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On de novo review of the USMJ's R&R, the affidavit for search warrant was devoid of probable cause, and no reasonable officer could rely upon it. United States v. Medina-Rodriquez, 2007 U.S. Dist. LEXIS 94196 (D. Minn. December 21, 2007):

Most importantly, there is no information in the affidavit that officers confirmed that the person seen leaving the Colfax residence actually resided at the residence. Nor is there any information included in the affidavit that officers conducted surveillance of the residence over a period of time to confirm that the residence was likely connected to illegal activity, or information from a reliable confidential informant that illegal activity took place at the residence.

In summary, the probable cause supporting the warrant for the Colfax Avenue North address is based solely on generalized information concerning "a group of Mexican nationals selling cocaine and Heroin in the Minneapolis/St. Paul area" and one controlled buy involving an individual that may or may not reside at the Colfax residence.

The good faith exception established in Leon should not be applied in certain circumstances. Id., 468 U.S. at 923. One such exception is where "an affidavit [is] 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" Id. (quoting Brown v. Illinois, 422 U.S. 590, 610-611, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)). The Court finds that this exception applies in this case. Probable cause is not just lacking, it is practically nonexistent.

In a § 2255 case, the court finds that the search was valid, and the failure to deliver a copy of the warrant did not convert the search into a warrantless search nor did it prejudice the defendant. Garcia v. United States, 2007 U.S. Dist. LEXIS 94474 (W.D. Tex. November 28, 2007).*

Defendant's consent was valid. A part of the consideration was the fact that he had twice before refused consent. United States v. Kamil Madfoun Al-Esawi, 2007 U.S. Dist. LEXIS 94580 (D. Minn. October 31, 2007).*

Search of a church office computer of the pastor was unconstitutional. The operational realities of the workplace are to be considered. And, the defendant had a subjective expectation of privacy in his office computer. The fact that his superiors in the church could enter the office did not mean that the police could, too. State v. Young, 2007 Fla. App. LEXIS 20515 (Fla. App. 1DCA December 26, 2007):

Although the district superintendent had personal authority to enter Young's office, and to authorize others to do so, this authority did not displace the law enforcement officers' obligation to respect Young's independent constitutional rights and it did not rise to the level of "common authority" required for valid third party consent. Neither Moreland nor Neal had ever used Young's workplace computer, worked in his office, or kept property there. Instead, the office was kept locked, and the church had no specific policy giving church officials the right to control and use the office. No testimony at the suppression hearing revealed that any church officials had ever exerted such authority over the office. Thus, the State failed to meet its burden to prove that the officials had common authority under constitutional standards, and there was no showing that Young assumed the risk that church officials would invite police officers in to search the office.

New Mexico holds that the exclusionary rule is inapplicable in civil abuse and neglect proceedings. State ex rel. Children, Youth & Families Dep't. v. Michael T., 2007 NMCA 163, 143 N.M. 75, 172 P.3d 1287 (2007):

[*11] An abuse and neglect proceeding is not a criminal prosecution. See In re Pamela A.G., 2006 NMSC 19, P 12, 139 N.M. 459, 134 P.3d 746 (holding that the confrontation clause of the Sixth Amendment to the federal constitution does not apply because "neglect and abuse proceedings are civil proceedings"). Instead, abuse and neglect proceedings are brought on behalf of children by the state. NMSA 1978, § 32A-4-10 (2005). A stated purpose of the Children's Code is "to provide for the care, protection and wholesome mental and physical development of children ... and then to preserve the unity of the family whenever possible. The child's health and safety shall be the paramount concern." NMSA 1978, § 32A-1-3(A) (1999) (emphasis added). Under the Abuse and Neglect Act, "the paramount concern [in determining custody is] the child's health and safety." NMSA 1978, § 32A-4-7(D) (2005).

[*12] Father argues that abuse and neglect proceedings are quasi-criminal in nature and that extending the exclusionary rule is consistent with New Mexico's policy protecting Father's liberty interest in raising his children. Father's argument based on his rights as a parent ignores the underlying purpose of abuse and neglect proceedings and the Children's Code, which is to protect the rights of children. While this abuse and neglect proceeding may ultimately result in termination of Father's rights to parent his children, the purpose of the proceeding is to protect the children, not to punish Father. Because the nature of the proceeding is to protect the interests and well-being of the children, the purposes of the exclusionary rule-deterring unreasonable searches and seizures (under the United States Constitution) and preserving the status quo in order to protect a person's liberty interest (under the New Mexico Constitution)-would not be advanced if the evidence is suppressed.

[*13] We have found no cases, and the parties do not cite to any, in which any other jurisdiction has applied the exclusionary rule in the context of abuse and neglect proceedings. Other jurisdictions that have addressed the issue have held that the exclusionary rule should not apply in civil abuse and neglect proceedings because it may thwart the State's interest in the protection of children.

911 dispatcher is included within the "collective knowledge" requirement. (See also People v. Ewing posted 12/23.) Government's argument defendant lacked standing to challenge his stop as a passenger is rejected (pre-Brendlin). United States v. Wehrle, 2007 U.S. Dist. LEXIS 94110 (S.D. Ga. January 29, 2007).*

Defendant failed to show standing in the truck he was driving, but, even if he did have it, he consented to the search of the truck. United States v. Figueroa-Espana, 511 F.3d 696 (7th Cir. 2007).*

Where plaintiff did not allege a § 1983 violation and proceeded directly under the Fourth and Sixth Amendment, the case could not be removed to federal court because there is no claim directly under the Fourth Amendment cognizable in federal court. Phillips v. Sacramento County, 2007 U.S. Dist. LEXIS 94489 (E.D. Cal. December 27, 2007).*

Informant was corroborated by officers before they sought a search warrant, so there was probable cause. United States v. Alford, 2007 U.S. Dist. LEXIS 93989 (E.D. Ky. December 20, 2007).*

NYC Taxi & Limousine Commission trip records are subject to seizure (by the City's admission), but it is reasonable. The court had already upheld the regulations in Alexandre v. New York City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D. N.Y. September 28, 2007) (posted here). Buliga v. New York City Taxi Limousine Comm'n, 2007 U.S. Dist. LEXIS 94024 (S.D. N.Y. December 21, 2007):

With one possible exception, Buliga has not shown a reasonable expectation of privacy in any of the information that will be collected under the new rule. It is well established that there is no Fourth Amendment protection accorded information about the location and movement of cars on public thoroughfares. See United States v. Knotts, 460 U.S. 276, 281-82 (1982) (use of a beeper to signal location and movements of automobile); Morton v. Nassau Cty. Police Dep't, No. 05 Civ. 4000, 2007 WL 4264569, at *3 (E.D.N.Y. Nov. 27, 2007) (GPS device in car) (collecting cases); Alexandre, 2007 WL 2826952, at *9 (GPS system in taxicabs). Taxicabs in New York City have long been subject to regulation by the TLC, and those regulations have required cabdrivers to report not only the times and locations of trips but also the amount of fares. See 35 R.C.N.Y. § 2-28(a) (2003) (requiring drivers to report trip starting and ending times and locations and fare amounts, among other information).

After discussing the facts and contentions at length, defendant's consent to search his apartment of three weeks and a suitcase inside was consensual. United States v. Porras-Quintero, 2007 U.S. Dist. LEXIS 94047 (S.D. N.Y. December 21, 2007).*

Defendant had guest standing, but he loses on the merits of the search under a search warrant. United States v. Brooks, 2007 U.S. Dist. LEXIS 94173 (E.D. N.Y. December 21, 2007)*:

After reviewing the record, it appears to this court that at the very least, defendant was an overnight guest at the premises searched, and therefore has standing to challenge the legality of the search and seizure. Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (overnight guests have a reasonable expectation of privacy in the home). Defendant has never disputed that the clothing seized, and now lost, was his. The presence of that clothing at the house when it was searched indicates his status, at a minimum as an overnight house guest, if not a resident, and this court therefore finds that he has standing to challenge the legality of the search.

Affidavit for a search warrant is different that an affidavit to show probable cause for an arrest. The former is to specifically identify property, things, or persons for which there is probable cause to seize. The latter requires probable cause to believe that the person committed a crime, so it may require a greater explanation of probable cause. (See Treatise § 3.2.) United States v. Abdallah, 2007 U.S. Dist. LEXIS 94089 (S.D. Tex. December 26, 2007):

Abdallah's argument that probable cause to support a warrantless arrest requires the same quantum of proof as probable cause to support a search warrant is not persuasive. "[W]hile it is true that there is ... common ground for discussing the quantum of evidence required under the Fourth Amendment's probable cause test, it does not follow that probable cause for arrest and probable cause to search are in all respects identical." 2 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.1(b) (4th ed. 2004). Probable cause to arrest exists "when the totality of the facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense." Glenn v. City of Tyler, 242 F.3d 307, 313 (5th Cir. 2001) (citing Spiller v. Texas City, 130 F.3d 162, 165 (5th Cir. 1997)). A probable-cause determination for the issuance of a search warrant is a "practical, common-sense decision as to whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Cavazos, 288 F.3d 706, 710 (5th Cir. 2002) (quoting United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994)); see also Kohler v. Englade, 470 F.3d 1104, 1109 (5th Cir. 2006) ("Probable cause [to support a search warrant] exists when there are reasonably trustworthy facts which, given the totality of the circumstances, are sufficient to lead a prudent person to believe that the items sought constitute fruits, instrumentalities, or evidence of a crime.") (citing Gates, 462 U. S. at 238-39). "In the case of arrest, the conclusion [that probable cause exists] concerns the guilt of the arrestee, whereas in the case of search warrants, the conclusions go to the connection of the items sought with the crime and to their present location." 2 LAFAVE, SEARCH AND SEIZURE § 3.1(b).

The Fifth Circuit has stated that an affidavit supporting a search warrant is sufficient to establish probable cause if the affidavit "make[s] it apparent ... that there is some nexus between the items to be seized and the criminal activity being investigated." Kohler, 470 F.3d at 1109 (citing Warden v. Hayden, 387 U.S. 294, 302, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967)). In analyzing the sufficiency of an affidavit supporting a search warrant, a court "start[s] with the general proposition that a search warrant, unlike an arrest warrant, may issue, without the slightest clue to the identity of the criminal, if there is probable cause to believe that the fruits, instrumentalities, or evidence of criminal activity are located at the place to be searched." United States v. Webster, 750 F.2d 307, 318 (5th Cir. 1984) (citing 1 LAFAVE, SEARCH AND SEIZURE § 2.1(b) (1978)). It is not necessary for an affidavit accompanying a search warrant to allege specific intent on the part of an alleged perpetrator to establish probable cause to search the location identified in the affidavit.

Prisoner stated a § 1983 claim sufficient to survive Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915A(b), screening. The allegation here was a baseless prison body cavity search conducted in the presence of other guards, including a female guard, without emergency. At the minimum, he can attempt to prove nominal and punitive damages. The district court erred in summary dismissal. Hutchins v. McDaniels, 512 F.3d 193 (5th Cir. 2007). (Comment: PRLA cases are not cited here because there are many that end up on Lexis, but seldom does one survive. This one did.)

In Brooks v. Neb. DMV, 2007 U.S. Dist. LEXIS 94168 (D. Neb. December 26, 2007), "Plaintiff here alleges that Defendant Bell pulled his gun out and yelled profanities at Plaintiff during his arrest. Liberally construed, Plaintiff alleges that Defendant Bell knocked him to the ground after he was already handcuffed and cooperating. (Filing No. 1 at CM/ECF p. 3.) Plaintiff has set forth enough facts to nudge his claims against Defendant Bell across the line from conceivable to plausible. As a result, Plaintiff's claims against Defendant Bell may proceed." The claim against the DMV is dismissed under the Eleventh Amendment.

Hawai'i decides a case on reasonable suspicion from where the officer had reason based on the timing of defendant's reappearence on the streets after a prior arrest for driving without a license. The court provides an insightful look into how the timing of the second sighting can provide reasonable suspicion. There was a dissenting opinion, too. State v. Spillner, 116 Haw. 351, 173 P.3d 498 (2007):

Spillner challenges this conclusion as applied to the instant matter. He contends that, regardless of how close in time prior criminal activity is with current activity of a similar nature, the prior activity cannot be a factor in the analysis of reasonable suspicion and that an officer's prior knowledge of past violations, standing alone, can never, as a matter of law, authorize a traffic stop predicated solely upon the officer's suspicion that a driver is committing the offenses of driving without a license or driving without adequate insurance.

This absolutist proposition is demonstrably flawed. Let us posit that, late one evening, an officer effects a valid traffic stop of a vehicle after witnessing an uncontested violation of the traffic or vehicle safety codes and, incidental to that valid stop, the officer discovers that the driver is not merely without his or her license but is, in fact, unlicensed to drive in the jurisdiction. Upon encountering the same individual later the same evening, once again driving -- at a time during which the license-issuing authority has not yet reopened -- the officer would have more than reasonable suspicion to effect a second brief traffic stop of the driver to investigate whether he or she is driving without a license. Reasonable suspicion can, therefore, be established that the defendant has fixedly refused to cease prior criminal behavior, personally observed by the officer, absent other observed violations of the traffic or safety codes.

Even in light of a more protracted interval, however, during which the individual could have corrected the former criminal behavior, a police officer may nevertheless have reasonable suspicion that the person has, in fact, failed to amend his or her behavior. To extend the hypothetical, if the second encounter occurs after the licensing authority has reopened, it would then be conceivable for the defendant to have renewed his or her license in the interim -- the realistic likelihood of the defendant doing so increasing with the passage of time -- but, depending on the particular facts informing the officer's decision, reasonable suspicion could still warrant effecting a traffic stop of the driver, despite the possibility of innocence, because "[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct," Arvizu, 534 U.S. at 277; see also United States v. Cortez-Galaviz, 495 F.3d 1203, 1208 (10th Cir. 2007) ("Reasonable suspicion requires a dose of reasonableness and simply does not require an officer to rule out every possible lawful explanation for suspicious circumstances before effecting a brief stop to investigate further.") (concluding that reliance on twenty-day old information that the driver did not have insurance did not render the investigatory stop unreasonable); Decoteau, 681 N.W.2d at 806 (explaining that "[t]he reasonable suspicion standard does not require an officer to rule out every possible innocent excuse ... before stopping a vehicle for investigation," and, insofar as "[p]robabilities, not hard certainties, are used in determining reasonable suspicion," concluding that "[t]he officer's suspicion is not rendered unreasonable merely because the driver's license may have been reinstated in the intervening week").

Owner of rental units' nephew had apparent authority to consent to entry of his uncle's cabin he was caring for that he thought had intruders in it. This right was superior to the person inside who had an oral sublease never conveyed to the landlord. People v. Dean, 2007 NY Slip Op 10417, 46 A.D.3d 1229, 848 N.Y.S.2d 736 (3d Dist. 2007):

Here, "based upon an objective view of the circumstances present" (People v Adams, supra), the trooper's belief that the nephew, as the caretaker of the property, had authority to consent to the search of a rental unit that was supposed to be vacant was reasonable (see id.; ...). Stated otherwise, it was reasonable to conclude that the nephew had authority to permit the trooper to enter a rental unit that he, as well as Rolleri, believed to be empty to investigate the complaint of intruders inside (see People v McMahon, supra). While defendant apparently believed he had a right to live in the cabin based on an alleged oral sublease with the departing tenant, this arrangement was never conveyed to Rolleri or the nephew; thus, their rights, as property owner and caretaker, respectively, to permit access inside the cabin remained intact (compare People v Ponto, 103 AD2d 573 [1984]).

Defendant never specifically addressed the issue he appealed on in the motion or the hearing so he can't complain that the trial court did not rule on it. State v. Atchley, 2007 Ohio 7009, 2007 Ohio App. LEXIS 6141 (10th Dist. December 27, 2007).*

Inventory here was not shown by the state to be permitted by standard police policy. Recital of reasons for an inventory shows nothing of policy. State v. Fann, 2007 Ohio 6985, 2007 Ohio App. LEXIS 6115 (8th Dist. December 27, 2007):

[*P18] As an administrative function unrelated to a criminal investigation, an inventory search does not implicate the policies underlying the warrant requirement of the Fourth Amendment. Id. at 109. "In order for an inventory search to be constitutionally valid, it must be 'reasonable,' that is, it must be conducted in good faith, not as a pretext for an investigative search, and in accordance with standardized police procedures or established routine." State v. Wilcoxson (July 25, 1997), Montgomery App. No. 15928, 1997 Ohio App. LEXIS 3566. See, also, State v. Sarrocco (1997), 96 Ohio Misc.2d 1, 4, 707 N.E.2d 1219 ("Evidence of standardized criteria or established routine establishes that the claimed inventory search is not just a ruse for an otherwise illegal search."); State v. Corrado (Feb. 20, 1998), Lake App. No. 96-L-104, 1998 Ohio App. LEXIS 642 ("Without evidence of the policy as it relates to [containers found in a vehicle], an inventory search of such containers *** is constitutionally impermissible.").

[*P19] In analyzing the State's argument, we note a distinction between "policy" and "reasons." The portion of Mesa relied on by the State sets forth the "reasons" why police departments conduct inventory searches. Thus, the testimony of the detectives basically recited the Mesa reasons, but did not provide any insight into the Cleveland police department's policy, practice or procedure when conducting an inventory search. For example, the testimony did not state that the Cleveland police department's policy is to search areas where items are protruding from enclosed areas. To the contrary, Detective Spencer testified that he generally would not search an area covering a speaker, but his "curiosity" prompted him to do so in this case. Moreover, Detective O'Donnell testified that she did not know what the police department's policy was in regard to such a search.

The affidavit for the anticipatory search warrant validly described the triggering event for execution of the warrant. (All that really doesn't matter, however, because the court also finds probable cause to search the premise regardless of the triggering event.) State v. Blevins, 2007 Ohio 6972, 2007 Ohio App. LEXIS 6109 (3d Dist. December 26, 2007). Comment: The court discusses at length, for what it is worth, the "sure and irreversible course" for triggering events, which is at least worth the read.

Knock-and-talk by three officers who started off interrogating defendant about drugs was coercive, so the consent was invalid. State v. Frye, 2007 Ohio 6941, 2007 Ohio App. LEXIS 6088 (11th Dist. December 24, 2007):

[*P27] Obviously, there were no exigent circumstances pertaining to the search of Mr. Frye's RV: this was a pre-planned, warrantless search, relying for its validity solely on his consent. Under the totality of the circumstances, that consent cannot be deemed voluntary. Three police officers, without a warrant and without probable cause, showed up at Mr. Frye's door, seeking to search his home. This implies coercion. That invalidates his consent. Cf. Robinette at 242-243. While the United States Supreme Court has refused to adopt a "waiver statement" as a requirement for showing a search is voluntary, see, e.g., Robinette at 242, in this case, the police had already obtained a written consent from Mr. Perkins to search his grounds. They could have provided a similar document to Mr. Frye when seeking to search his RV.

Doctor-patient privilege did not protect blood sample drawn by search warrant with probable cause. People v. Elysee, 2007 NY Slip Op 10172, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007).

Search of juvenile's purse was unjustified. Police received a 911 call from her mother who claimed that she was suicidal, and the police found her walking down the street carrying a blue purse. Officers seized the purse and searched it finding only a marijuana pipe. They searched the house with the mother's consent finding nothing. In re Tiffany O., 217 Ariz. 370, 174 P.3d 282, 520 Ariz. Adv. Rep. 7 (2007):

P11 There is no evidence in the record that the 9-1-1 call mentioned that Appellant had or was threatening anyone with a weapon. There was no sign of a weapon when the officers arrived on the scene, and upon their arrival, they saw no domestic violence or suicide attempt taking place. Officer Stewart testified, however, that the seizure of the purse was justified because when Mother called 9-1-1 she indicated Appellant was suicidal and, therefore, he thought there might be a weapon in the purse with which Appellant might harm either herself or him. We assume, without deciding, that this justifies Officer Stewart's seizure of Appellant's purse.

