Archives for: November 2007

11/30/07

Permalink 02:23:42 pm, by fourth, 425 words, 528 views   English (US)
Categories: General

Officer stopped behind a car on an exit ramp, saw a furtive movement, and ordered defendant out of car, thereby making it a stop

The defendant's car was parked on an off ramp, and an officer stopped behind him putting on his "hazard [not emergency] lights" and then saw what he perceived was a furtive movement that could involve weapons. He talked to the defendant who said that his wife was sick, and he ordered the defendant out of the car, thereby effecting a stop. There was no indication of any criminality. Asble v. Commonwealth, 50 Va. App. 643, 653 S.E.2d 285 (2007):

Davis assumed that Asble's movement was a furtive gesture responsive to the approach of a policeman. However, the record does not disclose that Asble knew he was being so approached. The police car did not have its emergency lights on. No evidence disclosed that Davis was in uniform. No evidence disclosed that Asble knew Davis was a policeman or even that he was aware of his approach. The evidence disclosed only a motion that was not inherently culpable and that coincided with bringing to a stop a car that according to Davis's acknowledged prior testimony was rolling backwards.

Davis identified no criminal activity of which he suspected Asble. He noted only that "sometimes" when movement such as he saw occurs, weapons and/or narcotics are present. This was, at best, a mere hunch, not a particularized suspicion flowing reasonably from articulable facts. Thus Davis lacked justification to remove Asble from the car and to search the car.

Consent was valid because defendant was told he could refuse and he had prior experience in the criminal justice system to know he could refuse. State v. Settles, 2007 Tenn. Crim. App. LEXIS 883 (November 26, 2007):

Likewise, the record does not demonstrate that there was any hostility at all between the policemen and the Defendant or that weapons were displayed; rather, the record demonstrates that the Defendant was cooperative from the start. The police did initiate contact and request the Defendant's consent, but the record reflects that he gave it without hesitation (and with knowledge that he had the right to refuse) by signing two separate forms. In addition, the Defendant has a record of prior arrests and therefore has some experience interacting with law enforcement personnel.

Defendant's bizarre and erratic behavior justified law enforcement following him into a building he entered without a key after an encounter on the street. McDermott v. State, 877 N.E.2d 467 (Ind. App. 2007).*

Police claim of exigency fails, so the entry was illegal, but the affidavit for the search warrant had enough independent information in it to justify issuance of the search warrant. Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007).*

Permalink 11:25:24 am, by fourth, 796 words, 826 views   English (US)
Categories: General

PA holds that the open fields doctrine is same under state constitution

The Pennsylvania Supreme Court, in a wildlife case, holds that its state constitution does not create greater protection in open fields than the federal constitution, after a sensitive analysis of whether it should. State v. Russo, 594 Pa. 119, 934 A.2d 1199 (2007) (a case under submission for a year and a half):

The citizens of this Commonwealth throughout our history have shown a keen interest in protecting and preserving as an asset the diverse wildlife that find refuge in the fields and forests within our borders. This interest is so strong that it is enshrined by a separate provision of the Pennsylvania Constitution:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

PA. CONST. art. 1, § 27. The legislative and executive branches, in turn, have enacted and executed a plethora of statutes and regulations designed to enforce the people's right to the preservation of our wildlife. Thus, our Constitution and enacted statutes--as well as the agencies created to enforce them--all confirm that, in Pennsylvania, any subjective expectation of privacy against governmental intrusion in open fields is not an expectation that our society has ever been willing to recognize as reasonable. In short, the baseline protections of the Fourth Amendment, in this particular area, are compatible with Pennsylvania policy considerations insofar as they may be identified. More importantly, there is nothing in the unique Pennsylvania experience to suggest that we should innovate a departure from common law and from federal law and reject the open fields doctrine.

In light of the foregoing, we hold that the guarantees of Article I, Section 8 of the Pennsylvania Constitution do not extend to open fields; federal and state law, in this area, are coextensive. Therefore, we affirm the Commonwealth Court's determination that Officers Wasserman and Pierce did not violate appellant's right to be free from unreasonable searches and seizures.

"The officer testified appellant's vehicle did not come to a full stop until the front wheels crossed the [stop] line. This observation provided the officer with an objectively reasonable ground for a stop." There was a basis for the stop, so pretext was not an issue under Whren. People v. Binkowski, 157 Cal. App. 4th Supp. 1, 68 Cal. Rptr. 3d 741 (2007).*

Police arrived at a domestic disturbance which had defendant arguing with his girlfriend about a videotape she had in her hand. He was trying to "snatch it back" from her. Finally, he consented to the police viewing the tape because "there was nothing on it." The police saw him masturbating in front of two minor females, and he was arrested. The viewing of the videotape was consensual. Mitchell v. State, 289 Ga. App. 55, 656 S.E.2d 145 (2007).*

Handwritten consent form was valid, and it broadly granted permission to search. "The form read in part: 'I specifically give my consent and authorize these persons to inspect and remove any items of evidence which maybe related, directly or indirectly, to the investigations of the circumstances and/or the cause of the fire.' (Emphasis added)." Clothing was written in, and it was valid. State v. Marshall, 2007 Ohio 6298, 2007 Ohio App. LEXIS 5528 (4th Dist. November 16, 2007)*:

[*P33] Appellant claims that even if his consent was voluntary the scope of the search was limited due to Fire Marshall Lawless writing "for clothing" on the bottom of the form. As previously noted, Lawless testified that he wrote those words only to ensure Appellant's clothes were retrieved. He testified they had no bearing on the scope of the search. Both Lawless and Officer Wilson of the Ironton Police Department testified that the words "for clothing" were added after Appellant had already signed the consent form. Further, Wilson and Lawless testified that Appellant in no way asked to limit the scope of the search.

[*P34] "The standard for measuring the scope of consent under the Fourth Amendment is objective reasonableness, i.e., what a typical reasonable person would have understood by the exchange between the officer and the suspect." Felder at 17. In the case at hand, a reasonable person would not have concluded the scope of search was to be limited to clothes only. The text of the consent to search form, which was read aloud to Appellant, stated "any items of evidence" potentially related to the fire could be removed and the evidence shows Appellant signed the form with this understanding. The hand-written words "for clothing" were not written at the request, or under the direction, of Appellant, but were written simply to ensure that his clothes were collected in addition to any other relevant evidence.

Permalink 12:00:24 am, by fourth, 58 words, 493 views   English (US)
Categories: General

Another free link to opinions provided: LexisONE

LexisONE free caselaw has been added to the column on the right side for free links to caselaw. Some of the links derived from other sources have changed (thus, gone bad) over time, and some state opinions I have been finding are inaccessible on the state judicial websites. LexisONE enables free access to many that are otherwise inaccessible.

11/29/07

Permalink 10:39:43 pm, by fourth, 486 words, 526 views   English (US)
Categories: General

Defendant had no expectation of privacy in a gun hidden on the roof of a garage

Defendant who hid a gun on the roof of a garage had no expectation of privacy there. United States v. Pankey, 2007 U.S. Dist. LEXIS 86785 (D. Minn. October 25, 2007)*:

The critical threshold question is whether the Defendant had a legitimate expectation of privacy on the roof of the garage where Wilson found the weapon, which would allow him to assert a Fourth Amendment claim. The Defendant acknowledges that he does not have a possessory or ownership interest in the garage. However, he argues that he had constructive control of the garage, based on the fact that he resided in a building which was located on the street immediately below the garage, and that he was present on October 26, 2006, at the Seventh Street residence rented by Dickerson, which was immediately adjacent to the garage, and that constructive control gave him a reasonable expectation of privacy on the roof of the garage.

At the Hearing, Wilson testified that he had spoken with Johnson, who owns both the garage, and the building immediately below the garage, where the Defendant was renting an apartment at the time that the search took place. According to Wilson's uncontradicted testimony, Johnson reserved the garage for his own personal use, and had not given the Defendant, or any other tenant, permission to use the garage, or its roof. See, United States v. Wiley, 847 F.3d 480, 481 (8th Cir. 1988) (defendant lacked standing when he had no legitimate access to premises without the presence of the owner and had no personal belongings stored there). The Defendant does not claim that he had a key to the garage, or had previously stored belongings there, either with or without Johnson's permission, and did not have the ability to exclude others from accessing the garage. Likewise, the Defendant did not pay any rent to use the garage, or claim that any portion of the rent that he paid to Johnson, for his apartment, was so allocated. See, United States v. Juchem, 2001 WL 34152082 at *4 (N.D. Iowa, April 23, 2001)(no expectation of privacy in garage when defendant had key and permission of owner to enter, but did not pay rent or have permission to exclude others).

Moreover, the Defendant cannot claim that he had a legitimate expectation of privacy in the roof of the garage, based on his presence in the Seventh Avenue residence. Johnson told Wilson that he had not given anyone, including Dickenson, permission to access the garage. Even if Dickenson had the ability to give the Defendant permission to access the garage, she also told Wilson that she had not granted the Defendant permission to store any items, either in or on the garage, or inside her residence.

Defendants prevailed in a civil action for serving a search warrant on the wrong premises. Defendants then sought attorneys fees for a frivolous action, which the district court denied. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 86847 (E.D. Cal. November 9, 2007).*

Permalink 02:53:27 pm, by fourth, 875 words, 509 views   English (US)
Categories: General

Medical marijuana patient entitled to return of unlawfully seized cannabis

The California Third District Court of Appeals held that the police cannot keep marijuana seized off a bona fide medical marijuana patient who was charged and the charges later dismissed because he was, in fact, a patient. The state's argument for federal preemption over marijuana prosecution was rejected [not to mention that it was highly disingenuous] as was the argument that returning the medical marijuana would violate public policy [which borders on the fantastic, considering California's Compassionate Use Act]. This is a really interesting case. The opinion is 41 pages long, and here are only three of them. City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656 (3d Dist. 2007):

Like the City itself, amici also fear the Garden Grove police would be violating federal law by returning Kha’s marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended “to act as a pusher rather than a medical pofessional.” (Relying on United States v. Moore (1975) 423 U.S. 122.)

By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).

Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 10-12.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha’s marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)

That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.

By returning Kha’s marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court’s order comports with an officer’s dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const. art. XX, § 3.)

Permalink 11:12:50 am, by fourth, 439 words, 595 views   English (US)
Categories: General

Installing GPS at Customs was reasonable, and activity after that was all with reasonable suspicion

Defendant was a well known target as a money or drug courier crossing the border regularly through Champlain, N.Y., and he was flagged in the Customs computer. When he crossed the border this time, he was sent to secondary inspection, and he was brought inside for questioning. While he was inside, a GPS with a cellphone transmitter was planted on the car. He was allowed to go on his way, and they watched and tracked his moves and noticed that he had lied about his travel plans, and they developed reasonable suspicion for a stop. He was ultimately arrested for bulk cash smuggling for lying about having more than $10,000 in cash when he entered the country. United States v. Coulombe, 2007 U.S. Dist. LEXIS 86756 (N.D. N.Y. November 26, 2007):

A person has no reasonable expectation of privacy insofar as the exterior of his car is concerned. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (citing New York v. Class, 475 U.S. 106, 114 (1986); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). There is no Fourth Amendment violation when the installation of a tracking device on a vehicle's undercarriage does not damage the vehicle or invade its interior, when the vehicle operator does not lose dominion or control, and when there is no other Fourth Amendment invasion during the installation. See McIver, 186 F.3d at 1126-27. Charles did not damage the vehicle, he did not invade the interior, and Coulombe did not lose dominion and control. Because the vehicle's undercarriage was lawfully accessed during the secondary border inspection, there was no other unlawful invasion that violated the Fourth Amendment. See Tudoran, 476 F. Supp. 2d at 210-13. Therefore, the installation of the device and its post-installation operation were constitutionally permissible.

Even assuming the first prong of a Franks violation, including the omitted information still showed probable cause. United States v. Laliberte, 2007 U.S. Dist. LEXIS 87023 (D. Kan. November 19, 2007):

In this case, even assuming defendant could meet the first part of his Franks burden, the court would nevertheless conclude that the affidavit otherwise provided probable cause for the search. In determining this issue, the court sets aside the allegation that property records showed Robert Charles Laliberte as the owner of the 6th Street residence, and it treats the omission relating to Robert's Arizona license and Arizona correspondence as though it had been included in the affidavit. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (in determining whether affidavit still shows probable cause, false statements are set aside, while omitted information is treated as if it had been included in the affidavit). Even so, the affidavit showed probable cause to search the 6th Street residence.

Permalink 10:55:54 am, by fourth, 635 words, 610 views   English (US)
Categories: General

Automobile search could include looking in air conditioning vent because informant told them contraband would be there

On a stop and arrest with probable cause for odor of marijuana, officer had informant information that contraband would be hidden in the dashboard. This justified the officer looking into the air conditioning vent with a flashlight. Then, a hidden compartment in the dash was found with a gun hidden there. The entire search was justified under the automobile exception. United States v. Luna-Ilarraza, 2007 U.S. Dist. LEXIS 86955 (D. P.R. November 27, 2007):

However, Officer Berrios' additional reason for looking into the air conditioning vent, that a confidential informant had stated that there was a compartment in the dashboard which contained contraband, combined with her own knowledge and under the totality of the circumstances, also supplied probable cause for the search. The confidential informant described the vehicle in make and color, gave its licence plate number and location, and specified that there was marijuana in the trunk and contraband in the dashboard area. Having stopped the car described by the informant after spotting it at the identified location, verified that the licence plate matched the one given by the informant and discovered marijuana in the trunk, just as the informant had asserted, those portions of the information were corroborated as accurate. "In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Jones v. U.S., 362 U.S. 257, 269 (1960) (overruled on other grounds by U.S. v. Salvucci, 448 U.S. 83 (1980)). Even if the officers did not know the identity of the informant, under the totality of the circumstances, including the corroboration of virtually every aspect of the tip, it was reasonable for them to believe that contraband was being housed within the air conditioning vents and gauge cluster in the passenger area of the vehicle. See U.S. v. Sandoval-Espana, 459 F.Supp.2d 121 (D.R.I. 2006). In sum, the totality of the circumstances of this case establish the probable cause necessary to sustain the warrantless search of both the trunk and the gauge cluster of defendant's car under the automobile exception.

Lastly, the fact that the weapon was within a compartment does not invalidate the search. It has been clearly established by the Supreme Court that the privacy interest in closed containers within a car yields to the broad scope of an automobile search. California v. Acevedo, 500 U.S. 565, 574 (1991). "[T]he law recognizes that a vehicle search under this exception may encompass all areas of the vehicle in which the suspected contraband is likely to be found." U.S. v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (citing United States v. Maguire, 918 F.2d 254, 260 (1st Cir.1990), cert. denied, 499 U.S. 950 (1991)).

"An officer's observation of a vehicle straying out of its lane multiple times over a short distance creates reasonable suspicion that the driver violated [the state statute] so long as the strays could not be explained by adverse physical conditions such as the state of the road, the weather, or the conduct of law enforcement." United States v. Egan, 256 Fed. Appx. 191 (10th Cir. 2007)* (unpublished).

Even a bad seizure of cash can still lead to a forfeiture if the government can find untainted evidence to prove it. United States v. $172,760.00 in United States Funds, 2007 U.S. Dist. LEXIS 86974 (M.D. Ga. November 27, 2007):

Evidence obtained in the course of a search that violates the Fourth Amendment is inadmissible in a civil forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965). However, it is well-established that an illegally seized asset can still be the subject of a civil forfeiture proceeding if the Government can meet its burden of proof with untainted evidence. See, e.g., United States v. Monkey, 725 F.2d 1007, 1012 (5th Cir. 1984); ....

11/28/07

Permalink 10:08:55 pm, by fourth, 354 words, 545 views   English (US)
Categories: General

Crime committed against officers during illegal entry not suppressable

The Colorado Supreme Court assumes but does not decide that three sheriff's deputies entered defendant's property in violation of the Fourth Amendment. In response to the violation, he allegedly committed criminal acts against the deputies, including menacing them with a shotgun. The trial court suppressed all the evidence of his criminal acts on the ground that the evidence was derived from the deputies' unconstitutional trespass. The Colorado court concludes that this evidence is not derivative of any constitutional violation, and reverses the trial court's suppression order. People v. Doke, 171 P.3d 237 (Colo. 2007). Comment: This is the settled general rule.

Extending a traffic stop for lack of a seatbelt and a lack of a reflective strip on the temporary tag was defective for going beyond its purpose. State v. Connor, 288 Ga. App. 517, 654 S.E.2d 461 (2007):

As noted above, to pass muster under the Fourth Amendment, the continued questioning of a driver and passengers outside the scope of a valid traffic stop is permissible only when the officer has a reasonable articulable suspicion of illegal activity or when the valid traffic stop has become consensual. ... A consensual encounter requires the voluntary cooperation of a private citizen with non-coercive questioning by a law enforcement official. Because the individual is free to leave at any time during such an encounter, he is not “seized” within the meaning of the Fourth Amendment. ... In looking to the totality of the circumstances to determine whether a reasonable person would have felt free to leave, three important factors have been given particular scrutiny: (a) whether the driver's documents have been returned to him; (b) whether the officer informed the driver that he was free to leave; and (c) whether the driver appreciated that the traffic stop had reached an endpoint. ... It is clear that “an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him.” (Citations omitted.) ...

There is no privity of parties between a preliminary hearing and a § 1983 case over the same arrest and search for issue preclusion to apply. Saunders v. Knight, 2007 U.S. Dist. LEXIS 86291 (E.D. Cal. November 8, 2007).*

Permalink 11:22:04 am, by fourth, 544 words, 837 views   English (US)
Categories: General

Detention incidental to execution of arrest warrant against another not a Fourth Amendment violation

The detention incidental to execution of arrest warrant against another was not a Fourth Amendment violation. United States v. Smith, 2007 U.S. Dist. LEXIS 86368 (E.D. Wis. November 19, 2007):

Similarly, a person who is detained during the execution of a search warrant is ordinarily not in custody for Miranda purposes. United States v. Saadeh, 61 F.3d 510, 520 (7th Cir. 1995); United States v. Burns, 37 F.3d 276, 281 (7th Cir. 1994). The Seventh Circuit noted that

[m]ost detentions that occur during the execution of a search warrant, like most Terry stops, are comparatively nonthreatening. They are often short in duration. ... Furthermore, detention in a person's own residence or hotel room could only add minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.

Burns, 37 F.3d at 281 (internal quotations omitted).

In Burns, the defendant sought suppression of certain statements she made during the execution of a search warrant at her hotel room. Id. at 278. The defendant asked to leave the hotel room numerous times, but she was detained and told to sit on the bed as two law enforcement officers searched the hotel room. Id. During the search, an officer asked Burns what she was doing in Milwaukee, to which she responded that she was visiting friends. However, later she said she did not have any friends in Milwaukee when the officer asked her who her friends were. Id. When an officer discovered a kilogram of cocaine in a dresser drawer wrapped in a hotel towel, the defendant disavowed ownership of the item. Id.

The Seventh Circuit held that the defendant was not in custody while she was detained during the execution of the search warrant, and therefore the Miranda warnings were not required. Id. at 281. The court explained its decision by stating that the defendant

was detained for less than ten minutes prior to her arrest. She was not handcuffed or physically restrained in any way until she was formally placed under arrest. Only two law enforcement officers conducted the search, and they did not brandish weapons. Finally, the officer's questioning was limited in scope and duration.

Id.

. . .

Although the present case involves an arrest warrant rather than a search warrant, the distinction is inconsequential for present purposes. The rule the Supreme Court has enunciated in Michigan v. Summers, 452 U.S. 692, 705, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981), that a search warrant "implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted," applies equally to instances where officers enter a residence pursuant to a valid arrest warrant. See Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). Whether entering pursuant to a search warrant or an arrest warrant, officers may reasonably fear that the buildings' occupants may obtain weapons which may be used against them or destroy evidence.

Search warrant for defendant's child porn was valid at least by the good faith exception, without even considering the probable cause question. United States v. Watson, 255 Fed. Appx. 876 (5th Cir. 2007)* (unpublished).

Being compelled by the state to return one's teaching certificate is not a Fourth Amendment seizure. Smith v. California Comm'n on Teacher Credentialing, 2007 U.S. Dist. LEXIS 86251 (E.D. Cal. November 21, 2007).*

Permalink 09:19:26 am, by fourth, 14 words, 485 views   English (US)
Categories: General

Boston gun search program in Time

Boston gun search program posted here on November 19th is in Time magazine today.

11/27/07

Permalink 08:20:17 am, by fourth, 1347 words, 1064 views   English (US)
Categories: General

Customs detention for up to six hours at the Canadian border was "routine" despite patdowns, fingerprinting, photographing, and questioning

In what is a significant border search case from the Second Circuit, five men attended an Islamic conference in Toronto, and Homeland Security received intelligence information that people attending the conference had potential terrorist connections. So, the government watched for any coming into the U.S. near Toronto. The plaintiffs crossed at Buffalo and, without any individualized suspicion (and without any criminal history), they were subjected to Customs treatment expected for a suspected terrorist: forced patdowns and fingerprinting, photographing, and detention and questioning for up to six hours. After it was determined that they were not a threat, they were released and permitted entry, and their fingerprints and photographs were later purged. They sued, inter alia, under the First and Fourth Amendment. The Second Circuit held that, assuming the facts stated by the plaintiffs were true, the government had plenary authority at the border, and it was permissible based on the intelligence the government received. Tabbaa v. Chertoff, 2007 U.S. App. LEXIS 27258 (2d Cir. November 26, 2007):

Plaintiffs' second claim is that CBP's searches were unreasonable in violation of the Fourth Amendment to the U.S. Constitution.

