Archives for: April 2009, 07
04/07/09
N.D. Fla.: Officers violated curtilage to get PC for SW
In a "tax protester" suit, an IRS summons and levies comply with the Fourth Amendment. Marranca v. United States IRS, 2009 U.S. Dist. LEXIS 27831 (W.D. N.Y. March 31, 2009)*:
Fourth Amendment protections apply in the IRS tax collection context only when the property sought by levy is unobtainable without an intrusion of privacy. See GM Leasing Corp., 429 U.S. at 351-52; Maisano v. Welcher, 940 F.2d 499, 502-03 (9th Cir. 1991) ("In applying the Fourth Amendment to IRS seizures of taxpayers' property, the Supreme Court indicates that the key issue is whether the seizure involves an invasion of privacy.") Since the Notice of Levy in this case was served on Petitioners employer, Petitioner had no reasonable expectation of privacy and the Fourth Amendment warrant requirement is therefore not implicated. See Cameron, 593 F.Supp. at 1554 (holding that no invasion of privacy occurred for Fourth Amendment purposes where wages were "levied when [they were] neither in plaintiff's private possession nor subject to his private control").
Applying the Dunn standard, the court concludes that officers were on the defendant's curtilage when they smelled marijuana, and their entry onto the curtilage without a warrant was suppressed. United States v. Rodriguez, 2009 U.S. Dist. LEXIS 27615 (N.D. Fla. March 18, 2009)*:
This Court does not dispute the fact that when the officers smelled marijuana ten feet from the door, the officers had probable cause to obtain a warrant to search the premises. What this Court does conclude, however, is that in arriving at the location where they smelled the marijuana, the officers had unlawfully entered Defendant's curtilage. Admittedly, the line at which the curtilage starts and is therefore differentiated from an open field is not a clear line. But at some point, between the locked gate that separates Defendant's property from the public street and the Defendant's front door, the officers passed into an area where Defendant had a privacy right that society is prepared to accept. That area is relatively close to the home. Accordingly, this first factor supports a finding that the point at which the officer was first alerted to the presence of contraband occurred within curtilage.
D.Utah: Photographing scene of search is not a violation of SW
In a rare federal obscenity prosecution, the requirement that the issuing magistrate "focus searchingly on the question of obscenity" (Marcus v. Search Warrant) did not require the magistrate to actually view the DVD (P.J. Video). Photographing the scene of the search (300 pictures) was permitted under the warrant. United States v. Harb, 2009 U.S. Dist. LEXIS 26745 (D. Utah March 30, 2009):
Defendants cite no authority for this argument. As cited by the government, the authority is to the contrary.31 The agents were lawfully on the premises and, therefore, their photographs during the execution of the search warrant is not a seizure in violation of the Fourth Amendment. Because the agents "in this case were properly on the [business] premises, they could record by photography scenes presented to their plain view." Whether these photographs are admissible at trial is not before the Court at this time.
31 Bills v. Aseltine, 958 F.2d 697, 707 (6th Cir. 1992) (finding that "the recording of visual images of a scene by means of photography does not amount to a seizure because it does not 'meaningfully interfere' with any possessory interest"); United States v. Mancari, 463 F.3d 590, 596 (7th Cir. 2006) (following Bills); United States v. Espinoza, 641 F.2d 153, 167 (4th Cir. 1981) (finding that where agent was lawfully on the premises in the execution of a valid search warrant, the agent "did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent 'seizing' those views themselves as evidence").
Defendant had no reasonable expectation of privacy in the common areas of his four-plex. United States v. Martin, 2009 U.S. Dist. LEXIS 27860 (D. Kan. April 2, 2009).
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