Masschusetts has previously held that surreptitious recording by a snitch in a private home violated the state constitution. In this case, a visitor was involved, and the court held that probable cause and exigent circumstances justified it. Commonwealth v. Rodriguez, 450 Mass. 302, 877 N.E.2d 1274 (2007):

We assume, without deciding, that the defendant had a reasonable expectation of privacy in the private home in which Tirado was staying. See Commonwealth v. Blood, supra at 68. Thus, a "search" and "seizure" occurred in the constitutional sense when police secretly wiretapped the defendant's conversation in Tirado's wife's home. See id. at 77 ("As to each of [the] conversations [recorded in a private home], we hold that its warrantless electronic search by surreptitious transmission and its electronic seizure by surreptitious recording were in violation of art. 14"). Even given this assumption, the interception did not violate art. 14 because it was justified by probable cause and exigent circumstances. See id. at 70 n.10 ("We do not, of course, preclude the propriety of warrantless electronic surveillance conducted on probable cause in exigent circumstances").

The defendant contends that exigent circumstances did not exist because the police were in control of the timing of the defendant's arrival at Tirado's wife's apartment and could have obtained a warrant before asking Tirado to telephone the defendant. We conclude otherwise. The police here acted reasonably throughout. A large shipment of cocaine had been addressed to and signed for by a suspect who, in the face of this incriminating evidence, denied immediately that the package was his, claiming instead that it belonged to a "friend." The police cannot be faulted for asking Tirado to contact the defendant in an attempt to substantiate Tirado's story promptly.

Once Tirado placed the telephone call to the defendant and the defendant indicated that he would be arriving in a taxicab, both probable cause and exigent circumstances were present. Tirado's initially questionable story was quickly turning into reality, and there was no time to obtain a warrant. Officer Soto's observation that a man matching Tirado's description had entered a taxicab at the address Tirado had given, and was en route to 5 Ardmore Street, further confirmed Tirado's story. We reemphasize that the standards for an exigency are strict, Commonwealth v. Forde, 367 Mass. 798, 800, 329 N.E.2d 717 (1975), and police cannot intentionally create exigencies to evade the warrant requirement. In this case, however, we conclude that the police acted reasonably in the course of their investigation, and, given the unexpected turn of events, had no opportunity to obtain a warrant. See id. at 802-803 ("where the police are conducting an investigation of continuing criminal activities, the exigency of circumstances which develop unexpectedly is not diminished by the fact that in hindsight it appears that there would have been time to obtain a warrant").

There clearly was probable cause to search the defendant's car under the automobile exception (which will not be recounted here), and the car was sufficiently mobile to justify its search, despite the fact that the officers had two people in custody away from the cars and they had the keys so confederates could not get in the cars. United States v. Smith, 510 F.3d 641, 2007 FED App. 0500P (6th Cir. 2007):

Smith suggests that the automobile exception is not applicable in the present case because the Pontiac was not mobile: at the time of the search, the officers possessed the keys and had the only two users of the vehicle under their control. However, both this court and the Supreme Court have reiterated on numerous occasions that the automobile exception is justified not only by the exigency created by the "ready mobility" of vehicles, but also by the lesser expectation of privacy operators have in their vehicles. Carney, 471 U.S. at 391; Graham, 275 F.3d at 509. This court, moreover, has upheld warrantless automobile searches in which officers were in control of both the keys to the vehicle and the operator of the vehicle. See Graham, 275 F.3d at 507-11; see also Hofstatter, 8 F.3d at 322 ("Although the government might have had time to secure a warrant to search the automobile, there was no requirement that it do so.").

Plaintiff had no standing to challenge an alleged profile stop of another, and the stops of him were with probable cause, so his case is dismissed. McCann v. Winslow Twp., 2007 U.S. Dist. LEXIS 93594 (D. N.J. December 20, 2007).*

Trial testimony about search revealed nothing that would indicate defense counsel was ineffective for not filing a motion to suppress, and petitioner's moving papers add nothing to that. Lamb v. United States, 2007 U.S. Dist. LEXIS 93804 (M.D. Fla. December 21, 2007).*

Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007) (click on the title for free link). From the summary:

The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy “reasonable.” The Court’s refusal has disappointed scholars and frustrated students for four decades. This Article explains why the Supreme Court cannot provide an answer: no one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one approach, the Supreme Court has recognized four coexisting approaches. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. Using multiple models has a major advantage over using one model. It allows the courts to use different approaches in different contexts depending on which approach most accurately and consistently identifies practices that need Fourth Amendment regulation. Explicit recognition of the four models would advance this function, resulting in more accurate and consistent Fourth Amendment rules.

Kerr is a former clerk for Justice Kennedy, and he has joined the LaFave and Kamisar casebook and hornbook series.

The table of contents:

INTRODUCTION, 504
I. THE FOUR MODELS, 507
A. The Probabilistic Model, 508
B. The Private Facts Model, 512
C. The Positive Law Model, 516
D. The Policy Model, 519
E. The Relationship Among the Models, 522
II. THE CASE FOR MULTIPLE MODELS OF FOURTH AMENDMENT PROTECTION, 525
A. The Goals of the Reasonable Expectations of Privacy Test, 526
B. Why the Proxy Models Cannot Provide Exclusive Guides to Fourth
Amendment Protection, 531
1. The Probabilistic Model, 531
2. The Positive Law model, 532
3. The Private Facts Model, 534
C. Why the Policy Model Cannot Provide an Exclusive Guide to Fourth
Amendment Protection, 536
1. Lower Courts and the Reasonable Expectation of Privacy Test, 537
2. The Instability of the Policy Model in the Lower Courts, 539
D. The Case for Multiple Models, 542
1. Supreme Court Selection Among the Four Models, 543
2. Lower Court Use of the Four Models, 545
3. The Need for Recognition of the Four Models, 548
CONCLUSION, 549

"[T]here is no constitutional right to a pre-execution contempt hearing and that administrative warrants, like criminal warrants, can be executed by means of reasonable force." In an OSHA search case, the target of the administrative warrant argued that there should be an ability to litigate the warrant before the search and seizure, but the Fifth Circuit disagreed, in a case of first impression. Trinity Marine Prods. v. Chao, 512 F.3d 198 (5th Cir. 2007):

Trinity's so-called right finds no support in the Constitution's text or history and has never been blessed by the Supreme Court. In fact, the best reading of the leading Supreme Court case on point, Marshall v. Barlow's, Inc., 436 U.S. 307, 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978), is decidedly against Trinity's claim. This is not surprising, because Trinity's argument makes no sense: Just as in the criminal context where a search by federal officers violates a suspect's constitutional rights but no charges are filed, a victim of an unconstitutional administrative search can affirmatively bring the grievance before a federal tribunal by means of a Bivens suit. There is no danger of an unremedied constitutional wrong.

. . .

At least in general practice, administrative warrants are different from criminal warrants also in how they are executed: If an employer refuses to allow OSHA inspectors to enter even with a warrant, the usual remedy is for OSHA to bring an action for contempt against the employer. This differs from a criminal warrant; with "an honest-to-goodness criminal search warrant," the government will get "hold of a sledgehammer ... and [break] down [the] door." In re Establishment Inspection of Skil Corp., 846 F.2d 1127, 1132 (7th Cir. 1988). "Although moviegoers who remember the environmental police in the movie Ghostbusters will be surprised, the practice of allowing the target of an administrative warrant to forbid entry and thereby convert the warrant proceeding into a contempt proceeding is the standard method of enforcing such warrants." Id. Indeed, "[e]ven the compliance officers of the Drug Enforcement Agency [sic] are unarmed when executing administrative search warrants ...." Id.

. . .

Citing that footnote, the ALJ ruled that we have already countenanced the use of physical force in executing administrative warrants. Trinity, on the other hand, argues that the footnote is merely dictum, because the issue of "physical force" was not before this court, and that Judge Goldberg, the author of Shellcast, did not accord the footnote precedential value in subsequent cases.

Trinity, for instance, points to language in a number of cases, some written by Judge Goldberg, that it argues demonstrates that administrative warrants cannot be executed by force. First cited is Brock v. Gretna Machine & Ironworks, 769 F.2d 1110 (5th Cir. 1985). There, OSHA obtained an administrative warrant, but the employer "refused access." Id. at 1111. Civil contempt was sought, and "Gretna answered the complaint and counterclaimed, seeking a declaratory judgment that the inspection warrant was violative of its fourth amendment guarantees." Id. We vacated the district court's decision, holding that OSHA's warrant application was "fatally defective." Id. at 1113. Before addressing the flaws in the warrant application, however, we commented on the employer's refusal to allow OSHA access to inspect, stating that "Gretna had the option of seeking to quash the warrant before execution or, as it did, refuse entry and challenge the warrant in resulting civil contempt proceedings." Id. at 1111 n.3.

The ALJ rightly noted that "[t]he threat of physical force was never at issue" in Gretna, so the statement was dictum. Moreover, the footnote does not even necessarily support Trinity's position. Although it can be read to mean that it is impermissible to execute an administrative warrant by force, it can also be interpreted more narrowly to mean that an employer has "the option" to challenge a warrant in contempt proceedings only where OSHA has elected not to execute the warrant forcefully.

. . .

Undergirding Trinity's claims are a pair of flawed constitutional policy arguments. First, Trinity argues that, because after an administrative inspection takes place any challenge to the warrant is subject to the exhaustion of administrative remedies doctrine, it follows that if pre-enforcement civil contempt proceedings are not available to an employer, OSHA can unconstitutionally inspect a facility and, if it declines to issue citations, the unconstitutional inspection will go unremedied, because there will be no administrative forum to hear the matter. But, according to Trinity, if pre-enforcement contempt proceedings are an option, the employer can protect itself against the constitutional violation by risking contempt to challenge the warrant's validity before it is executed, thus avoiding the constitutional violation before it occurs. Second, Trinity contends that because the probable cause standard in administrative warrants is lower than for criminal warrants, employers should be able to challenge an administrative warrant before it is executed.

Trinity's first purported policy justification, raised at times in a number of cases, is not convincing. There is another route to remedy whatever constitutional violations may occur in an OSHA search: a Bivens action. Though from an employer's perspective, Bivens may not be a perfect remedy, it is at least as attractive as requiring an employer to risk contempt to get pre-enforcement review of an administrative warrant. But at the same time, Bivens has an advantage that Trinity's proposal does not: We need not recognize a constitutional right to defy a duly-issued warrant.

. . .

Trinity also briefly offers a second policy justification for its argument: "One reason a criminal warrant may be enforced by force is because of the more stringent showing of probable cause required ...." But though it is hornbook law that in the wake of Barlow's there is a lower standard of probable cause for administrative warrants, it does not follow that the due process requirements for executing administrative warrants are ratcheted up as an offset.

Because the natures of the possible punishment in administrative and criminal contexts differ, with criminal punishment greatly exceeding administrative citation, and because traditionally regulatory inspections required no warrant at all, it is unremarkable that the standard for obtaining an administrative warrant is considerably less stringent than that for criminal warrants. In fact, given the heightened constitutional concern for individuals enmeshed in criminal investigations, one would expect that it would be a criminal warrant--or none at all--that the government constitutionally cannot execute by force.

Barlow's also supports the view that there is no constitutional right to pre-enforcement review of administrative warrants. There the Court for the first time required OSHA inspectors to have a warrant. This was a dramatic change in the law. The Court recognized as much and so explicitly cut back the reach of its opinion by holding that the probable cause standard ordinarily associated with warrants does not apply to administrative warrants. Barlow's, 436 U.S. at 320-21.

Comment: This, of course, only makes sense because delay in executing the warrant allows for the condition of the scene to be changed, which defeats the entire warrant process. Even a search implicating the First Amendment at best provides only a limited pre-seizure hearing because of the implication of free speech rights.

District court denied a two level enhancement under U.S.S.G. § 3C1.1 for defendant's testimony at suppression hearing that contradicted three officers' testimony. United States v. Fleming, 2007 U.S. Dist. LEXIS 93680 (N.D. Ind. December 19, 2007) (free on Pacer):

In this case, the court found that the testimony of the Government witnesses at the suppression hearing was more worthy of credence than Fleming's testimony. Despite the court's ruling, it does not automatically follow that Fleming intentionally and knowingly gave false testimony. The court's ruling at the suppression hearing was that the resolution of a credibility issue between the Defendant and the Government supported the Government's position. The court did not find that Fleming obstructed justice by knowingly presenting false testimony. While the issue concerning the existence or nonexistence of a search warrant was clearly material, it is possible that Fleming was confused and/or mistaken at the time of the search of his residence. Whether his testimony was knowingly false, or whether he was simply confused, frightened, and/or mistaken at the time the officers appeared at his residence, is not an issue on which the court made a finding during the suppression hearing. Based on the court's recollection of the testimony and Fleming's demeanor, as well as the court's review of the transcript from that hearing, the court finds that the elements of perjury were not established by a preponderance of the evidence. Put another way, the evidence and testimony presented at the suppression hearing was insufficient to establish that Fleming's recitation of the events on the day of the search was knowingly false or intentionally calculated to mislead the court. Therefore, the court concludes that a two-level enhancement pursuant to U.S.S.G. § 3C1.1 is not warranted in this case.

Trial court's credibility determination on consent was based on the fact that defendant testified to the grand jury the search was consensual, contrary to at the hearing. United States v. Billman, 257 Fed. Appx. 904, 2007 FED App. 0851N (6th Cir. 2007)* (unpublished).

Petitioner's IAC claim fails. Defense counsel did not challenge the alleged warrantless search because there was a warrant. Winston v. United States, 2007 U.S. Dist. LEXIS 93503 (W.D. Mo. December 20, 2007)* (apparently the product of a jail house lawyer; I had a CJA appeal once where the jailhouse lawyer slipped an issue by the district court that was not even litigated).

A random license check on a vehicle that showed that defendant's vehicle was uninsured justified his stop. Snedeker v. Rolfe, 2007 UT App 395, 176 P.3d 444, 593 Utah Adv. Rep. 31 (2007).

Delay of nearly 30 minutes while officer awaited arrival of a back up officer for investigation of defendant's DWI stop was not unreasonable. Belcher v. State, 244 S.W.3d 531 (Tex. App. — Ft. Worth 2007):

Balancing the public interest served with Belcher's Fourth Amendment right to be free from arbitrary detentions and intrusions, as we must, and giving almost total deference to the trial court's historical fact findings, as we must, and viewing all of the evidence in the light most favorable to the trial court's ruling, as we must, we cannot conclude as a matter of Fourth Amendment law that, given the totality of the circumstances--including Officer Willenbrock's close monitoring of Officer Martin's whereabouts and estimated time of arrival at the scene and the legitimate law enforcement purposes served by waiting for Officer Martin--the continued detention of Belcher, while awaiting Officer Martin's arrival, was unreasonable. See Sharpe, 470 U.S. at 679, 105 S. Ct. at 1575; ... see also Hartman, 144 S.W.3d at 570 (five-to fifteen-minute delay to await arrival of video camera); Smith, 2007 WL 700834, at *4 (twenty-six minute delay to await arrival of rookie officer); Dickson, 2006 WL 3523789, at *4 (twenty-minute delay to await arrival of DWI enforcement officer).

Habeas petitioner used § 2241 v. § 2254, but he did not exhaust before the state courts, and the rules are no different under the former. No COA would issue. Corbin v. Attorney General of N.J., 2007 U.S. Dist. LEXIS 93574 (D. N.J. December 19, 2007).*

When the officer determined that the man he just handcuffed was not the suspect he was looking for, the continuation of the stop became unlawful. State v. Gunn, 2007 Ohio 6874, 2007 Ohio App. LEXIS 6035 (1st Dist. December 21, 2007):

Regardless of whether Gunn had been properly stopped based on the confidential informant's tip, the moment that Officer Hennie learned that Gunn was not the suspect, the reason for detaining Gunn dissipated, and Gunn should have been free to leave unless there were some reasonable, articulable facts giving rise to a suspicion of illegal activity. Here, there were no such facts presented by the state. Officer Hennie testified that he had initially stopped Gunn because he matched the description of the suspect and because Gunn was in the area where the drug purchase had allegedly occurred. He did not testify to any other behavior that would have led him to suspect that Gunn had been involved in illegal activity. Thus, Gunn's detention became illegal when he was kept handcuffed and on his knees, after the police had learned that Gunn was not the suspect.

Probable cause to search defendant's car permitted police to seize a pair of shoes to match them to footprints at the scene of the crime. The fact the car was parked on private property was of no moment when it was found. It had just been driven and was mobile, and potentially mobile is the question. State v. Miller, 2007 Ohio 6909, 2007 Ohio App. LEXIS 6045 (4th Dist. December 12, 2007).*

Seatbelt stop led to officer seeing an empty holster in the back seat, and that justified a patdown. As defendant stepped out, the officer smelled marijuana on his person, and the feel of a baggie made it immediately apparent he was in possession of marijuana. State v. Odom, 656 S.E.2d 748, 376 S.E.2d 330 (2007).*

Officer lacked a reasonable suspicion that defendant's temporary vehicle registration was expired when he made and continued the stop, but the court stresses that its holding is limited. People v. Dean, 158 Cal. App. 4th 377 (1st Dist. 2007)* (considering California's penchant for unpublished opinions, this one seems like it should have been too).

Highway patrol officer had authority to arrest petitioner for DWI on private property in construing state statute. Brewer v. Ziegler, 2007 ND 207, 743 N.W.2d 391 (2007).*

Contents of defendant's camcorder were properly viewed by Customs when defendant returned to the U.S. after having fled when others in his conspiracy had been previously arrested. It gave further information justifying indictment. United States v. Linarez-Delgado, 259 Fed. Appx. 506 (3d Cir. 2007) (unpublished).

Information that defendant had a paid subscription to a child porn site was probable cause to search his computer. Unpaid visits not necessarily so. United States v. Diaz, 529 F. Supp. 2d 792 (S.D. Tex. 2007).*

Defense counsel was not ineffective for not moving to suppress a shirt found during a search for the weapon used in a robbery where the shirt was lawfully seized. Landry v. Cain, 2007 U.S. Dist. LEXIS 93276 (E.D. La. October 23, 2007).*

Use of a flashlight to illuminuate defendant's pocket to make what was not visible at night visible was not an unreasonable search. Gibson v. Commonwealth, 2007 Va. App. LEXIS 446 (December 18, 2007).*

Car theft is an offense that carries with it enough risk of use of weapons to justify a frisk. Independently, there were facts justifying a frisk on reasonable suspicion. United States v. Bullock, 379 U.S. App. D.C. 114, 510 F.3d 342 (2007):

In this case, once Bullock could not produce the registration information and could not identify the owner of the car, Officer Jackson possessed reasonable suspicion that Bullock had stolen the car. Like burglary, car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize police officer safety, and thus justifies a protective frisk under Terry to ensure officer safety. As the Eighth Circuit has held, "when officers encounter suspected car thieves, they also may reasonably suspect that such individuals might possess weapons." United States v. Hanlon, 401 F.3d 926, 929 (8th Cir. 2005) (internal quotation marks omitted); see also United States v. Williams, 7 F. App'x 876, 885 (10th Cir. 2001) (permissible to frisk driver prior to consensual search of potentially stolen van); United States v. Bradley, 1990 WL 124205, at *2 (6th Cir. 1990) (officers were "justified in frisking both the driver and passenger of the car that they believed to have been recently stolen" because it was reasonable to believe that a person "suspected of having recently been involved in a car theft[] might have been armed and dangerous").

. . .

Statistics show that traffic stops continue to be extraordinarily dangerous to the police officers who risk their lives to protect the public. Every year in traffic stops and pursuits in the United States, about 6,000 police officers are assaulted-and about 10 officers are killed. U.S. DEP'T OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS: LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED (2006), at http://www.fbi.gov/ucr/killed/2006/index.html. By ordering Bullock out of the car and frisking him for purposes of officer safety, Officer Jackson did not take "any unreasonable steps in attempting to ensure that he would not become one of these statistics." Holmes, 385 F.3d at 791.

Qualified immunity was improperly granted to an officer for a three hour detention of a Haitian-American who was driving a cargo van with ten cardboard barrels inside on the Taconic State Parkway in Westchester County. The officer suspected an IED, but neither a bombsniffing or a drug dog alerted. The officer had her unhandcuffed and required her to come to the stationhouse to clear it up. After a few telephone calls, the plaintiff's story checked out that she was merely driving the barrels to a shipping company that contained things the Haitian community in Westchester County was shipping home, and she was released. Gilles v. Repicky, 511 F.3d 239 (2d Cir. 2007).*

In yesterday's Washington Post is this: FBI Prepares Vast Database Of Biometrics:

CLARKSBURG, W. Va. -- The FBI is embarking on a $1 billion effort to build the world's largest computer database of people's physical characteristics, a project that would give the government unprecedented abilities to identify individuals in the United States and abroad.