It is well established that the government has broad powers to conduct searches at the border even where, as here, there is no reasonable suspicion that the prospective entrant has committed a crime. See, e.g., United States v. Flores-Montano, 541 U.S. 149, 153 (2004) ("Congress, since the beginning of our Government, has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant ....") (internal quotation marks omitted); United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985) ("Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant ...."); United States v. Ramsey, 431 U.S. 606, 616 (1977) ("[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border ...."); United States v. Nieves, 609 F.2d 642, 645 (2d Cir. 1979) ("It long has been established that routine border searches, conducted for the purpose of controlling the movement of people and goods across our national boundaries, do not violate the Fourth Amendment's prohibition against unreasonable searches."). Accordingly, a suspicionless search at the border is permissible under the Fourth Amendment so long as it is considered to be "routine." See, e.g., United States v. Irving, 452 F.3d 110, 123 (2d Cir. 2006).

The precise line between what is routine and what is not routine, however, has not been clearly delineated. On the one hand, it has been held that "[r]outine searches include those searches of outer clothing, luggage, a purse, wallet, pockets, or shoes which, unlike strip searches, do not substantially infringe on a traveler's privacy rights." Id. (citing United States v. Grotke, 702 F.2d 49, 51-52 (2d Cir. 1983)). By contrast, "more invasive searches, like strip searches, require reasonable suspicion." Id. The Supreme Court has stated that "non-routine" searches include "strip, body cavity, or involuntary x-ray searches." Montoya de Hernandez, 473 U.S. at 541 n.4. The determining factor is not how ordinary or commonplace a search is, but rather "the level of intrusion into a person's privacy." Irving, 452 F.3d at 123.

. . .

Plaintiffs focus on three aspects of the searches in question, which we address in turn. First, plaintiffs urge us to find that their treatment, when considered in its entirety, was not routine because of the combined effect of the various measures employed, including intrusive questioning, photographing, and fingerprinting. We are sympathetic to plaintiffs' argument because there arguably was a stigma associated with being subject to the IDSO procedures. In MacWade v. Kelly, 460 F.3d 260, 273 (2d Cir. 2006), we found that police searches of subway passengers' bags were "minimally intrusive" in part because the searches were conducted "out in the open, which reduces the fear and stigma that removal to a hidden area can cause ...." Here, plaintiffs were gathered into a separate building along with several other Muslims who had attended the RIS Conference--and all of these attendees were subject to a form of border processing normally reserved for suspected terrorists. As a result, it is not unreasonable for plaintiffs to have felt there was a stigma attached to the searches. Cf. United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974) ("The search of carry-on baggage, applied to everyone, involves not the slightest stigma. More than a million Americans subject themselves to it daily ....") (emphasis added and citation omitted).

On the other hand, none of the specific measures taken by CBP was more invasive than the types of searches at the border that courts have regularly held to be routine. Plaintiffs complain that they were required to answer intrusive questions about their activities at the conference, the content of the lectures they attended, and their reasons for attending. But these questions are not materially different than the types of questions border officers typically ask prospective entrants in an effort to determine the places they have visited and the purpose and duration of their trip. See United States v. Silva, 715 F.2d 43, 47 (2d Cir. 1983) (noting that questions about "citizenship, the length and purpose of [an applicant's] trip to Canada, [and] what items she had acquired or bought in Canada" are all routine). Likewise, pat-down searches have repeatedly been found to be routine, even when they were followed by the lifting of an applicant's shirt or the forced removal of shoes. See, e.g., United States v. Charleus, 871 F.2d 265, 268 (2d Cir. 1989) (While "[t]he light touching of appellant's back followed by a lifting of his shirt arguably straddles the line between the two categories of border searches," it can be considered a routine search because "the potential indignity ... fail[ed] to compare with the much greater level of intrusion associated with a body cavity or full strip search ...."). The forcing open of plaintiffs' feet that we assume to have occurred here in at least two instances, while perhaps marginally more invasive than the lifting of a shirt, is not so invasive of plaintiffs' privacy as to be distinguishable from our holdings that pat-down searches are routine.

We also conclude that the fingerprinting and photographing of plaintiffs does not take the searches out of the realm of what is considered routine because, at least in the context of a border search, being fingerprinted (even forcibly) and photographed is not particularly invasive, especially considering that the photographs and fingerprints were used solely to verify plaintiffs' identities and then were discarded from the government's databases. See Davis v. Mississippi, 394 U.S. 721, 727 (1969) ("Fingerprinting involves none of the probing into an individual's private life and thoughts that marks an interrogation or search."); Nicholas v. Goord, 430 F.3d 652, 658 (2d Cir. 2005) (noting that the Supreme Court has suggested that fingerprinting is not entitled to Fourth Amendment protection and describing fingerprinting as a "non-intrusive means of obtaining physical evidence ..."); Montoya de Hernandez, 473 U.S. at 539-40 ("[N]ot only is the expectation of privacy less at the border than in the interior, the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border.") (internal citation omitted).

Thus, each of the individual elements of the searches was routine. And while we leave open the possibility that in some circumstances the cumulative effect of several routine search methods could render an overall search non-routine, we do not find that to be the case here. While plaintiffs were undoubtedly made uncomfortable and angry by the searches, and they may understandably have felt stigmatized, their personal privacy was not invaded in the same way as it would have been had they been subject to a body cavity or strip search, or involuntary x-ray. Because the decisive factor in the analysis is invasiveness of privacy--not overall inconvenience--we find that CBP's searches of plaintiffs, considered in their entirety, were routine in the border context, albeit near the outer limits of what is permissible absent reasonable suspicion.

Plaintiffs' First Amendment and other arguments were also rejected.

Permalink 08:00:52 am, by fourth, 170 words, 459 views   English (US)
Categories: General

Smell of marijuana justified search, despite what officer said

Officers' smell of marijuana justified search, and the fact the officers said that they were searching for officer safety was not material. State v. Jennings, 968 So. 2d 694 (Fla. App. 4DCA 2007):

The officers in this case had probable cause to search the occupants of the vehicle once they smelled the marijuana. That they may have articulated a subjective intent to search for officer safety did not change the fact that the smell of marijuana smoke provided an objectively reasonable basis for the search. See United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (Whren provides broad leeway to officers to conduct searches regardless of their subjective intent so long as there is objective legal justification for their actions).

Defendant's argument that the police conducted an illegal protective sweep prior to his search incident did not have to be reached because the police had independent probable cause for a search warrant that was later issued. Therefore, there was an independent source permitting the search. United States v. Free, 254 Fed. Appx. 765 (11th Cir. 2007)* (unpublished).

11/26/07

Permalink 05:41:12 am, by fourth, 399 words, 484 views   English (US)
Categories: General

Once DNA evidence is lawfully collected, it can be used for any investigation

"[O]nce law enforcement lawfully obtained Scott's blood sample and DNA evidence, no privacy interest persisted in this evidence. Scott's DNA profile could be used in the investigation of other crimes for identification purposes." Therefore, defense counsel was not ineffective for not challenging this use. Scott v. Werholtz, 38 Kan. App. 2d 667, 171 P.3d 646 (2007).* (Note: This case cites no authority in support, but that is the law.)

Plaintiff's complaint of excessive force for alleged unnecessary Tasering survived summary judgment because of a fact dispute. Pearson v. Byrd, 2007 U.S. Dist. LEXIS 86041 (M.D. Ala. November 20, 2007):

Pearson alleges that a police officer shoved him onto a patrol car and shocked him with a Taser gun and that two other officers handcuffed and shackled him. Pearson further alleges that, although he did not resist, one of the officers continued to use the Taser gun on him. He maintains that these officers then threw him into the back of the police vehicle, and that one of the officers choked and punched him while another officer shocked him with the Taser gun. Consequently, Pearson has alleged the deprivation of a constitutional right. See Saucier v. Katz, supra.

The defendants admit that they used some force against Pearson. The defendants, however, assert that the use of force was necessary because Pearson was a danger to the officers and nearby citizens. Specifically, the defendants allege that Pearson acted aggressively toward them, that he did not heed their warnings that he would be "tased" if he continued to resist, and that he repeatedly refused to comply with their orders. (Corkran's Affid.; Reardon's Affid.; Harrison's Affid.) Thus, there is a factual dispute concerning whether there was a need to use force and whether the force used was excessive under the circumstances.

Comment: We might as well face it: "tase" is now a transitive verb, as in "Don't tase me, bro!" and as shown on YouTube. Taser is a product and a company name. "Tase" as a verb does not appear on Merriam.com's online dictionary, but it does appear in its open dictionary as first submitted in 2005. The first use of "tase" as a verb in a judicial opinion on Lexis is Maiorano v. Santiago, 2005 U.S. Dist. LEXIS 40879, *18 (M.D. Fla. May 19, 2005), where "taser" is uncapitalized throughout and: "Finally, there is no allegation that Santiago ordered Plaintiff to desist or warned Plaintiff that he would tase her."

11/25/07

Permalink 03:20:16 pm, by fourth, 195 words, 439 views   English (US)
Categories: General

Plain feel did not reveal weapon, so opening small package was improper

Defendant's placing her hand in her pocket during a stop and refusing to remove it justified a patdown for officer safety. The object, however, was obviously not a weapon, so opening it up was unreasonable, and the motion to suppress should have been granted. Sudduth v. State, 288 Ga. App. 541, 654 S.E.2d 446 (2007):

In this case, as stated above, the officer could not identify the object he felt as either a weapon, or by its contour and mass, contraband and thus the State concedes that the intrusion into Sudduth's pocket was impermissible under these facts.

Defendant admitted to consenting to a search by the police of a trailer owned by his father that he used for an adulterous relationship. The police showed up at 3:45 a.m. looking for him, and he signed a consent to search the trailer, then contended that it was not his, he only occasionally used it, and the gun was not visible until the officers pulled it out. The officers testified that the gun was immediately visible on entering the trailer, so the defendant's conviction of possession was affirmed. State v. Vassar, 966 So. 2d 654 (La. App. 5th Cir. 2007), released for publication November 9, 2007.

11/24/07

Permalink 09:19:29 am, by fourth, 254 words, 532 views   English (US)
Categories: General

GA: Defense waived argument that no search warrant actually issued by not specifying the issue in the motion to suppress

The motion to suppress did not adequately put the state on notice that the defendant was arguing that no search warrant actually issued. The officer presented an affidavit for a search warrant to the magistrate, but no search warrant. Based on the affidavit alone, the officers conducted the search. The issue first arose during the suppression hearing, and the state made an impromptu argument that the affidavit should suffice, but that did not cure the defense failure to put the state on notice. Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007):

Again, the question is whether Young's motion to suppress sufficiently put the State on notice that the very existence of a search warrant was being challenged, i.e., that the document that Young himself referred to as the warrant was not in fact a warrant, and that this legal issue would be resolved at the motion to suppress hearing. And it is plain that the State was not on such notice. Examination of the transcript of the suppression hearing compels the conclusion that the State's argument to the trial court was nothing more than an impromptu attempt to respond to Young's unexpected challenge to the lack of an actual search warrant.

. . .

The Court of Appeals did not err in finding waiver under the circumstances of this case.

2255 petitioner could not show that his counsel was ineffective for not arguing inapplicability of the good faith exception under Leon because it would have failed. Seckman v. United States, 2007 U.S. Dist. LEXIS 85798 (E.D. Okla. November 19, 2007).*

Permalink 09:01:44 am, by fourth, 430 words, 490 views   English (US)
Categories: General

IN: "Catchall" provision in the warrant made it overbroad

A drug search warrant had a "catchall" provision that made it constitutionally overbroad. Only marijuana was mentioned, and meth was found.

"instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied).

The evidence sought to be suppressed was all within the coverage of the "catchall" provision, and the state failed to show that it was otherwise in "plain view." Levenduski v. State, 876 N.E.2d 798 (Ind. App. 2007):

In the case before us, by contrast, all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to the illegal "catchall" provision in the warrant and should accordingly have been suppressed. The warrant authorized police to enter Levenduski's house and search for marijuana, hashish, "instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28) (emphasis supplied), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.) (emphasis supplied), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied). As to the evidence unrelated to marijuana or hashish, the warrant was invalid to the extent it "[left] the executing officer with discretion," Warren, 760 N.E.2d at 610, and the trial court should have granted Levenduski's motion to suppress that evidence.

The State acknowledges the language in the warrant purporting to authorize a search for and seizure of "any other item of contraband which are [sic] evidence of a crime" is "perhaps a bit too general in its description of the items permitted to be searched for by the warrant." (Br. of the Appellee at 19.) But it asserts the discovery and seizure of the methamphetamine was reasonable because the "methamphetamine evidence" was discovered "primarily in plain view." (Id. at 19-20.) It was not.

. . .

The State has not demonstrated the evidence obtained pursuant to the illegal "catch-all" provision of the search warrant was found in plain view. It therefore should have been suppressed. See Chandler v. State, 816 N.E.2d 464, 468 (Ind. Ct. App. 2004):

Nor is there evidence the marijuana was in plain view. Officer James Walsh testified some marijuana 'was found in the middle bedroom' and 'in the living room.' There was no direct testimony this marijuana was in plain view; as the State bears that burden of proof, we will not presume it was.

(Internal citations and footnote omitted).

11/23/07

Permalink 11:55:22 am, by fourth, 844 words, 726 views   English (US)
Categories: General

Application for realtime cellphone tracking of suspected drug dealer denied

Government's request for realtime data as to the movements of a suspected drug dealer's cellphone was denied without prejudice, subject to the government coming up with more. In the Matter of the Application of the United States of America for an Order: (1) Authorizing the Installation and Use of a Pen Register and Trap and Trace Device; (2) Authorizing Release of Subscriber and Other Information; and (3) Authorizing the Disclosure of Location-based Services, 2007 U.S. Dist. LEXIS 83022 (S.D. Tex. November 8, 2007). The publication of this order was the subject of a fascinating Washington Post article today: Cellphone Tracking Powers on Request / Secret Warrants Granted Without Probable Cause, by Ellen Nakashima.

The entirety of the order:

This matter comes before the Court pursuant to a written and sworn application pursuant to 18 U.S.C. §§ 3122(a)(1), 3127(5), and 2703(c)(1) by an assistant United States Attorney who is an attorney for the Government as defined by Rule 1(b)(1)(B) of the Federal Rules of Criminal Procedure and an accompanying affidavit of a special agent with the Drug Enforcement Administration.

In order to obtain an order for a tracking device, the Government must establish probable cause. Fed. R. Crim. P. 41(d)(1). "Tracking device" is defined as "an electronic or mechanical device which permits the tracking of the movement of a person or object." 18 U.S.C. § 3117(b); see also Fed. R. Crim. P. 41(a)(2)(E).

This Court has determined that when the Government seeks real-time cell site data, it does not have to establish probable cause. In the Matter of an Application for an Order, 433 F. Supp. 2d 804, 806 (S.D. Tex. 2006). In that order, the Court explained that in reaching its decision it found significant that "[t]he government is not seeking: (1) to activate remotely the subject's telephone's GPS functionality; (2) to obtain information from multiple cellular antenna towers simultaneously to 'triangulate' the precise location of a cell phone…." Id. (italics in original).

In the pending application, the assistant United States Attorney "requests an Order authorizing the [DEA] to require the [cell phone] Provider to disclose location-based data that will assist law enforcement in determining the location of the Target Device (differentiated from the first or last cell-site used to make or receive a call, which simply identifies the location of the third-party Provider's infrastructure)." (emphasis added). The Government seeks not only real time cell-site data, but "'Enhanced 911' services developed by the Provider in order to comply with the provisions of 47 C.F.R. § 20.18." Accordingly, the Provider is currently required to provide accurate and reliable locations within "50 meters for 67 percent of calls [and] 150 meters for 95 percent of calls" "[f]or hand-set based technologies." 47 C.F.R. § 20.18(h)(2). The information that the Government seeks clearly attempts to identify the exact location of the Target Device (and presumably the person holding the Target Device), and thus requires a finding of probable cause.

The special agent's affidavit contains the subscriber's name and address of the Target Device. The affidavit further alleges that Target Device is being used by the subscriber ("Subject") in furtherance of an organized scheme involved in narcotics trafficking. However, the affidavit fails to provide sufficient specific information to support the assertion that the Target Device is being used in the criminal enterprise.

Instead, the affidavit simply alleges that the Subject is engaging in narcotics trafficking and using the Target Device to do so. It fails to focus on specifics necessary to establish probable cause, such as relevant dates, names, and places. For example, the affidavit makes statements that the DEA has "identified" or "determined" certain matters, or that its investigation has "revealed." These identifications, determinations, or revelations are not facts, but simply conclusions by the agency. Moreover, the affidavit contains a critical paragraph addressing assertions of the Subject's involvement in the narcotics trafficking that lacks supporting facts. For example, it discusses negotiations for the purchase of narcotics by the Subject. It fails to indicate with whom the negotiations were conducted. Some of the information about negotiations is over three years old. It is unclear when the second negotiation occurred. It is unclear how the DEA learned of these negotiations. Ultimately, the affidavit fails to provide any specific facts or details related to the Subject's alleged criminal activity along with use of the Target Device that would establish probable cause.

Finally, to the extent that the affidavit relies on cooperating sources of information and cooperating defendants without providing any specifics or details regarding the Subject's criminal actions, the Government has failed to establish probable cause. In relying on these unnamed sources, it is incumbent upon the Government to provide sufficient details, including independent corroboration done by the agency, in order to establish that the information is reliable.

The Fifth Circuit has explained that a probable cause determination cannot be supported by "a wholly conclusory statement unsubstantiated by underlying facts." United States v. Settegast, 755 F.2d 1117, 1121 (5th Cir. 1985). In this case, the information seeking to link the Subject with the criminal activity is conclusory and unsubstantiated. As such, the Government has failed to establish probable cause.

Accordingly, the Government's application is hereby denied without prejudice.

Permalink 11:25:25 am, by fourth, 402 words, 742 views   English (US)
Categories: General

Six Imams stated claim for false arrest before a flight

Six Imams stated a claim for relief for being taken off a flight and detained for hours for questioning for no apparent reason other than praying in the gate area in Arabic before the flight [they obviously needed to pray before flying U.S. Air] and one in first class, upgraded for being a frequent flyer, walking back to offer his seat to one of his traveling companions which was declined, and one needed a seatbelt extension. The FBI questioned them, determined that they were not a security threat, and let them go, after hours of questioning. They stated a claim that there was no probable cause to believe that they were going to interfere with a flight crew in violation of 49 U.S.C. § 46504 that resulted in their detention. After that, U.S. Air barred them from ever flying on the airline. They had flown from Phoenix to Minneapolis for a conference and were returning when detained. Shqeirat v. United States Airways Group, 515 F. Supp. 2d 984 (D. Minn. 2007).*

The use of a dog to restrain the plaintiff was not excessive force where the dog was ordered to let go as soon as plaintiff was restrained. Williams v. Wheeler, 2007 U.S. Dist. LEXIS 85781 (S.D. Ind. November 19, 2007):

The record shows that excessive force was not used in apprehending Williams or in effectuating his arrest. This is apparent from the following circumstances:

. Williams had fled from police both in a vehicle and on foot.

. Williams concealed himself in order to avoid detection and apprehension.

. Williams refused to identify himself, refused to reveal whether he was armed, and refused directions from Officer Waters to surrender himself.

. Williams refused to surrender despite having been informed that if he did not do so the police canine would be used.

. Although the canine was used and placed a hold on Williams, biting him in the process, the canine was ordered to release his hold as soon as Officer Waters was able to control Williams. The canine immediately complied with the order to release Williams once that order was given.

The use of force to apprehend Williams was justified. The force used was not excessive either in relation to the type of force used or the manner in which it was used. See Ellis v. Wynalda, 999 F.2d 243, 247 (7th Cir. 1993) (force that is reasonable while suspect poses threat is no longer reasonable once threat is no longer present).

Permalink 10:22:13 am, by fourth, 737 words, 554 views   English (US)
Categories: General

Defendant's stop and frisk was unjustified by reasonable suspicion; no real crime was afoot

W.D.N.Y. suppresses a stop and patdown of a man on the street who vaguely matched a description of somebody "looking to break into cars." United States v. McCloud, 2007 U.S. Dist. LEXIS 85542 (W.D. N.Y. August 16, 2007):

On this record, I find that the interaction between Jones and McCloud began as a consensual encounter which required no legal justification. Jones's simple request that McCloud speak with him would not have suggested to a reasonable person that he or she was not free to leave. See Florida v. Bostick, 501 U.S. at 439. As the government concedes, however, the encounter quickly evolved into a Terry stop upon Jones's direction that McCloud put his hands behind his back and submit to a pat search for weapons. (Tr.A 12). Like the government, I believe that a reasonable person in McCloud's position would not have felt free to disregard Jones's instruction. See California v. Hodari D., 499 U.S. 621, 627 (1991) ("since the addressee [of a police order to stop] has no ready means of identifying the deficient [orders] it almost invariably is the responsible course to comply"). In fact, Jones himself testified that at that point during the encounter McCloud was not free to leave. (Tr.A 16).

