raids on May 3, 2006, May 25, 2006, June 22, 2006, and August 26, 2006.

In bringing this action Plaintiffs seek a permanent injunction and declaration of illegality of Defendants' conduct. Secondarily, Plaintiffs seek damages for the losses suffered from seizure and destruction of their property, much of which is common. According to Plaintiffs, the overarching issue of Defendants' liability will involve elements of common proof. The common issues include:

1. whether Defendants' policies and practices in conducting the sweeps at issue are unlawful, in that they result in immediate destruction of property of the homeless;

2. whether Defendants' policies and practices in conducting the sweeps at issue are unlawful in that they fail to provide adequate pre- or post-seizure notice and fail to provide any opportunity to recover seized property;

3. the nature of injunctive relief that should be ordered, including notice requirements, the amount of time allowed to move property, and what must be done with property that is removed; and

4. whether Defendants are liable for statutory and/or punitive damages and if so, how much. (Doc. 131, Motion to Certify Class, Filed June 15, 2007.)

Plaintiffs now seek certification of class members.

. . .

Based on the totality of all factors considered. Plaintiffs have established the requisites of Fed. R. Civ. P. §§ 23(a)(1)-(4), 23(b) (2) and (b)(3) and shown that certification of the class is superior to all other methods of adjudication.

Plaintiffs' motion to certify class is GRANTED. The following class definition shall apply:

"All persons in the City of Fresno who were or are homeless, without residence, after October 17, 2003, and whose [*31] personal belongings have been unlawfully taken and destroyed in a sweep, raid, or clean up by any of the Defendants."

Comment: I remember a prior post about this case, but it predates the current blog format, and I cannot find it. It likely was deleted in an semi-annual clean up of the old website.

Permalink 10:08:00 am, by fourth, 302 words, 710 views   English (US)
Categories: General

Failure to include a failed controlled buy was not a Franks violation because it did not diminish probable cause

Officer's failure to include a failed controlled buy in a search warrant affidavit was not a Franks violation. If the omitted information was included, it did not diminish the probable cause at all. United States v. Johnson, 504 F. Supp. 2d 554 (S.D. Iowa 2007).*

Officers had probable cause for defendant's arrest based on overhearing a telephone call for a delivery of drugs. When arrested with his car, the police could conduct an automobile search of the interior (which produced nothing to suppress). Then the officer obtained a search warrant for the trunk which the court finds was issued with probable cause but irrelevant because the officer could have searched the trunk under the automobile exception. United States v. Wilcox, 2007 U.S. Dist. LEXIS 63689 (E.D. Pa. August 28, 2007).*

Arrest warrant for defendant located in a motel room was validly executed by a forcible entry after they heard glass break. It was also lawful to detain the person breaking through the window. United States v. Gavino-Cardona, 2007 U.S. Dist. LEXIS 63592 (D. Neb. August 27, 2007):

The officers were also legally justified to force their way into the room after hearing someone crash through the motel room's window. Once inside the room, the officers were legally justified in detaining Ochoa-Guzman and removing him from the room. The officers were legally justified in detaining Gavino-Cardona after he crashed through the motel window and rolled to ground near Deputy Molden. The officers' actions were permissible under the Fourth Amendment and were supported by a reasonable articulable suspicion of criminal activity. ... Such criminal activity being: fugitive from an outstanding arrest warrant, harboring a fugitive, flight to avoid arrest, and destruction of motel property. Furthermore, the officers had probable cause to arrest either one of the defendants as Mateo Alvarez on the Arizona warrant and the other defendant for harboring a fugitive.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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Most recent SCOTUS cases:
2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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)

2009-10 Term:

  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, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  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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  Congressional Research Service:
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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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