Digital images of faces, fingerprints and palm patterns are already flowing into FBI systems in a climate-controlled, secure basement here. Next month, the FBI intends to award a 10-year contract that would significantly expand the amount and kinds of biometric information it receives. And in the coming years, law enforcement authorities around the world will be able to rely on iris patterns, face-shape data, scars and perhaps even the unique ways people walk and talk, to solve crimes and identify criminals and terrorists. The FBI will also retain, upon request by employers, the fingerprints of employees who have undergone criminal background checks so the employers can be notified if employees have brushes with the law.

"Bigger. Faster. Better. That's the bottom line," said Thomas E. Bush III, assistant director of the FBI's Criminal Justice Information Services Division, which operates the database from its headquarters in the Appalachian foothills.

The increasing use of biometrics for identification is raising questions about the ability of Americans to avoid unwanted scrutiny. It is drawing criticism from those who worry that people's bodies will become de facto national identification cards. Critics say that such government initiatives should not proceed without proof that the technology really can pick a criminal out of a crowd.

Aside from WaPo, it appeared on FreeInternetPress.

This isn't a hidden issue: A web search also produced the budget justification from the FBI, and websites that appear to be the FBI's and other government biometric specifications website.

The collective knowledge doctrine should be extended to include 911 operators. Surveying the case law, this view seems better to the court, but the officers had reasonable suspicion in any event. People v. Ewing, 377 Ill. App. 3d 585, 880 N.E.2d 587 (4th Dist. 2007):

The Illinois courts have yet to address whether information known to a civilian 9-1-1 dispatcher may be imputed to the police officers. Several federal circuits have extended the collective-knowledge doctrine to situations involving a dispatch by a civilian 9-1-1 operator as opposed to another police officer. See United States v. Fernandez-Castillo, 324 F.3d 1114, 1118 (9th Cir. 2003); United States v. Kaplansky, 42 F.3d 320, 327 (6th Cir. 1994); United States v. Cutchin, 956 F.2d 1216, 1217-18 (D.C. Cir. 1992).

The Second Circuit, however, has disagreed, finding that whether the knowledge may be imputed depends upon whether the 9-1-1 operator had sufficient training to assess the information in terms of reasonable suspicion. See United States v. Colon, 250 F.3d 130, 138 (2d Cir. 2001) (holding that the police officer had insufficient information from which to conclude that a stop and frisk was appropriate wherein the civilian 9-1-1 operator lacked the training to assess the information in terms of reasonable suspicion and failed to convey sufficient information to the police officer); see also United States v. Wehrle, No. CR406-333, slip op. at 4 (February 14, 2007), ___ F.3d ____, ____, 2007 WL 521882 (S.D. Ga. 2007) (holding that information known to the civilian 9-1-1 dispatcher could be imputed to the police officer where the dispatcher had specialized law-enforcement training).

We conclude that the cases that hold the imputed-knowledge doctrine includes information contained in calls to 9-1-1 operators are more persuasive than those holding to the contrary. However, even if we were not so persuaded, we would still conclude that the information communicated to the police officers provided them with sufficient information to form reasonable suspicion. ...

Officer candidly did not know what was in defendant's pocket; he knew it was not a weapon, and he had a hunch it was a crack pipe. That was not plain feel. State v. Daugherty, 2007 Ohio 6822, 2007 Ohio App. LEXIS 5961 (8th Dist. December 20, 2007):

[*P19] In the present case, because Detective Vanverty did not immediately identify the object as contraband, we therefore conclude that his seizure of the contraband went beyond the limits of Terry as propounded in Dickerson, supra, and Evans, supra.

[*P20] Detective Vanverth clearly stated in his testimony at the suppression hearing that the object he felt in Daugherty's pocket was "small *** probably the size of a pen, or maybe a pencil." The trial court later confirmed from the parties that the object was approximately two inches long with the diameter of a pen or a pencil. While the detective stated that he had a hunch that the object was a crack cocaine pipe, he testified numerous times that he was not sure what the object was. The limits of Evans, supra, and Dickerson, supra were clearly exceeded by Detective Vanverth's search and seizure.

A private search of a videotape that showed the defendant engaged in sexual conduct with two young girls led to the police being given the videotape, and they could view it without a warrant. State v. Robinson, 187 N.C. App. 795, 653 S.E.2d 889 (December 18, 2007):

While there appears to be no settled case law in North Carolina directly on point regarding the scope of a search involving the viewing of a videotape, we agree with the positions of the Fifth and Eleventh Circuits of the United States Court of Appeals, that "the police do not exceed the scope of a prior private search when they examine the same materials that were examined by the private searchers, but they examine these materials more thoroughly than did the private parties." United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001) (finding no constitutional violation where the police viewed more images stored on a computer disc than did the private searcher); United States v. Simpson, 904 F.2d 607, 610 (11th Cir. 1990) (holding the search of a box and viewing of videotapes by federal law enforcement agents "did not exceed the scope of the prior private searches for Fourth Amendment purposes simply because they took more time and were more thorough than the Federal Express agents"). Here, Mr. Young's viewing of the videotape did not violate the Fourth Amendment because he was a private party not acting under the authority of the State. Mr. Young's viewing of the videotape effectively frustrated defendant's expectation of privacy as to the contents of the videotape, and thus the subsequent viewing of the videotape by Detective Thompson did not violate defendant's rights under the Fourth Amendment. While Mr. Young stated that he had only viewed "portions" of the videotape, his viewing "opened the container" of the videotape and the subsequent viewing of the entire videotape was not outside the scope of Mr. Young's initial "search." Runyan, 275 F.3d at 465.

Defendant was a passenger with a person officers knew there was a warrant for, so they stopped the car. After the driver was arrested, the officers got the defendant out of the car and questioned him because they knew he had priors for drugs. He consented to a search of his apartment, and that led to finding identity theft paraphernalia. After his suppression hearing [apparently Brendlin was decided] on appeal, the state conceded he had standing because of his own stop and questioning after the purpose of the stop was complete with the arrest of the driver on old warrants. State v. Parra, 941 A.2d 799 (R.I. 2007).*

In a classic example of a scope of search being limited to that which is being sought, an officer who was permitted to enter to search for a person for whom he had an arrest warrant looked under a bed and pulled out a case and looked inside. That exceeded the scope of search. Looking in the closet was permissible, and the officer found guns. When defendant came home, the officer determined that defendant was a felon, so the seizure of the guns from the closet was valid. He pulled them out for his own safety until the search for the warranted person was complete. State v. Giamarco, 2007 Ohio 6794, 2007 Ohio App. LEXIS 5950 (5th Dist. December 3, 2007).*

Defendant's mere denial he was in possession of drugs found in his car was not "opening the door" to the state's offering evidence of his refusal of consent. He had a right to refuse consent, and this was not "opening the door" to anything. And, the state is caught parsing a quotation in its brief to leave out the part that benefits the defendant. State v. Moller, 217 Ore. App. 49, 174 P.3d 1063 (2007):

In this case, defendant exercised his constitutional right to refuse consent to a warrantless search of his car. And, the admission of evidence of that refusal invited inferences prejudicial to his defense. It would seem necessarily to follow that the trial court erred in admitting the evidence of defendant's refusal. As we have noted, the state concedes that ordinarily it is erroneous to admit evidence of a defendant's refusal to consent to a search. The state nevertheless insists that no reversible error occurred in this case because defendant, by insisting that he knew nothing of the contents of the car, invited the state to disprove the assertion with evidence of his refusal. Quoting Green, the state contends that evidence of defendant's refusal to consent to the search "is relevant in that it shows that he believed that the results [of a search] would tend to incriminate him and thus shows that he believed that he was guilty." 68 Ore. App. at 522.

The state does not explain, however, and we do not understand, how a defendant "opens the door" to testimony about a decision to invoke his constitutional rights merely by denying that he committed the crime charged. The state's reliance on Green certainly does not provide the answer to that question. The portion of the decision that it quotes is taken from this court's explanation of why evidence of a defendant's exercise of constitutional rights cannot be admitted, i.e., precisely because it may give rise to an inference that the defendant believes that he or she had something to hide. It is, we explained in the balance of the paragraph from which the state derives its quotation,

"testimony concerning the defendant's belief in the central issue of the case. For him to reveal his inner thoughts [by electing, in that case, to refuse to take a field sobriety test] is necessarily to make a communication, whether by words or by actions. For the state to compel a defendant to reveal those thoughts is to require him to testify against himself and thus to violate Article I, section 12, of the Oregon Constitution."

Id. at 522-23.

Changing the argument on appeal from the one presented to the trial court is a waiver of the argument not presented to the trial court. State v. Jones, 217 Ore. App. 110, 174 P.3d 1037 (2007).*

A Chicago federal jury awarded $15M to a man arrested in the murder and rape of his daughter and held for eight months until the DNA sample from the rape kit exonerated him. Later, other DNA evidence exonerated him, too. Fox gets $15.5 million, from the Chicago Tribune. The defense vows an appeal contending the trial judge refused to admit evidence of probable cause. The defendants were found liable for false arrest but not false imprisonment or conspiracy.

In what is believed to be the largest award of its kind in Illinois history, a federal jury Thursday awarded $15.5 million to Kevin Fox and his wife, after deciding Will County sheriff's detectives falsely arrested Fox in the sexual assault and murder of his 3-year-old daughter, Riley.

The five-man, five-woman jury held Sgt. Edward Hayes, three sheriff's deputies who worked as detectives under him and the estate of a fourth deputy liable for false arrest, violation of Fox's due-process rights, malicious prosecution and infliction of severe emotional distress to Fox and his wife. They also held the men liable for loss of consortium, a count brought by Fox's wife, Melissa.

. . .

The jury deliberated for more than 16 hours over three days at the end of the seven-week trial.

Some opinions are: Fox v. Office of the Sheriff of Will County, 2005 U.S. Dist. LEXIS 11720 (N.D. Ill. May 26, 2005), motion granted in part, denied in part, Fox v. Tomczak, 2006 U.S. Dist. LEXIS 27654 (N.D. Ill. Apr. 26, 2006).

False assertion that search warrant was coming tainted consent. State v. Tietsort, 145 Idaho 112, 175 P.3d 801 (App. 2007):

In the case before us, the district court made a factual finding, which is supported by the evidence, that before Tietsort consented to a search of outbuildings and vehicles, the officers told him that they were waiting for a search warrant to arrive. The district court also found that Tietsort's consent to a search of his outbuildings and vehicles was voluntary. In making this finding of voluntariness, however, the court did not consider whether the officers' assertions to Tietsort that they had discovered stolen items and could obtain a search warrant constituted an exploitation of any illegality in the prior search that tainted the consent and rendered it involuntary.

A consent is not rendered invalid merely because an officer has said that a warrant will be sought if consent is refused, ... but a false representation that the officer possesses a warrant amounts to coercion. Bumper v. North Carolina, 391 U.S. 543, 548-50 (1968). The State's burden to show that consent was freely and voluntarily given cannot be met by "showing no more than acquiescence to a claim of lawful authority." Id. at 548-49. The Bumper opinion explains: "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion--albeit colorably lawful coercion. Where there is coercion there cannot be consent." Id. at 550. Here, officers did not falsely represent that they possessed a warrant, but they did assert the ability and intent to obtain one. An officer's false, erroneous or baseless representation of the ability to obtain a warrant weighs against a finding of voluntariness, .... (citations omitted)

Officers had probable cause based on defendant's meeting up with CI and what they heard on the wire about drugs and counting of money. United States v. Easter, 2007 U.S. Dist. LEXIS 93235 (M.D. Pa. December 18, 2007).*

Defense counsel was not ineffective for not filing a suppression motion because it would not prevail on the merits, which the court determines under the IAC claim. There was cause for the defendant's stop and the gun was seen in plain view. State v. Altman, 2007 Ohio 6761, 2007 Ohio App. LEXIS 5935 (5th Dist. December 14, 2007).*

A school search was reasonable when it was based on a note passed that was only reasonably interpreted as a threat to kill another student. In re Garn, 2007 Ohio 6765, 2007 Ohio App. LEXIS 5941 (5th Dist. December 13, 2007).* (Comment: A threat of violence in school always leads to a search being sustained.)

Officer telling defendant that if he turned over the gun he would not be charged with it amounted to coercion for consent when defendant ended up charged in federal court. United States v. Pantoja-Ramirez, 2007 U.S. Dist. LEXIS 92835 (D. Ida. December 17, 2007):

Still later, however, Officer Hemmert states that he is going to seize the shotgun, write a ticket for drug paraphernalia, "and then I'll talk to the corporal and see what he wants to do about everything else." See Transcript at p. 5. This is as close as Officer Hemmert gets to saying that he is not offering immunity for the shotgun and that the ultimate charging decision will be made elsewhere.

The bottom line is that Officer Hemmert's attempt to procure the consent of Pantoja-Ramirez is confusing. Listening to the entire exchange, a reasonable person could conclude either that Officer Hemmert (1) offered immunity for the shotgun, or (2) offered only to defer charges now, and let someone else make the ultimate charging decision.

Such a "contradictory alternative message" has been held by this Circuit in the Miranda context to be "at best misleading and confusing, and, at worst, ... a subtle temptation to the unsophisticated" defendant to waive a right. See United States v. Connell, 869 F.2d 1349, 1352 (9th Cir. 1989). The police cannot "appear to take away with one hand what they were offering with the other." Id. at 1353 (quoting Emler v. Duckworth, 549 F.Supp. 379, 381 (N.D.Ind.1982)).

These principles apply with equal strength here. Officer Hemmert cannot appear to offer immunity, and then rely on other statements that contradict that offer. A reasonable person in Pantoja-Rameriz's position could have concluded that Officer Hammert offered immunity for the shotgun. The Court must assume that Pantoja-Rameriez's consent was based on that reasonable interpretation. When that promise was broken, the scope of the search exceeded the scope of the consent. Consequently, the Government has not carried its burden of showing that the search did not exceed the scope of the consent, and the motion to suppress must be granted.

Officer's testimony that he smelled burnt marijuana when he stopped defendants and could read the label of a prescription bottle from outside the car was found just not credible. Nothing corroborated it at all. United States v. Shields, 2007 U.S. Dist. LEXIS 92929 (W.D. Tenn. December 18, 2007):

The Government asserts that probable cause to arrest the Defendants and, therefore, to search their persons, existed at the time Carter detected the marijuana smell coming out of the window and when he observed the prescription bottle bearing the name of another. However, the Court finds that Carter's testimony with respect to the marijuana smell and the identification on the prescription bottle in Shields' lap is not credible. It is uncontroverted that there was no objective evidence, such as rolling papers, roach clips or blunts, to indicate that Defendants had been smoking marijuana in the vehicle. Nor was there any evidence presented at the hearing to suggest that a small amount of marijuana in a sandwich bag hidden in a pants pocket, or a few small stems and seeds, would exude sufficient odor to cause the "quick gush" of the smell described by the officer to emanate from the two-inch crack in the window. See United States v. Mercadel, 75 F.App'x 983 at *5 (5th Cir. 2003) (failure of police to find any evidence of recently smoked marijuana supported court's conclusion that officer's testimony that he smelled marijuana was not credible).

School district's plan to record audio in certain classrooms during the day did not raise a Fourth Amendment claim. There is no expectation of privacy as to what is said in a classroom. Plock v. Bd. of Educ. of Freeport Sch. Dist. No. 145, 545 F. Supp. 2d 755 (N.D. Ill. 2007):

What is said and done in a public classroom is not merely liable to being overheard and repeated, but is likely to be overheard and repeated. See, e.g., Evens v. The Superior Court of Los Angeles County, 77 Cal.App.4th 320, 325 (2d Dist 1999) (finding teacher's expectations that her communications would be confined to the classroom unreasonable, that such communications "will virtually never be confined to the classroom," and that students "will, and usually do, discuss a teacher's communications and activities with their parents, other students, other teachers, and administrators."). A classroom in a public school is not the private property of any teacher. A classroom is a public space in which government employees communicate with members of the public. There is nothing private about communications which take place in such a setting. Any expectations of privacy concerning communications taking place in special education classrooms such as those subject to the proposed audio monitoring in this case are inherently unreasonable and beyond the protection of the Fourth Amendment.

Plaintiff's cause of action for false arrest would have arisen on their arrest and not later production of a false consent form that they didn't even rely on. Dean v. Behrend, 2007 U.S. Dist. LEXIS 93148 (N.D. Ill. December 19, 2007).*

Searches of police officer's office telephone records was permitted under Smith v. Maryland. Searches of his office computer hard drive and his departmentally issued equipment was within the operational realities of the workplace under O'Connor v. Ortega. Ober v. Miller, 2007 U.S. Dist. LEXIS 93236 (M.D. Pa. December 18, 2007).

Nighttime knock-and-talk was coercive, particularly when the officers were inside the house asking for consent. The defendant did not have to be handcuffed to feel coerced. United States v. Reynolds, 526 F. Supp. 2d 1330 (N.D. Ga. 2007):

Once in the living room, Mr. McCord and Mr. Reynolds were not free to leave. (Henry Tr. 76-77.) Though they were not in handcuffs, the court finds that there was coercive police presence at that point. The encounter took place at night, when the appearance of police officers on one's doorstep tends to be more coercive than during the day. Ramirez-Chilel, 289 F.3d at 751 n.8. In contrast to Deputy Henry's earlier request to move to the living room, Deputy Henry simply told Mr. McCord and Mr. Reynolds that he was going to look through the house for Mr. Miles. (Henry Tr. 18, 53.) That the officers did not attempt to seek permission from either occupant to search the house indicates that the defendants were not able to refuse consent. Without specifically addressing the rest of the Ramirez-Chilel factors, the totality of the circumstances indicates that Deputy Henry's first sweep was not a consensual search, based on Deputy Henry's acknowledgment that the men were not free to leave and the coercive way in which he informed them of, rather than requested, the search. By the time of Deputy Brown's second sweep, both Mr. McCord and Mr. Reynolds were in handcuffs. (Id. at 22.) The court finds that the second sweep was likewise not consensual.

A refusal (here asking for an attorney which was held not to be a refusal) is not required for issuance of a search warrant for blood under the Arizona implied consent statute. State v. Stanley, 217 Ariz. 253, 172 P.3d 848 (2007):

P22 Search warrants may be authorized "[w]hen property or things to be seized ... constitute any evidence which tends to show that a particular public offense has been committed, or tends to show that a particular person has committed the public offense." A.R.S. § 13-3912(4) (2001). The blood identified by the affidavit clearly meets that standard. Additionally, the statute requires that "[n]o search warrant shall be issued except on probable cause, supported by affidavit, naming or describing the person and particularly describing the property to be seized and the place to be searched." A.R.S. § 13-3913 (2001). The affidavit here likewise meets that requirement. A refusal to take a test, though required to administratively revoke one's driver's license pursuant to A.R.S. § 28-1321, is not a requirement to the issuance of a search warrant in support of aggravated DUI.

The LAPD's May Day 2007 clash with Hispanics where "less than lethal force" was used was granted class certification status, including on excessive force grounds. The LAPD's own continuing investigation (Report on Mac Arthur Park Incident) was not reason for the court to defer. Multi-Ethnic Immigrant Workers Org. Network v. City of Los Angeles, 246 F.R.D. 621 (C.D. Cal. 2007):

(b) Third, Fifth, Sixth and Seventh Claims for Relief: Fourth Amendment and related state claims for excessive force.

The Fourth Amendment prohibits the use of unreasonable force in effecting a search or seizure of a suspect. The LAPD use or threat of force against the assembled crowd may constitute a seizure, although there are individual factual questions as to whether a given officer caused a particular individual to be displaced by the use or threat of force. The parties focus their arguments not on whether there was a seizure, but on whether the actions of the police officers were reasonable. Thus, Plaintiffs focus on the LAPD commanders' authorization of "less lethal" force (as distinct from the application of such force).

At the hearing on this motion, Defendants opposed certification because the LAPD is in the process of investigating which individual officers may be subject to discipline or liability. However, the scope of the Department's investigation is necessarily limited. It is difficult to determine the identity of the officers responsible for any particular injuries, because the officers wore riot gear that obscured their name tags and they fired munitions from various skirmish lines. Despite the extensive video coverage of the event, thus far the LAPD has identified only twenty-six officers for individual investigations. Hence, individualized assessments of whether an officer's use of force was reasonable will not be possible for the majority of putative class members. The LAPD's internal investigation is not a reason to defer certification.