The question whether the Terry stop of McCloud was justified by reasonable suspicion is, in my view, a close one. Indeed, had McCloud complied with Jones's initial direction, I likely would find that the seizure was unsupported by reasonable suspicion. At the time of that direction, Jones's suspicion was based upon (1) his belief that McCloud matched the description of the suspect; (2) McCloud's presence near the location of the alleged suspicious activity at a time close to the time of the 911 report; (3) the virtual absence of any other individuals present near the scene; (4) the fact that it was one o'clock in the morning in an area of the city known to have a high incidence of crime; (5) McCloud's failure to turn his head toward the patrol car when Jones first passed him; and (6) McCloud's unprompted production of his identification when Jones asked to speak to him. It seems unlikely to me that these facts -- taken alone or together -- provided reasonable suspicion to justify a Terry stop of McCloud.

The most that can be said about McCloud's physical description is that it was not inconsistent with the information provided in the 911 call. I cannot say, however, that McCloud matched a description of the suspect because identification of race, even accompanied by a vague characterization of clothing, does not describe a suspect with sufficient detail or identifying characteristics to meaningfully set him apart from other members of the community. See United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir. 2005) ("race when considered by itself and sometimes even in tandem with other factors, does not generate reasonable suspicion for a stop"). Moreover, it is open to question whether McCloud's medium-colored blue jeans and hooded sweatshirt fit the description of dark pants and a jacket.

Comment: The U.S.M.J. was more solicitous of the government's position than he needed to be: "may I speak to you" from a cop on the street is not realistically a request subject to consent when a cop asks it on the street because refusal has consequences. The comment that this Terry question is a "close one" is just wrong--it is not close at all--but it is an open invitation to the District Judge to reverse it. There was no real crime "afoot," as required by Terry. The 911 call was about a potential breaking into a car, and the defendant had nothing in his hands and was not even acting suspicious when he was stopped. He was just in the wrong place at the wrong time, and the patdown produced evidence unrelated to the factual basis of the stop.

Plaintiffs' car was blown up because it was parked near a multi-national meeting demonstration site, and the police were concerned that it might have a bomb in it. It didn't. If the police reasonably believed it contained a bomb, they would have acted reasonably, but fact questions remained, so summary judgment was denied. Vogel v. City of Miami, 2007 U.S. Dist. LEXIS 85438 (S.D. Fla. November 8, 2007).*

A mere assertion that an informant did not exist was so conclusory that it was insufficient to state a claim for a civil Franks violation. White v. Wilder, 2007 U.S. Dist. LEXIS 85506 (S.D. Miss. November 7, 2007).*

11/22/07

Permalink 04:50:19 pm, by fourth, 555 words, 574 views   English (US)
Categories: General

CT: Officer cannot ask for consent after traffic stop as a matter of course

Once the purpose of a traffic stop is complete, an officer may not ask about searching a car without some justification. State v. Jenkins, 104 Conn. App.
417, 934 A.2d 281 (2007):

Third, to conclude that the record is inadequate on this issue creates the implication that a police officer, during a routine motor vehicle stop made on the basis of a driving infraction, is authorized to make arbitrary requests for consent searches that are wholly unrelated to the initial purpose of the stop and unsupported by additional suspicion justifying the expansion of the stop, so long as the officer chooses not to conclude the encounter. Such a blanket authorization is contrary to our search and seizure jurisprudence, which generally proscribes such arbitrary conduct on the part of the police. See State v. Nash, 278 Conn. 620, 631, 899 A.2d 1 (2006) ("[t]he police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries" [internal quotation marks omitted]).

Moreover, to conclude otherwise also creates an implication that, during a routine motor vehicle stop, a defendant may not contest the validity of a consent to search unless the officer's request for consent occurs after the officer has returned the defendant's license and the ticket. In State v. Story, 53 Conn. App. 733, 741, 732 A.2d 785, cert. denied, 251 Conn. 901, 738 A.2d 1093 (1999), this court concluded that a police officer's request for consent to search on the basis of nothing more than a hunch was not improper because the officer did not request the consent to search until after the stop had concluded and the defendant was free to leave at the time of the request. Mindful of Story, if we now sanction arbitrary requests for consent searches by the police prior to the conclusion of a stop, we effectively close the door on a criminal defendant's ability ever to contest the validity of a consent to search during a motor vehicle stop.

On the basis of the record, we conclude that Morgan's inquiry as to whether the defendant was engaged in illegal activity went beyond the scope of the traffic stop and occurred at a time when the stop reasonably should have ended. Having reached that conclusion, we now must determine whether Morgan had reasonable, articulable suspicion to expand the scope of the stop by questioning the defendant about illegal activity unrelated to the purpose of the underlying stop. See United States v. Santiago, supra, 341-42 ("Once a computer check is completed and the officer either issues a citation or determines that no citation should be issued, the detention should end and the driver should be free to leave. ... In order to continue a detention after such a point, the officer must have a reasonable suspicion supported by articulable facts that a crime has been or is being committed." [Citation omitted.]).

A store sales clerk was a citizen informant on an identity theft and forgery attempt. The police stopped defendant's car after she left Best Buy based on the sales clerk's report. Defendant returned to Best Buy, and the car was searched there incident to an impending impoundment for driving on a fake driver's license, the one associated with the identity theft. The search was justified as a search incident, so the inventory issue did not need to be reached. Cobbs v. State, 2007 Ark. App. LEXIS 802 (November 14, 2007)* (unpublished).

Permalink 04:48:55 pm, by fourth, 475 words, 461 views   English (US)
Categories: General

Brooklyn court distinguishes Randolph because defendant's removal after his denial of consent was arrest, not just to find another person to consent

Defendant was arrested and asked for consent to search his apartment for a gun which he allegedly pointed at his landlord, which he denied. He was taken in for questioning. His wife was called to come and get their child that an aunt had when defendant was taken away. When she got there, she granted consent, and she could effectively consent when presented with facts by the police, even though defendant had refused consent before leaving. Randolph is [incredibly] distinguished. People v. Olmo, 2007 NY Slip Op 27474, 2007 N.Y. Misc. LEXIS 7652 (Kings Co. November 19, 2007):

The distinction in Olmo is that defendant was not actually present when his wife gave her consent to search their apartment because he had already been taken to the precinct to begin processing his lawful arrest. The question for this Court is whether Olmo presents a necessary application of Randolph, requiring suppression, or rather would amount to an unwarranted extension of Randolph, inappropriate for a trial court to make, especially in New York State, which has traditionally upheld the right of the police to rely on a co-occupant's consent. ... The answer turns on whether the Randolph decision necessarily elevated the importance of defendant's refusal to consent at the entrance to his apartment--enough to trump the subsequent consent of his companion, who returned home to the waiting police while defendant remained at the precinct where he had just been taken.

I conclude that, until and unless a controlling appellate authority should subsequently extend or apply Randolph to an Olmo situation, Randolph does not require suppression. The rationale of the Randolph decision was based on society's customary expectations regarding privacy in one's home. And the Randolph Court was emphatic about avoiding unseemly confrontations between disputing occupants, when both are physically present at the same time. The facts in Olmo presented no such risk. Here, I see no good reason in law, custom, policy or precedent why defendant's wife should not, when she returned home and learned about what happened, have the right to cooperate with the police to have a firearm removed as expeditiously as possible from the home she also shared with a young child. I hold that, as long as the police had a valid purpose in removing defendant from his residential building apart from avoiding his objection to the search, his wife retained her authority to consent and the police could reasonably rely [on] it.

Comment: This case cannot be so readily distinguished from Randolph. It can be assumed, based on the crime victim's report, that the police had probable cause for menacing the victim with a gun. After all, that was the basis for taking him in. He refused consent, and then they asked the wife when she got there for her consent. The effort made to distinguish Randolph is lame and convoluted. This should be reversed on appeal.

Permalink 08:31:00 am, by fourth, 171 words, 696 views   English (US)
Categories: General

Grabbing defendant's arm and being pulled into motel room on a minor misdemeanor arrest was an unlawful entry

Grabbing defendant's arm and being pulled into defendant's motel room when defendant tried to shut the door on the officer in the officer's effort to arrest him for a minor misdemeanor for which defendant would be cited at best was an unlawful entry because this was not hot pursuit and the situation lacked exigent circumstances when balanced against the offense. State v. Johnson, 2007 Ohio 6146, 173 Ohio App. 3d 669, 880 N.E.2d 111 (9th Dist. 2007).*

Michigan's parole search statute requires "reasonable cause" which the court equates with Griffin's "reasonable suspicion" requirement. United States v. O'Connor, 2007 U.S. Dist. LEXIS 85578 (E.D. Mich. November 20, 2007).*

Officers' observations of defendant's activities with a known drug dealer amount to probable cause. His lawful arrest gave further probable cause for a search warrant for his residence.
United States v. Willis, 2007 U.S. Dist. LEXIS 85580 (E.D. Pa. November 20, 2007).*

State court ligitation against the city that plaintiff lost precluded a claim in federal court against the city's employees under claim preclusion. Lyttle v. Killackey, 528 F. Supp. 2d 818 (N.D. Ill. 2007).*

11/21/07

Permalink 07:10:41 am, by fourth, 1323 words, 665 views   English (US)
Categories: General

9th Cir.: 12 hour standoff ultimately required a warrant under Payton under these facts

The Ninth Circuit interprets Payton to require that a 12 hour standoff that brought the SWAT team ultimately required a warrant. The initial surrounding of the house did not, but the length of the event required a warrant. All the plaintiff obtained, however, was nominal damages [and attorneys fees?]. Fisher v. City of San Jose, 509 F.3d 952 (9th Cir. 2007) (2-1):

We have found no case of this court that directly addresses whether police must obtain a warrant during a standoff such as occurred here between the police and a citizen if any initial exigency dissipates before further intrusions into the home to coerce the targeted individual to submit to arrest. We conclude, however, from our review of cases from other circuits involving police standoffs that the Payton warrant requirement does not evaporate the moment officers surround a home with weapons and begin to take measures to induce an individual to leave his home. Rather, officers must obtain a warrant before any additional intrusions into the home if the initial exigency dissipates sufficiently to allow the police to obtain a warrant.FN9 The initial exigency can dissipate either because the danger posed by the targeted individual decreases or because, with the passage of time, resources become available that allow the police both to maintain safety and to obtain a warrant.

9. We need not and do not decide whether a warrant would be required if armed police surrounded an individual in his home, but during the standoff made no further intrusions into the home for purposes of effecting an arrest. In this case, police clearly did intrude into the home after the initial seizure by throwing CS gas canisters into Fisher's house.

. . .

As should be evident, the dissent's suggestion, post at 15073, that we are requiring a retroactive warrant is simply incorrect. Although a seizure is initially accomplished by surrounding a home, the police in such instances may--as here--take additional steps that intrude further into the home, and do not accomplish the formal arrest until the individual surrenders. To view this entire sequence of events as a single police decision made at the outset is both to indulge in a fiction and severely to undermine the warrant requirement. So, for example, had Fisher refused to come out and had the police therefore decided forcibly to enter Fisher's home at 2:30 p.m., that decision and action could not reasonably be viewed as outside the warrant requirement on the ground that Fisher had already been seized at home earlier.

. . .

We do not disagree that Fisher was seized when police surrounded his home and stationed a sharpshooter to watch him, or that the warrant requirement applied to this seizure, absent exigency. See Al-Azzawy, 784 F.2d at 893. But despite having been seized, it is indisputable that Fisher had not yet been placed under formal arrest and brought into the custody of the police. Because Fisher remained in his house, not free to leave but not in the custody of the police, he continued to be subjected to entries into his home for the purpose of forcing him outside to arrest him, and the Payton warrant requirement continued to apply. As a result, we must ask whether any exigency that existed at 6:30 a.m. dissipated before police made further entries into Fisher's home. We conclude that there was insufficient exigency to justify a warrantless arrest of Fisher at least by the time the CS gas canisters were thrown into his home at approximately 1:00 p.m.

. . .

As we have emphasized, to come within the exigency exception, the City must show both that dangerous circumstances existed and that it was infeasible to obtain a warrant safely. See United States v. Manfredi, 722 F.2d 519, 522-23 (9th Cir. 1984). We have used a nonexhaustive list of factors, first enunciated in Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970) (en banc), to determine whether dangerous circumstances exist for purposes of the exigency exception. See United States v. Blake, 632 F.2d 731, 733 (9th Cir. 1980). Those criteria are: (1) "that a grave offense is involved"; (2) "that the suspect is reasonably believed to be armed"; (3) that there exists "a clear showing of probable cause"; (4) that there is "a strong reason to believe that the suspect is in the premises"; (5) that there is "a likelihood that the suspect will escape"; and (6) that peaceable entry is made onto the premises. See Dorman, 435 F.2d at 392-93.

Viewing the evidence in the light most favorable to the City, it was not unreasonable for the jury to find that the officers were justified in considering Fisher a danger both to them and to the public when they first surrounded his home in the early morning hours. Although no grave offense was involved, Fisher was armed, was certainly on the premises, and concedes that there was probable cause to arrest him. He was also intoxicated and had made at least one threatening comment to an officer. Moreover, it was not unreasonable for the jury to conclude that some level of danger persisted throughout the duration of the standoff, as Fisher remained inside his apartment, intoxicated and with access to weapons.

At the same time, the danger of the situation, if it did not [*40] terminate entirely after 6:30 a.m., certainly did not increase, and to some degree lessened. All nearby residents were evacuated at around 7:30 a.m. Furthermore, Fisher was not seen carrying a rifle for a full seven hours after 6:30 a.m., as the district court emphasized in granting the Rule 50(b) motion. During that post-6:30 a.m. period, Fisher took no further threatening actions, toward the police or anyone else. Nothing happened after 6:30 a.m. that increased the danger of the situation.

As to the second prong of the exigency exception--which requires that "the government ... show that a warrant could not have been [safely] obtained in time," United States v. Good, 780 F.2d 773, 775 (9th Cir. 1986)--the evidence, taken in the light most favorable to the government, clearly shows that there were enough officers working on Fisher's case with enough time to obtain a warrant safely before the police sent the first of the CS gas canisters into Fisher's apartment. Given the level of danger after 6:30 a.m., which remained significant but was not increasing, officers had the resources to begin the warrant process without risking the safety of officers or the public. Some of the original officers left the scene at 7 a.m. and returned to the station house, where they or their colleagues could have initiated warrant proceedings.

Comment: This is a fact dependent case: If other officers had not been coming and going from the scene of the standoff, the facts seemed to show that the standoff was de-escalating rather than escalating. And that does create a problem. If the situation ends up at a stand still and the police decide to act because they are tired of waiting for nothing, then what? This was a tough case, no doubt about it. If I were on the Ninth Circuit, I cannot tell you how I would come down on this because I have not gone to the court's website and read the briefs. Just because the SWAT team shows up does not ipso facto mean it was a real emergency. When I first entered into the foray of knock-and-announce, I read up on SWAT teams and raid tactics. I have also cross-examined SWAT team members, and the individual officers involved do not always know what started the event they are there for. Later, they can even feel "all dressed up with no place to go," waiting for anything to happen so they can do what they love best. Here, officers were leaving the scene because they weren't needed as it dragged out, and that became a problem. But, back to nominal damages, what are the damages to the plaintiff for lack of a warrant?

Update: CNN.com today: SWAT team raids wrong house and leaves it in shambles. Not the same house, of course.

Permalink 06:52:35 am, by fourth, 1116 words, 583 views   English (US)
Categories: General

Anybody can be accused of ineffective assistance: My turn; defendant assumed the risk his wife involved in a joint criminal enterprise would rat him out

In a case handled in the trial court by one of Louisiana's most respected lawyers and by me on appeal in the Fifth Circuit, the Northern District of Mississippi held that we were not ineffective for not arguing that defendant's wife's seizure of evidence in a joint criminal enterprise was distinct from her search. The facts are somewhat convoluted, but the defendant's wife was involved in a bingo revenue skimming operation with the defendant, and she moved out when she suspected him of having an affair. Yet, she still had keys to the house, the code to the alarm system, and participated in altering records to effect the skim after they separated. There is no way defendant can prevail, so the § 2255 is denied without a hearing. The defendant assumed the risk that his wife would rat him out to the government and take information on the skimming operation to the IRS and FBI. [The District Court also noted the government's response to the 2255 was faulty, too.] Shelton v. United States, 2007 U.S. Dist. LEXIS 85244 (N.D. Miss. November 16, 2007):

Jimmy Doug Shelton argues that his trial and appellate counsel were ineffective in failing to challenge Cheryl's seizure of the evidence under the Fourth Amendment. He has cobbled together the holdings from several cases to support this argument, and if the cases had meshed better, he might have won the day. Unfortunately for Shelton, the fragments he attempts to assemble into a new rule of law arise out of factual scenarios distinguishable from the case at hand, and, in the end, cannot stand together.

. . .

Resolution of the Propriety of the Seizure of Evidence

A dilemma left unresolved under the authority cited by the parties is whether a spouse can have sufficient authority to consent to a search of the premises -- yet have insufficient authority [*17] to consent to the seizure of evidence therefrom. The court concludes that such a situation is theoretically possible -- but has not arisen under the facts of this case. As discussed below, the court finds that Cheryl Shelton had sufficient authority to seize the evidence in question and provide it to the government without a warrant. In addition, even if the court were to find that Cheryl Shelton did not have sufficient authority to seize the evidence without a warrant, Jimmy Doug Shelton assumed the risk that she would nonetheless do so, and the seizure was thus reasonable.

Jimmy Doug Shelton argues that the warrantless seizure of the papers from his home is presumptively unconstitutional unless it falls within one of the widely recognized exceptions to the warrant requirement, e.g., exigent circumstances, consent, plain view, national security, inventory search, or inevitable discovery. The exception at issue in this case is consent--Cheryl Shelton's power to give the government permission to search the Jimmy Doug Shelton home--and permission to seize the evidence used against her husband. A fact complicating the court's analysis of this issue is Cheryl Shelton's decision to move out of the marital home after discovering evidence that her husband had been unfaithful to her. Had Cheryl Shelton remained in the marital home, she would clearly have had complete custody and control of the home and its contents and thus could have given valid consent to search and seize anything in the home and provide it to the government. Matlock v. United States, 415 U.S. 164, 171, n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (mutual use of property, or joint access or control of it is generally sufficient). In this case, however, Cheryl Shelton had moved out of the marital home and moved in with her sister. She retained a key to the home, as well as the security code, and had agreed with her husband that she would periodically enter the home to retrieve her mail and other items. This arrangement appears to be an effort by each spouse to maintain civility during a turbulent time in their marriage. Both spouses understood that Cheryl Shelton had authority to enter the home outside the presence of Jimmy Doug Shelton. As such, no matter what restrictions she and her husband decided she should observe while there, she had unfettered--and unsupervised--access to everything inside. Cheryl and Jimmy Doug Shelton were still married--and could conceivably have reconciled if they had chosen to do so. Indeed, neither Cheryl nor Jimmy Doug Shelton took any legal steps to divorce. They were also both involved in the illegal bingo skimming operation.

This set of circumstances gave Cheryl Shelton authority to search the home and seize evidence from it--whether she acted as an agent of the government or for her own reasons. In addition, Jimmy Doug Shelton assumed the risk that his wife (who was also his partner in the bingo skimming operation) would turn on him by searching and seizing evidence of their crimes and turning it over to the government.

. . .

The Supreme Court has applied the Fourth Amendment to a seizure in the absence of a search [Soldal]--and held that a seizure may implicate the Fourth Amendment even when a defendant's privacy interests in the seized objects are completely extinguished. However, as a matter of reason, many of the factors used to determine whether a defendant has a reasonable expectation of privacy in a home (to determine the reasonableness of a search) can also be used to determine the degree of a third party's connection to a premises (to determine the reasonableness of a seizure). Naturally, the greater the connection a third party has to a premises, the lower the defendant's expectation of privacy becomes--and the more reasonable a search or seizure authorized by that third party appears. These factors rise and fall together.

Wives and husbands are bound in the closest of relationships--matrimony--and they usually share a residence. As such, situations under which a wife could not consent to a search of the premises--and the seizure of evidence therefrom--will be rare. The intimate nature of the marital relationship gives either spouse the authority to consent to searches and seizures within the marital home. Cheryl Shelton chose to move out of the marital home and move in with her sister because Cheryl believed her husband had been unfaithful to her. Neither party, however, took any legal steps to initiate a divorce, and Jimmy Doug Shelton consented to Cheryl Shelton's unfettered access to the home. He took no steps to hide the evidence of illegal skimming from the charity bingo operation from his wife by removing the evidence from the home or locking it away.

Prior history: United States v. Shelton, 181 F. Supp. 2d 649 (N.D. Miss. 2001), aff'd 337 F.3d 529 (5th Cir. 2003), cert. denied 540 U.S. 1229, 124 S. Ct. 1507, 158 L. Ed. 2d 172 (2004).

11/20/07

Permalink 07:01:28 am, by fourth, 292 words, 410 views   English (US)
Categories: General

It must be Thanksgiving week: No cases of any consequence

Defendant was stopped for a traffic offense, and he was told he could go when the paperwork was completed. According to the videotape of the stop, however, he voluntarily consented to a search. United States v. Esquivel, 507 F.3d 1154 (8th Cir. 2007).*

Defendant was stopped for a traffic offense, and he was visibly and excessively nervous. He gave what became inconsistent answers about what was on his person, and that led to reasonable suspicion for calling a dog. United States v. United States Currency Totaling $101,270.00, 2007 U.S. Dist. LEXIS 84882 (S.D. Ga. November 16, 2007).*

Defendant was arrested for his fourth driving on a suspended DL, which was a custodial arrest situation. After he was safely installed in the back of the police car, his car was subjected to a search incident which produced drugs, and the search incident was valid. United States v. Majette, 2007 U.S. Dist. LEXIS 84923 (W.D. Va. November 16, 2007).*

Defendant argued that HIPAA was violated in taking his blood at the hospital after a motor vehicle accident, but the argument was slightly changed between circuit court and the appellate court, so the argument was not addressed. There was otherwise probable cause to get his blood. Hoyle v. State, 2007 Ark. LEXIS 624 (November 15, 2007).*

The officer had reason to believe defendant was under the influence of drugs while driving. "Several facts provided Deputy Spotten with probable cause to believe that Defendant had committed this crime: Defendant had been driving in an erratic and dangerous manner; Defendant had slurred speech; and Defendant ended his dangerous driving in an unusual accident--a single-car collision with a trailer parked on the side of the road. Therefore, Deputy Spotten was justified in making a warrantless arrest of Defendant." State v. Despain, 2007 UT App 367, 173 P.3d 213, 591 Utah Adv. Rep. 3 (2007).*

11/19/07

Permalink 05:59:32 pm, by fourth, 554 words, 672 views   English (US)
Categories: General

Boston PD to do targetted knock and talks for guns, seeking parental consent to search, and purported amnesty

The Boston Police Department announced this weekend, or at least in a story that broke this weekend, that it will be using information about guns held by youths and go to their houses and seek parental consent to enter and search, with amnesty for seizure of the gun, unless the gun turns up having been used in a crime. See the following articles: Cops: Let us search kids’ rooms for guns, from Saturday, November 17th, Boston Herald:

The homes targeted are in four crime-plagued neighborhoods [read: African-American and Latino], Davis said. A search team of BPD school cops will approach the homes of at-risk teens based on community tips and ask a parent or guardian for permission to search the youths’ bedrooms. If guns are recovered, the youths will not be prosecuted--unless the weapons are later linked to a crime. (bracketed material added)

From yesterday's AP: Boston Cops Seek Invites to Search Homes; from yesterday's Boston Globe: Police to search for guns in homes; from Fox News: Boston Police to Search Kids' Bedrooms for Guns.

The program depends upon targetted homes and parental consent. Once the police cross the threshold, though, you can be sure that all bets are off. What if the police smell marijuana or a meth lab when the door opens or they enter and see drug paraphernalia or harder drugs in a common area or the kid's bedroom? That smell, under general case law, would permit their rush into the house and a full scale warrantless search with probable cause and exigent circumstances.

There may be amnesty for the gun, but what about the drugs? Highly unlikely. What if they decide that the kid has too expensive stuff in the room? Does that mean an investigation into where it came from?

One more step removed: If consent is refused, are they going to seek a search warrant for the gun if the quality of the "tip" rises to probable cause? Even if it doesn't, they can use the good faith exception to get away with all kinds of things.

One more step: If the kid is 18 and excludes the parents from the room, the parents should not be able to consent to a search of that private area. Then, the kid has to be asked.

And, is this request for consent going to be preceded by a warning that they have a right to refuse consent? Or is this all going to go down as "acquiescence to a claim of authority" and not be truly consensual? Bumper v. North Carolina, 391 U.S. 543 (1968).

This is one of those events that brings to mind Justice Brandeis's dissent in Olmstead v. United States, 277 U.S. 438, 479 (1928):

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.

The mind reels at the possibilities. And I'm just scratching the surface here, I think. The worse thing is the number of people responding to a nonscientific poll that think this is a good idea. They obviously have no clue as to the ramifications of a police entry into the sanctity of the home. "Be a good German and consent."

(Hat tip to Steve Gray of Chicago who is writing about this for Time.)

Permalink 07:48:30 am, by fourth, 638 words, 655 views   English (US)
Categories: General

FISA civil claim remanded for determination of whether there is an FISA exemption to state secrets exception

Ninth Circuit holds that the state secrets privilege may bar a civil action over alleged unlawful surveillance of an alleged terrorist group under the now public Terrorist Surveillance Program. At issue was a "Sealed Document" that the government claimed protected by the state secrets privilege which the plaintiffs had seen. The court held that the plaintiffs could not testify about the document because the state secrets privilege absolutely protected the Sealed Document. The District Court declined to reach the "difficult question" of whether there was an FISA exception that would permit plaintiffs' claim to proceed. Al-Haramain Islamic Foundation, Inc. v. Bush, 451 F. Supp. 2d 1215 (D. Or. 2006). The case was remanded for the District Court to make that determination. Al-Haramain Islamic Foundation, Inc. v. Bush, No. 06-36083 (9th Cir. November 16, 2007):

Al-Haramain cannot establish that it suffered injury in fact, a “concrete and particularized” injury, because the Sealed Document, which Al-Haramain alleges proves that its members were unlawfully surveilled, is protected by the state secrets privilege. At oral argument, counsel for Al-Haramain essentially conceded that Al-Haramain cannot establish standing without reference to the Sealed Document. When asked if there is data or information beyond the Sealed Document that would support standing, counsel offered up no options, hypothetical or otherwise. Thus, Al-Haramain has indicated that its ability to establish injury in fact hinges entirely on a privileged document. It is not sufficient for Al-Haramain to speculate that it might be subject to surveillance under the TSP simply because it has been designated a “Specially Designated Global Terrorist.”

“[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake.” Reynolds, 345 U.S. at 11. Because we affirm the district court’s conclusion that the Sealed Document, along with data concerning surveillance, are privileged, and conclude that no testimony attesting to individuals’ memories of the document may be admitted to establish the contents of the document, Al-Haramain cannot establish that it has standing, and its claims must be dismissed, unless FISA preempts the state secrets privilege.

V. FISA AND PREEMPTION OF THE STATE SECRETS PRIVILEGE

Under FISA, 50 U.S.C. §§ 1801 et seq., if an “aggrieved person” requests discovery of materials relating to electronic surveillance, and the Attorney General files an affidavit stating that the disclosure of such information would harm the national security of the United States, a district court may review in camera and ex parte the materials “as may be necessary to determine whether the surveillance of the aggrieved person was lawfully authorized and conducted.” 50 U.S.C. § 1806(f). The statute further provides that the court may disclose to the aggrieved person, using protective orders, portions of the materials “where such disclosure is necessary to make an accurate determination of the legality of the surveillance.” Id. The statute, unlike the common law state secrets privilege, provides a detailed regime to determine whether surveillance “was lawfully authorized and conducted.” Id.

As an alternative argument, Al-Haramain posits that FISA preempts the state secrets privilege. The district court chose not to rule on this issue. See Al-Haramain, 451 F. Supp. 2d at 1231 (“I decline to reach this very difficult question at this time, which involves whether Congress preempted what the government asserts is a constitutionally-based privilege.”). Now, however, the FISA issue remains central to Al-Haramain’s ability to proceed with this lawsuit. Rather than consider the issue for the first time on appeal, we remand to the district court to consider whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) (stating that the court of appeals should not ordinarily consider issue not passed on below); Barsten v. Dep’t of Interior, 896 F.2d 422, 424 (9th Cir. 1990) (observing that the wisest course is to allow district court to consider issue first).

REVERSED and REMANDED.

Permalink 06:21:02 am, by fourth, 309 words, 453 views   English (US)
Categories: General

State suppression order did not preclude relitigation in § 1983 case

State trial court suppression order for racial profiling in a stop was not subject to issue preclusion in a federal civil rights case because the parties and issues were not identical and the civil defendant did not get to cross-examine. The civil claim does get to proceed, however. Ballard v. Heineman, 2007 U.S. Dist. LEXIS 84797 (D. Neb. November 15, 2007).*

Officers put out a BOLO for a white van that a CI said would be carrying drugs. The plan was to stop the van if it committed a traffic offense. An officer saw the van, followed it, and saw a traffic offense of swerving over the fog line. The officer turned on the video and captured more of the same. Once the van was stopped, the defendant was asked for consent, and he agreed. The true motive of the stop was irrelevant because there was an objective basis. Even if the stop were invalid, the court [strains] to find the consent was purged of the taint. Alternatively, the collective knowledge of the police created reasonable suspicion for the stop. United States v. Magana-Aguirre, 2007 U.S. Dist. LEXIS 84800 (W.D. Ark. November 1, 2007):

Although Carver's subjective motivation was admittedly to effect a drug-related arrest, that is irrelevant when the Court considers whether the traffic stop he carried out was reasonable under the Fourth Amendment. A pattern of driving suggestive of drunk driving qualifies as a reasonable suspicion that a traffic violation is occurring.

. . .

Finally, as noted above the Court does not find fault with Carver's conduct in stopping the van, but even if a reviewing court should view the matter differently, this Court does not believe any court would find his conduct "flagrant" or "egregious" in any respect. Thus, the Court finds that defendant's consent would have been sufficient to validate the search even if the traffic stop did not survive constitutional scrutiny.

11/18/07

Permalink 10:50:42 am, by fourth, 923 words, 521 views   English (US)
Categories: General

Wyoming rejects a search incident as a matter of course for a suspended DL arrest

Wyoming rejects under its state constitution a search incident to an arrest of a vehicle where the defendant was approached for being in a park after hours apparently sleeping in the car, having been kicked out of his abode, and the officer asked for his driver's license and found it had been suspended. A search incident was just not appropriate under the circumstances. Pierce v. State, 2007 WY 182, 171 P.3d 525 (2007):

[*P14] We cannot say that the search at issue in the instant case was reasonable. The general

rationale for permitting searches incident to arrest is to prevent the arrestee from reaching weapons or concealing or destroying evidence. See [Commonwealth v.] White, [543 Pa. 45,] 669 A.2d [896,] 905 [(1995)]. A search incident to arrest under our state provision for these reasons is reasonable. The inherent mobility of automobiles in combination with officer and public safety concerns created when a driver or a passenger is arrested are exigent circumstances weighing in favor of not restricting the scope, timing, or intensity of such a search.

Vasquez, 990 P.2d at 489. Such evidentiary and safety concerns are not articulable from the totality of the circumstances in the instant case, particularly considering that:

1. The officer testified that he did not observe any signs that the appellant was under the influence of alcohol or drugs.

2. There was no reasonable possibility that evidence of the crimes for which the appellant was arrested remained in the vehicle. There also was no evidence indicating that the appellant had committed any other crime.

3. The officer's "pat down" search of the appellant's person did not uncover anything of evidentiary value.

4. The State does not attempt in its appellate brief to justify the search for evidentiary reasons.

5. Our analysis of the circumstances does not reveal any reasonable basis for the officer to believe the appellant was armed or that there were weapons in the vehicle. The appellant was arrested for driving under suspension and failing to maintain liability insurance. The officer's "pat down" search of the appellant's person did not uncover any weapons.

6. There were no passengers in the vehicle, two officers were at the scene, and the officers and the appellant had already left the scene by the time the vehicle's owner retrieved the vehicle.

7. The appellant was handcuffed and placed in a patrol car immediately prior to, and during, the search. Handcuffs are by no means foolproof (see Mackrill v. State, 2004 WY 129, PP19-21, 100 P.3d 361, 368-69 (Wyo. 2004)), but we must view this fact in light of all of the other facts in this case.

8. The appellant did not exhibit any furtive or suspicious activity, particularly with respect to the contents of vehicle.

9. The State does not contend in its appellate brief that considerations such as the time of day, the setting, the temporary registration tag issue, etc. contributed to any kind of safety concern in this case. The officer did not refer to any specific officer safety concerns he had that would have arisen prior to the time he initiated the search.

10. The officer admittedly had no other information about the appellant "as opposed to any other citizen." By the officer's own account, he and the appellant engaged in a friendly conversation, the appellant was honest about his suspended license, and the appellant seemingly offered a reasonable explanation for his presence at the park (the vehicle's contents, to the extent they were visible to the officer, would seem objectively to support the appellant's explanation).

11. The appellant cooperated with the officer and did not resist arrest or become combative with the officer.

This is not to say, of course, that any of these considerations might not be viewed differently if it were to arise in the context of different facts.

[*P15] It was the State's burden to prove that the search-incident-to-arrest exception applied, and the applicability of such an exception is "dependent upon all of the facts and circumstances viewed in their entirety." Moulton, P16, 148 P.3d at 43. The State's appellate analysis instead focused almost exclusively on the fact that the appellant was arrested and advocates for a bright-line approach similar to the approach that we rejected in Vasquez. Our state constitution requires more in that regard--the search must not only be incident to a lawful arrest, but also reasonable under the circumstances. In other words, we must be able to find a reasonable basis, articulable from the totality of the circumstances in each case, to justify such a search.

Appellant's 911 call was admissible, and the admissions made in it were separate from any suppressed statements. The police were called and appellant consented to the initial entry, and the police followed up by resorting to a search warrant, which was unnecessary and commendable. Ball v. State, 2007 OK CR 42, 173 P.3d 81 (2007):

[*P23] With respect to Appellant's objections that the experts considered suppressed information about Appellant's delay in seeking treatment and his description of how the injuries occurred, such information was also before the jury in Appellant's 911 call and his statements to emergency responders. Appellant has not shown that the doctors materially relied on the suppressed statements, and to the extent that they might have done so, any taint is dissipated significantly because the same information was admitted from untainted sources. Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (finding illegally seized evidence admissible where the same evidence was subject to government subpoena); Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984) (evidence of location of body obtained in illegal interrogation admissible because body would have been discovered inevitably in extensive search). There is no reversible error here.

Permalink 10:47:19 am, by fourth, 553 words, 820 views   English (US)
Categories: General

Violation of MLAT treaty confers no right to suppress

The defendant alleged a violation of his rights in The Netherlands by actions of the DEA. The Second Circuit held that the DEA's action was not subject to suppression under The Treaty on Mutual Assistance in Criminal Matters between the United States and the Netherlands (commonly known as MLAT). United States v. Rommy, 2007 U.S. App. LEXIS 25732 (2d Cir. November 5, 2007):

By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:

Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.

Id. art. 18, subsec. 1. This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others' countries. To the contrary, it means that, when securing evidence with out MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable "domestic laws." Id. Thus, when DEA agents proceeded to use DeVries as a confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that "federal law governs the admissibility of evidence in a federal criminal trial"); United States v. Brown, 52 F.3d 415, 420 (2d Cir. 1995) (noting that "federal law is applicable in a federal prosecution even when state police officers [are] involved" in investigating case); United States v. Pforzheimer, 826 F.2d 200, 203 (2d Cir. 1987) (stating that "federal law governs federal prosecutions in federal court" (internal quotation marks omitted)); cf. United States v. Alvarez-Machain, 504 U.S. 655, 670, 112 S. Ct. 2188, 119 L. Ed. 2d 441 (1992) (holding that defendant's forcible abduction from Mexico, authorized by DEA officials, did not prohibit trial in United States for violations of United States criminal laws). Rommy makes no claim on appeal that the DEA's undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.

A second reason Rommy's MLAT argument fails is that he cannot demonstrate that the treaty creates any judicially enforceable individual right that could be implicated by the government's conduct here. As the Supreme Court has long observed, absent explicit treaty language conferring individual enforcement rights, treaty violations are generally addressed by the signatory sovereigns through diplomatic channels. See Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884) (noting that "treaty is primarily a compact between independent nations" and "depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it"). For any number of reasons, sovereigns may elect to overlook non-compliance with particular treaty requirements in given cases. Thus, a proper respect for the diplomatic choices of sovereign nations prompts courts generally to apply "a strong presumption against inferring individual rights from international treaties." United States v. De La Pava, 268 F.3d 157, 164 (2d Cir. 2001).

Permalink 10:37:20 am, by fourth, 583 words, 604 views   English (US)
Categories: General

Refusing to respond to requests for consent is not an express refusal of consent under Randolph

Defendant's refusal to answer a request for consent was not an express denial of consent under Randolph, so defendant's wife could be asked and she could consent. State v. Clavette, 969 So. 2d 463 (Fla. App. 5 DCA 2007):

In the case before us, Mr. Clavette was a joint occupant of the home whose constitutional rights were clearly implicated by law enforcement's entry into the home that he shared with Ms. Greene. While not disputing Ms. Greene's right to consent to the entry, Mr. Clavette argues that his refusal to respond to law enforcement's entreaties constituted an express refusal on his part to allow the entry, thereby negating Ms. Green's consent. We disagree.

In Randolph, the Supreme Court held that "a warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." 547 U.S. at 120 (emphasis added). By holding that only the express refusal of consent is sufficient to overcome the consent given to the police by another resident, we conclude that the Supreme Court intended that such refusal be direct, firm and explicit, and not one gleaned by implication or inference. Indeed, the Randolph opinion went on to posit an example that has significant implications here. The Court said that "if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out." Id. at 105. The latter is precisely what occurred here.

Defendant had an expectation of privacy in hiding a gun under the hood of a borrowed car, but it was not an expectation of privacy that society is prepared to recognize as reasonable. United States v. Casseus, 2007 U.S. Dist. LEXIS 84676 (E.D. N.Y. November 15, 2007):

The defendant contends that the gun found in the car must be suppressed because the search of the automobile violated his Fourth Amendment rights. As an initial matter, a borrower of a car may have standing to challenge the search. United States v. Pena, 961 F.2d 333, 337 (2d Cir. 1992) ("It is not the law, however, that only the owner of a vehicle may have a Fourth Amendment privacy interest therein that is protected against governmental invasion. Rather, the borrower of an automobile can possess such an interest."). The defendant bears the burden of demonstrating that he had "a subjective desire to keep his [] effects private" and that his "subjective expectation must be one that society accepts as reasonable." Smith v. Maryland, 442 U.S. 735, 740 (1979). In hiding his gun under the hood of the car, defendant no doubt showed a subjective desire to keep the gun private. But he has not shown that his expectation of privacy is one that was reasonable under the circumstances or that society is prepared to accept.

A warrant need only exist, not be in hand, to satisfy Payton. The existence of a warrant need only be shown by a preponderance of the evidence. United States v. Tapia, 2007 U.S. Dist. LEXIS 84574 (D. Kan. November 13, 2007).*

Pulling plaintiff up by his handcuffs states a claim for relief and for which there is no qualified immunity. "Even Officer Larsen testified that lifting someone up by the handcuffs who is in a prone position on the ground would constitute "torture.'" Hoskin v. Larsen, 2007 U.S. Dist. LEXIS 84704 (W.D. Wash. October 31, 2007).*

Permalink 08:56:36 am, by fourth, 285 words, 456 views   English (US)
Categories: General

Alleged gunfire from a house and return fire justified its entry, even if the first shot was one officer accidentally discharging his gun

Officers were coming to 3513 to execute a search warrant, and one officer pulled his gun out. A gunshot was heard and one officer was hit in the vest. Officers thought a shot had been fired from 3511, and they returned fire. After firing into 3511, the officers went in to conduct a protective sweep and look for shooting victims. The protective sweep produced contraband. Even if the first gunshot was an accidental shooting of one officer by another, it produced return fire from the officers who believed at the time that the shots came from 3511. Therefore, the entry into 3511 was not unreasonable. State v. Cameron, 2007 Ohio 6066, 2007 Ohio App. LEXIS 5330 (8th Dist. November 15, 2007).

[*P24] First, there is no evidence in the record to suggest that what occurred here was anything but an accident. The police did not arrive on the scene and intentionally shoot at the house in an effort to gain entry. If the evidence suggested such a motive, our task would be simple. Obviously, the police cannot deliberately create the exigent circumstances in an effort to justify entering a residence without a warrant. Jenkins, supra.

[*P25] Second, even if officers had been informed by Detective Bush that he accidentally fired the initial shot, the police would be justified in conducting a protective sweep to search for injured individuals. See Minnesota [v. Olson], supra.

The confidential informant gave detailed information about defendant and his travels. The police did a trash pull, and the trash pull was a treasure trove of information that corroborated the informant, including a boarding pass that put defendant on the same flight the informant said he was on. There was thus probable cause. State v. Martin, 2007 Ohio 6062, 2007 Ohio App. LEXIS 5331 (8th Dist. November 15, 2007).