The Court recognizes that the conduct of individual officers in the field may present individual issues of reasonableness, namely whether it was reasonable under the circumstances for a particular officer to fire less-lethal munitions, use his baton to strike people, or use other forms of force, such as pushing and shoving.

Nonetheless, the individual issues share a common source: the command decisions to disperse the crowd and to authorize the use of less-lethal munitions if the crowd's behavior warranted it. LAPD Report at 8, 34-35. Because the legality of these command decisions is the overriding common question, the predominance requirement is met as to the Fourth Amendment claim.

Defendant's consent to "look in the back" included tapping on the spare tire to listen to it. But, in this case, the spare tire was hanging under and outside the vehicle, so looking in the back had nothing to do with it. The officer's interest was piqued because it was a rental vehicle with four "fix a flat" containers, which the officer had never seen before. By the time the officer cut open the spare, there was already probable cause. United States v. Lyons, 510 F.3d 1225 (10th Cir. 2007).*

Reasonable suspicion existed after two vehicles were seen together on a road for alien smuggling after triggering a seismic device that brought attention to them. United States v. Berber-Tinoco, 510 F.3d 1083 (9th Cir. 2007).*

Search issue failed on plain error review. It involved one gun of three, and the defendant admitted his ownership of the gun to the police three months later, and it was not clear that the gun was illegally seized anyway. Finally, it was harmless. United States v. Carmelo, 257 Fed. Appx. 699 (4th Cir. 2007)* (unpublished).

Trial counsel was not ineffective for not moving to suppress the gun in the case because the gun was lawfully found under third party consent. Hendricks v. United States, 2007 U.S. Dist. LEXIS 92748 (N.D. Ohio December 18, 2007).*

Defendant had standing as an invited guest, but the inviter consented to a search of the premises. United States v. Killeaney, 2007 U.S. Dist. LEXIS 92763 (D. S.D. December 17, 2007).*

The Federal Rules Committee has proposed a new F. R. Crim. P. 41(e)(2)(B) on search warrants for electronically stored evidence, here, page 24. The comment period closes February 15, 2008, and the new rule would not be effective until December 1, 2008, at the earliest. The new rule will read as follows:

Warrant to Search for Electronically Stored Information. A warrant may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes later review of the storage media or electronically stored information consistent with the warrant. The time for the executing of the warrant in Rule 41(e) and (f) refers to the seizing or onsite copying of the storage media or electronically stored information, and not to any later review.

Comment: This is a sensible amendment that adopts the prevailing practice and case law and it removes ambiguities in warrants often litigated later, but without success. Numerous cases have challenged the later review of evidence already seized under a warrant and seldom has a court held that it could not be done under the original warrant. Also, copying of electronic information can be less intrusive than seizing the computers because the information can be copied and taken without putting the person whose records were seized out of business. Also, overbreadth issues are not lost for later litigation.

AP has this story from yesterday: Botched Raid Terrorizes Minn. Family:

With her six kids and husband tucked into bed, Yee Moua was watching TV in her living room just after midnight when she heard voices--faint at first, then louder. Then came the sound of a window shattering.

Moua bolted upstairs, where her husband, Vang Khang, grabbed his shotgun from a closet, knelt and fired a warning shot through his doorway as he heard footsteps coming up the stairs. He let loose with two more blasts. Twenty-two bullets were fired back at him, by the family's count.

Then things suddenly became clear.

"It's the police! Police!" his sons yelled.

Khang, a Hmong immigrant with shaky command of English, set down his gun, raised his hands and was soon on the ground, an officer's boot on his neck.

The gunmen, it turned out, were members of a police SWAT team that had raided the wrong address because of bad information from an informant - a mistake that some critics say happens all too frequently around the country and gets innocent people killed.

"I have six kids, and only one mistake almost took my kids' life," said Moua, 29. "We will never forget this."

No one was hurt in the raid Sunday, conducted by a task force that fights drugs and gangs, though two police officers were hit by the shotgun blasts and narrowly escaped injury because they were wearing bulletproof vests.

Police apologized to the family and placed the seven officers on leave while it investigates what went wrong.

Such mistakes are a fact of police work, some experts said.

"Does going to the wrong address happen from time to time? Yes," said John Gnagey, executive director of the National Tactical Officers Association in Doylestown, Pa. "Do you corroborate as best you can the information the informant gives you? Absolutely. But still from time to time mistakes are made."

True exigency for a meth lab search without a warrant must be more than just concern for the officer's safety, which is all they showed here. State v. Leffler, 142 Wn. App. 175, 173 P.3d 293 (2007):

In sum, the emergency exception only applies where there is an imminent threat of substantial injury to persons or property. The evidence demonstrates no such threat here. The initial response team was clearly concerned for their own safety, but that is insufficient to justify a warrantless search under the emergency exception.

Deputy Greger testified that none of the officers entered any of the buildings on the premises before the Team wearing protective gear. Additionally, Deputy Clark testified that had there been an ongoing chemical reaction, he believed that the resulting fumes would have been a danger to the surrounding area. He also pointed out that he had seen such reactions explode, but he did not testify as to the imminence of this danger.

Indiana officers had reasonable suspicion of drug trafficking for trash pulls occurring before Litchfield's new trash pull standard was decided, and they were not required to exhaust innocent explanations as a part of reasonable suspicion. Turner v. State, 878 N.E.2d 286 (Ind. App. 2007).*

Defendant's traffic stop was valid and the lack of driver's license and other factors indicated reasonable suspicion. State v. Ramsey, 2007 Ohio 6687, 2007 Ohio App. LEXIS 5863 (9th Dist. December 17, 2007).*

Glove compartment was validly searched under search incident. (Defendant also did not provide a transcript of the suppression hearing for appeal, so this was based on the trial record.) State v. Pirpich, 2007 Ohio 6745, 2007 Ohio App. LEXIS 5907 (12th Dist. December 17, 2007).*

Plain feel told officer that a baggie of crack was in defendant's pocket, and that justified a seizure. State v. Dunson, 2007 Ohio 6681, 2007 Ohio App. LEXIS 5851 (2d Dist. December 14, 2007).*

The question is close, but the court finds that the officer did not unduly extend the stop. This led to a warning from the appellate court. State v. Henry, 2007 Ohio 6732, 2007 Ohio App. LEXIS 5904 (11th Dist. December 14, 2007):

[*P44] Nevertheless, we would be remiss if we did not take this opportunity to remind law enforcement officers of the dangers of engaging in a pretextual stop in which a traffic citation is issued in a dilatory manner. The circumstances of this case present a perilously close set of facts, and we must always be mindful that "[t]he liberties of the American citizen depend upon the existence of established and known rules of law limiting the authority and discretion of men wielding the power of government." Perry & Cooper, Sources of Our Liberties, (Chicago: American Bar Association, 1959), at 1.

The defendant had no expectation of privacy to challenge a police officer's standing on property of another when the officer knocked on defendant's door. A knock on the door and a request to open it is not a seizure. People v. Terrazas-Urquidi, 172 P.3d 453 (Colo. 2007):

Terrazas-Urquidi contends that the police knocked and spoke in such a manner that a reasonable person would not have believed he was free to leave the premises or to disregard their demands to open the door. However, the trial court found that the officers had acted reasonably, stating, "[I]n plain language, if the officers had been there legally, meaning at the front door of the shed, I find that their actions thereafter were reasonable and therefore legal given the circumstances they faced." In so finding, the trial court implicitly determined that a reasonable person would not have believed that he must open the door because otherwise the court would have been compelled to hold that the police actions were unreasonable. See Mendenhall, 446 U.S. at 554 (setting forth the standard that a person is seized if a reasonable person in the same circumstances would believe that he was not free to leave).

Therefore, Terrazas-Urquidi's argument that he was illegally seized cannot prevail unless the trial court's findings are unsupported by the record. ... The record in this case includes testimony by officers who were present at the scene, and that testimony indicates that the officers knocked on the shed door, identified themselves as police, and stated that the occupant should open the door. The record does not suggest that the officers made any threats or other statements that would cause a reasonable person to believe he must open the door. Therefore, the record supports the trial court's finding that the officers acted reasonably by knocking on the door, announcing their presence, and telling the occupant to open the door.

Defendant was observed following and photographing small boys, and he was asked about it by an officer who was watching him. The defendant showed his camera and cycled through the pictures, and the officer let him keep the camera. Defendant voluntarily produced his driver's license, and the officer determined that he was a level one sex offender. The officer asked for consent to search defendant's computer at home, and the defendant was concerned that he would not get the computer back after the search. The officer explained that he would if there was nothing on the computer that was illegal. A consent form had to be signed, and it was decided that the defendant would come with the officer to the station house. He rode in the front seat, was allowed freedom of movement at the stationhouse, and then signed the consent. It was all voluntary. United States v. Randall, 2007 U.S. Dist. LEXIS 92361 (N.D. N.Y. December 14, 2007).*

Officer's questions can be unrelated to the purpose of the stop, as long as it was justified at its inception. United States v. Swan, 259 Fed. Appx. 656 (5th Cir. 2007) (unpublished):

The second prong of the Terry test is satisfied if the officer's actions after making a legitimate traffic stop were reasonably related to either the circumstances that justified the stop or to dispelling reasonable suspicion developed during the stop. A Terry "'detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop,'" but if further reasonable suspicion emerges during the stop and is supported by articulable facts, detention may continue until the new reasonable suspicion has been dispelled or confirmed. During this brief period of detention, the officer may examine the driver's license and vehicle registration, run a computer check on the driver and the vehicle, and question the driver about a wide range of matters, including those unrelated to the purpose of the traffic stop. There is no specific prohibition on the scope of permissible questioning "so long as the overall detention is justified by reasonable suspicion." Moreover, this court has eschewed any particularized limitations on the permissible investigative tools that may be utilized in connection with a Terry stop, holding that the relevant inquiry is "'whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.'"

Stop became consensual after the defendant's papers were returned, and she validly consented after that. United States v. Cardwell, 2007 U.S. Dist. LEXIS 92130 (D. Utah December 14, 2007).* (Comment: Consent on the side of the highway with two armed officers is a fiction.)

The affidavit for search warrant was 22 pages long, and it incorporated by reference a 121 page wiretap affidavit, and it provided a substantial basis for probable cause for the search of defendant's property. United States v. Morris, 2007 U.S. Dist. LEXIS 92162 (E.D. Pa. December 14, 2007).* (Comment: Picking apart that much information for a probable cause challenge seems virtually pointless. It may be good for an overview of the case, but a PC challenge is just not going to win under the "soft standard" of Gates.) In the co-defendant's case, United States v. Thompson, 2007 U.S. Dist. LEXIS 92163 (E.D. Pa. December 14, 2007), adopting the other order by reference, the court also held that the issuance of a no-knock warrant was of no consequence since the officers knocked. The co-defendant lacked standing to challenge the search of the car in the case since it was not his.

Passenger in a truck lawfully stopped was legitimately asked for his identification. Unlawful re-entry conviction was affirmed. United States v. Linares, 258 Fed. Appx. 989 (9th Cir. 2007)* (unpublished).

The district court properly granted summary judgment because there was probable cause for plaintiff's arrest and no Franks violation. Browne v. Gossett, 259 Fed. Appx. 928 (9th Cir. 2007)* (unpublished).

An Illinois judge today denied murder "person of interest" Drew Peterson's request for return of property seized under a search warrant after just a five minute hearing, as reported on CNN.com:

Attorneys for Drew Peterson have stated that authorities had ample time to examine items seized since Stacy Peterson went missing in late October.

But on Monday they said that Will County Judge Daniel Rozek's ruling was reasonable.

Attorney Joel Brodsky said the judge plans to reconsider the issue next month.

"Forensics are very intricate, detailed," Brodsky said after a five-minute hearing. "It's only been seven weeks and we're happy the judge is going to keep a leash on them."

Computers and cars were seized, and Peterson claims he wants only one of each back. I would not have even filed such a motion because it inevitably would have been denied, and the court denying the motion only adds to the negative publicity.

Update: Peterson's counsel was on Dan Abrams on MSNBC last night, and it was not pretty. He should have just stayed home because it did not serve Peterson's interest.

Consent was granted to search for guns in a house, and on seeing a gun case on the floor, the officer had everybody in one room, secured it, and then "the deputy conducted a cursory search of the remaining rooms in the house, akin to a protective sweep," and marijuana was seen in plain view in a backpack. The search did not exceed its authorized scope. United States v. Simpson, 259 Fed. Appx. 164 (11th Cir. 2007)* (unpublished). Comment: A cursory search for weapons seems like an oxymoron to me.

Officer had a tip that the defendant had been driving down the highway smoking dope, and he found the car, smelled burnt marijuana around it, and followed tracks in the snow to an apartment. At the apartment, he asked the occupants to step outside to talk rather than going in. He had justification for a patdown, and found a knife on one, and the other consented to a frisk and the officer felt something soft and removed it, producing a baggie of marijuana. The stop and frisk were otherwise reasonable, but the case was remanded for better fact finding on the plain feel doctrine of Dickerson, an issue of first impression in Vermont. State v. Ford, 2007 VT 107, 182 Vt. 421, 940 A.2d 687 (2007).*

Officer lied to the defendant and told him that he was having difficulty getting clearance of defendant's license after the officer had already been told it was clear. The additional minute and eighteen seconds of the stop [and the lie] did not make the stop unreasonable when the officer asked for and got consent when the continuation was actually based on reasonable suspicion. United States v. Walton, 258 Fed. Appx. 753, 2007 FED App. 0841N (6th Cir. 2007)* (unpublished). Comment: The dissent blisters the officer for lying to the defendant to get consent.

Seizure of plaintiff's business computer, allegedly by consent, was not resolved by the district court, so the case was remanded for a determination of that issue. Blake v. County of Livingston, 257 Fed. Appx. 848, 2007 FED App. 0835N (6th Cir. 2007)* (unpublished).

A probationer's roommate has a reduced expectation of privacy in his own premises because the roommate is subject to probation searches. Here, the probation search of defendant's roommate led to evidence against defendant, and the judgment was affirmed. State v. Hurt, 2007 ND 192, 743 N.W.2d 102 (2007):

[*P19] We find no authority that would create an exception for third-party co-occupant consent derived from probation clauses. See State v. Yule, 905 So. 2d 251, 264 (Fla. App. 2d 2005) (Canady, J., concurring) ("The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer's shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy."); People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (Cal. App. 4th 2004) ("Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers. ... Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within 'common authority'[] of the probationer and fellow occupants and areas which she 'normally had access.'"); United States v. Crew, 345 F. Supp. 2d 1264, 1266 (D. Utah 2004) ("When the parolee, as a cohabitant of premises, gives consent to enter and to search, that consent is valid as to his personal space and all common space."); State v. West, 517 N.W.2d 482, 491 (Wis. 1994) (stating that a "parole search may extend to all parts of the premises to which the probationer or parolee has common authority, just as if it were a consent search"); State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) ("A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee."). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights. See, e.g., Randolph, 547 U.S. at 110 (quoting Matlock, 415 at 171, n.7) ("[T]hird-party consent ... rests [] on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched."); Yule, 905 So. 2d at 264 (Canady, J., concurring) ("A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.").

[*P20] Hurt voluntarily chose to live with Bickler. We see no reason to treat Bickler's consent, albeit in the form of a probation term, differently from the verbal consent that could be given by any other co-occupant. The co-occupant consent-to-search exception to the warrant requirement applies in this case, and as such, the district court properly found the search of the common areas of Hurt's apartment was not unconstitutional.

Volume 39, number 4, of the Texas Tech Law Review has a series of articles about consent searches from the Texas Tech Symposium on Citizen Ignorance, Police Deception, and the Constitution:

Essay:

--Arnold H. Loewy, Police, Citizens, the Constitution, and Ignorance: The Systemic Value of Citizen Ignorance in Solving Crime, 39 Tex. Tech. L. Rev. 1077 (2007)

Consent Searches by Ignorant Citizens:

--John M. Burkoff, Search Me?, 39 Tex. Tech. L. Rev. 1109 (2007)

--Morgan Cloud, Ignorance and Democracy, 39 Tex. Tech. L. Rev. 1143 (2007)

--Christo Lassiter, Consent to Search by Ignorant People, 39 Tex. Tech. L. Rev. 1171 (2007)

--Russell L. Weaver, The Myth of “Consent”, 39 Tex. Tech. L. Rev. 1195 (2007)

There are other articles about police lying and confessions:

Do We Want Citizens to Know Their Rights, and If So, How Do We Tell Them?

--Susan R. Klein, Lies, Omissions, and Concealment: The Golden Rule in Law Enforcement and the Federal Criminal Code, 39 Tex. Tech. L. Rev. 1321 (2007)

--Alan C. Michaels, Rights Knowledge: Values and Tradeoffs, 39 Tex. Tech. L. Rev. 1355 (2007)

--Andrew E. Taslitz, Bullshitting the People: The Criminal Procedure Implications of a Scatalogical Term, 39 Tex. Tech. L. Rev. 1383 (2007).

Id. at 1421-23:

There is far less data on consent searches and warnings. Yet the available data similarly supports the conclusion that rights warnings do not increase noncooperation with the police. Sociologist Illya Lichtenberg, for example, in a study of the Maryland State Police and the Ohio State Highway Patrol, found that 88.5% to 96.5% of those asked to consent to automobile searches by police officers did so when no warnings were given. When the police gave warnings, however, there was no substantial decrease in the percentage of instances in which police consent-to-search requests were granted. These statistics held across race, sex, and age. Lichtenberg concluded from this data that "verbal warnings are an ineffective means of encouraging citizens to exercise freely their constitutional rights." 293 On the other hand, combining both the confessions data and the consent-to-search data, Lichtenberg explains:

Finally, for those who still fear that verbal warnings will render our criminal justice system ineffective and lead to marauding criminals on the street with no means to control them, these findings suggest that such fears are unfounded. The criminal justice system appears to operate quite effectively with verbal warnings in place. Research suggests that verbal warnings do not have any substantial impact on consent or confessions.

Indeed, Lichtenberg found that 12.9% of those consenting to searches were found to be in possession of illegal narcotics. They consented anyway.

What explains compliance in the face of warnings? One possible explanation is simple fear of the police. Lichtenberg found in a survey of some of those consenting to searches in Ohio (an admittedly small sample), use that they "consented to search for one primary reason: fear of reprisal if they refused." Other scholars have relied on older research on compliance to conclude that, at a minimum, suspects are likely to blindly obey authority, especially uniformed authority. Thus, in the well-known experiments of Professor Stanley Milgram, subjects purportedly involved in a study about learning patterns' relationship to negative reinforcement were willing to give increasingly higher voltage shocks to a "learner" when he made mistakes. This escalation in voltage continued upon the experimenter's command, despite the learner's at first modest, then vigorous, and finally painfully screaming, protests. As Professor Ric Simmons has pointed out, however, Milgram's experiments involved obedience to orders, not requests, and did not turn on subjects' ignorance about their legal rights or the authority figure's intentions.

Scholars challenging the voluntariness of consent to search as illusory have also relied on Professor Leonard Bickman's experiments involving authority figures wearing uniforms. The experimenter dressed as a civilian, then a milkman, then a guard (police-type uniform but with no gun). In each pose, the experimenter ordered passersby to do one of three things: pick up a bag, give a dime to a person near a parking meter, or change locations. Compliance rates were much higher in the two uniformed than the one civilian situation and were particularly high-89%-when the guard uniform was worn. Again, as with Milgram's experiments, orders, rather than requests, were involved, and rights awareness versus rights ignorance was not tested, making the experimental circumstances very different from those involved in consent searches or in interrogations. Nevertheless, these studies suggest that the reasons for citizen obedience to the police are far more complex than fear or a knee-jerk obedience to authority, even if those forces do play some role and perhaps under certain circumstances an important role.