11/17/07

Permalink 10:48:00 am, by fourth, 227 words, 487 views   English (US)
Categories: General

Defendant was not seized as he fled officers

Defendant had not yet been seized when he was fleeing from police during a drug surveillance. He was hemmed in by police cars, drove off the road, the left front tire was shot at by the police, and then defendant drove to a pond and started throwing baggies of drugs into a pond. That justified his seizure and arrest. United States v. Prosise, 2007 U.S. Dist. LEXIS 84473 (E.D. Va. November 15, 2007).*

Search of defendant's car was not a search incident and limited; rather, it was a full search justified by the automobile exception. United States v. Rubio-Perez, 2007 U.S. Dist. LEXIS 84382 (W.D. Wash. November 5, 2007).*

Defendant's car was parked, and a park ranger walked up to the defendant's car and discovered that he was under the influence. The initial encounter was not seizure. United States v. Robson, 2007 U.S. Dist. LEXIS 84329 (D. Nev. October 30, 2007).*

Statutory violation for a BAC that did not prejudice the defendant did not warrant suppression. Bradt v. Colo. Dep't of Revenue, 178 P.3d 1250 (Colo. App. 2007).*

The search in this case was not contested, but this is a little atypical: The defendant called the police to report a domestic disturbance, and the police arrived and she consented to a search that resulted in her arrest for possession of marijuana after the officers invited in smelled burning marijuana. State v. Fisher, 2007 Iowa App. LEXIS 1177 (November 15, 2007).*

11/16/07

Permalink 09:12:44 am, by fourth, 249 words, 504 views   English (US)
Categories: General

Meth cook was exigent circumstance when the kids started coming home

A snitch was inside the defendant's house and reported to the police when he came out that the defendant had a pill soak going on. The snitch was a meth cook himself. The house was under surveillance while a search warrant was being prepared. The defendant was outside, preparing to leave. Then, the children of the home were seen coming home, and the officers decided to seize the house to prevent the children from going inside. The seizure was valid as based on exigent circumstances. United States v. Gray, 2007 U.S. Dist. LEXIS 83946 (D. Utah November 13, 2007).*

Defendant had been arrested inside and taken outside and put in a patrol car. The search of the living room at that point was hardly incident to his arrest. The state's alternative argument that defendant abandoned the bag that was left inside on his arrest was also unavailing, he retained an expectation of privacy in it, and the occupant's consent to search that bag was ineffective. State v. McCarthy, 288 Ga. App. 426, 654 S.E.2d 239 (2007).*

Defendant was stopped because his headlights were off at 2:30 a.m., and that was justification for the stop. State v. Boyd, 2007 Wisc. App. LEXIS 982 (November 14, 2007)* (probably will be unpublished, but the opinion does not say; decided by one appellate judge).

Officer had an uncorroborated anonymous tip of smoking of marijuana at a bar, and he showed up there and the occupants reacted by running when they saw him, and that made corroboration. State v. Moore, 2007 Wisc. App. LEXIS 989 (November 14, 2007).*

Permalink 06:50:06 am, by fourth, 325 words, 415 views   English (US)
Categories: General

Officers with an arrest warrant do not need to wait for the defendant to come out

Officers with an arrest warrant do not have to wait for the defendant to come out of the house to arrest him--they can go in to his residence, particularly if there are security concerns. United States v. Williams, 2007 U.S. App. LEXIS 26462 (2d Cir. November 15, 2007) (unpublished):

To the extent Williams asserts that federal agents should never have entered his residence because they could easily have executed the warrant for his arrest on the street, the law is well established that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." United States v. Lovelock, 170 F.3d 339, 343 (2d Cir. 1999) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). The record evidence established the necessary reasonable belief of Williams's presence in his residence, and further identified valid security reasons for effecting the arrest inside the premises.

Officers had probable cause to believe defendant was inside, so they could enter with a warrant to arrest him. State v. Drown, 2007 ME 142, 937 A.2d 157 (2007).*

The government failed to prove that there were exigent circumstances for a warrantless entry and protective sweep. Officers responded to a disturbance call with a report of a gun, but the person who made the call denied ever stating that there was a gun involved. Also, the defendant left the area when instructed, and then the officers had no cause to search his separate premises. Motion to suppress granted. United States v. McKinney, 2007 U.S. Dist. LEXIS 84196 (N.D. Miss. November 14, 2007).

A TVA law enforcement officer exists under federal law, 16 U.S.C. § 831r, so a § 1983 action cannot be maintained against him; it must be under Bivens, and it cannot be brought in his official capacity. Merely "unnecessarily tackling" plaintiff was not unreasonable force. Hendricks v. Governor's Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 84171 (E.D. Tenn. November 14, 2007).*

11/15/07

Permalink 08:29:46 am, by fourth, 445 words, 564 views   English (US)
Categories: General

Defendant's backyard party at 4 a.m. did not show a reasonable expectation of privacy in the backyard

Defendant's 4 a.m. party in the backyard did not show he had an expectation of privacy from police responding to a noise call and entering the backyard. State v. Dunn, 2007 MT 296, 340 Mont. 31, 172 P.3d 110 (2007):

[*P14] Here, Dunn did not have a reasonable expectation of privacy that society is objectively willing to accept. First, we consider Dunn's use of the property at the time of the intrusion. When police arrived at 4:00 a.m., Dunn, with a group of approximately seven people, was blaring music in the backyard from a car stereo. The party was boisterous enough to cause a neighbor to call in a complaint. Pursuant to § 45-8-101(1)(b), MCA, Dunn was effectively engaged in disorderly conduct by "making loud or unusual noises" that were disturbing the peace of the neighborhood. Because the music was still playing when the officers arrived, an ongoing crime was occurring in the officers' presence. Second, an expectation of privacy must be objectively reasonable to society. We find it improbable that society is willing to accept a privacy expectation as "reasonable" where the individual uses his property to disturb the peace of others at 4:00 a.m. in the morning. Dunn was not conducting himself in a "private" manner, but rather, to the contrary, his imposition upon other residents was a very public act. Given these circumstances, we find that Dunn did not have an expectation of privacy in his backyard at the time police arrived to investigate.

A police officer's telephone call to headquarters concerning his employment status and whether he would stay off on a work related injury was tape recorded, and he had a reasonable expectation that his calls would not be recorded because there was no beep on the line. Precedent established a reasonable expectation of privacy for calls to and from a public agency where there was explicit direction as to which lines were recorded and which were not. (This was combined with a First Amendment retaliation claim.) Diana v. Oliphant, 2007 U.S. Dist. LEXIS 83834 (M.D. Pa. November 13, 2007).

Plaintiff improperly gave notice to local government under the Maryland Tort Claims Act, but his allegations of gross negligence or recklessness against the officer for shooting him without cause survives. Barbre v. Pope, 402 Md. 157, 935 A.2d 699 (2007).*

In a legal malpractice case for plaintiff's counsel not properly handling an excessive force claim, plaintiff would have been able to show that the officers were not entitled to qualified immunity and that he had a submissible case for excessive force. The case was reversed for a redetermination of damages, however. Austin v. Sneed, 2007 Tenn. App. LEXIS 688 (November 13, 2007).*

Minnesota also upholds DNA testing of convicts. State v. Jackson, 741 N.W.2d 146 (Minn. App. 2007).*

11/14/07

Permalink 06:34:45 am, by fourth, 524 words, 477 views   English (US)
Categories: General

Spotlighting defendant and approaching him with questions was a seizure, despite lack of blue lights or verbal commands

The officer spotlighted the defendant in a high crime area from 35' away but quickly approached him and asked if he was on parole. This could only be considered a seizure, despite the lack of emergency lights or a verbal command. People v. Garry, 156 Cal. App. 4th 1100 (1st Dist. 2007):

In the present case, the argument can be made that no detention occurred prior to Crutcher learning about defendant's parole status. Crutcher's testimony indicates that he parked his car 35 feet away from defendant, a considerable distance, had no other officers with him, did not use emergency lights, did not draw a weapon, made no verbal commands, went to defendant rather than asking defendant to come to him, did nothing to prevent defendant from leaving, and did not touch defendant prior to learning that he was on parole.

However, Crutcher's testimony makes clear that his actions, taken as a whole, would be very intimidating to any reasonable person. Crutcher testified that after only five to eight seconds of observing defendant from his marked police vehicle, Crutcher bathed defendant in light, exited his police vehicle, and, armed and in uniform, "briskly" walked 35 feet in "two and one-half to three seconds" directly to him while questioning him about his legal status. Furthermore, Crutcher immediately questioned defendant about his probation and parole status, disregarding defendant's indication that he was merely standing outside his home. In other words, rather than engage in a conversation, Crutcher immediately and pointedly inquired about defendant's legal status as he quickly approached. We think only one conclusion is possible from this undisputed evidence: that Crutcher's actions constituted a show of authority so intimidating as to communicate to any reasonable person that he or she was "'not free to decline [his] requests or otherwise terminate the encounter.'" (In re Manuel G., supra, 16 Cal.4th at p. 821.)

We find a detention occurred despite the fact that Crutcher did not make any verbal commands. "It is not the nature of the question or request made by the authorities, but rather the manner or mode in which it is put to the citizen that guides us in deciding whether compliance was voluntary or not." (Franklin, supra, 192 Cal. App. 3d at p. 941.) No matter how politely Crutcher may have stated his probation/parole question, any reasonable person who found himself in defendant's circumstances, suddenly illuminated by a police spotlight with a uniformed, armed officer rushing directly at him asking about his legal status, would believe themselves to be "under compulsion of a direct command by the officer." (People v. McKelvy, supra, 23 Cal. App. 3d at p. 1034.) Crutcher's actions set an unmistakable "tone," albeit largely through non-verbal means, "indicating that compliance with the officer's request might be compelled." (In re Manuel G., supra, 16 Cal.4th at p. 821.)

Valid traffic stop quickly led to reasonable suspicion just from observations. The officer filled out a warning in two minutes and then told the driver she was free to leave, but asked questions. That quickly led to consent, and the interior of the car had been tampered with, so the officer could search further. United States v. Diaz-Medina, 2007 U.S. Dist. LEXIS 83470 (D. Utah November 8, 2007).*

11/13/07

Permalink 07:32:39 pm, by fourth, 510 words, 702 views   English (US)
Categories: General

Report of gun pointed from a car justified a "protective sweep" of the car

Officers received a report of a gun pointed at a citizen from an SUV, and the SUV was stopped, and a protective sweep of the SUV was appropriate under the circumstances. The fact that the defendant was out of the vehicle was no answer because he would return to the vehicle, and, if a gun were there, it could be used against the officers. State v. Bragg, 2007 Ohio 5993, 2007 Ohio App. LEXIS 5242 (6th Dist. November 9, 2007):

[*P16] The only issue, then, is whether the officers had, at the moment appellee was stopped, an articulable suspicion that appellee presented a danger and a weapon was in the vehicle, sufficient to justify a protective search. Kay and Konzen were told by an excited and agitated witness that the SUV's driver had a gun and had pointed the gun at him. U.S. v. Witherow (C.A. 6, 1996), 95 F.3d 1153. Although alternative explanations may be conjured for why one driver may accuse another of waving a handgun in traffic, these facts led the officers to rationally choose the side of caution and the resulting Long search of the vehicle was not unreasonable. State v. Williams, 5th Dist. No. 2004CA00354, 2005 Ohio 3345 (anonymous phone call that particularly described driver was waving gun out of car window justified Long search); State v. Day (1984), 19 Ohio App.3d 252, 255-256, 19 Ohio B. 405, 483 N.E.2d 1195 (officer acts reasonably by conducting Terry search of suspect's person for concealed handgun on basis of anonymous tip that suspect had handgun).

Officer had reasonable suspicion to stop the defendant based on a hand to hand buy that occurred four days earlier, when the defendant successfully fled from the officer. State v. Lane, 2007 Ohio 5948, 2007 Ohio App. LEXIS 5255 (8th Dist. November 8, 2007).*

The police did not act unreasonably in denying defendant access to his property while a search warrant arrived because they feared destruction of evidence of sexual abuse. The police even permitted a woman to enter to get a baby bottle. State v. Mooneyhan, 2007 Tenn. Crim. App. LEXIS 861 (October 30, 2007):

The police balanced privacy concerns with the needs of law enforcement. When the defendant arrived at home, the officers restricted his access until they could execute the search warrant. They also restricted the access of the defendant's family members but allowed limited access for things such as allowing the defendant's mother-in-law to obtain a bottle for a child. The restraint was imposed for a limited period of time. Although there was evidence that the process took as long as five hours, the evidence reflects that the police were corroborating information from their initial interview with the victim and obtaining the search warrant during this time. Further, the defendant was not restrained from his home for that entire period of time. The record reflects that he arrived at his residence sometime after being at his mother's house at 3:25 p.m. and that the search warrant was executed at 8:00 p.m. Nothing suggests that the brief time period was greater than that needed for diligent officers to complete these tasks. We conclude that the trial court properly denied the motion to suppress.

Permalink 07:04:13 pm, by fourth, 286 words, 525 views   English (US)
Categories: General

Owner of car can consent over objection of bailee

The owner of a car can consent to a search of it over the objection of a bailee who just borrowed it. The bailee's rights are subordinate. Grigsby v. Commonwealth, 2007 Ky. App. LEXIS 429 (November 9, 2007):

"An owner who allows another person to use his automobile retains ownership and the right to reclaim possession of the vehicle at will. While a bailee may have an expectation of privacy in the borrowed vehicle, that privacy interest is subordinate to the owner's right to his vehicle and right to reclaim possession of the vehicle at any time." quoting Hardy v. Commonwealth, 17 Va. App. 677, 681, 440 S.E.2d 434, 437, 10 Va. Law Rep. 871 (1994).

The state failed to prove theft, and the property confiscated it refused to return. The defendant was entitled to its return. State v. Agee, 274 Neb. 445, 741 N.W.2d 161 (2007):

In this case, the State argued to the district court that much of the property was stolen. We agree that stolen property should be returned to its rightful owner. In most cases, the theft of the property will be substantiated by the findings underlying a criminal conviction. But here, the charges had been dismissed. The State had seized property from Agee, and he was presumably entitled to its return once the proceedings were concluded, but the State did not overcome that presumption by presenting evidence of a cognizable claim or right of possession adverse to Agee's. Nor was the property contraband per se, which may not be returned because its possession is inherently unlawful. Nor did the State present evidence of any of the other grounds that have been used to justify the government's retention of property, such as an ongoing investigation, a tax lien, an imposed fine, or an order of restitution.

Permalink 06:20:39 pm, by fourth, 411 words, 487 views   English (US)
Categories: General

Bus encounters of the third kind: consensual with an immigration officer standing over you

Defendant was on a bus that had crossed the border and was subjected to a stop in Harlingen, Texas, where an immigration officer boarded the bus and asked to see the paperwork on anybody who was not a U.S. citizen. The court found it was a close case, but determined that the encounter was consensual and defendant would have felt free to not answer questions of the officer standing over him in the bus with a gun in a holster demanding to see his paperwork. After defendant admitted he was a Mexican citizen, the officer conducted a patdown while the defendant was still seated, and that produced drugs on his person. United States v. Mendieta-Garza, 254 Fed. Appx. 307 (5th Cir. 2007)* (unpublished):

The first encounter between Agent Sanchez and Mendieta-Garza had ended, and a reasonable person would have felt free to decline Agent Moya's subsequent requests or to terminate the encounter. See United States v. Ricardo, 472 F.3d 277, 283-84 (5th Cir. 2006) (holding that a second encounter with an officer did not result in a seizure where the first encounter, a traffic stop, had ended and the officer had returned all of the appellant's documents); see also United States v. Esparza-Mendoza, 386 F.3d 953, 958-59 (10th Cir. 2004) (making a second request, or even a second demand, for identification does not, by itself, implicate the Fourth Amendment). Prior to noticing a bulge under Mendieta-Garza's shirt, Agent Moya did not apply any force, make an intimidating movement or an overwhelming show of force, or issue a threat or command. See Drayton, 536 U.S. at 204 (finding no seizure where there "was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice"). Though Mendieta-Garza was asked twice about his immigration status, because neither interrogation was coercive or confrontational, we hold that Mendieta-Garza was not seized in violation of the Fourth Amendment. See id. at 204 (holding there was no seizure where there "was nothing coercive or confrontational" about the encounter with law enforcement).

Comment: A reasonable person would have felt free to not answer questions? Pure fiction. It is quite obvious that appellate judges have never had a cop in their face to understand what a "reasonable person" would feel.

Defendant's stop was based on reasonable suspicion from a reliable snitch, and the defendant consented during the stop of the vehicle. United States v. Walker, 254 Fed. Appx. 300 (5th Cir. 2007)* (unpublished)

11/12/07

Permalink 04:48:23 pm, by fourth, 197 words, 524 views   English (US)
Categories: General

First two entries in fire scene search were valid, second was to retrieve a camera; third was invalid

In a fire scene search, the first was immediately after the fire while it was still being put out, and the officer wanted to collect evidence before water could damage it. His leaving the scene was just to retrieve a camera to photograph what was there, and that was merely a continuation of the first entry. The third search, however, was later in time and to collect criminal evidence, so the first two entries were valid and the third was not. State v. Lewis, 2007 MT 295, 340 Mont. 10, 171 P.3d 731 (2007).

The defendant's encounter with the officer in this case in a convenience store parking lot was purely consensual, and the record supports that finding. State v. Cobbs, 2007 Ohio 5950, 2007 Ohio App. LEXIS 5215 (8th Dist. November 8, 2007).*

Two guys were stopped having bought lithium batteries and psuedophedrine and they admitted that they were delivering them to the defendant's garage in exchange for money and drugs. They became informants and made the delivery. The police entered without a warrant, but they procured a warrant later. The primary illegality of the warrantless entry was purged by the issuance of the warrant based on independent probable cause. Horn v. Commonwealth, 240 S.W.3d 665 (Ky. App. 2007).*

Permalink 09:04:01 am, by fourth, 369 words, 709 views   English (US)
Categories: General

Domestic disturbance call outside of a house did not create an exigency where the police were told by female involved they were not wanted

Police received a 911 call about a domestic dispute with shots fired from defendants' house. When they arrived, the female was outside hysterical. The officers talked to the female, and she told them to leave because they were not wanted or needed. Despite this, they went inside and found a meth lab. No emergency existed. The denial of the motion to suppress is reversed. State v. Bookheimer, 221 W. Va. 720, 656 S.E.2d 471 (2007):

Applying the above-cited legal principles to the present case, we find it unreasonable for the officers to have conducted a warrantless entry and search. At the suppression hearing, the responding officers testified that Ms. Tingler clearly told them that there was no domestic dispute, they were not wanted, they were not needed, and that she wanted them to leave. In the face of this clear rebuke, it would not be reasonable for an officer to proceed to enter and search the premises unless there was some other condition lending to an emergency circumstance.

While the officer testified that Ms. Tingler was acting in a "hysterical" manner, a review of the record reveals the contrary. After listening to the officer's testimony at the suppression hearing, the trial judge could not agree that "hysterical" was a proper characterization of Ms. Tingler's behavior. From the bench, the judge "note[d] that upon arriving at the scene the testimony of [the] Deputy ... was that Ms. Tingler was yelling, and was in a state of less than quite [sic] demeanor. I would not say that she was irrate [sic], but it appears that there was yelling by Ms. Tingler[.]" Moreover, the order stemming from the suppression hearing referred to Ms. Tingler's demeanor as "agitated." Being less than "irate" and "agitated" does not lend support to the officer's contention that Ms. Tingler was hysterical. An objective review of the record reveals a woman who was angry and who was, indeed, probably yelling. However, her anger and yelling were not caused by circumstances occurring prior to the arrival of the officers. Rather, her agitation was aimed at the fact that the officers were present on her property. Thus, Ms. Tingler's behavior did not create an emergency or an exigent circumstance justifying entry into the residence.

11/11/07

Permalink 08:59:08 am, by fourth, 336 words, 473 views   English (US)
Categories: General

"Discovery rule" for beginning of limitations period arises from discovery of the facts, not that somebody said a legal claim exists

Plaintiff filed a § 1983 claim within about 90 days of being informed by the local DA that he could file a civil action over a seizure of his property that happened nearly four years earlier. The "discovery rule" for starting the statute of limitations runs from when one, by reasonable diligence, would know of the facts of a possible claim, not from when the DA mentioned that he could file a civil claim. This claim was barred by the state's two year limitations statute. Palmer v. City of Harrisburg, 2007 U.S. Dist. LEXIS 82978 (M.D. Pa. November 8, 2007)*:

Plaintiff's argument is without merit. The alleged injuries stem from events that occurred during the course of the criminal proceedings, which took place between March 13, 2002, and November 25, 2003, as discussed above. The alleged injuries and the cause thereof were immediately ascertainable. While it may be true that Plaintiff lacked the knowledge that he could file a civil complaint during the statute of limitations period, his lack of knowledge is irrelevant. See Rendenz, 520 A.2d at 886. Moreover, even if Plaintiff was represented by counsel, his alleged reliance on counsel does not toll the statute of limitations.

Two federal appellate cases where defense counsel was obliged to raise frivolous search issues (issues that I would have personally refused to bring because counsel does not have to do so just because the client insists (but some clients compel appealing issues as a CYA)):

Probable cause was shown by defendant's neighbor's affidavit that the defendant had moved rifles from a truck to his house. The police confirmed he was a felon. Issuing state court judge did not abuse discretion in permitting a nighttime search. United States v. Spellicy, 253 Fed. Appx. 147 (2d Cir. 2007)*(unpublished).

Reasonable suspicion for a patdown was present where the officer saw defendant put a gun in his waistband. [The court went on to explain that the defendant was also nervous when confronted, but that is hardly required if the officer actually saw a gun.] United States v. Harris, 253 Fed. Appx. 171 (3d Cir. 2007)* (unpublished).

Permalink 05:50:01 am, by fourth, 806 words, 876 views   English (US)
Categories: General

Cellphone video voyeur warrant did not show enough to search defendant's home

Defendant used a cellphone at work to take a picture of a minor's private area, and the police extrapolated from that that they should get a warrant for his place of business and his home. A Rhode Island trial judge found no nexus between the use of the cellphone and a search of the defendant's business and home and suppressed the search, noting also that RI has still not adopted the good faith exception. The search in fact turned up evidence of an "unsavory" nature, but the court reminded the state that the product of the search cannot be used to justify it. State v. Byrne, 2007 R.I. Super. LEXIS 163 (November 5, 2007):

The Fourth Amendment was forged from the flames of rebellion that led the colonial settlers in Rhode Island and other colonies to resist the arbitrary rule of royal tyranny. See 1 John Wesley Hall, Search and Seizure §§ 1.5, 1.6 (3d ed. 2000); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, 325 (2002). Since then, this limitation on government authority has become a revered landmark of our nation's laws and culture. Modern society is mesmerized by media images captured by technological innovations not imagined when the framers put quill to parchment. Photographic and data storage technology has advanced to the point where it is within anyone's grasp--literally--to capture digital images with palm-sized cameras and cell phones, and quickly and quietly store them on personal computers for private viewing or public distribution.

The proliferation of these devices and the elusiveness of the images captured and stored on these devices pose unique challenges to privacy rights and law enforcement. Seven years ago, two commentators wrote, "[t]he future surely will bring more legal cases involving video voyeurism, as technology becomes smaller, more affordable, and easier to use." Clay Calvert & Justin Brown, Video Voyeurism, Privacy, and the Internet: Exposing Peeping Toms in Cyberspace, 18 Cardozo Arts & Ent. L.J. 469, 568 (2000). This case proves the accuracy of that prediction. Nonetheless, the challenges presented by media technology neither permit nor require a departure from the bedrock principles enshrined in the Fourth Amendment. Notwithstanding the disturbing actions allegedly committed by the defendant, this case is a reminder that the Fourth Amendment stands its ground in the face of new technology and condemnable behavior.

. . .

On the other hand, search warrants issued upon affidavits that wholly failed to reference the location to be searched or failed to link the property to be seized with the location to be searched have later been found to lack probable cause. In a particularly relevant case, the United States Court of Appeals for the Fourth Circuit considered a challenge to the nexus requirement brought by a defendant whose residence was searched in accordance with a warrant in spite of the fact that neither the affiant nor the police informants stated that the contraband searched for was to be found at the defendant's residence. See United States v. Lalor, 996 F.2d 1578, 1579-80 (4th Cir. 1993). In fact, the affidavit did not provide facts alleging that the defendant's criminal actions occurred at or near his residence. See id. at 1582-83. Consequently, the court found the affidavit lacked probable cause to issue a warrant. See id. at 1583. Similarly, in United States v. Schultz, the United States Court of Appeals for the Sixth Circuit considered a situation in which an informant under arrest for drug related activity identified the defendant as his drug supplier. 14 F.3d 1093, 1096 (6th Cir. 1994). Subsequent police investigations and observations of the defendant failed to yield evidence of any illegal activity by the defendant. See id. Importantly, the informant, the only person to have alleged that the defendant was involved in criminal activity, made no mention of safe deposit boxes for which a warrant was issued. See id. Consequently, the court found a "lack of evidentiary nexus in this case, prior to the search, between the safe deposit boxes and any criminal activity." Id. at 1097.

This nexus between the property searched for and the location to be searched is critical with respect to the search warrant issued for Byrne's residence. This Court cannot consider the items seized from Byrne's residence, unsavory as they are, in determining whether probable cause existed. See Joseph, 337 A.2d at 527. Rather, the Court can and must turn only to the affidavit submitted by Camara. That affidavit provides great detail regarding the actions purportedly taken by the defendant at the coffee shop. However, the facts contained in the affidavit do not implicate Byrne's residence in any way. In fact, the affidavit is almost entirely devoid of any reference to Byrne's residence. ...

. . .

Moreover, the Court is not inclined to follow the novel reasoning presented by the State during oral arguments: "one man's speculation ... is another man's reasonable inference." (Tr. 13). The application of our laws is not, and should not be, so fickle. ...

11/10/07

Permalink 07:29:52 am, by fourth, 429 words, 615 views   English (US)
Categories: General

Closing bedroom door after consent entry allowed by co-tenant was showing of plaintiff's reasonable expectation of privacy

Plaintiff exhibited a reasonable expectation of privacy by shutting his bedroom door when the police were in the house, and they intruded on that expectation of privacy by shooting through the door. While the police had permission to enter from a co-tenant, the act of shutting the door still manifested an expectation of privacy in that portion of the premises that would indicate that the co-tenant did not have apparent authority as to it. Lobato v. Ford, 2007 U.S. Dist. LEXIS 82373 (D. Colo. October 31, 2007):

By closing the door to his bedroom, Lobato manifested a subjective expectation of privacy in his bedroom. Further, "[i]t is well-settled that an individual has a reasonable expectation of privacy in the interior of one's home." Reeves, 484 F.3d at 1254. Under these circumstances, it is readily apparent that Lobato had a reasonable expectation of privacy in the room where he was staying. The next question then is whether the officers, specifically Herrick and Ford, infringed on that expectation by opening the door to Lobato's bedroom and firing a shot into it. This question must be answered in the affirmative based both on the physical intrusion into this room by the bullet fired from Ford's weapon as well as the officers' viewing of this room in a manner not available to members of the public. Compare United States v. Taylor, 90 F.3d 903, 908 (4th Cir. 1996) (law enforcement officers did not engage in search under the Fourth Amendment by looking through picture window adjacent to front door as anyone at the front entranceway of their home could have done). I therefore conclude that the officers conducted a search of Lobato's bedroom and must next analyze whether this search was in violation of his Fourth Amendment rights.

Officer observed what was apparently a hand to hand drug sale in a car that led him to stop the car. The officer had previously arrested the defendant for the same thing from the same car. It was thus more than a hunch. Commonwealth v. Coronel, 70 Mass. App. Ct. 906, 875 N.E.2d 877 (2007):

Considering all of the circumstances presented, it was a reasonable inference, and not a mere hunch as the motion judge suggested, that an exchange of contraband took place during the ten to fifteen second interval that Eaton was in Coronel's car. We thus conclude that the criteria of Commonwealth v. Kennedy, supra at 708-709, supporting probable cause were met in the present case, and we reverse the motion judge's order insofar as it allowed the suppression of Eaton's statements, drugs, and other evidence seized from the defendants at the scene.

Permalink 07:15:33 am, by fourth, 357 words, 520 views   English (US)
Categories: General

Repeated requests for consent and expressed "need" to enter amount to coercion

Record supports the USMJ's conclusion that the officers' repeated requests to enter the defendant's premises amounted to coercion. Furthermore, a protective sweep of the premises was unjustified because there was no reason to believe anybody was inside. The defendant made a disturbance call. The smell of marijuana is all that was not tainted by the illegal entry, so the warrant was suppressed. United States v. Ortega, 2007 U.S. Dist. LEXIS 82514 (M.D. Fla. November 6, 2007):

Both officers consistently testified that defendant was very reluctant to allow them to enter the residence, and only agreed after being told that the officers were concerned for the safety of people inside the house and "needed" to check it (Doc. # 41 at 10) or that the officers "need to clear the residence," (Doc. # 41 at 22, 24), or they "needed to verify that there is nobody else injured inside the house" (Doc. # 41 at 63, 67). While the officers believed defendant's acquiescence to their claimed authority constituted consent by defendant, the Court concludes that under the totality of the circumstances they were incorrect. See, e.g., Denehy v. State, 400 So. 2d 1216, 1217 (Fla. 1980)(noting that repeated requests for consent to search can constitute coercion.) Accordingly, the entry into the residence cannot be justified under the consent exception to the search warrant requirement. The government's objection is overruled, and this portion of the Report and Recommendation is accepted and adopted.

. . .

At the time of the entry, defendant had not been arrested and was not viewed as a suspect; rather, he was the victim of an assault which had taken place outside the residence. No suspects were believed to be in the residence; at best, the officers simply did not know who else was in the residence, if anyone. The officers' lack of information cannot justify a warrantless protective sweep. United States v. Chaves, 169 F.3d 687, 692 (11th Cir. 1999). There was no contradiction between what defendant said and the information known to the officers. The suspects were reported to have left the area, and there was no report that more than one victim was involved. There was no reason to disbelieve defendant's statement that everything was alright at the time of the officers' arrival. ...

Permalink 12:10:19 am, by fourth, 223 words, 724 views   English (US)
Categories: General

Extra five minutes to look at the exterior of a car during a traffic stop was not unreasonable

Defendant was stopped for a traffic offense, and extra five minutes taken to inspect the exterior of the car that ultimately had been altered plus being on a common drug route was reasonable suspicion, and it was not an unreasonable extra detention. United States v. Sanchez, 507 F.3d 877 (5th Cir. 2007).*

During a routine traffic stop, the officer developed reasonable suspicion from travel plans that did not make sense and defendant's shaking hands, so he asked for and got a valid consent. Two minutes after his search started, a drug dog showed up. United States v. Vazquez, 253 Fed. Appx. 365 (5th Cir. 2007)* (unpublished).

Affidavit for search warrant: In this case "the affidavit arguably does not establish a sufficient basis to connect Hendon with either the drugs or the places to be searched and, therefore, could be found lacking to establish a sufficient basis for a finding of probable cause. Nevertheless, we need not address whether there was sufficient probable cause to justify the search of the apartment at 408 North Brazier Drive because the district court did not err in finding that the evidence seized was not subject to exclusion because of the good faith exception to the warrant requirement, as explained below." Officer's reliance on his findings that he believed were probable cause was not objective unreasonable. United States v. Hendon, 253 Fed. Appx. 809 (11th Cir. 2007).*

11/09/07

Permalink 11:39:13 pm, by fourth, 325 words, 450 views   English (US)
Categories: General

Four short "yes" or "no" questions after warning ticket did not unduly extend stop

Four short questions at the conclusion of a traffic stop after issuance of a warning did not unduly extend the stop. People v. Roa, 377 Ill. App. 3d 190, 879 N.E.2d 366 (3d Dist. 2007):

However, the finding of an articulable basis does not end the inquiry. The analysis must proceed to determine if the four questions posed by Sergeant Blanks in this case converted the Terry stop into an illegal seizure. The record shows Blanks did not immediately ask for consent to search the vehicle. Rather, he posed several questions, each one serving as a building block for the next, logically progressing so that the last question could be asked in such a manner to make an affirmative answer more likely, if not inevitable. The first three questions the officer posed were short, succinct, and formulated to produce "yes" or "no" responses, which did not unduly delay the fourth and final question regarding consent to search. These brief inquiries are similar to the nature of questions asked by the officer in Terry and did not unfairly convert this brief investigative stop into an unconstitutional seizure of defendant or his vehicle.

Stop was validly based on a warrant for the passenger, and that led to plain smell of marijuana which justified a search of the car, which was consented to. Somesso v. State, 288 Ga. App. 291, 653 S.E.2d 855 (2007).*

Defendant failed to object to admission of evidence seized from his pocket at trial, so suppression was waived. Considering it on the merits, however, the defendant's arrest for trespassing was not unlawful and it was based on probable cause, so the search incident to that arrest was valid. State v. Johnson, 237 S.W.3d 277 (Mo. App. 2007).*

Officer stopped vehicle for speeding that he knew had been stolen. That gave probable cause to search the occupants because it was reasonable to assume they were on a joint venture with the stolen car, per Pringle. Hatcher v. State, 177 Md. App. 359, 935 A.2d 468 (2007).*

11/08/07

Permalink 09:07:53 pm, by fourth, 1063 words, 786 views   English (US)
Categories: General

Trial judge's accusing defendant of perjury at suppression hearing after denying the motion did not require a new suppression hearing even though judge was recused

Trial judge's 13 pages of "textbook" analysis of the facts and law were followed by an apparent tirade against defendant's perjury at the suppression hearing which led to a motion to disqualify for bias, which was granted, and delay in the proceedings. The trial judge should have just stated that he did not believe the defendant and leave it at that. The disqualification did not retroactively require a new suppression hearing. On the merits of the detention, the defendant lost on that, and it was affirmed. People v. Williams, 156 Cal. App. 4th 949, 67 Cal. Rptr. 3d 711 (2d Dist. 2007).

Warrant was sought for marijuana in defendant's house, but the particularity clause said "'cocaine, crack cocaine' and collateral items believed to be related to the sale of narcotics." The motion to suppress was denied by the trial court but reversed on appeal. The particularity clause was binding. Even plain view of the marijuana on the premises was rejected. State v. Browne, 104 Conn. App. 314, 933 A.2d 735 (2007):

The state argues that the allegations asserted by the affiants in the affidavit and warrant application reflected a consistent and continuous reference to marijuana such that the absence of marijuana from the particularity clause of both the warrant and application was merely a scrivener's error. This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: "The fact that the application adequately described the 'things to be seized' does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) ('[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional'); see also United States v. Stefonek, 179 F.3d 1030, 1033 ([7th Cir.] 1999) ('The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer ... asked to issue the warrant' (emphasis in original)) [cert. denied, 528 U.S. 1162, 120 S. Ct. 1177, 145 L. Ed. 2d 1085 (2000)]. And for good reason: 'The presence of a search warrant serves a high function,' McDonald v. United States, 335 U.S. 451, 455 [69 S. Ct. 191, 93 L. Ed. 153] (1948), and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment forbids a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. ... But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the warrant. Hence, we need not further explore the matter of incorporation." (Citations omitted; emphasis added.) Groh v. Ramirez, supra, 557-58. Even if the state is correct that the affidavit and allegations sufficiently describe the items to be seized so as to inform the reader that marijuana, not cocaine, is the object of the search, here, as in Groh, the affidavit did not accompany the warrant.

The state also argues that the warrant was valid because the executing officer had personal knowledge of the crime being investigated and knew that marijuana, not cocaine, was the focus of this search. "It is true that the executing officer's personal knowledge of the place to be searched may 'cure' minor, technical defects in the warrant's place description. 2 W. LaFave, Search and Seizure [(2d Ed. 1987) § 4.5 (a), pp. 209-10]. However, where the inadequacy arises not in the warrant's description of the place to be searched but rather in the things to be seized, the officer's personal knowledge of the crime may not cure the defect. See generally 2 W. LaFave §§ 4.5-4.6 (discussing the particularity requirement in relation to a warrant's description of the places to be searched and the things to be seized). This is so because the purpose of a warrant is not only to limit the executing officer's discretion, but to inform the person subject to the search what items the officer may seize. United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir. 1986) [cert. denied, 479 U.S. 1086, 107 S. Ct. 1289, 94 L. Ed. 2d 146 (1987)]." (Citation omitted; emphasis added.) Washington v. Riley, 121 Wash. 2d 22, 28-29, 846 P.2d 1365 (1993). The United States Supreme Court has "long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. See [Maryland v. Garrison, 480 U.S. 79, 84, 107 S. Ct. 1013, 94 L. Ed. 2d 72 (1987)]. A particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." (Internal quotation marks omitted.) Groh v. Ramirez, supra, 540 U.S. 561.

The state argues that because it had probable cause to believe that some of the collateral items were located in the house, the police officer could seize the marijuana under the plain view doctrine. "[O]bjects not named in the warrant, but found within an officer's plain view, may be seized if the ... officers had a reasonable basis for believing that the seized evidence was reasonably related to the offense which formed the basis for the search warrant. ... This doctrine is based upon the premise that the police need not ignore incriminating evidence in plain view while they are operating within the parameters of a valid search warrant or are otherwise entitled to be in a position to view the items seized." (Citations omitted; internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 347, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000). The problem with this theory in this case is that the police were not lawfully on the premises of the defendant where the marijuana was found. See United States v. George, 975 F.2d 72, 80 (2d Cir. 1992) (noting that plain view doctrine inapplicable when "the sufficiently particularized portions make up only an insignificant or tangential part of the warrant"). Moreover, the collateral items, standing alone without the illegal drug, would not support probable cause to believe a crime was committed. Accordingly, the marijuana could not be seized under the plain view doctrine.

Permalink 08:22:49 pm, by fourth, 486 words, 802 views   English (US)
Categories: General

Motion to suppress showed no standing; motion denied

Defendant's own motion to suppress showed he lacked guest standing, so the motion was denied. United States v. Tolley, 2007 U.S. Dist. LEXIS 81937 (W.D. Ky. November 2, 2007):

Tolley states only that at the time of the search, he was a lawful guest of a resident who he describes as an "acquaintance." He offers nothing to suggest that he was anything more than a casual visitor to the Madison Avenue residence. Tolley contends that he is entitled to a hearing because the nature of his relationship with the owners is a "factual one." However, he does not offer any facts which are in dispute. The United States does not disagree that Tolley was present in the residence with the consent of an acquaintance.

Officer was entitled to qualified immunity for justifiably shooting and killing plaintiff's decedent during an arrest. The scuffle started over an investigation of whether the decedent was involved in vandalizing a Coke machine, and the events spiraled out of control to a pepperspraying, dragging the officer from a moving car, and then going for the officer's gun. Wright v. Powell, 2007 U.S. Dist. LEXIS 82062 (M.D. Ga. November 2, 2007):

Under these circumstances, the Court finds that Wright presented a risk of danger to Powell, and possibly others, sufficient to justify the use of deadly force. Wright had shown that he was hostile and aggressive and had already made at least one attempt to gain control of Powell's gun. Powell was justified in shooting Wright as they struggled over the gun because it was objectively reasonable for Powell to be concerned that Wright would continue to fight him for the gun and might succeed in gaining control of the gun and ultimately shooting Powell or others in the area.

"Woman scorned" was a credible informant, showing probable cause. United States v. High, 2007 U.S. Dist. LEXIS 82102 (W.D. Wisc. November 2, 2007):

So which is Sims? She is not an anonymous telephonic informant with an inscrutable personal agenda, nor is she a paradigmatic street informant unwillingly working off a beef. Detective Woodmansee found her to be a credible citizen conflicted by friendship but motivated by her desire to do the right thing. High tries to impeach Sims's motives by insinuating that she was trying to punish Ross-High because of their spat, but this was not Detective Woodmansee's impression at the time and on these facts it is an illogical premise. Sims's report of what Ross-High told her and why Ross-High said it was much too intricate and indirect to qualify as a fabrication intended to get even with Ross-High. As circuitous as Sims's tale may have been, it was internally consistent and logical: a jealous wife, humiliated by her footloose husband in front of others, lashes out to salve her pride and punish his transgression.FN3

3 "Heaven has no rage like love to hatred turned
"Nor hell a fury like a woman scorned"

-- William Congreve, "The Mourning Bride."

Permalink 08:05:51 pm, by fourth, 465 words, 705 views   English (US)
Categories: General

Leaving one's computer available for downloading files over the Internet is a waiver of an expectation of privacy

Defendant left his computer open for Internet access for peer to peer access to download files, and this did not show he maintained a reasonable expectation of privacy in his computer. Moreover, there was probable cause for issuance of a search warrant off those entries into the computer. United States v. Stults, 2007 U.S. Dist. LEXIS 81975 (D. Neb. November 2, 2007):

In his supplemental motion to suppress, Stults argues government agents illegally searched his computer prior to the issuance of the search warrant and used such information to establish probable cause for the issuance of the search warrant. Stults contends Agent Cecchini conducted a warrantless search when he viewed the files from IP address 24.252.31.129 (Stults's IP address) after Agent Cecchini launched the P2P program searching for child pornography. Stults argues Agent Cecchini was able to determine the contents of Stults's computer, retrieve files from Stults's computer, and view those files at a distant location without Stults's consent. Stults asserts without such information, there would be insufficient probable cause to obtain a search warrant of Stults's premises or computer files.

The application and affidavit detail the workings of a P2P network and that of Limewire which was used in this instance. The application and affidavit set forth how Agent Cecchini accessed the P2P network, noted the downloads of various files by IP address 24.252.31.129, and then downloaded those particular files from the P2P network for viewing. The P2P network is a file sharing network that belies a reasonable expectation of privacy. Absent such an expectation, the Fourth Amendment does not prohibit law enforcement officers accessing the P2P network and viewing files that have been downloaded by various IP addresses. Stults's assertion that Agent Cecchini's actions amounted to a warrantless search tainting the application and affidavit is without merit.

In a qualified immunity analysis, the question is not probable cause; it is arguable probable cause, and here there was not, so qualified immunity is no protection. Defendants' argument of exigency also fails because they had three hours to procure a warrant. Barnette v. City of Phenix City, 2007 U.S. Dist. LEXIS 82300 (M.D. Ala. November 6, 2007).*

Plaintiff was taken down by the officer when he refused arrest, and this was not excessive force because he was resisting. Cardinal v. Allain, 2007 U.S. Dist. LEXIS 81862 (M.D. La. November 5, 2007):

Deputy Balcuns used a straight arm bar take down tactic to bring Mr. Cardinal to the ground. Such a tactic was not excessive force because Mr. Cardinal was jerking way from Deputy Balcuns to prevent Deputy Balcuns from handcuffing him. In addition, when Deputy Balcuns made a second attempt to handcuff Mr. Cardinal, Plaintiff again responded by jerking away and pushing Deputy Balcuns. It was Mr. Cardinal's conduct and intoxicated state which created the situation at issue.