Research psychologist Tom Tyler recently conducted a series of studies and a literature review of when and why Americans obey government agents, including the police and the courts. Tyler found at least two important psychological processes to be at work: a sense of personal responsibility to defer to legitimate government authorities and a desire to empower government to solve social problems, particularly in the face of a perceived crisis. (footnotes omitted)

On the defendants' omnibus suppression motion (this does not cover all issues, there are too many):

Government did not violate the Stored Communications Act in how it handled e-mails after acquiring them, and, even if it did, that would not be a valid ground for suppression of evidence under Hudson because it had nothing to do with the seizure. Also, there was no Franks violation. This was a mail and credit card fraud scheme involving continuing charges to accounts, and the defense presented a list of perceived defects with the affidavit for the search warrant that probable cause would not exist if the defects were cured. None of them required further elaboration because, on the totality, there was still probable cause on the totality under Gates to show that defendant was on notice that there was great consumer dissatisfaction with his business practices that were of really doubtful validity. Finally, the use of 50 agents to seize the premises and seven tons of documents, including whole file cabinets and personal papers of employees, including a Snickers bar, was not considered unreasonable. The court considered the government's representation that the employees would testify to the need for a swift securing of the evidence at a large property to prevent destruction of evidence. United States v. Warshak, 2007 U.S. Dist. LEXIS 91741 (S.D. Ohio December 13, 2007) (the court uses "well-taken" so many times referring to the "government's position" or "not well-taken" as to the defendants' that it ended up as a "core term" on Lexis):

Having reviewed this matter, the Court does not find Defendants' position well-taken. Even assuming Defendants' allegations are true, the fact is that when the agents executed the warrant on March 16, 2005, time was of the essence. The Berkeley facilities are immense, and the agents were justified in quickly securing each location so as to prevent the destruction of any evidence. The fact that some employees may have been rattled by the swift, no-nonsense entry of fifty agents does not justify the suppression of evidence. Berkeley may have not been the lair of a drug kingpin, but the warrants were supported by probable cause for massive consumer fraud.

As such, the Court takes the government's representation in good faith that its agents would testify as to the propriety of their conduct in executing the warrants. Such representation is more than conclusory, as the government does more than say "the searches were reasonably executed," but indicates it has agents who will testify as much. The Court finds no hearing necessary on this question. Finally, the fact that irrelevant information and materials were swept up in the large-scale seizure here is a mere by-product of the practical reality faced by the agents who acted quickly as required so as to keep the search and seizure within the bounds of reasonableness. Surely, had the agents camped out at Berkeley and closed the operation for weeks on end, so as to sift out irrelevant information, Defendants very well may have had a basis to argue the search was conducted in an oppressive manner.

Employees who had decided to cooperate and turned over their company laptops to the government did so as individuals. Confidentiality agreements did not create any separate expectation of privacy when probable cause already exists:

The Court finds itself again on the side of the government. The Court sees no convincing evidence the cooperating witnesses were acting as anything more than private individuals in turning over evidence to the government. Even should the cooperating witnesses qualify as "agents," such that the Fourth Amendment applies, the Court finds no real question that they voluntarily consented to the searches of their laptops. The Court further finds unavailing Defendants' arguments that the witnesses lacked the authority to do so. The witnesses had common authority over their laptops, as evidenced by their possession and password access. United States v. Matlock, 415 U.S. 164, 171-72 (1974). Defendants' heavy reliance on the fact they had confidentiality agreements with their employees is misplaced. A company cannot use such a confidentiality agreement to shield itself from government inquiry into evidence of potential illegal behavior, when the government has probable cause based on witness statements that such evidence exists, and the witnesses consent to the search. Defendants' position simply conflicts with public policy. McGrane v. The Reader's Digest Association, Inc., 822 F.Supp. 1044, 1046 (S.D. N.Y. 1993)("Courts are increasingly reluctant to enforce secrecy arrangements where matters of substantial concern to the public-as distinct from trade secrets or other legitimately confidential information may be involved"), Chambers v. Capital Cities/ABC, 159 F.R.D. 441, 444 (S.D. N.Y. 1995)("agreements obtained by employers requiring former employees to remain silent ... concerning potentially illegal practices ... can be harmful to the public's ability to rein in potentially harmful behavior"), Ventura v. Cincinnati Enquirer, 396 F.3d 784, 791 (S.D. Ohio, 2005) (J. Weber) (rejecting efforts to enforce an agreement to withhold evidence of crimes, because "reporting criminal activity to a prosecutor is not actionable"). For all of these reasons, the Court rejects Defendants' Motion to Suppress the evidence derived from the laptops turned over to the government by cooperating witnesses.

Defendant had no reasonable expectation of privacy on his computer attached to a military base network in Saudi Arabia. He thought his files were password protected, but they were not, and his personal files were accidentally accessed by somebody finding child porn on his personal computer when it was attached to the network. Therefore, he had no reasonable expectation of privacy in the network. The court analogized it to a person having attempted to protect against others seeing the information but failing in the attempt. United States v. King, 509 F.3d 1338 (11th Cir. 2007):

We have held that tenants of a multi-unit apartment building do not have a reasonable expectation of privacy in the common areas of the building, where the lock on the front door is "undependable" and "inoperable." United States v. Miravalles, 280 F.3d 1328, 1333 (11th Cir. 2002). We have also held that even though a company has a subjective expectation of privacy in documents that are shredded and disposed of in a garbage bag that is placed within a private dumpster, the company's "subjective expectation of privacy is not one that society is prepared to accept as objectively reasonable" when the company fails to "take sufficient steps to restrict the public's access to its discarded garbage." United States v. Hall, 47 F.3d 1091, 1097 (11th Cir. 1995).

King has not shown a legitimate expectation of privacy in his computer files. His experience with computer security and the affirmative steps he took to install security settings demonstrate a subjective expectation of privacy in the files, so the question becomes "whether society is prepared to accept [King's] subjective expectation of privacy as objectively reasonable." See id. at 1094.

It is undisputed that King's files were "shared" over the entire base network, and that everyone on the network had access to all of his files and could observe them in exactly the same manner as the computer specialist did. As the district court observed, rather than analyzing the military official's actions as a search of King's personal computer in his private dorm room, it is more accurate to say that the authorities conducted a search of the military network, and King's computer files were a part of that network. King's files were exposed to thousands of individuals with network access, and the military authorities encountered the files without employing any special means or intruding into any area which King could reasonably expect would remain private. The contents of his computer's hard drive were akin to items stored in the unsecured common areas of a multi-unit apartment building or put in a dumpster accessible to the public.

Because his expectation of privacy was unreasonable King suffered no violation of his Fourth Amendment rights when his computer files were searched through the computer's connection to the base network. It follows that his additional claim that the later search warrant was invalid because it incorporated information obtained from the search of his computer files also lacks merit.

Intrusive search condition for defendant who pled to a financial crime was not an abuse of discretion. In fact, it almost cannot be an abuse of discretion under Samson. The district court could justifiably be concerned that defendant's conduct was not aberrational, despite his claims to the contrary. United States v. Betts, 511 F.3d 872 (9th Cir. 2007):

Betts argues that the court abused its discretion because he had no prior convictions and had fully accepted responsibility for his crime. We cannot characterize the judge's exercise of discretion as an abuse, even though it is very intrusive. First, the public is entitled to protection against the possibility that Betts's conduct may not have been so aberrational as he contends, and considering his skill and success in committing this subtle fraud, protection will not be easy.

Second, the Supreme Court recently held in Samson v. California, that a similarly worded condition imposed by statute on all California parolees did not violate the Fourth Amendment, even though the condition did not require reasonable suspicion. The Court considered the high risk of recidivism for people convicted of crimes, and the problem that "[i]mposing a reasonable suspicion requirement ... would give parolees greater opportunity to anticipate searches and conceal criminality." Because the blanket requirement imposed by California on state parolees did not violate the Fourth Amendment, a fortiori the individualized requirement imposed in this case on supervised release does not. There is no sound reason for distinguishing parole from supervised release with respect to this condition. The federal system has abolished parole, and uses supervised release to supervise felons after they get out of prison. People on supervised release have not completed their sentences, they are serving them. The Court in Samson itself drew the analogy to supervised release. After Samson, there is no room for treating the search condition in this case as an abuse of discretion.

Defendant was stopped and the officer smelled alcohol. The officer's patrol car video was not admitted at the hearing, but the trial court saw it. In the first appeal, the videotape was not in the record, and the court affirmed, Amador v. State, 187 S.W.3d 543, 545 (Tex. App.-Beaumont 2006), but the Court of Criminal Appeals reversed because of the lack of the video in the record. Amador v. State, 221 S.W.3d 666, 667-68 (Tex. Crim. App. 2007). A five minute portion was certified by the trial court as what it saw, and it did not include the field sobriety test that defendant allegedly failed. The video thus did not support probable cause. Reversed. Amador v. State, 242 S.W.3d 95 (Tex. App. — Beaumont 2007).

Even if first search was invalid, defendant's shooting of a police officer during it was an independent basis for a second search untainted by the first. United States v. Tab, 259 Fed. Appx. 684, 2007 FED App. 0827N (6th Cir. 2007) (unpublished).*

City lawfully obtained a warrant for defendant's property because of the unsightly junk he collected there for his various engineering projects. Carpiaux v. City of Emeryville, 2007 U.S. Dist. LEXIS 91574 (N.D. Cal. December 13, 2007).*

Inmate's § 1983 case directly attacked his conviction, so it was Heck barred, and he is directed to show cause why it should not be dismissed, without the defendants even being required to answer. Heath v. Gurski, 2007 U.S. Dist. LEXIS 91342 (D. Or. December 6, 2007).*

Defendant lived with his mother and locked her out of the house. She called the police, and she was shaking and upset when they arrived. One of the officers went through a window to get in and offered to do a search of the premises to make sure she was safe, which she agreed to. This was a valid third party consent. The mother told the officers that she was told by her son that she could not go upstairs, which was locked, and the officers even removed the door from the hinges to get upstairs. State v. Wurm, 2007 Wisc. App. LEXIS 1086 (December 11, 2007):*

The room searched was the upstairs of the home in which Evelyn lived, and not a detached apartment [thereby distinguishing defendant's authority]. While Evelyn stated that Wurm did not like her to go upstairs, she also testified that she stored pictures there. Further, Wurm did not pay rent but paid some of the bills. Based on these facts, we conclude that the circuit court properly found that Evelyn had the authority to consent to the search of the upstairs of her home. The circuit court correctly denied Wurm's motion to suppress ...

A stop of three men in a pickup truck for a seatbelt violation at 2 a.m., without more, is not cause for a patdown of anybody. When defendant, however, resisted his patdown (not just objecting to it), the officer had cause for a patdown. State v. Anderson, 2007 Iowa App. LEXIS 1312 (December 12, 2007).* Comment: So, the officer was not legally authorized to pat down any of these three men, but he can get away with it if one resists or nothing is found. If a weapon is found, the officer is safer; if drugs are found, the defendant is charged. The bottom line here is that this opinion will do little or nothing to change police procedure in Iowa.

DUI roadblock was validly approved and established [even under Tennessee's more rigorous procedures]. State v. Boddie, 2007 Tenn. Crim. App. LEXIS 935 ( December 11, 2007).*

While flight alone under Wardlow is not reasonable suspicion, it is when the flight occurs from the scene of a crime. The police arrived at the scene of a call about a bar fight, and defendant was the only person in a group to flee from the police. State v. Easley, 2007 Iowa App. LEXIS 1288 (December 12, 2007):

A suspect's flight, in addition to his presence at the scene of a recently committed crime, provides the type of specific, articulable facts allowed under Terry to justify a brief detention by officers to resolve any ambiguity. See Terry, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906; see also Wardlow, 528 U.S. at 125, 120 S. Ct. at 677, 145 L. Ed. 2d at 577 (noting how Terry recognized that officers could detain individuals to resolve the ambiguity between acts that may either be innocent or criminal). Based on Easley's behavior after seeing the officer arrive, we conclude Wertz had the reasonable suspicion necessary to justify the detention of Easley. Accordingly, we find the district court did not err in denying Easley's motion to suppress because his constitutional rights under the Fourth Amendment were not violated.

Heck bar did not apply to an administrative search determination that favored the plaintiff and was not even attacking a conviction. Elkins v. District of Columbia, 527 F. Supp. 2d 36 (D. D.C. 2007).*

Defendant drove through headlights of patrol car parked perpendicular to road, and it was obvious that the window tint was too dark. This was cause for a stop, and the officer smelled marijuana when the window was rolled down, and that was probable cause. United States v. Ushery, 526 F. Supp. 2d 497 (M.D. Pa. 2007).*

Defendant argued that her cellphone text messages were seized without a search warrant, but the court finds consent to the seizure. United States v. Jones, 2007 U.S. Dist. LEXIS 91187 (M.D. Pa. December 12, 2007).*

Stop was based on the defendant's car being unsafe, and the officer quickly developed probable cause, and a search incident was proper. United States v. Tolle, 2007 U.S. Dist. LEXIS 91308 (D. Or. December 6, 2007).*

State satisfied burden of proving consent in a knock and talk of a motel room. Bryant v. State, 288 Ga. App. 863, 655 S.E.2d 707 (2007).*

Warrant for a particular address looking for defendant's apartment was sufficiently particular to include his basement apartment. The police investigated and were not able to determine that this was a multiunit dwelling. When arrived, they found out that there was a back door entrance to the apartment, and they entered it. There was no misconduct on the police and they acted reasonably. The court analogized a case permitting a search of an attic apartment that was not known to exist until they were inside. United States v. Mousli, 511 F.3d 7 (1st Cir. 2007):

Mousli argues that the search warrant obtained by the Somerville police lacked sufficient specificity because it did not identify his particular basement unit, but only listed 19 Orvis Road. Mousli relies on Ferreras in arguing that the authority granted by any warrant is limited to the specific places described in it, and thus, does not extend to additional or different places. See Ferreras, 192 F.3d at 11. Mousli's reliance is misplaced.

In Ferreras, we found that an attic was, in effect, included in a search warrant for the second floor of that same building because it was connected to the second floor apartment, lacked an exit to the street, and was not equipped for "independent living." Id. Mousli concludes from Ferreras's holding that because his basement apartment existed independently from the rest of the house, had an exit to the street, and was equipped for "independent living," it could not have been included in the warrant that sought to search only "19 Orvis Road." We disagree with Mousli and find the facts in Ferreras distinguishable here.

In the present case, the police used all of the information reasonably available to them to secure as particularized a warrant as possible. The police made considerable efforts to gather as much information as possible to include in their affidavits and application for the warrant. The police drove by Mousli's residence before securing the warrant. They did not know that 19 Orvis Road was a multi-unit dwelling. Townsend noted Mousli's address on a package in his car as 19 Orvis Road, and police records indicated that Mousli's address was 19 Orvis Road. Mousli had given 19 Orvis Road as his home address when he was arrested on a previous occasion. The Registry of Motor Vehicles listed 19 Orvis Road as Mousli's address. While Mousli's apartment did exist independently from the main residence at 19 Orvis Road, "[s]earch warrants and affidavits should be considered in a common sense manner, and hypertechnical readings should be avoided." ... Just as in United States v. Gilman, 684 F.2d 616 (1st Cir. 1982), "[t]he testimony and affidavits of the officers demonstrate no misconduct on their part. Their surveillance of the premises ... did not alert them to the multiunit character of the building. The officers were not aware that the building contained separate living quarters or that it housed unrelated persons." Id. at 618. We find that the police had a valid search warrant, supported by reasonable information, and that the valid search warrant gave the police the authority to search Mousli's apartment. We conclude that the district court did not err when it denied Mousli's motion to suppress.

The Minnesota implied consent law does not violate the Fourth Amendment because it is based on probable cause and exigent circumstances. State v. Netland, 742 N.W.2d 207 (Minn. App. 2007). The court's free link is not up at the time of this posting, but LexisOne has it. This is the concluding paragraph, and how the court gets to this point is interesting and completely noncontroversial:

Thus, contrary to Netland's argument, the State of Minnesota does not condition a person's driving privileges on surrendering a constitutional right. Before "the [chemical] test may be required of a person," the implied-consent law requires the requesting officer to have probable cause to believe a person is driving while impaired. Minn. Stat. § 169A.51, subd. 1(b). And if, as it often will be, a warrantless search is necessary to prevent evidence of the driver's intoxication from imminent destruction by physiological processes, the exigent-circumstances exception authorizes the search. See Shriner, 739 N.W.2d at 439 (emphasizing that "the exigent-circumstances requirement is not a high threshold"). Since the Fourth Amendment does not grant the right to refuse a search supported by probable cause and authorized by exigent circumstances, the implied-consent law does not require a driver to surrender the right to be free from unreasonable searches.

Defendant's wife let in an officer with an arrest warrant for defendant in hand so he could see for himself that the defendant was not there. In plain view, there was paraphernalia for meth manufacturing, which the officer seized. The seizure was valid, and consent to enter with an arrest warrant was not coerced. Pate v. Commonwealth, 243 S.W.3d 327 (Ky. 2007), released for publication November 1, 2007.

There was an objective basis for defendant's stop from the only evidence, so it was valid. United States v. Tejeda-Ramirez, 259 Fed. Appx. 535 (4th Cir. 2007)* (unpublished).

The CI was of unknown reliability, but it was based on personal observations occurring within the previous 24 hours, and the officer was able to corroborate psuedophedrine purchases from records of sales to the defendant. "Under a totality of the circumstances test, the state court judge had sufficient information to make a finding that there was a fair probability that evidence of a crime would be found in Nickels's residence and garage. Therefore, Wilkerson has not rebutted the presumption that the search was legal." The good faith exception also applied. United States v. Wilkerson, 2007 U.S. Dist. LEXIS 90852 (S.D. Ill. December 11, 2007).*

Officer who did not conduct defendant's patdown did not testify at the suppression hearing, so the state failed in its burden of proof in showing it was justified. Commonwealth v. Thompson, 2007 PA Super 372, 939 A.2d 371 (2007).

Defendant was stopped for a traffic offense, and he put his car in reverse to try to get away. That, coupled with furtive movements, was reasonable suspicion for more. United States v. Thornton, 2007 U.S. Dist. LEXIS 90327 (D. Conn. December 10, 2007).*

Arizona Contractors Assn. might have standing to sue on behalf of its membership for being forced to comply with verifying the alienage of workers the members employ, although they sued the wrong defendant, but not as to all elements of the statute, so the action is dismissed. They proved they were subject to prosecution, but an Art. III "case or controversy" was lacking. Arizona Contractors Ass'n v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007).*

Grand jury subpoenas were not used for mere fishing expeditions, and the defense was free to re-raise the issue at trial and did not. Subpoena power was not abused. United States v. Edelmann, 2007 U.S. Dist. LEXIS 90355 (E.D. Ark. December 6, 2007).*

Plaintiff is incorrect that the officer who stopped her needed probable cause; it was only reasonable suspicion. The contradictory allegations of the complaint need to be corrected, if plaintiff can, by amendment. Harrell v. Cal. Highway Patrol, 2007 U.S. Dist. LEXIS 90436 (E.D. Cal. November 29, 2007).*

Defendant had no standing of a search of his co-defendant brother's home. Defendant's Franks challenge fails: "The Abdallahs have not made a substantial showing that allegations in the supporting affidavit were deliberate falsehoods or made with a reckless disregard for the truth." The good faith exception also applies. Medicaid fraud "all records" warrant was valid because of the nature of the claimed crime. United States v. Abdallah, 2007 U.S. Dist. LEXIS 90196 (S.D. Tex. December 7, 2007).*

Observations from a citizen informant and an off-duty officer were sufficient to show reasonable suspicion. State v. Haynie, 2007 Tenn. Crim. App. LEXIS 931 (December 7, 2007):

Consequently, we conclude that Investigator Land acted with reasonable suspicion supported by specific and articulable facts supplied by his dispatcher, a known citizen informant, and an off-duty law enforcement officer that at least one of the occupants of the suspect vehicle was engaged in illegal activity when he activated his cruiser's blue lights and stopped Defendant Ouzts's vehicle. The Defendants do not challenge the validity of Defendant Ouzts's consent to the ensuing search. Therefore, the trial court did not err by admitting the evidence recovered.

Six month delay in obtaining child porn warrant was not stale because of the nature of child porn possession. Under the First Circuit's standards, all standards favor a lack of staleness. United States v. Hanson, 2007 U.S. Dist. LEXIS 90052 (D. Maine December 5, 2007):

There is no one-size-fits-all rule for determining staleness: "Factors to be considered in determining whether an affidavit is stale include the nature of the criminal activity under investigation and the nature of what is being sought." United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007) (citation and internal quotation marks omitted); see also Dauphinee, 538 F.2d at 5 ("[N]o hard and fast rule can be formulated as to what constitutes excessive remoteness, because each case must be judged in its circumstantial context."). The First Circuit has further elaborated:

Staleness is not measured merely on the basis of the maturity of the information but in relation to (1) the nature of the suspected criminal activity (discrete crime or regenerating conspiracy), (2) the habits of the suspected criminal (nomadic or entrenched), (3) the character of the items to be seized (perishable or of enduring utility), and (4) the nature and function of the premises to be searched (mere criminal forum or secure operational base).