11/07/07

Permalink 07:58:33 am, by fourth, 319 words, 702 views   English (US)
Categories: General

Patdown frisk into cigarette pack violated Terry

Defendant was detained because he matched the description of somebody involved in an assault. He was apparently intoxicated. A patdown produced a hard cigarette pack which the officers opened, and then saw a folded piece of paper which was opened finding drugs. The search of the folded piece of paper was not justified under Terry. The alternative justification for a public intoxication search incident was rejected as a post hoc rationalization because the determination was made to arrest for the drugs and not intoxication, by the officers' own testimony. United States v. Lee, 2007 U.S. Dist. LEXIS 82241 (E.D. Va. November 6, 2007).*

The search warrant clearly described the place to be searched and firearms to be seized in a domestic violence report involving a felon in possession of a firearm. The owner of the truck defendant was driving had the authority to consent to its search; defendant's possession of the only set of keys did not deprive the owner of ability to consent and the officer could rely on the owner's apparent authority. United States v. Guzman, 507 F.3d 681 (8th Cir. 2007).*

Plaintiff was indicted for drugs and weapons charges in federal court, but the charges were dismissed before a Franks hearing could be held. He sued under § 1983 claiming that the informant in the case was manufactured, but he could come forth with no evidence of it and summary judgment was granted for the officer because there was probable cause. Ladd v. St. Louis Bd. of Police Comm'rs, 2007 U.S. Dist. LEXIS 81651 (E.D. Mo. November 2, 2007).*

Defendant was stopped for a traffic offense, and he opened the glove compartment to get his paperwork, and the officer could see that it was full of cash that was "suspiciously wrapped." That, plus defendant's implausible story about his travel plans, was reasonable suspicion for a detention that led to a consent search. United States v. Carrion-Soto, 2007 U.S. Dist. LEXIS 82273 (D. N.J. November 7, 2007).*

Permalink 07:16:12 am, by fourth, 533 words, 507 views   English (US)
Categories: General

8th Cir.: Search incident 8 minutes after arrest and handcuffing was still valid

Search incident of a vehicle eight minutes after defendant was handcuffed and in custody in a police car was still valid under the bright line rule of Belton and Thornton. United States v. Grooms, 506 F.3d 1088 (8th Cir. 2007). Worth noting is this passage about defendant's policy argument which the court found unavailing. The fact it was mentioned at all suggests that the court might have been sympathetic to it, but bound by SCOTUS precedent.

Grooms relies on this statement in Thornton and argues he is not a recent occupant because eight minutes is too long after an arrest to conduct a valid search incident to arrest. In United States v. Hrasky, however, we found an automobile search which began one hour after the defendant was arrested was a valid search incident to arrest because we found the defendant was a "recent occupant." 453 F.3d 1099, 1102 (8th Cir. 2006). We noted "the determination of whether a search is a contemporaneous incident of arrest involves more than simply a temporal analysis" and concluded "a search need not be conducted immediately upon the heels of an arrest, but sometimes may be conducted well after the arrest, so long as it occurs during a continuous sequence of events." Id. We reasoned the search in that case "took place at the scene of the arrest, immediately after the police determined to proceed with a full custodial arrest" and was therefore valid. Id. at 1103. In this case, we find the search of Grooms's vehicle occurred during a continuous sequence of events after his stop. Eight minutes is not a long period of time and some of the delay can be attributed to Grooms's attempts to offer explanations for his prior criminal conviction, for his return to the pub, and for his possession of the two cases. Under Hrasky, we find Grooms was a recent occupant of his automobile.

In addition, as a policy matter, Grooms argues the search should be found invalid because there were no safety issues and no probable cause to believe evidence relevant to the crime of arrest would be found in his vehicle. Grooms argues the law governing the Fourth Amendment exception for a search incident to arrest has diverged from the rationale expressed in Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969). He argues the dual purpose behind a contemporaneous search incident to arrest of both the person arrested and the immediate surrounding area is (1) the need to remove weapons that might be used to resist arrest or escape and (2) the need to prevent concealment or destruction of evidence. Belton, 453 U.S. at 457-58 (citing Chimel, 395 U.S. at 762-63). Once a person has been arrested, frisked and handcuffed, Grooms argues the rationale for a search for weapons used to resist arrest or escape disappears. With respect to the need to prevent concealment or destruction of evidence, Grooms argues searches should be limited to those cases in which there is probable cause to believe evidence relevant to the crime of arrest might be found in the vehicle. He argues this case provides an excellent forum for determining whether Belton and Thornton should be modified in light of what he argues is an erosion of their underpinnings.

Permalink 06:11:46 am, by fourth, 367 words, 604 views   English (US)
Categories: General

Reasonable suspicion was lacking because no factors really suggested the defendant was a suspect

Defendant's handcuffing was not a minimal intrusion, and it was not based on reasonable suspicion. Taking the LaFave factors from LaFave's Criminal Procedure

(1) the particularity of the description of the offender or the vehicle in which he fled;
(2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the time occurred;
(3) the number of persons about in that area;
(4) the known or probable direction of the offender's flight;
(5) observed activity by the particular person stopped; and
(6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.

the court, considering them seriatim, finds no reasonable suspicion. The strongest factor the court found was corn rowed hair, which the appellate court finds not subject to judicial notice that it was unusual enough to be a factor. Nervousness is also not a factor because even the innocent are nervous when they are stopped by the police. Madison-Sheppard v. State, 177 Md. App. 165, 934 A.2d 1046 (2007). Comment: This is kind of reminiscent of the "divide and conquer" analysis rejected in Arvizu. Because this was an arrest without a warrant, de novo review is required under Ornelas. Under de novo review, the appellate court is free to consider the factors itself under the totality standard. Here, the factors were found factually weak and against a finding of reasonable suspicion: race of the suspect was not particularly selective, the time since the offense under investigation was long, etc.

Officers entering a house to arrest the plaintiff in a domestic violence situation were entitled to qualified immunity. It was not hot pursuit, but it was a situation for the safety of all concerned. Cannon v. Hamilton County, 2007 U.S. Dist. LEXIS 81407 (E.D. Tenn. November 1, 2007), relying on Hancock v. Dodson, 958 F.2d 1367 (6th Cir. 1991).*

Stop of vehicle with a temporary tag that was in the back window and not on the bumper was valid because the officer was entitled to make reasonable mistakes of fact. During the stop, the officer saw brass knuckles in plain view. The plain view was valid. United States v. Dates, 2007 U.S. Dist. LEXIS 81494 (W.D. Pa. October 30, 2007).*

11/06/07

Permalink 05:39:50 am, by fourth, 558 words, 699 views   English (US)
Categories: General

Use of stolen ID to rent storage unit defeated expectation of privacy

Use of stolen identity to rent a storage unit did not show a reasonable expectation of privacy in the storage unit. United States v. Johnson, 2007 U.S. Dist. LEXIS 81465 (D. Utah November 2, 2007):

While Defendant acknowledges that the storage unit was rented using a false name, he contends that he had an expectation of privacy in the storage unit because he placed his personal property inside it, paid the fees for it, placed a lock upon it, and never disavowed an interest in it. Nonetheless, it is questionable whether Defendant could have subjectively believed that this storage unit could remain free from a search if the fraudulent rental agreement was discovered by the storage facility employees, the police, or Haroldsen. The evidence indicates that Defendant directed Christensen to enter into the rental agreement using Haroldsen's driver license. The rental agreement, itself, provides that only Shannon Haroldsen had authority to enter the unit.

Even if the court found that Defendant had a subjective expectation of privacy in the storage unit, society does not recognize that expectation as objectively reasonable. Defendant fraudulently used a stolen identity to rent a storage unit in an attempt to conceal criminal activities. It is not objectively reasonable to assume that the individual whose name has been used for such improper purposes would not have the right to consent to a search of the unit. Prohibiting Haroldsen, a victim of identity theft, from assisting law enforcement in the investigation of crimes perpetrated with the use of her name would elevate the privacy rights of Defendant over the rights of Haroldsen to clear her name. Defendant forfeited his privacy rights to the storage unit when he directed Christensen to enter into a fraudulent rental agreement in Haroldsen's name. Society has no interest in protecting the rights of someone using another person's name to fraudulently conceal his criminal activities.

A minimal description of things to be seized distinguishes this search warrant from the one in Groh v. Ramirez. Thus, the search was valid despite the general additional phrase "[o]r any other evidence indicative of the criminal offense of Burglary, Theft or Possession of Stolen Property." United States v. Sims, 2007 U.S. Dist. LEXIS 81517 (C.D. Ill. November 2, 2007):

This court concludes that this is a close case. The description provided in the search warrant is certainly lacking in detail, and the warrant does not incorporate by reference Weinstock's affidavit, which did include a description of particular items, such as the Aussie grill and yellow welder. However, this court agrees with the Government that Groh is distinguishable because the warrant in this case did include a description of the things to be seized. The Seventh Circuit has stated that, while a warrant must "describe the objects of the search with reasonable specificity, it need not be elaborately detailed." United States v. Jones, 54 F.3d 1285, 1290 (7th Cir. 1995). A warrant need not "enable authorities to 'minutely identify every item for which they are searching.'" United States v. Shoffner, 826 F.2d 619, 630 (7th Cir. 1987), quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir. 1984). It is sufficient if the executing officers are able "to identify the things to be seized with reasonable certainty." Jones, 54 F.3d at 1290. "If detailed particularity is impossible, generic language is permissible if it particularizes the types of items to be seized." United States v. Hall, 142 F.3d 988, 996 (7th Cir. 1998).

11/05/07

Permalink 06:54:59 am, by fourth, 210 words, 469 views   English (US)
Categories: General

Plaintiff's arrest at gunpoint for bank robbery without PC stated claim

Defendants conceded that they had no probable cause for plaintiff's detention at gunpoint and handcuffing for suspicion of bank robbery that ended up on local television. After a prompt showup, it was determined that plaintiff was not the person wanted, and she was released. Defendant's motion for summary judgment denied. Mitchell v. Anchorage Police Dep't & Anchorage, 2007 U.S. Dist. LEXIS 81372 (D. Alaska October 30, 2007).*

Plaintiff was the target of an investigation in his prison after it was determined that a false allegation had been made that the Clerk's Office of the Ninth Circuit had ordered something. It turned out that the plaintiff had developed a relationship with a deputy clerk, and there had been 243 telephone calls in six months and visits at the prison. A cell search was conducted, things copied and returned. The plaintiff's motion for return of property was denied because it had been returned. The plaintiff had no expectation of privacy in his cell. Moore v. Daniels, 2007 U.S. Dist. LEXIS 81374 (D. Or. October 26, 2007).*

The record, including the videotape of the petitioner's stop and field sobriety test, support the conclusion that there was at least reasonable suspicion for defendant's stop and determination that he was likely DWI. Batten v. Wyo. DOT Drivers' License Div., 2007 WY 173, 170 P.3d 1236 (2007).*

11/04/07

Permalink 06:48:38 am, by fourth, 295 words, 417 views   English (US)
Categories: General

Probationer's actions from sounds of hiding things is reasonable suspicion

Defendant probationer's actions (sounding like he was hiding things) before the search of his bedroom created reasonable suspicion for a search of the bedroom. State v. Uhlig, 38 Kan. App. 2d 610, 170 P.3d 894 (2007):

Also pertinent to this case, Samson makes a distinction between probationers and parolees. The Court held that "parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation." 126 S. Ct. at 2198. This statement suggests to us a continuum:

-- Prisoners have no expectation of privacy (see Hudson v. Palmer, 468 U.S. 517, 530, 82 L. Ed. 2d 393, 104 S. Ct. 3194 [1984]) and lack Fourth Amendment rights (they can therefore be searched at any time for any reason);

-- parolees have a slight expectation of privacy and therefore can be searched in the absence of reasonable suspicion, but not arbitrarily or capriciously (Samson, 126 S. Ct. at 2202); and

-- probationers have a higher expectation of privacy than parolees, but no standard is set forth.

Such lessons are clear. The law of search and seizure varies based upon the status of the individual searched. First, Griffin indicates that probable cause is not required when a search of a probationer is made because of the special needs of the government. According to Griffin, a state regulation only requiring reasonable grounds to search is constitutionally sufficient. Second, Knights teaches that reasonable suspicion is sufficient when a search of a probationer is made. The reasonableness of the search is determined by applying a balancing test that gives much weight to the government's strong interest in allowing the search. Third, Samson indicates that no suspicion is required when a search of a parolee is made, but the opinion fails to set the standard for probationers.

Compare United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007), posted just hours ago.

Permalink 06:06:16 am, by fourth, 827 words, 453 views   English (US)
Categories: General

Record supported exigency of potential violence; suppression order reversed

Officers' 12 second wait was reasonable under the circumstances because of defendant's known propensity to be armed. The trial court erred in suppressing. (Hudson was argued by the state, but the court declines to go there based on the merits of the entry.) State v. Pruitt, 967 So. 2d 1021 (Fla. App. 2DCA 2007):

In the instant case, the officers knew they were not dealing with a minor league crack or marijuana dealer. The affidavit for search warrant described a person who ran a large or growing heroin distribution operation, who used semi-sophisticated techniques to elude law enforcement, such as the use of female "mules" or hiding heroin in the dashboard or body of a vehicle, and who was a participant in a larger heroin distribution network. Additional information provided to TACT supported their reasonable belief that they were dealing with a violent career criminal. See Power v. State, 605 So. 2d 856 (Fla. 1992) (holding that police officers were not required to knock and announce when executing a search warrant where they had been informed that the defendant used a gun or knife to rape, had committed armed robbery, had a black belt in karate, had a gun, and had a violent background). In Power, there was no indication that the "specific" information that Power had used a gun or knife in the rape was also included in the warrant; it was simply information provided to the police officers prior to their execution of the warrant. See also Poole v. United States, 630 A.2d 1109, 1124 (D.C. App. 1993) (holding that where officers entered after ten seconds in the reasonable belief that defendant was on premises and had a gun and would use it if confronted provided exigent circumstances excusing full compliance with the knock-and-announce statute). Significantly, during the hearing, the TACT commander testified that he had not even read the warrant itself. Thus inclusion of information in the warrant regarding Pruitt's potential for violence and the murder investigation would not have assisted his exigency assessment regarding officer peril.

The record supported the trial court's conclusion that the defendant, while officers were waiting for him to move out from his girlfriend's place, consented to a search of a lockbox for a gun and found marijuana instead. Bridgett v. State, 1 So. 3d 1054 (Ala. Crim. App. 2007), affd Ex parte Bridgett, 2008 Ala. LEXIS 127 (Ala. 2008).*

Under Mendenhall factors ("Mendenhall lists four examples of circumstances that may be indicative of a seizure, even where the person did not attempt to leave: (1) the threatening presence of several officers; (2) the display of a weapon by an officer; (3) some physical touching of the person of the citizen; and (4) the use of language or tone of voice indicating that compliance with the officer's request might be compelled.") the defendant's consent was found to be the product of an unlawful seizure. People v. Ocampo, 377 Ill. App. 3d 150, 879 N.E.2d 353 (2d Dist. 2007):

Regarding the last Mendenhall factor, Rogers testified that he told defendant that he "needed to talk" with defendant. The State argues that a person's indicating that he "needs to talk" with someone is "in everyday language *** merely an opening to a conversation," and therefore the State urges that a reasonable person in defendant's position would not have interpreted Rogers's statement as a command. We disagree. First, the word "need" indicates a requirement, and Rogers testified that he informed defendant that he "needed" to talk with him, not that he asked defendant if he could talk with him. Second, and relatedly, Rogers did not testify that he waited for defendant's assent after approaching him indicating a need to talk.

. . .

Though we find two of the Mendenhall factors to indicate a seizure in this case, the State relies on several additional characteristics of the encounter here for its argument that the encounter did not constitute a seizure. The State notes that Rogers was not in uniform, approached defendant in a public area, did not park his car to block defendant's path, and did not inform defendant of his Miranda rights. However, as discussed above, there were also several indicia of a seizure present in this case, including the first and last Mendenhall factors. The State urges that each of the individual indicia in this case has been held elsewhere not to amount to a seizure, but our test "focuses on the coercive effect of police conduct taken as a whole, and not on each particular detail of police conduct in isolation." People v. Stofer, 180 Ill. App. 3d 158, 166, 534 N.E.2d 1287, 128 Ill. Dec. 682 (1989). Our review of all the circumstances of this encounter, in their totality, convinces us that a reasonable, innocent person in defendant's position, confronted behind a gas station by an officer, who was soon joined by three other officers, and told that the officer "needed to talk to him" under circumstances that indicated the officer sought him out specifically, would not have felt free to leave. Accordingly, we agree with the trial court that defendant was seized before he gave any consent to search.

11/03/07

Permalink 06:02:45 am, by fourth, 390 words, 516 views   English (US)
Categories: General

PO's reasonable suspicion could include unusual sounds from inside after the knock

Arkansas parole conditions permitted parole search based on reasonable suspicion and not suspicionless searches. Nevertheless, the PO here had reasonable suspicion based on the testimony at the hearing. Part of it was defendant's failure to promptly respond to the door when the PO knocked because sounds from inside made it sound as though he were hiding something. United States v. Hamilton, 2007 U.S. Dist. LEXIS 81266 (W.D. Ark. October 25, 2007).* Comment: Note the similarity to reasonable suspicion from noise from inside after an announcement which is indicative of people secreting things and not coming to the door. Since dispensing with announcement is based on reasonable suspicion, this is a valid analogy. Not one the court drew, but one I draw.

Defendant's vehicle was lawfully impounded under the community caretaking function. He had been arrested, and the car was unlocked and illegally parked on the street and would have been subject to theft and the officers had no idea when he would be back to claim it, if ever. United States v. Barrios, 2007 U.S. Dist. LEXIS 81136 (S.D. N.Y. November 1, 2007):

Moreover, to the extent that Edmond can be read to permit Barrios to challenge the programmatic purpose behind the seizure itself, the discussion above establishes that Barrios's vehicle--which credible testimony showed was illegally parked, potentially unlocked, likely to be unattended for an unknown but significant period of time -- was seized pursuant to the "community caretaking" policy that is inherent to the law enforcement function, see generally United States v. Rodriguez-Morales, 929 F.2d 780, 784-85 (1st Cir. 1991), and that has been repeatedly endorsed by both the Supreme Court and the courts of this circuit.

An involuntary commitment is a seizure under the Fourth Amendment, and it would not be unreasonable if with probable cause. Based on the pleadings, the plaintiff states a claim for relief. Van Cortlandt v. Westchester County, 2007 U.S. Dist. LEXIS 80977 (S.D. N.Y. October 31, 2007).*

Private shipping company had a hard time attempting to deliver multiple boxes to the defendant. The address was no good, and the telephone numbers given did not work. So, they opened the packages to see if there was more inside aiding in identification of the recipient, and contraband was found and the police were called. This was purely a private search. United States v. Garcia-Bercovich, 2007 U.S. Dist. LEXIS 81089 (N.D. Fla. October 13, 2007).*

Permalink 04:23:47 am, by fourth, 220 words, 464 views   English (US)
Categories: General

Coming out of a Katrina damaged building with a backpack was probable cause

"Katrina probable cause": Three men were seen coming out of an already being looted Burlington Coat Factory with backpacks right after Hurricane Katrina. The officer, who had worked security there before the hurricane, had reason to believe that they were looters, and that justified their stop and a search of the backpacks. State v. Jones, 970 So. 2d 1143 (La. App. 5th Cir. 2007), released for publication January 11, 2008.

Videotape of defendant's hour long stop showed that defendant consented to a search of his car but not his person. He consented to a search of the car, and he was frisked and nothing of interest was found, and then he was told to empty his pockets and thus searched again but before anything was found in the car. The government conceded that search incident did not apply because the defendant was not under arrest at the time. United States v. Ocampo, 2007 U.S. Dist. LEXIS 80898 (E.D. Mich. November 1, 2007).*

Preliminary hearing testimony was sufficient to show that there was probable cause for plaintiff's arrest, so his false arrest civil case fails. Jackson v. County of Washtenaw, 2007 U.S. Dist. LEXIS 80885 (E.D. Mich. October 31, 2007).*

The document search of 2255 petitioner's house was not unlawful, so defense counsel was not ineffective for not challenging it. Hill v. United States, 2007 U.S. Dist. LEXIS 80703 (D. Md. September 28, 2007).*

11/02/07

Permalink 10:51:26 am, by fourth, 366 words, 433 views   English (US)
Categories: General

An unfinished structure was not a "dwelling" and it did not have the protection of curtilage

An officer went to a site where defendant was building a home. It was fenced, and the gravel driveway was blocked by a locked gate. "No Trespassing" and "Beware of Dog" signs were posted at the entrance. The officer climbed over the gate and was later joined by another officer. The unfinished house on the property was framed but had no sheet rock or doors, and no one appeared to be living there. The property fell within the "open fields" doctrine and thus was not protected by the Fourth Amendment. The unfinished structure was not a "dwelling" under the Fourth Amendment and did not yet have the protection of curtilage. Defendant's effort to maintain his privacy through fences and signs did not afford the property Fourth Amendment protection. While on the property, the officers could look at the serial number of a stolen trailer. Morse v. State, 288 Ga. App. 725, 655 S.E.2d 217 (2007).

Extraterritorial stop of the defendants' vehicle violated the Fourth Amendment's reasonableness requirement, so the officer's statutory violation in stopping a vehicle outside of his jurisdiction required suppression of evidence flowing from the stop. State v. Jones, 2007 Ohio 5818, 2007 Ohio App. LEXIS 5113 (5th Dist. October 29, 2007). Also, the passenger's conduct was never indicative of a crime to subject him to a search. State v. Skropits, 2007 Ohio 5817, 2007 Ohio App. LEXIS 5119 (5th Dist. October 29, 2007).

Search of a cigarette package during an otherwise lawful consent search of the person was not unreasonable. Also, the fact the defendant did not object [right, like any reasonable person knew he could] to the search of the cigarette package showed it was voluntary. State v. Damron, 2007 Ohio 5808, 2007 Ohio App. LEXIS 5109 (5th Dist. October 26, 2007). Comment: I confess that I still do not understand how a person who has consented to a search of the person, and the officer takes something off of him, can be expected to know that he can still object to the search of the package. The failure to limit consent after the search starts is commonly invoked by courts as a factor in consent, but I just do not buy it; people just do not know that they can but the courts do, so the courts apply it against the defendant.

Permalink 10:24:51 am, by fourth, 676 words, 579 views   English (US)
Categories: General

AZ: Any additional delay from asking for consent during a traffic stop is de minimus

Arizona holds that any additional delay after issuing defendant two warnings and defendant was [purportedly] free to go, when consent was sought, was de minimus by constitutional standards. Waiting 100 minutes for a drug dog to arrive was not unreasonable because it was based on reasonable suspicion of drug trafficking. State v. Teagle, 217 Ariz. 17, 170 P.3d 266, 516 Ariz. Adv. Rep. 18 (2007), rev. den. 2008 Ariz. LEXIS 42 (Mar. 18, 2008):

P28 At the time of this incident, Officer Greene had approximately four years experience in law enforcement and had attended numerous schools in addition to basic academy training, including three drug interdiction schools. Based on his specialized training and experience, the officer testified that the following indicators present at this traffic stop were, in combination with one another, consistent with the trafficking of illegal drugs or other criminal activity: (1) the nature of defendant's travel plans, namely, that he traveled from Florida to Phoenix in only two to three days, unusually fast for someone on vacation, and that his stated purpose for driving from Florida to Las Vegas was to play pool in a bar, yet he had no specific plans or hotel reservations; (2) the mounted cellular phones, indicating both were in use; (3) the fast-food wrappers and containers of food; (4) the luggage and clothing hung in the backseat rather than the trunk; (5) defendant's response during the first stop that he was not "aware" of anyone placing contraband in his vehicle; (6) defendant's decision to exit his vehicle and approach the patrol car during the second stop; and (7) the stop occurred in a known drug corridor.

Under State v. Gant, 216 Ariz. 1, 162 P.3d 640 (2007), defendant was arrested too far away from his car to make it subject to search incident. However, the state wins this case based on the fact that inevitable discovery would save the search because of application of the inventory doctrine, a challenge not made below. State v. Rojers, 216 Ariz. 555, 169 P.3d 651 (2007). Comment: The court faults the defendant for not putting the trial court and the state on notice of this argument and then gleans from the record enough to show that it sort of was peripherally raised because the arguments sounded like an inventory issue. This is the perverse beauty of appellate review. In this case, the court could have just said "this wasn't fully litigated below, so you lose," but it chose to go into the merits without a full record to further nail the defendant by showing that "with what we have here, this search looks OK." In this case, the defendant is faulted for not being more specific as to what he wanted to litigate because the tenor of the argument showed that he was on the right track. The bottom line is really more simple than the court allows, and it is visible to me between the lines: The defendant knew the argument and he raised it, but knew he could not win on the facts so he chose to not delve into it in detail. Been there; done that; have the lost suppression motions to prove it.

Defendant obviously felt pressure to consent, but it was [apparently] of his own making, and that did not make consent invalid. Defendant seized on one sentence in the USMJ's R&R. United States v. Tindell, 2007 U.S. Dist. LEXIS 80418 (E.D. Tenn. October 30, 2007):

Viewed in its complete context, Judge Guyton's statement means nothing more than Tindell probably felt pressure under the circumstances based on his outstanding warrant or based on the fact that the KPD officers appeared to have considerable information about his drug dealing. The key point in all of this, however, is that Judge Guyton ultimately concluded that police coercion did not contribute to defendant's statements and admissions. Judge Guyton correctly concluded in effect that the totality of the circumstances indicates that any statement by Tindell was the product of free and rational choice rather than any police coercion. There is ample case law supporting Judge Guyton's conclusion that the situation in this case falls far short of the police coercion required to render a defendant's statement involuntary. ...

Permalink 10:21:24 am, by fourth, 1266 words, 576 views   English (US)
Categories: General

Discovery request for computer search protocol was denied as irrelevant to applying the exclusionary rule

Defendant sought discovery under Fed. R. Crim. P. 16(a)(1)(E) for the government's computer search protocols, just to see if there was a basis for a suppression motion. The court finds it irrelevant to application of the exclusionary rule because some deviations from the protocols are permitted. Also, when the evidence is offered, there may be some other basis for excluding, but not the search. United States v. Fumo, 2007 U.S. Dist. LEXIS 80543 (E.D. Pa. October 30, 2007). Because of the ubiquity of computer searches in everyday practice of computer searches, I quote a lot from this case:

When a defendant's Fourth Amendment rights have been violated by a search or seizure of his property, "the principal means today for effectuating the rights secured by the Fourth Amendment is through the judicially created exclusionary rule." United States v. Christine, 687 F.2d 749, 757 (3d Cir. 1982). If a seizure pursuant to a warrant is overbroad, the appropriate remedy is exclusion from use at trial of evidence outside the scope of the warrant. Id. This suppression remedy is available under Rule 12(b)(3)(C), which lists "motion to suppress" as one of five types of pretrial motions. To facilitate the making of this motion, Rule 12(b)(4) allows the government, "[a]t the arraignment or as soon afterward as practicable" to "notify the defendant of its intent to use specified evidence at trial." Thus, if Fumo later discovers that evidence offered by the government is beyond the scope of the items described in the warrants, he should file a motion to suppress individual exhibits.

The search protocols and keywords used by the government are irrelevant to the decision whether the warrants were overbroad or the seizures exceeded the scope of the warrants. In both cases, the constitutionality of the warrants and of the seizures of particular documents can be determined by examining only the warrants and the evidence.FN5

5. Fumo does not argue that the warrants permitting the searches and seizures were in any way deficient, so I assume, when necessary, that they were not.

Individual documents offered into evidence might be subject to suppression because (1) the warrants allowing the seizures were overbroad, or (2) the seizure exceeded the scope of the warrants. First, if evidence offered by the government for admission at trial is the result of seizure pursuant to an overbroad warrant, overbreadth can be determined from the face of the warrant, and no further discovery is necessary. See, e.g., Klitzman, Klitzman & Gallagher v. Krut, 744 F.2d 955, 960 (3d Cir. 1984) (referring only to the inclusive language in a warrant authorizing a search of a law office to determine that the warrant was overbroad). The warrant can be evaluated and, if necessary, redacted; evidence seized pursuant to the offending portions of the warrant can be excluded. Christine, 687 F.2d at 758 ("Materials seized under the authority of those parts of the warrant struck for invalidity must be suppressed, but the court need not suppress materials seized pursuant to the valid portions of the warrant."). No information about search protocols or keywords is necessary or relevant to the analysis.

Second, if the seizure exceeded the scope of the warrant, this will be apparent when the evidence offered is compared to the description on the face of the warrant of items to be seized and when defense counsel questions the proponent of the evidence about the circumstances of its seizure. Cf. United States v. Coleman, 805 F.2d 474, 483 (3d Cir. 1986) (noting that "[t]o the extent material outside the list [contained in the warrant] was seized, the district court properly determined that that material could be suppressed"). Again, information about search protocols or keywords is unnecessary and immaterial to the determination. Therefore, I will deny Fumo's motion to compel.

Regardless of the search protocols or keywords used by the government, the government may open and briefly examine each computer file to determine whether it is within the description recited in the warrant. The Supreme Court has been clear that a search need not be conducted in the least intrusive manner. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995). For example, in a search of a file cabinet, the government may examine briefly many documents in the course of looking for a particular document: "In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized." Andresen v. Maryland, 427 U.S. 463, 482 n.11, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976). The Third Circuit expanded on this observation, adding that "no tenet of the Fourth Amendment prohibits a search merely because it cannot be performed with surgical precision." Christine, 687 F.2d at 761. Instead, "flexibility is especially appropriate in cases involving complex schemes spanning many years that can be uncovered only by exacting scrutiny of intricate financial records." Id. These rules are particularly applicable in the case of documents on computers, where files may be disguised, relevant documents may be intermingled with irrelevant ones, and "there is no way to know what is in a file without examining its contents." United States v. Hill, 459 F.3d 966, 978 & n.14 (9th Cir. 2006); see also United States v. Vilar, No. S305CR621KMK, 2007 U.S. Dist. LEXIS 26993, 2007 WL 1075041, at *35-38 (S.D.N.Y. Apr. 4, 2007). For these reasons, search protocols and keywords do not mark the outer bounds of a lawful search; to the contrary, because of the nature of computer files, the government may legally open and briefly examine each file when searching a computer pursuant to a valid warrant.

In support of his argument that "forensic investigators are not permitted to randomly peruse computer data simply because they have lawfully seized digital media" (Def.'s Mem. 5), Fumo cites United States v. Carey, 172 F.3d 1268 (10th Cir. 1999). In Carey, a computer technician and detective searching computer files for evidence of drug sales happened upon one image of child pornography in the course of their search. Id. at 1270-71. The Tenth Circuit held that they exceeded the scope of the warrant when they abandoned the original search and began looking for other pornographic images, id. at 1276, noting that the file cabinet analogy was "inadequate" and "inapposite," id. at 1275. The court, however, limited its holding to the facts of the case. See id. at 1276 ("[W]e are quick to note these results are predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result."). Additionally, the Tenth Circuit has narrowly construed the holding of Carey to be the truism that "law enforcement may not expand the scope of a search beyond its original justification." United States v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). Evidence seized must simply be "consistent with the probable cause originally articulated by the ... judge." Id. at 1268-69. As noted above, this comparison may be performed without reference to search protocols and keywords.

For the reasons set out above, there is no requirement that the government, in executing a warrant, limit itself to its search protocols or keywords, so long as the search and seizure actually conducted are supported by the probable cause and within the scope of the particular descriptions recited in the warrants. Because deviations from search protocols and keywords are permissible, knowledge of those protocols and keywords will not allow Fumo or a court to draw conclusions about the reasonableness of the search actually conducted. If the evidence is within the scope of the warrant, it will be admissible. If it is not, it will be suppressed unless an exception to the warrant requirement applies.

Permalink 09:06:15 am, by fourth, 437 words, 465 views   English (US)
Categories: General

Judge allegedly aware of drug activities by representing defendant's husband 11 years earlier was not shown to be not neutral and detached

Judge who previously represented defendant's husband more than a decade earlier who issued search warrant for her property was not shown to be not neutral and detached. United States v. Barry-Scott, 251 Fed. Appx. 983, 2007 FED App. 0758N (6th Cir. 2007) (unpublished):

Barry-Scott also appeals the district court's denial of her motion to suppress the search of her residence, arguing that the judge who issued the warrant was not neutral and detached because he previously represented her and her husband around 1994-95 and was aware of their drug activities. The Government argues that the judge was sufficiently neutral and detached and, in any event, the good faith exception would apply even if the warrant were lacking.

. . .

In this case, the evidence seized is admissible because the record does not establish that the judge was not neutral and detached and, even if he were not, the warrant was sufficiently grounded in probable cause for the officers to reasonably rely upon it. Barry-Scott has not shown that the judge had any specific personal knowledge of her or her husband that was detrimental to her or that had any impact on his issuance of the warrant. Neither has Barry-Scott shown that the judge had a personal, pecuniary or substantial interest in the outcome of the search or that he was too closely tied to the functions of law enforcement. Without such evidence, there is nothing to suggest that the judge abandoned his role as a neutral and detached judicial officer. Thus, the decision of the district court based upon these same factors was not clearly erroneous.

However, even if it were shown that the judge was not neutral and detached, the good faith exception to the exclusionary rule would apply. The warrant was based upon a three-month investigation that included controlled buys, which were recorded and some of which were witnessed by the officer requesting the warrant. The warrant on its face, to a reasonable officer, was sufficient to support a finding of probable cause.

During appellant's four minute traffic stop, during which the computer check was completed, the defendant validly consented to a search of his vehicle which produced cash. United States v. Huerta, 252 Fed. Appx. 694 (5th Cir. 2007)* (unpublished).

Reasonable suspicion was based on excessive nervousness plus driving a rental car 1200 miles to see her family and return in one day. United States v. Contreras, 506 F.3d 1031 (10th Cir. 2007).*

Protective sweep of apartment occurred while the police were obtaining a warrant, and the product of the protective sweep did make it into the affidavit for the warrant, so the search would not be suppressed. Commonwealth v. Avellar, 70 Mass. App. Ct. 608, 875 N.E.2d 539 (2007).*

Permalink 08:10:18 am, by fourth, 637 words, 1633 views   English (US)
Categories: General

9th Cir.: Misdemeanor FTA bench warrant permits entry to arrest

"Consistent with the decisions of other federal courts to consider the issue, we hold that police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter that person's residence to the extent necessary to execute the warrant" even for a misdemeanor under Payton. United States v. Gooch, 506 F.3d 1156 (9th Cir. 2007):

The Ninth Circuit has not previously had occasion to decide whether a misdemeanor bench warrant for failure to appear--as opposed to a felony arrest warrant--is sufficient to permit entry into a residence under Payton. The Second Circuit, however, in United States v. Spencer persuasively reasoned that the Court's decision in Payton permits entry into a residence to effectuate a valid arrest warrant, regardless of the precise nature of the underlying warrant. 684 F.2d 220, 223 (2d Cir. 1982), cert. denied, 459 U.S. 1109, 103 S. Ct. 738, 74 L. Ed. 2d 960 (1983). Rejecting an argument identical to the one that Gooch makes here--that a misdemeanor bench warrant not premised on a formal finding of probable cause does not lie within Payton's reach--the Second Circuit explained:

The decision of the New York City Criminal Court Judge to issue a bench warrant constituted a finding made by a neutral magistrate that [the defendant] had failed to appear in a pending criminal matter. We recognize that its issuance did not amount to a judicial finding of probable cause to arrest in the traditional sense .... Nonetheless, the police, armed with the warrant, had authority to find and seize [the defendant] anywhere they could find him for his failure to appear in court. Thus, the presence of the police in the defendant's room was pursuant to a direction made by a neutral magistrate. Defendant's rights under the Fourth Amendment require no more.

684 F.2d at 223 (citing Payton, 445 U.S. at 582 n.17, 586 n.24); see also id. at 223-24 ("[T]he courts, in striving to safeguard a suspect's Fourth Amendment rights when he is arrested at home, emphasized the necessity that a warrant be issued by a neutral magistrate. . . . In determining reasonableness, the nature of the underlying offense is of no moment.").FN1

1. The holding in Spencer, permitting entry into a residence based on a misdemeanor arrest warrant or a bench warrant for failure to appear, has been followed in similar cases with near uniformity by the federal courts. See Shreve v. Jessamine County Fiscal Court, 453 F.3d 681, 689 (6th Cir. 2006); United States v. Clayton, 210 F.3d 841, 843-44 (8th Cir. 2000); Cogswell v. County of Suffolk Deputy Sheriff's Dept., 375 F. Supp. 2d 182, 187-88 (E.D.N.Y. 2005); United States v. Ray, 199 F. Supp. 2d 1104, 1112-13 (D. Kan. 2002); Smith v. Tolley, 960 F. Supp. 977, 991-92 (E.D. Va. 1997); Heine v. Connelly, 644 F. Supp. 1508, 1514-15 (D. Del. 1986).

We find the reasoning of Spencer persuasive, and affirm the district court's denial of Gooch's motion to suppress. We hold that a valid arrest warrant issued by a neutral magistrate judge, including a properly issued bench warrant for failure to appear, carries with it the limited authority to enter a residence in order to effectuate the arrest as provided for under Payton. The Fourth Amendment presumption against warrantless entries into the home is designed to protect privacy interests against uncabined police discretion. Payton, 445 U.S. at 586 ("[W]e have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions [into the home]."). Those interests are sufficiently safeguarded when an entry is premised on the execution of a valid arrest warrant issued by a judge or magistrate, regardless of whether that warrant is for a felony, a misdemeanor, or simply a bench warrant for failure to appear. Here, the police held a valid warrant for Conn's arrest, a warrant that bore the confirmed address of the residence police entered after following Conn. The entry and subsequent search for Conn were reasonable and permissible under Payton and the Fourth Amendment.

11/01/07

Permalink 11:35:34 am, by fourth, 619 words, 657 views   English (US)
Categories: General

MA: Leaving belongings by side of road when moving and calling another to pick them up was not an abandonment, but it was a relinquishment of a reasonable expectation of privacy

Defendant who left his belongings at the side of the road in plastic bags along with a TV set after moving out of a mobile home who called somebody to assist in picking them up did not abandon them. He did, however, have a reduced expectation of privacy from the placement and appearance of the property. The defendant had been arrested, and the police decided to go back and take the property as evidence. Commonwealth v. Nattoo, 70 Mass. App. Ct. 625, 876 N.E.2d 431 (2007):

The reason that the defendant's motion to suppress fails is because of his inability to establish that his subjective expectation of privacy was reasonable. Unlike certain exceptions to the warrant requirement, where the burden of demonstrating that an exception applies is allocated to the Commonwealth, here the defendant "must bear the threshold burden of showing that a warrantless search or seizure occurred." Commonwealth v. Bly, 448 Mass. at 490, citing Commonwealth v. D'Onofrio, 396 Mass. 711, 714-715 (1986). Put differently, before a defendant may thrust on the Commonwealth the burden of justifying why a warrant was not obtained, that defendant must establish initially that a search in the constitutional sense has occurred. See Commonwealth v. D'Onofrio, supra at 714 ("Unless the defendants had a reasonable expectation of privacy at [the premises] when the officer made observations there, there was no 'search' within the meaning of the Fourth Amendment"). In these circumstances, the defendant must demonstrate both that he had a subjective expectation of privacy and that society would recognize such expectation as reasonable. See Commonwealth v. Mamacos, 409 Mass. at 639; Commonwealth v. Montanez, 410 Mass. at 301.

. . .

The defendant indeed may not have relinquished his purpose, which was to retain the property without interference by others. He did, however, surrender control of the property in a manner that was inconsistent with a reasonable expectation that the bags would be left undisturbed. "In evaluating the reasonableness of an individual's expectation of privacy, we look to a number of factors, including ... whether the defendant controlled access to the area ... and whether the area was freely accessible to others." Commonwealth v. Montanez, 410 Mass. at 301-302. "[A]n individual can have only a very limited expectation of privacy with respect to an area used routinely by others." Sullivan v. District Ct. of Hampshire, 384 Mass. 736, 742 (1981). We look also to whether a defendant "has taken normal precautions to protect his privacy." Commonwealth v. Berry, 420 Mass. 95, 106-107 & n.9 (1995) (cigarettes and matches left on counter in public area of police station; expectation of privacy not reasonable).

Here, the defendant left his property by the side of the road. He could not reasonably have been confident that the bags would not be taken by a traveler who thought that the contents had been discarded, or who had no concern whether the bags belonged to another. Nor could he rely reasonably on an assumption that a passerby would not look in the bags. While, as the judge noted, there was no evidence regarding the level of use of the road, it is not disputed that the road was available for public use. "It is well established that, in general, government agents may make a warrantless search of areas in which the public has free access ...." Commonwealth v. Krisco Corp., 421 Mass. 37, 42-43 (1995), citing United States v. Hall, 47 F.3d 1091, 1095 (11th Cir.), cert. denied, 516 U.S. 816 (1995). The facts here differ considerably from those of Commonwealth v. Straw, 422 Mass. 756, 758-762 (1996) (locked briefcase thrown into fenced-in curtilage), and Commonwealth v. Small, 28 Mass. App. Ct. at 535-536 (reasonable expectation of privacy where luggage in airline transit unclaimed for three hours). The police had no less a right to look in the bags, or to carry them away, than did any passerby.

Comment: The logic of this opinion is compelling, and one cannot quarrel with it.

Permalink 06:20:15 am, by fourth, 192 words, 478 views   English (US)
Categories: General

Religious items can be reasonable suspicion when combined with other factors

Religious items can be reasonable suspicion when combined with other factors. United States v. Baranoff, 2007 U.S. Dist. LEXIS 80095 (N.D. Fla. October 29, 2007):

In this case, the strong smell of the cleaning liquid, the religious items in and on the van, and the Defendant's nervous behavior, combined with Deputy Condy's training and experience in narcotics investigations all created a set of circumstances giving him "reasonable suspicion that an additional crime was being committed".

2254 petitioner was denied relief because the findings of the state court were fully supported by the evidence (28 U.S.C. § 2254(d)) that petitioner abandoned the property and disclaimed any interest in it. Ramirez v. Phillips, 2007 U.S. Dist. LEXIS 79936 (S.D. N.Y. October 30, 2007).* (Comment: This case is part of what is a noticeable shift from Stone v. Powell being an absolute bar to § 2254(d) being a factual and legal bar under AEDPA. In this case, Stone was an alternative finding.)

Defendant police officer was entitled to qualified immunity for plaintiff's arrest. The officer actually had probable cause before the arrest, and he prudently chose to keep investigating. Plaster v. Boswell, 2007 U.S. Dist. LEXIS 80197 (W.D. Va. October 30, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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