United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) (citations and internal quotation marks omitted), abrogated on other grounds by Cleveland v. United States, 531 U.S. 12 (2000).

Comment: This is the typical result. Child porn can easily be found up to one year or far more after alleged receipt, so this case is not at all unusual.

Totality of circumstances supported the conclusion that there was reasonable suspicion for continuing defendant's stop. Garvin v. State, 2007 WY 190, 172 P.3d 725 (2007).*

Plaintiff's motion to reconsider that his claim was not Heck barred was based on the illegality of his arrest, not his conviction, but that did not work either. Just to insure "there is no stone left unturned, however, the court shall further consider the merits of Plaintiff's claim as though it could survive Heck," and it does not. Whitlock v. Smith, 2007 U.S. Dist. LEXIS 90032 (N.D. Miss. December 6, 2007).*

Defendant's general consent to search did not include shining a flashlight into his underwear, a place where the officer admittedly did not expect to find any contraband. State v. Stone, 362 N.C. 50, 653 S.E.2d 414 (2007):

We conclude here that a reasonable person in defendant's circumstances would not have understood that his general consent to search included allowing the law enforcement officer to pull his pants and underwear away from his body and shine a flashlight on his genitals. See Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302. Although these events occurred at 3:30 a.m., the search occurred in the parking lot of an apartment complex, as opposed to a secluded area or police station. Both Officers Correa and Herrera were present during the search. The record does not indicate that the officers asked defendant to step behind a car door, used their bodies to screen defendant from public view, or took other action to shield defendant during the search, as the officers did in Smith. 118 N.C. App. at 109, 454 S.E.2d at 682. Nor did they ask defendant to clarify the scope of his consent. Officer Correa testified that he was "not really expecting to find anything, honestly" during his search of defendant, unlike in Smith where the officers had specific information that cocaine was hidden in the defendant's crotch. Id. at 112-13, 454 S.E.2d at 684.

We conclude defendant's general consent to search did not authorize the officer to employ the very intrusive measures undertaken here. In concluding otherwise and denying defendant's motion to suppress, the trial court focused on reasonableness from the officer's perspective, rather than on the reasonable expectations of the person in defendant's circumstances. Jimeno, 500 U.S. at 251, 114 L. Ed. 2d at 302 ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?").

Bail bond agent's information about defendant's status as a fugitive could be relied upon by the police as reasonable suspicion. United States v. Bourrage, 2007 U.S. Dist. LEXIS 89926 (S.D. Iowa December 5, 2007).

Defendant was being watched as an expected drug deal went down, and he entered the drop point with a weighted bag and left with a lighter one. He showed up at the appointed time, and the police looked in his car window and saw what would have been packaging for cocaine in larger quantities. That was probable cause. United States v. Gonzalez-Calderon, 2007 U.S. Dist. LEXIS 89983 (D. Mass. December 3, 2007).*

Defendant City and officers were entitled to summary judgment for shooting plaintiff during a SWAT entry where he could not be subdued by bean bag shots or pepper spray, and he stabbed the police dog and then attacked the canine officer with a knife. Finally, he was shot. Haugh v. City of Louisville, 242 S.W.3d 683 (Ky. App. 2007).*

The entry by deputy sheriffs into defendant's occupied home on December 11 at approximately 6 a.m., when it was still dark, to execute a search warrant with an invalid nighttime authorization, and with no knowledge that defendant or his house guests were not still in a period of nighttime repose that Minn. Stat. § 626.14 protects, subverts the purpose of the statute and requires suppression of the evidence seized during the search even though the defendant was not personally present. It also violates the Fourth Amendment. State v. Jordan, 742 N.W.2d 149 (Minn. 2007):

To the degree that a nighttime search under a warrant with an invalid nighttime clause can be compared to a warrantless search or the seizure of an item not adequately described in a warrant, these cases support the conclusion that the search of Jordan's home violated his reasonable expectation of privacy. At the very least, these cases presume that the scope of the defendant's expectation of privacy is broader than merely the risk of the intrusion on his person.

Comment: This case is important because it applies the Fourth Amendment to an invalid nighttime search, finding that a person has a reasonable expectation of privacy against unwarranted nighttime searches.

The 41 page affidavit for the search warrant in this case was sufficient to show probable cause for issuance of the warrant, and it was summarized ad nauseum in the opinion. Under Gates, de novo review of the affidavit is not permitted. United States v. Redzic, 2007 U.S. Dist. LEXIS 89961 (E.D. Mo. December 6, 2007):

The court could continue reviewing the affidavit, which is replete with information supporting probable cause, but this section of this Report and Recommendation is already too long, the parties have the affidavit and information already provided in this section of this report show probable cause for the issuance of the search warrants.

This court finds that the information supplied in the affidavit to Judge David D. Noce provided "a fair probability that contraband or evidence of crime [would] be found in a particular place." Gates, 462 U.S. at 238, 103 S.Ct. at 2332. Consequently, this court finds that the search warrants in question were issued based on probable cause.

Maryland apparently declines to follow Hudson by following state statute and Maryland's common law. It reiterates prior holdings that the exclusionary rule applies, and the state conceded that the intermediate court's decision was correct, did not file a cross-petition for certiorari, and then argued that Hudson should be followed under Maryland law, a proposition that the court rejected. The court seems to indicate that it would reject Hudson, but it technically left the question for another day. Parker v. State, 936 A.2d 862 (Md. 2007):

Nevertheless, we shall assume arguendo that, under federal law, Hudson v. Michigan controls the Fourth Amendment issue in this case, and that the Fourth Amendment's exclusionary rule is inapplicable to any violations of the "knock and announce" principle that may have occurred in the case at bar. We shall decide, however, that, under the peculiar circumstances of this case, the evidence is excludable if there is a violation of Maryland's "knock and announce" principle. This is a very limited decision based exclusively upon Maryland non-constitutional law and procedure.

. . .

Consequently, simply because Article 26 of the Maryland Declaration of Rights and the Maryland common law "knock and announce" principle may generally be in pari materia with the Fourth Amendment, does not require that, in the case at bar, we reconsider the state law holdings of Davis and Adams v. State, supra, and other cases.

There is a compelling reason why the present case is a particularly inappropriate vehicle for such reconsideration. The State failed to challenge the adverse decision of the Court of Special Appeals, or raise the issue of a Maryland exclusionary rule, by filing a cross-petition for a writ of certiorari. Although the petitioner Parker relied on Maryland law as well as the Fourth Amendment, both in his Court of Special Appeals' brief and in his certiorari petition, and the Court of Special Appeals' vacation of the judgments and remand for a new suppression hearing was based entirely on the Davis and Adams and Carroll cases in this Court, the State did not file a cross-petition for certiorari. On the contrary, the State's answer argued in favor of the Court of Special Appeals' decision vacating the Circuit Court's judgments and ordering a new suppression hearing.

. . .

. . . The State in its brief and oral argument seeks to reverse a Court of Special Appeals' judgment to which the State had consented. Such a reversal would be contrary to settled Maryland law.

Consequently, if there was a violation of Maryland's common law "knock and announce" principle in this case, the evidence is inadmissible under the particular circumstances here. Whether such an exclusionary rule should be applied when there are violations of the Maryland "knock and announce" principle in other cases, or in cases arising after the effective date of Ch. 560 of the Acts of 2005, are matters which we leave for another day.

We agree with the Court of Special Appeals that Terrance Parker's controlled dangerous substance conviction should be vacated. This matter should be remanded to the Circuit Court for a new suppression hearing and determination. See Southern v. State, 371 Md. 93, 104-112, 807 A.2d 13, 20-24 (2002), and cases there cited. While the Circuit Court, at the conclusion of the prior suppression hearing, considered the factual showing (or absence thereof) made by the police officers at the time of the warrant application, the court did not "review ... the facts known to the officers at the time of entry," Davis and Adams v. State, supra, 383 Md. at 427-428, 859 A.2d at 1132. In addition, we disagree with the Court of Special Appeals' direction for the Circuit Court to determine whether "the evidence seized is nonetheless admissible under the 'good faith' exception to the exclusionary rule." In light of our opinion in Davis and Adams v. State, supra, at least in cases not subject to Ch. 560 of the Acts of 2005, the so-called "good faith" exception, applied by the Court of Special Appeals, is not applicable under the Maryland common law "knock and announce" principle.

Upon remand, the Circuit Court should decide whether the evidence was admissible under the principles of this Court's opinions in Davis and Adams v. State and State v. Carroll. If the court determines that the evidence was admissible, the controlled dangerous substance conviction should be reinstated. If the court decides that the evidence should be suppressed under Davis and Adams v. State and State v. Carroll, the controlled dangerous substance conviction should remain vacated and a new trial ordered on that count.

Hiding a gun in a closet that belonged to another tenant of a common building did not show reasonable expectation of privacy. Also, violation of knock-and-announce rule of Wilson is not even addressed because of Hudson. United States v. Williams, 2007 U.S. Dist. LEXIS 89570 (D. Conn. December 6, 2007):

Although Williams arguably demonstrated a subjective expectation of privacy in the closet by allegedly choosing to hide a gun there, he has not shown that his expectation of privacy in the closet was reasonable, which is fatal to his standing argument. The closet was outside Williams' own room, which was the only area on the third floor over which he had exclusive dominion and control. According to the undisputed testimony of second floor resident Leroy Pittman, Pittman was the sole person authorized to use this closet and exclusively used it to store his hunting and camping equipment for many years. No other tenants used the closet or had permission to use the closet. 7 Courts have held that one who shares his or her home with another does not have a reasonable expectation of privacy in those areas of the home used exclusively by his or her roommate. See U.S. v. Haqq, 278 F.3d 44, 50 (2d Cir. 2002), citing Lenz v. Winburn, 51 F.3d 1540, 1549-50 (11th Cir. 1995) (grandparents lacked reasonable expectation of privacy in closet in their home used exclusively by granddaughter); People v. Fleming, 345 N.E.2d 10, 14-15 (1975) (where defendant and his brother shared an apartment and brother kept his bedroom locked and kept key in his possession, defendant had no reasonable expectation of privacy in the brother's bedroom). Although there were no locks or markings to indicate the exclusive use of the closet by Pittman, the contents of the closet showed Pittman's exclusive use. In addition, the defendant has not submitted any evidence indicating that Pittman did not have exclusive use of the closet. Thus, if Williams did have a subjective expectation of privacy in the closet, it would have been unreasonable, because anyone opening the closet would have observed it only contained Pittman's belongings.

Search warrant for property for child pornography directed at defendant's roommate, but covering all computers on the property, permitted a search of defendant's computer, too. United States v. Umgelder, 2007 U.S. Dist. LEXIS 89719 (S.D. Ill. December 6, 2007):

The warrant authorized a search of the entire apartment for evidence of child pornography crimes, including the search and seizure of computers in the apartment; it clearly covered any computer in the apartment, and was not too general simply because it did not specifically authorize a search of Umgelder's computer. The warrant did specifically indicate it was searching for items related to child pornography, so the executing officers were not free to go through Umgelder's property without limits. This is sufficiently particular to withstand constitutional challenge. Accordingly, the evidence obtained from the search and seizure of Umgelder's computer is not subject to suppression. (emphasis in original)

In a tax fraud case, a warrant was not inparticular for not listing 220 participants to cover others. Practical flexibility in the warrant was required. The search of defendant's computers was not overbroad either because the government searched files beyond the warrant because nothing found there will be used in the case. Finally, the good faith exception would apply. United States v. Evanson, 2007 U.S. Dist. LEXIS 89618 (D. Utah December 4, 2007):

The decision in United States v. Le, 173 F.3d 1258 (10th Cir. 1999), also supports the government's position. In that case, Mr. Le argued that the warrant authorizing a search of his residence was not sufficiently particular. He based his argument on the fact that although agents searching his residence knew about the kinds of specific explosives Mr. Le had in his garage at the time the agents obtained a warrant, they did not disclose that information to the judge and obtained a warrant that authorized the agents to seize all types of explosives and related evidence. The court disagreed with Mr. Le, noting that it had, in the past, upheld "broad and generic terms of description" in warrants because "the nature and characteristics of some criminal operations do not easily lend themselves to specific descriptions of things to be seized." Id. at 1271-72 (citations omitted).

The Tenth Circuit has also recognized that "[t]here is a practical margin of flexibility permitted by the constitutional requirement for particularity in the description of items to be seized." In re Matter of the Search of Kitty's East, 905 F.2d 1367, 1374 (10th Cir. 1990) (citations omitted).

On the flip side, Mr. Evanson argues that the government's failure to include the Players list, which existed at the time the agent applied for the warrant, rendered the First Warrant not specific enough. But this would not have been an effective tool to limit the warrant. Assuming the warrant had included a list of some 220 known participants in the fraud scheme, that would not have provided any guidance when the searchers confronted the 221st participant, who was previously unknown to the agents. In that case, the searching agents would have had to rely on the descriptions in the balance of the warrant, which would spell out the "distinguishing characteristics of the goods to be seized." Listing the first 220 known participants would have done nothing to specify the "distinguishing characteristics" of the 221st, 222nd, or 223rd participants in the tax fraud schemes, for whose records probable cause had been established. Thus the list would not have added particularity--as contemplated by Leary--to the warrant. Because the descriptions found in the First Warrant were sufficiently particular to direct the agents in what they could and could not seize, failure to include the list was not error.

Defendant filed a motion to suppress a traffic stop, and the officers testified there was no video of the stop. Two months later, the prosecutor gave defense counsel a tape of the stop. A motion to reopen the motion to suppress was denied, and the trial court proceeded to a bench trial, and the tape was played showing that the cops essentially lied about the stop. The fact the trial court viewed the tape at trial was insufficient; the motion for reconsideration should have been heard, and the case is remanded for hearing. State v. Lashuay, 2007 Ohio 6365, 2007 Ohio App. LEXIS 5578 (6th Dist. November 30, 2007):

[*P20] The videotape directly contradicts White's and Fairbank's testimony at the suppression hearing. The trial court, when confronted with the existence of new evidence bearing directly on the propriety of the stop, should not have, as it indicated in its order, merely reviewed the parties' filings on the motion to reopen the hearing. Aside from its own statement, the record is silent as to whether the trial court viewed the videotape before twice denying the motion to reopen the suppression hearing. Assuming, arguendo, that the trial court did view the videotape and found it to have no effect, this would have de facto been a reconsideration of the motion to suppress; in that case, the hearing should have been reopened to allow the parties to argue afresh in light of the new evidence considered. Contrarily, assuming arguendo that the trial court did not view the tape before twice denying the motion, the trial court erred in choosing to resolve factual conflicts raised by the new evidence through reference to the parties' motions alone. Therefore, whether or not the trial court viewed the videotape before ruling on the motion to reopen, it abused its discretion in refusing to reopen the suppression hearing to consider the new evidence's effect. Failure to consider the new evidence denied appellant a full and fair opportunity to present his case on the seizure's validity. Pilot, supra; State v. Boggs (Mar. 20, 1995), 12th Dist. No. CA94-08-067, 1995 Ohio App. LEXIS 1029. Appellant's second assignment of error is well-taken.

Defendant was validly frisked for his ID card under T.L.O. by school security despite the defendant's admission that he did not have it on him. The increasing threat of school violence justified it. Also, citing Indiana constitution requires a separate analysis of why it should be interpreted differently in that case. D.L. v. State, 877 N.E.2d 500 (Ind. App. 2007):

We believe that in this post-9/11, post-Columbine age of increasing school violence, a public school police officer's determination that she must identify the individuals with whom she is in contact similarly warrants our endorsement. See, e.g., Cochran v. State, 843 N.E.2d 980, 983-84 (Ind. Ct. App. 2006) (recognizing that it is an essential police function for an officer to ask individuals for identification and that doing so does not by itself raise a Fourth Amendment issue), trans. denied, cert. denied, 127 S. Ct. 943 (2007). Indeed, the presence of an unidentified individual on school grounds has greater potential safety implications than does the mere scent of cigarette smoke as in D.B. or the fact of hearsay allegations regarding a student's sale of marijuana as in Berry. D.L. was on school grounds during a non-passing period and was unable to present identification when asked. In our estimation, it was not unreasonable for Officer Lambert to respond to this situation by conducting a relatively limited pat-down search of D.L.'s pocket in search of his identification. We are unpersuaded that D.L.'s admission to being in violation of school rules somehow obviates the officer's need to confirm this violation, or her accompanying need to identify him via any identification card potentially on his person. Given the circumstances of the unidentified individuals in a school setting, Officer Lambert's clear need to determine their identities, and this court's generally finding school searches to be reasonable under the circumstances, the limited pat-down search for identification in this case was justified at its inception.

Comment: This is one of those potentially dangerous "timebomb opinions" waiting to go off later in another context. Here, the court of appeals, incidentally hearing this case at a high school (fn.3), Giulianiistically invokes "9/11" and "Columbine," the latter of which alone semi attempts to make the point. But, the Columbine shooters were students at the same school, as are almost all school shootings. I bet this oral argument at Lawrence North High School sure got the attention of the students when the questioning at argument essentially left them with the impression that they have no rights against search and seizure of their persons at school if there is now a "Columbine risk" exception to T.L.O. Under "post Columbine" rationale, anything is possible. The court succumbed to a spurious public safety argument without factual or logical basis to support a search for an ID?

Double hearsay from citizen informants was a valid basis for a stop. Two carnival workers in town reported to the City Superintendent at the grounds that the defendant attempted to sell them meth. That person called and talked with the police. The basis of knowledge of the carnival workers was not relayed to the police officer, but he could rely on hearsay from others. Defendant's stop and frisk only escalated when defendant refused to be frisked. State v. Bishop, 2007 Ida. App. LEXIS 108 (December 4, 2007).*

Exclusionary rule did not apply to a revocation proceeding, except where there was bad faith, which was not evident on this record. Police were responding to a domestic disturbance call called in by a neighbor who reported that defendant was standing over his wife threatening her with a crowbar. Stephens v. State, 2007 Ark. App. LEXIS 863 (December 5, 2007)* (unpublished).

Everything in the affidavit failed to satisfy Aguilar-Spinneli, the state standard: There was no showing of the reasons for veracity of the confidential informants part of the criminal milieu and the citizen informant's statements showed nothing for basis of knowlegde. The result is dismissal of the case. State v. Graves, 2007 Tenn. Crim. App. LEXIS 929 (December 5, 2007).*

"The proof does not preponderate against the trial court's finding that Rose waited for the Appellants to return home and asked them for consent to search the rest of the house, which we conclude that they provided, without reluctance, in written form, voluntarily and without coercion. We hold that in this case the State carried its burden of establishing that the Appellants' consent to search their home was freely and voluntarily given." State v. Lard, 2007 Tenn. Crim. App. LEXIS 928 (December 5, 2007).*

Probable cause was based on overhearing the informant and the defendant talk about a drug deal and then seeing it go down. State v. Scruggs, 2007 Ohio 6416, 2007 Ohio App. LEXIS 5634 (12th Dist. December 3, 2007).*

There is no freedom from search and seizure in a prison, even one the inmate perceives is harassing. Reznickcheck v. N. Cent. Corr. Inst., 2007 Ohio 6425, 2007 Ohio App. LEXIS 5621 (3d Dist. December 3, 2007).*

Search of defendant's person for a lump at his belt that was apparently a bag of drugs. The stop was valid, and the lump was seen immediately when defendant got out. There was no time to get a warrant. State v. Blandin, 2007 Ohio 6418, 2007 Ohio App. LEXIS 5620 (3d Dist. December 3, 2007).*

The video of defendant's driving showed a factual basis for his stop. State v. Boon, 2007 Tenn. Crim. App. LEXIS 915 (December 4, 2007).*

Trial court erred in finding that defendant did not waive his expectation of privacy in the child porn on the video files on his computer when he took it to Circuit City for installation of a new DVD drive. Installers always check to see if the video files will load after installation, and that was how it was discovered. Commonwealth v. Sodomsky, 2007 PA Super 369, 939 A.2d 363 (2007).*

Plaintiffs fail to show an equal protection claim that they were profiled, but they do survive summary judgment on the driver's claim that he was manhandled during a frisk that was unjustified. Llanes v. Barton, 2007 U.S. Dist. LEXIS 89245 (D. Neb. December 4, 2007).*

Affidavit for search warrant was so deficient that the defendant officer could not get summary judgment over the civil claim over the search. Lopez v. County of Kauai, 2007 U.S. Dist. LEXIS 89242 (D. Haw. December 4, 2007).*

Suit for injunctive relief against ICE was dismissed because the plaintiffs' claims they would be subjected to future harassment and searches was speculative. Mancha v. Immigration and Customs Enforcement, 2007 U.S. Dist. LEXIS 89414 (N.D. Ga. December 3, 2007).*

"In sum, defendant's right to be free from unreasonable searches did not grant him the constitutional right to refuse a breath test or a field sobriety test, when requiring those tests would have been supported by probable cause and the officer was faced with exigent circumstances occasioned by the dissipation of the alcohol content in defendant's blood. Nor was the state obliged to obtain a warrant before introducing evidence of defendant's refusals to submit to those tests." State v. Greenough, 216 Ore. App. 426, 173 P.3d 1227 (2007).*

Blanket strip search policy of juvenile detention center survived summary judgment. This case presents interesting summaries of the summary judgment material that shows the potential psychological damage to a juvenile from a strip search. The search of the plaintiff occurred long after introduction into the detention facility. Also, circuit law was unclear, but there was a 1981 case favoring plaintiff and there were three cases from other district courts in other circuits in point that the court used to show the claim was valid. This is a lengthy opinion developed from what appears to be a particularly strident response from the defendants on summary judgment. Moyle v. County of Contra Costa, 2007 U.S. Dist. LEXIS 89509 (N.D. Cal. December 5, 2007):

While the Court agrees that the circumstances in Flores did not present the sort of difficult security issues faced by Contra Costa Juvenile Hall, it concludes, nonetheless, that Defendants' evidence falls short of establishing the constitutionality of blanket strip searches--both upon intake and after returning from visits with individuals who were not employed by Juvenile Hall. With respect to the strip searches that were conducted upon admission to Juvenile Hall, there has been no showing that the contraband listed in the contraband log was seized from juveniles like Ermitano, whose crime did not involve violence, drugs, or weapons. Further, in the face of Plaintiffs' evidence that this contraband could have been detected through the use of pat searches and a metal detector, Defendants have offered no evidence showing that the more intrusive strip search was required. Nor have they pointed to evidence that any of the contraband listed on the logs was concealed in a body cavity. Similarly, with respect to the strip searches conducted after visits with probation counselors and parents, there has been no showing that strip searches are necessary to protect the children at Juvenile Hall. Indeed, the possibility that contraband or weapons might be given to juveniles by probation counselors seems particularly unlikely.

Plaintiff's claim was precluded by the outcome of a bench trial for a petty offense, and it was also Heck barred. Gilbert v. Isham, 2007 U.S. Dist. LEXIS 89406 (W.D. Va. December 5, 2007).*

"[T]he blocking of the defendant's Chevy to determine the identity of the occupants and maintain the status quo while obtaining this information was a warrantless Terry seizure, that Officer Williams had reasonable suspicion justifying that seizure, and the search of the vehicle was constitutionally reasonable." United States v. See, 2007 U.S. Dist. LEXIS 89448 (N.D. Ohio December 5, 2007).*

Equitable tolling applies to save a § 1983 case that was filed within one year of reversal of a conviction, and after Wallace v. Kato held that the cause of action accrues after reversal. The case was dead under Heck until reversal. Kucharski v. Leveille, 526 F. Supp. 2d 768 (E.D. Mich. 2007):

In Wallace v. Kato, 127 S. Ct. 1091, 166 L. Ed. 2d 973 (2007), the Supreme Court overruled all the precedents in the circuits applying Heck to bar section 1983 claims filed by persons with criminal charges pending in state court or deferring the accrual date of such claims. Heck only applies if the plaintiff has actually been convicted. The Court held that a section 1983 claim based on an illegal arrest accrues at the time of the arrest, not when the convictions were reversed by a state court, and Heck v. Humphrey does not require otherwise. Shamaeizadeh, plainly, was overruled.

There can be no question that the plaintiffs relied on Sixth Circuit precedent to their prejudice in this case. The untimeliness of the plaintiffs' complaint results from an understandable confusion about the state of the law as to when their claim accrued. That confusion was created by the courts themselves. The delay did not result from the plaintiffs' failure to diligently pursue the claim. In fact, the plaintiffs filed their complaint less than one year after their convictions were reversed.

Moreover, strict application of Wallace to this case effectively deprives the plaintiffs of their cause of action. If the plaintiffs had filed their case immediately after the search on May 4, 2001, Sixth Circuit precedent would have required dismissal of the case as barred by Heck. Once the law changed, the plaintiffs' convictions having been reversed on September 30, 2004, the plaintiffs would be barred by the statute of limitations under Wallace. This is "a result surely not intended." Wallace, 127 S. Ct. at 1099 n.4. Rather, this is the unusual case that fits neatly within the doctrine of equitable tolling.

The Court concludes that Michigan law tolled the three-year statute of limitations while the plaintiffs' convictions were still viable, and filing this case within three years of the reversal of those convictions does not result in a statute of limitations bar.

Accordingly, it is ORDERED that the plaintiffs' motion for reconsideration [dkt # 51] is GRANTED.

"Knepper claims that the warrantless search of the bedroom where his backpack was recovered was illegal. The district court found that Knepper had abandoned the cottage and thus lacked an expectation of privacy in his former bedroom." That finding is supported by the evidence. United States v. Knepper, 256 Fed. Appx. 982 (9th Cir. 2007).

The police informant in the botched Atlanta drug raid that led to the death of 92 year old Kathryn Johnson, repeatedly posted here months ago, sued the City of Atlanta for disclosing his identity in the course of the investigation. See Former police informant sues Atlanta / Alex White was involved in the Kathryn Johnston case, also posted on the ABA's website.

"First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search." Kelly v. State, 371 Ark. 599, 269 S.W.3d 326 [slip op. at *4] (December 6, 2007):

First, we address the State’s argument that Kelley did not have standing to challenge the search of his apartment because he was in police custody at the time of the search. When determining whether a defendant had standing to challenge a search, the pertinent inquiry is whether the defendant manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognize the expectation as reasonable. See Mazenpink v. State, 336 Ark. 171, 907 S.W.2d 648 (1999). Even though Kelley was not present in his home during the search, he clearly had a subjective expectation of privacy in the area searched because a search of his home was involved, and society would be prepared to recognize a person’s subjective expectation of privacy in his own home. See Mazenpink v. State, supra (defendant who was not present in his home at the time of the search still had standing to challenge the searching officers’ failure to use proper knock-and-announce procedures). Thus, Kelley did have standing to challenge the search of his apartment.

The search was suppressed for violation of the Arkansas nighttime search rule for failing to show separate probable cause and reasons for a nighttime entry.

Comment: Of course he had standing. Arresting a defendant and removing him from the house deprives him of standing? Ridiculous. The docket sheet omits the name of the AAG who put forth this insipid argument.

An order for saliva, hair, and blood samples has to be based on a sworn affidavit, and merely presenting an order to a judge for signature is insufficient. Thus, it must be suppressed. Here, however, the error was harmless in light of all the evidence in the case. State v. Woods, 376 S.C. 125, 654 S.E.2d 867 (2007):

On June 6, 2003, Officer Creech approached Judge Cooper in chambers for an order to take samples of Woods' hair, blood, and saliva. Two other judges were present in chambers when Officer Creech requested the order. Although Judge Cooper found probable cause to issue the order based on his conversation with Officer Creech, there was no affidavit from Officer Creech to support the court order, and Officer Creech failed to make a statement under oath as required by section 17-13-140. The State conceded the order was defective on its face. We find the court order failed to comply with statutory guidelines. Consequently, the hair, blood, and saliva samples should have been suppressed.

Defendant waived the argument he makes on appeal now in the trial court, so it is barred. State v. McDaniel, 104 Conn. App. 627, 934 A.2d 847 (2007).*

Defendant's wife had the authority to consent to a search of their hotel room. State v. Toney, 187 N.C. App. 465, 653 S.E.2d 187 (2007).*

The recording of defendant's interview with local police showed that defendant was not in custody and his statement was voluntary. United States v. Fontecchio, 2007 U.S. Dist. LEXIS 88796 (S.D. Fla. November 9, 2007) (Comment: Yet, the federal government insists on a policy whereby they record no interviews with suspects. And why do you think that is ....?)

The affidavit for the search warrant for defendant's computer showed probable cause [without details], and the good faith exception would save it anyway. United States v. Stults, 2007 U.S. Dist. LEXIS 88845 (D. Neb. December 3, 2007).*

Plaintiff survives summary judgment on a warrantless arrest claim where defendant entered her house to arrest her for failing to report an accident and resisting arrest. Hardwick v. City of Cleveland, 2007 U.S. Dist. LEXIS 88871 (E.D. Tenn. December 3, 2007).*

Defendant had no credibility on the question of consent because of his interest in the case. United States v. Ham, 2007 U.S. Dist. LEXIS 88743 (S.D. Fla. November 15, 2007).*

Officers did not lose qualified immunity protection because they did not conduct what would be an otherwise proper investigation by not asking further questions. Fleming v. City of Bridgeport, 284 Conn. 502, 935 A.2d 126 (2007):

In the absence of exigent circumstances, adherence to the fourth amendment and to § 47a-43, and the policies underlying both, would dictate that police officers make a reasonable investigation to determine whether such persons are entitled to the protections of the statute. For example, some relevant questions to such an inquiry might be: how long the plaintiff had been staying there; whether she received mail there; whether she paid rent; whether she kept her belongings there; and whether she had a key to the premises. 29 We recognize that the officers in the present case could have asked such questions, and we urge that they do so in the future in similar circumstances; we cannot say, however, that their approach under the circumstances of this case was so unreasonable as to justify abrogation of their qualified immunity.

Defendant lacked a reasonable expectation of privacy in a car that he borrowed for a drug drop that he knew others had access to and admitted that he did not care about. United States v. Amaral-Estrada, 509 F.3d 820 (7th Cir. 2007):

Amaral-Estrada failed to manifest any sort of actual or subjective expectation of privacy. Instead, Amaral-Estrada possessed the car for the purposes of transporting contraband, such as the U.S. currency seized from the back seat. His expectations while using the car were that others would enter the vehicle, taking and/or leaving items therein. Furthermore, when the federal agents asked Amaral-Estrada about the vehicle, Amaral-Estrada denied any knowledge of the car. Amaral-Estrada also testified that he did not care about the bag in the back seat of the Chrysler M300 because it was not his bag and not his car. Under these facts reasonably relied upon by the district court, Amaral-Estrada failed to exhibit any legitimate privacy interest in the Chrysler M300 and therefore lacks standing to challenge the search of the vehicle; therefore we need not address his third issue on appeal as to whether there was probable cause to search the Chrysler M300.

Defendant was seen speeding and officers followed. He pulled into a driveway, reached under the seat, and got out of the vehicle and walked away from it. The officers recognized him as having warrants out and stopped him to arrest him. One officer looked in the vehicle and saw a gun in plain view. The vehicle was going to be impounded because it was parked in a driveway that was not defendant's. The plain view and entry to retrieve the gun was lawful. United States v. Bynum, 508 F.3d 1134 (8th Cir. 2007).*

Defendant was on the premises when a search warrant was executed, and she was asked if she would consent to a search of her car. She agreed. That did not carry with it implicit consent to search her purse for the keys, so the drugs found there had to be suppressed. State v. Fulghum, 288 Ga. App. 746, 655 S.E.2d 321 (2007):

Here, Fulghum was not suspected of any crime at the time she consented to a search of her vehicle; she was merely a visitor to the house. She did not tell Officer Scott to search for her keys, but only stated where she thought they might be. And she never specifically consented to a search of her purse.FN8 Under these circumstances, the trial court was authorized to find that a typical reasonable person would not have understood the exchange between Fulghum and Officer Scott to grant him permission to search her purse. Accordingly, we affirm the grant of Fulghum's motion to suppress.

8. See generally State v. Hanson, 243 Ga. App. 532, 542 (532 SE2d 715) (2000) (physical precedent only) (Barnes, J., concurring specially) ("A purse is no mere container ... it is a uniquely private item containing a person's most confidential possessions. Further, it is an item that is universally recognized as one in which a person has a reasonable expectation of privacy.").

Defendant was stopped for a traffic offense in the vicinity of a shooting report. When he was asked about whether he had a gun, defendant answered funny and he reached for his waistband. This justified a directive for him to get out of the car. United States v. Copeland, 2007 U.S. Dist. LEXIS 88492 (M.D. Tenn. November 30, 2007).*

Officers responded to a domestic abuse call, and they were invited to enter by defendant's wife, the caller, and had probable cause based on injuries to her face. Summary judgment granted. Kirk v. Gregory, 2007 U.S. Dist. LEXIS 88476 (S.D. Ind. September 28, 2007).*

Officers admittedly lacking probable cause did a knock-and-talk at defendant's house. Two other men fled out the back, and a cellphone visible through a window was gone. The defendant inside lied about his identity. The court found exigency and then considered whether the police created it. Instead, defendant created exigency when he lied, and the police then legitimately feared that seven computers inside which were of interest to them would be tampered with or the data destroyed.
United States v. Trowbridge, 2007 U.S. Dist. LEXIS 88257 (N.D. Tex. November 29, 2007):

In this case, the Court is convinced that like the officer in Jones, the agents did not have probable cause to search Trowbridge's computers because there was no evidence connecting his computers to the offense they were investigating. (Gov't's Resp. to Mot. to Suppress 18). Accordingly, it was reasonable for the officers to use the "knock and talk" strategy to further investigate. In addition, Trowbridge and Roberson, not the officers, created the exigency when they attempted to deceive the agents by claiming that Trowbridge was not at home. Based on the agents' testimony, the Court concluded that their investigative tactics were reasonable and did not create the exigency.

Consenting to defendant's re-entering home after a 911 call that was diffused was a police created exigency because they wanted to follow him in. United States v. Davis, 2007 U.S. Dist. LEXIS 88262 (N.D. Tex. November 29, 2007):

Based on the officers' credible testimony in the five hour evidentiary hearing, the Court determined that any emergency that existed based on Cupito's 911 call had ended when the officers approached Davis's door. The officers had spoken to Cupito, and she was standing safely outside Davis's home. Both officers testified that they had determined that they would arrest Davis before they requested his identification. If there was an exigency that Davis would harm the officers, retrieve a weapon, flee, or destroy evidence, it was created when the officers requested and consented to Davis reentering his home to retrieve his identification. Even though the officers were acting in good faith, this police-created exigency does not justify their invasion of the "sanctity of the home" to effect a warrantless arrest. See Payton, 445 U.S. at 589. Accordingly, the Government has not met its heavy burden of establishing an exigency.

On rehearing from a prior holding, 457 F.3d 1088 (9th Cir. 2006), the Ninth Circuit held that pointing a gun at the head of an 11 year old boy clad only in shorts and a t-shirt, then handcuffing him during a search of a house he already had come out of stated a Bivens claim because he clearly posed no threat. Tekle v. United States, 04-55026 (December 3, 2007):

[3] Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial “intercom,” he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway. He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes. We conclude under these circumstances that the amount of force used against Tekle constituted a “‘very substantial invasion of [his] personal security.’” Id. at 1015 (quoting Baker, 50 F.3d at 1193). Consequently, this factor weighs in favor of Tekle.

[4] Turning to the second and most important factor, we conclude that “the need for the force, if any, was minimal at best.” Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003). All the factors to be considered in determining the need for the force weigh in favor of a finding that the need for force was minimal. First, Tekle clearly was a child and was not the subject of the arrest warrant. Tekle was unarmed and vastly outnumbered and did not pose an immediate threat to the officers’ safety. He did not actively resist arrest or attempt to flee. Under these circumstances, even if the officers needed to secure Tekle in order to execute the search and arrest warrants, it should have been apparent that this eleven-year-old boy did not pose a threat and that the need for force accordingly was minimal. Cf. id. (finding the force excessive where the officer threw the plaintiff to the ground and handcuffed her, despite the fact that she posed no safety risk and made no attempt to leave the property); Baldwin v. Placer County, 418 F.3d 966, 970 (9th Cir. 2005) (stating that the governmental interests in using handcuffs were at a minimum when there was no indication that officers believed the suspects would flee or be armed), cert. denied, 126 S. Ct. 1331 (2006); Wall v. County of Orange, 364 F.3d 1107, 1111-12 (9th Cir. 2004) (reversing the grant of summary judgment where the deputy violently arrested the plaintiff, handcuffing his hands tightly, even though there was no probable cause for arrest and the plaintiff was following the deputy’s instructions).

[5] Balancing the force used against the need, we conclude that, “when the disputed facts and inferences are treated in the manner required by law, a jury could properly find” that the force used was “greater than [was] reasonable under the circumstances.” Santos, 287 F.3d at 853, 854. There were over twenty officers present at the scene, and Tekle was not suspected of any crime. He was cooperative and unarmed and, most importantly, he was eleven years old. A reasonable agent confronted with these circumstances should have known that there was no need to use guns and handcuffs. Yet, the officers kept Tekle handcuffed and pointed their weapons at him even after it was apparent that he was a child and was not resisting them or attempting to flee. Moreover, Tekle has alleged that an officer pulled him up from behind by the chain of the handcuffs, an act which, if true, could support a jury finding of excessive force. We understand that “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. Nonetheless, we are convinced, if only by the sheer number of officers versus the one, clearly unarmed, barefoot child that a reasonable jury could find that the officers used excessive force.

Defendant who was hanging in a drug house that was without electricity or door locks had no expectation of privacy when the police entered without a warrant in response to neighbors' complaints. This was "wrongful" occupancy. United States v. Hoyle, 2007 U.S. Dist. LEXIS 88026 (E.D. Mich. November 30, 2007).

A resident advisor of a Hofstra University dorm called University Security officers when he smelled marijuana coming from plaintiff's room. Plaintiff was later suspended for one semester. His suit against the University under various theories was dismissed, including a lack of state action for the entry. He was not prosecuted. Franchetti v. Hofstra Univ., 2007 N.Y. Misc. LEXIS 7823, 238 N.Y.L.J. 98 (Nassau Co. October 19, 2007).*

Defendant's traffic stop escalated to reasonable suspicion based on excessive nervousness and furtive movements, the explanation of which was completely implausible. Defendant was even moved to another officer a half-mile away because the officers needed to back each other up. State v. Forbes, 2007 Ohio 6412, 2007 Ohio App. LEXIS 5616 (12th Dist. December 3, 2007).*

Plaintiffs and their children were staying at a hotel in New Orleans only from Algiers on the West Bank when Katrina hit and then the city flooded. By September 1st, the hotel they were in was running out of food and fuel, and the hotel asked them to evacuate. Their car was in the hotel's flooded garage, so they decided to walk home over the bridge. They were ordered back into New Orleans at gunpoint by Gretna police, notwithstanding their attempt to show they lived where they were walking to. They sued under various theories, and they stated a denial of interstate travel and a Fourth Amendment claim that survives a motion to dismiss. Cantwell v. City of Gretna, 2007 U.S. Dist. LEXIS 88156 (E.D. La. November 30, 2007):

The defendants contend that the facts do not state a claim for relief for a violation of the plaintiffs' rights under the Fourth Amendment. The defendants contend that the plaintiffs have not alleged any use of force and that the "threat of force" by pointing a gun as a deterrent does not allege a constitutional violation. The plaintiffs argue that the defendants violated a liberty interest guaranteed under the Due Process Clause of the Fifth and Fourteenth Amendment when they physically restrained them from crossing the bridge.

. . .

"The first inquiry in any § 1983 suit" is "to isolate the precise constitutional violation with which [the defendants] are charged." Baker v. McCollan, 99 S.Ct. 2689, 2692 (1979). Historically, "[t]he liberty preserved from deprivation without due process included the right generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." Ingraham v. Wright, 97 S.Ct. 1401, 1413 (1977). "While the contours of the historic liberty interest in the context of our federal system of government have not been defined precisely, they always have been thought to encompass freedom from bodily restraint and punishment." Id. at 1413-14.

A seizure occurs when government actors have "by means of physical force or show of authority, ... in some way restrained the liberty of a citizen." Terry v. Ohio, 88 S.Ct. 1868, 1879 n.16 (1968). In Graham v. Connor, 109 S.Ct. 1865, 1871 (1989), the Supreme Court explicitly held that a claim that arises in the context of the restraint of liberty of a free citizen is properly characterized as one invoking the protections of the Fourth Amendment and is analyzed under the reasonableness standard. "Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Id.; see also Saucier v. Katz, 121 S.Ct. 2151, 2158 (2001) (analysis is under Fourth Amendment standard, not substantive due process principles).

The Due Process Clause is not implicated in this case. There are no issues concerning procedural due process, and a substantive due process analysis is not appropriate. Accordingly, the defendants' motion to dismiss the claims under the Due Process Clause of the Fifth and Fourteenth Amendments is granted.

Notwithstanding, the plaintiffs have alleged facts beyond a speculative level that a violation of the Fourth Amendment could have occurred, based simply on the general rule prohibiting excessive force in restraining the liberty of a citizen. See Saucier v. Katz, 121 S.Ct. at 2159. Accordingly, the allegations plausibly suggest a right to relief, and the defendants' motion to dismiss the Fourth Amendment claim is denied.

Defendant's car was impounded because of his driver's license, and he asked if he could get some things out of the car before it was towed. The officer decided to search for weapons for officer protection, but instead did a complete search of the car, including searching in a dayplanner and the trunk. The search was excessive and violated the Fourth Amendment. State v. Warren,38 Kan. App. 2d 697, 171 P.3d 656 (2007).

A search incident under Kansas law is statutorily the same as Belton and Thornton by a change in statute from the search being for "the crime" to "a crime." Here, the defendant had just gotten out of the car when he was arrested, so a search incident was proper. State v. Henning, 38 Kan. App. 2d 706, 171 P.3d 660 (2007).

Stop was based on reasonable suspicion from a tipster that was corroborated and involved hiding a black bag under the hood. Once the defendant was stopped and admitted having marijuana on him, a search incident was proper. State v. Cheickne, 2007 Ohio 6334, 2007 Ohio App. LEXIS 5567 (1st Dist. November 30, 2007).*

Defendant was stopped for driving on a road closed to all but residents, but the officer had no idea whether defendant was a resident. The stop was unreasonable. State v. Hoard, 2007 Wisc. App. LEXIS 1041 (November 29, 2007):

P20 We note that the circuit court stated that if Hoard had not lived within the closed area, he could not challenge the stop. We disagree. The analysis of the lawfulness of a traffic stop does not depend on what the officer learns after the stop but on whether, at the time of the stop, the officer had reasonable suspicion for making the stop. Thus, whether Hoard was or was not lawfully driving in the closed area, the analysis of the lawfulness of the stop is the same.

Pretrial electronic monitoring is not a violation of the Fourth Amendment. United States v. Gardner, 523 F. Supp. 2d 1025 (N.D. Cal. 2007):

In the instant case, the sole condition of electronic monitoring does not implicate any such interest. It does not violate a reasonable expectation of privacy under the Fourth Amendment. Electronic monitoring simply alerts law enforcement officials when Ms. Gardner has traveled 100-300 feet away from her home in violation of her curfew restriction. It does not reveal where she is within the home. The system functions as a virtual monitor standing watch outside of Ms. Gardner's home to ensure she complies with her curfew. Thus, electronic monitoring itself does not invade Ms. Gardner's reasonable expectation of privacy since the system monitors only what would be readily observable to the public eye. See United States v. Knotts, 460 U.S. 276, 281-82 (1983) (concluding that no reasonable expectation of privacy exists where a person travels in public); Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Cf. United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) ("[T]here is no reasonable expectation of privacy in the exterior of a car because the exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a search." (quoting New York v. Class, 475 U.S. 106 (1986))).

Nor does electronic monitoring implicate any identifiable common law right to privacy and thus a fortiori does not establish a liberty interest under Paul. The common law tort of intrusion upon seclusion requires that a plaintiff show an intentional intrusion into the solitude or seclusion of another or his private affairs or concerns that is highly offensive to a reasonable person. Restatement (Second) Torts § 652B (1977). Here, similar to the Fourth Amendment analysis, electronic monitoring would not trigger liability since it only provides information that is readily gleaned by the public eye. See id. cmt. c ("[T]here is no liability ... for observing [the plaintiff] or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye.").

Defendant was taken in, but not arrested, for indecent liberties with a child, and he consented to his car being towed to the police station. After they were there, he was asked for consent to search the car, but he did not want the officers to let his wife know what was in it. The officer assured the defendant he would not tell the wife, so the defendant consented. The consent was valid. Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007).*

Police had reasonable suspicion based on defendant's description, proximity to a robbery call, and then flight when he saw the police. The search of his duffle bag at the time of detention was waived. People v. Quinones, 2007 NY Slip Op 9431, 45 A.D.3d 874, 847 N.Y.S.2d 145 (2d Dept. 2007):

The police had a founded suspicion that criminal activity was afoot when they observed the defendant, who matched the general description of a robbery suspect in a radio call, in the stairwell of the building where the reported robbery occurred .... The defendant's attempted flight, combined with the temporal proximity between the reported robbery and the officers' arrival on the scene, gave the police reasonable suspicion to detain the defendant. ...

The defendant's contention that the search of his duffel bag without a warrant constituted an unreasonable search and seizure, was not raised at the suppression hearing, and thus, it is unpreserved for appellate review ... and, in any event, is without merit ....

Military entry base search of a car at a contractor entry gate that produced a small quantity of marijuana was a valid area entry search. No matter what theory is applied, the military has a compelling interest in keeping drugs off a base. United States v. Gallock, 2007 U.S. Dist. LEXIS 87512 (E.D. Cal. November 20, 2007):

The search here is no different in principle from other types of "entry point" searches whether or not the administrative search is justified with an implied consent. In either case, the scope of the search cannot exceed the purpose for which the warrantless search is justified. United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) ("The scheme is only valid if 'the search serves a narrow but compelling administrative objective,' and 'the intrusion is as limited….as is consistent with satisfaction of the administrative need that justifies [it].'"). Even the government appeared to concede at oral argument that the military police would be hard pressed to utilize their checkpoint to search for evidence of private party stock insider trading, a crime with no general relation to Air Force activities. As is the case in many areas of criminal law, a rule of reason must be employed even for exceptions to the search-with- warrant requirement. Morgan, 323 F.3d at 781. And, the military entry point search must be limited to those areas of the person or vehicle likely to conceal the contraband prohibited from the base.

Defendant's error is in assuming that if a check for weapons alone is the rule for government buildings, Bulacon, supra, thus it must be the rule for military bases as well. The undersigned has seen no authority for such a narrow proposition, and the case law permits different search scopes, even based on dual purposes, depending on the nature of the checkpoint. See e.g., United States v. Soto-Camacho, 58 F. 3d 408 (9th Cir. 1995) (border checkpoint search based on need to ascertain immigration status and need to thwart drug trafficking upheld).

The local Air Force regulation governing the scope of the search permits military police to conduct entry point searches "to deter theft of government property and to prevent the transportation of contraband onto and off the installation." BABI31-101, 14 May 2002, § 5.7.1.1, Govt. Exhibit 3. See also AFI 31-201, § 5.2: "Controlling entry to the installation is a fundamental security police task. We control entry…to help protect the resources entrusted to the Air Force." However, although "contraband" is a broad word, it cannot exceed the scope of items which would in some way significantly disrupt the functioning of the airbase.

The court need not stretch to understand that the Air Force has a legitimate and compelling interest in keeping controlled substances off its premises.

Egloff v. New Jersey Air Nat. Guard, 648 F. Supp. 1275, 1280 (D.N.J. 1988). Air Force functions at a base such as Beale include flight, ground control and maintenance of aircraft and other sophisticated equipment. Training with dangerous weapons takes place. Private contractors assist the Air Force in its mission. Air Force bases and use of controlled substances thereon are incompatible in terms of the danger to mission, life, and property which would be risked by application of civilian controlled substance probable cause search rules to entry points on these insular bases. Nor must the Air Force implement a plethora of different rules and standards for checkpoint searches depending on the sophistication of every job, for employees working those jobs, which takes place on an Air Force base. Such would be unworkable.

Whatever "contraband" may be beyond the proper scope of an entry point search at a military base, controlled substances fall far short of that outside parameter. Upon entering the base at Beale, defendant impliedly consented to a search of his vehicle, including the center console and items such as the eyeglass case contained therein. The scope of the search was reasonable.

"Fellow officer rule" applies to the information which triggers a protective sweep, which was valid here. United States v. Anderson, 2007 U.S. Dist. LEXIS 87485 (W.D. N.Y. November 6, 2007):

Logically, the same analysis should apply to a protective sweep in determining whether there exists "a reasonable, articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene." Buie, 494 U.S. at 336. Specifically, in this case, the Court finds that information, possessed by Briganti reasonably led him to believe that the targets of the warrants might well be armed and dangerous and reasonably led him to so advise members of the arrest teams, including Brennan.

Finally, since the Court determines that the protective sweep at issue was lawful, Brennan's plain view observation of the business card on which there appeared names and numbers was also lawful.

A license plate and driver's license check which led to the discovery that the owner of the vehicle had a restricted driver's license justified a stop on reasonable suspicion. State v. Crow, 2007 Iowa App. LEXIS 1272 (November 29, 2007).*

Facebook's insidious program that told a Facebook user's friends everything the user was buying online or movies they were buying tickets to bit the dust after a mere ten days, thanks to a user uprising. See NYTimes.com yesterday: Facebook Retreats on Online Tracking:

Faced with its second mass protest by members in its short life span, Facebook, the enormously popular social networking Web site, is reining in some aspects of a controversial new advertising program.

Within the last 10 days, more than 50,000 Facebook members have signed a petition objecting to the new program, which sends messages to users’ friends about what they are buying on Web sites like Travelocity.com, TheKnot.com and Fandango. The members want to be able to opt out of the program completely with one click, but Facebook won’t let them.

Late yesterday the company made an important change, saying that it would not send messages about users’ Internet activities without getting explicit approval each time.

Facebook and MySpace are incredibly stupid and completely insipid websites for lonely people or people with too much time on their hands. It is useful to the defense bar, however, because purported crime victims have made admissions on their Facebook or MySpace pages that defense lawyers can use against them, assuming one can get into their website.

Amazingly, Facebook was sending personal information about members' purchases to all their "friends" listed on the website, without the members' permission. How they thought they could get away with this is unfathomable to me. Talk about an invasion of privacy ....

Plaintiff's car was suspected of being at the scene of several burglaries in 2002, and the police decided, after consultation with supervisors, to plant a GPS with a cellphone transmitter on the car. Plaintiff's Fourth Amendment claim failed under Knotts. Morton v. Nassau County Police Dep't, 2007 U.S. Dist. LEXIS 87559 (E.D. N.Y. November 27, 2007):

"A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." United States v. Knotts, 460 U.S. 276, 281 (1983). The use of the GPS Device did not permit the discovery of any information that could not have obtained by following an automobile traveling on public roads, either physically or through visual surveillance (e.g. through the use of cameras or from a helicopter), conduct that neither requires a warrant nor implicates Fourth Amendment rights. "Nothing in the Fourth Amendment prohibit[s] the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afford[s] them." Id. at 282.

In Knotts, law enforcement officials placed a tracking device, or "beeper," inside a barrel of chloroform which was sold to an individual suspected of manufacturing illegal drugs. After the suspect loaded the barrel containing the beeper into his vehicle, the police were able to track his movements. The Court in Knotts held that the law enforcement officials' use of the beeper did not violate the suspect's Fourth Amendment rights, because there is no reasonable expectation of privacy in the movements of an automobile on public roadways, and that the placement of the device did not constitute an unreasonable seizure. Id. Accord United States v. Garcia, 474 F.3d 994, 996 (7th Cir. 2007); United States v. Gbemisola, 225 F.3d 753, 758-759 (D.C. Cir. 2000); ... Alexandre v. N.Y. City Taxi & Limousine Comm'n, 2007 U.S. Dist. LEXIS 73642 (S.D.N.Y. September 28, 2007); ....

Plaintiff attempts to distinguish the instant case from Knotts on the basis that the beeper in Knotts was not actually attached to the suspect's car, but rather loaded by the suspect into his own car, whereas here, the GPS Device was attached to Plaintiff's car by the Defendants. This minor distinction is not sufficient to remove the instant case from the ambit of Knotts.

Thus, the use of the GPS Device was not an unreasonable search or seizure in violation of the Fourth Amendment, and Plaintiff's claims pursuant to the Fourth Amendment are dismissed.

Dog alert during a stop was sufficient to justify prolonging the detention. United States v. Aispuro-Medina, 256 Fed. Appx. 215 (10th Cir. 2007) (unpublished).*

Plaintiff’s mental health seizure was justified by probable cause to believe she was a danger to herself. Morrison v. Bd. of Trs. of Green Twp., 2007 U.S. Dist. LEXIS 87817 (S.D. Ohio November 29, 2007).*

"There is no reasonable expectation of privacy in a license plate number which is displayed in plain view, and it is not illegal for a police officer to use license plate information to conduct a check on the vehicle's ownership and registration." The vehicle came back unregistered. United States v. King, 2007 U.S. Dist. LEXIS 87629 (D. Del. November 29, 2007).*

"After careful consideration of Detective Boos' testimony and a careful review of the application for a search warrant, I am convinced that the affidavit contained no false or misleading information, and that Detective Boos did not knowingly or intentionally or with reckless disregard for the truth include any false statements or omit any necessary or material information in the application for the search warrant. Franks v. Delaware, 438 U.S. at 171-72. Thus, I will deny the motion to suppress." United States v. Charles, 2007 U.S. Dist. LEXIS 87647 (E.D. Pa. November 29, 2007).*

DNA can be taken from a person convicted of a non-violent drug conspiracy. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007) (2-1):

Kriesel counters that nonviolent offenders have lower recidivism rates than violent offenders. This argument is not persuasive in Kriesel's case. Indeed, he is already a recidivist, as he violated the terms of his release when he tested positive for controlled substances. While it is true that "recidivism rates vary with factors like the offender's age and type of conviction," nonetheless, "the high likelihood that non-violent offenders will re-offend--and therefore, as the Supreme Court recognized in Knights, be put in the position to conceal their crimes and identities from the authorities--underscores the Government's interest in obtaining the most accurate identification information it can from these individuals." See Banks, 490 F.3d at 1191.

Comment: I lost this issue in Arkansas two years ago, Polston v. State, 360 Ark. 317, 201 S.W.3d 406 (2005), holding there is enough risk of recidivism even with drug offenders to justify it. See also Annots., Validity, Construction, and Application of DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C.A. §§ 14135 et seq. and 10 U.S.C.A. § 1565, 187 A.L.R. Fed. 373, § 12 (larceny); Validity, construction, and operation of state DNA database statutes, 76 A.L.R.5th 239.

Coincidentally, the LAPD alone needs $9.5M to clear out its DNA backlog. See yesterday's LATimes.com: LAPD far short of funds for DNA tests.

The time during a warrant check is a detention. "[W]hen Anderson ordered the warrant check, the encounter evolved into a restraint on defendant's liberty. In other words, the encounter evolved into a stop. Given the state's concession--with which we agree--that Anderson lacked reasonable suspicion to stop defendant at that point, the stop was unlawful." State v. Rider, 216 Ore. App. 308, 172 P.3d 274 (2007).

Consent was a product of unlawful entry, and it was too close on its heels to be attenuated. State v. Washburn, 216 Ore. App. 261, 173 P.3d 156 (2007)*:

In this case, the evidence as described above clearly establishes that the deputies sought consent "solely as a result of the knowledge of inculpatory evidence" obtained in the first entry. Further, the time between the two searches was short, five minutes at most; no intervening circumstances occurred; and no mitigating circumstances occurred. Additionally, the deputies "traded on," or exploited, the discoveries made during the first search in order to obtain Buchholtz's consent. They referred to both the unattended child and the condition of the room immediately before asking him if they could enter in order to further discuss the situation.

In sum, the first entry was an unlawful search. But for that search, the deputies would not have sought consent for a reentry. The state has not shown that the second entry would (or could) have occurred based on independently obtained information, nor that the connection between the unlawful search and the subsequent consent was attenuated. Defendant's motion to suppress should have been granted.

Defense counsel was not ineffective for not challenging the search of defendant's motorcycle because it was based on probable cause. Alternatively, it was a valid inventory for forfeiture. Commonwealth v. West, 2007 PA Super 349, 937 A.2d 516 (Pa. Super. 2007).*

Violation of state strip search statute did not warrant suppression because the search was valid under the Fourth Amendment. Rumore v. State, 969 So. 2d 551 (Fla. 2d DCA 2007):

Furthermore, we hold that the subsequent strip search of Mr. Rumore's person was reasonable under the Fourth Amendment but unlawful under section 901.211, Florida Statutes (2005). However, Mr. Rumore is not entitled to have the fruits of the search suppressed because the exclusionary rule is inapplicable in the context of violations of section 901.211. See Laster v. State, 933 So. 2d 41, 42 (Fla. 2d DCA 2006); Jenkins v. State, 924 So. 2d 20, 33-34 (Fla. 2d DCA), review granted, 944 So. 2d 345 (Fla. 2006).

"Plain feel" did not justify opening a candy container to look for contraband. Crawford v. State, 980 So. 2d 521 (Fla. 2d DCA 2007).*

A search warrant was not invalid for not mentioning that defendants lived there. United States v. Xiong, 2007 U.S. Dist. LEXIS 87085 (E.D. Wis. November 26, 2007):

An accurate street address is by itself sufficient to allow a reasonable person to "ascertain and identify the place intended." Id. Here, the warrant included in addition to an accurate street address, a physical description of the premises. Defendants have offered no explanation of why this was not sufficient.

Inevitable discovery supported seizure of 10,000 pounds of marijuana from defendant's house which they could smell after the door was opened. They did a "protective sweep" and sent for a warrant. The inevitable discovery doctrine supported the seizure. Herrera-Fernandez v. State, 2007 Fla. App. LEXIS 18729 (Fla. 4th DCA November 28, 2007).*

Younger abstention bars a federal civil action against a search that is still under investigation by state officials. Mirka United, Inc. v. Cuomo, 2007 U.S. Dist. LEXIS 87385 (S.D. N.Y. November 27, 2007):

Numerous courts have held that investigatory proceedings that occur pre-indictment and that are an integral part of a state criminal prosecution may constitute "ongoing state proceedings" for Younger purposes. See, e.g., Texas Association of Business v. Earle, 388 F.3d 515, 519-21 (5th Cir. 2004) (A state grand jury proceeding in which subpoenas have been issued constitutes an 'ongoing state proceeding' such that abstention is warranted.); Craig v. Barney, 678 F.2d 1200, 1202 (4th Cir. 1982); Kaylor v. Fields, 661 F.2d 1177, 1182 (8th Cir. 1981) ("The issuance [by the Arkansas Attorney General] of the subpoenas ... is part of a state proceeding in which the plaintiffs to this action had an opportunity to present their claims" and therefore requires Younger abstention.); J. & W. Seligman & Co. Inc. v Spitzer, No. 05 Civ. 7781, 2007 WL 2822208, at *5 (S.D.N.Y. Sep. 27, 2007) ("[T]he issuance of compulsory process ... in criminal cases, initiates an 'ongoing' proceeding for the purposes of Younger abstention."); Law Firm of Daniel P. Foster, P.C. v. Dearie, 613 F. Supp. 278, 280 (E.D.N.Y. 1985) ("Thus, were the court to grant the relief sought, the immediate and direct effect would be to enjoin the state court from enforcing its order to comply with the subpoena and the state from pursuing a grand jury investigation, which is a criminal proceeding."); Notey v. Hynes, 418 F. Supp. 1320, 1326 (E.D.N.Y. 1976) ("[W]hen a grand jury has been impaneled and is sitting and investigating, there is a 'criminal case' and in New York a criminal proceeding.").

Search warrants are sometimes necessary to develop evidence sufficient to commence a criminal action and are functionally connected to criminal prosecutions. Moreover, the instant search warrant was authorized and executed during and in connection with a grand jury investigation. It would strain logic as well as both New York and federal law to conclude that a search warrant authorized by a New York state judge and executed during the course of an ongoing grand jury investigation is not part of an ongoing state proceeding. In any event, as that grand jury investigation has now resulted in an indictment against Kagan and others, state criminal proceedings are now clearly underway.

"Defendant's consent, after being shown an invalid search warrant for the [his] property, was not a valid consent." United States v. Jones, 2007 U.S. Dist. LEXIS 87221 (S.D. Ohio November 27, 2007).*

Consent was found valid by defendants' actions, without words. United States v. Hernandez, 2007 U.S. Dist. LEXIS 87080 (D. Utah November 27, 2007).*