The NYPD policy that officers who discharge their firearms resulting in death or injury must be subjected to a breath test is constitutional. Lynch v. City of New York, 589 F.3d 94 (2d Cir. 2009):

We hold as follows: (1) the District Court did not make a "clearly erroneous assessment of the evidence" when it found that the primary purpose of the breathalyzer policy was not the NYPD's "general interest in crime control" and thus fell under the "special needs" doctrine of our Fourth Amendment jurisprudence; (2) the fact that crime control was one purpose--but not the primary purpose--of the breathalyzer policy does not bar the application of the "special needs" doctrine to the breathalyzer policy; and (3) based on the record at this stage of the proceedings, the breathalyzer policy is reasonable under the three-factor balancing test of the "special needs" doctrine. We conclude, therefore, that the District Court's denial of plaintiffs' motion for a preliminary injunction was not an abuse of discretion.

. . .

Finally, we recognize that the NYPD's reputation in the eyes of the public is directly tied to its effectiveness as a police force. See, e.g., Pappas v. Giuliani, 290 F.3d 143, 149 (2d Cir. 2002) (explaining that negative "public perception ... [can] harm the mission of the Police Department"); see also Lidster, 540 U.S. at 425 (noting that information volunteered by the public plays a "vital role in police investigatory work"). Thus, to the extent that the breathalyzer policy improves the NYPD's public reputation, it furthers an important governmental interest.

In light of each of these factors, we conclude that "'the special need[s]'" asserted by the NYPD outweigh the "'privacy interest advanced'" by plaintiffs. Amerson, 483 F.3d at 83 (quoting Cassidy, 471 F.3d at 75). Accordingly, we hold that, on the record before us, plaintiffs have not demonstrated a "likelihood of success on the merits," Plaza Health, 878 F.2d at 580, because the breathalyzer program is reasonable under the Fourth Amendment, based on this record. As a result, the District Court did not abuse its discretion in denying plaintiffs' motion for a preliminary injunction.

An open line 911 call with static on the line is not per se an exigent circumstance. More is required than a 911 call. United States v. Martinez, 686 F. Supp. 2d 1161 (D. N.M. 2009)Motion granted by 2010 U.S. Dist. LEXIS 21585 (D.N.M., Feb. 25, 2010):

The range of 911 calls lie on a spectrum. At one end of the spectrum are those frantic calls from a person inside a home who is able to say someone is attacking him or her, or a member of the family. Such a call alone might be enough to provide a basis for the exigent-circumstances exception. See West v. Keef, 479 F.3d at 759 ("The 911 call from Plaintiff's twelve-year-old son, which included his belief that his mother was 'going crazy,' that she was c[t]rying to kill herself,' that she was 'trying to cut her[self] with a knife' and other statements to the same effect, are, standing alone and in context, sufficient to justify the warrantless entry."). At the other end of the spectrum is a 911 call where there is no identifiable caller nor specified emergency. The Court believes that this latter category of calls, in which there is no identifiable caller nor specified emergency, is the least likely to justify a warrantless entry.

At probably the very limit of this spectrum is the static-only open-line call, where no one speaks and there is only static. A static-only call is unlike a hang-up call or a call where the individual is unable to give a complete explanation of his emergency. In the latter situation, the dispatcher and the dispatched police have a firmer basis for concluding someone at the residence called 911. In a static-only call, however, there are other, equally plausible explanations for the call. Bad weather or bad telephone lines are as likely to place such calls as is a person in immediate need of aid to protect his or her life. See Tr. at 165:17-23 (Court, Lind). The evidence is in equipoise. The burden is thus on the United States -- and ultimately on the police at the scene -- to show that there is something more than an open-line 911 call to establish exigent circumstances. The Court believes that static open-line 911 calls -- as opposed to hang-up calls or incomplete-information calls -- fall into the category of calls to which the Tenth Circuit alluded in United States v. Najar that do not, standing alone, justify a warrantless entry. Thus, regardless whether other 911 calls may, in other cases, alone establish exigent circumstances, the Court does not believe the open-line 911 call in this case, without more, provides a sufficient basis for the exigent-circumstances exception.

During a patdown, the officer felt a bulge which he knew was not a weapon. He asked the defendant what it was, and the defendant said “It’s drugs.” Miranda had not attached at that point, so the statement and the drugs were admissible. United States v. Alcantara, 2009 U.S. Dist. LEXIS 114990 (S.D. N.Y. December 2, 2009):

The legal analysis of what occurred after Molina felt the bulge in Alcantara's pocket hinges on Molina's subjective belief at the time. If Molina had been uncertain as to whether the bulge was a weapon, he would have been entitled simply to remove it. See, e.g., United States v. Oates, 560 F.2d 45, 62 (2d Cir. 1977). Molina testified, however, that although he could not tell precisely what the bulge was, he knew it was not a weapon. (10/28/09 Tr. at 55-56.) This led Molina to ask Alcantara what was in his pocket, which elicited Alcantara's response that it was drugs. Because Alcantara had not been given a Miranda warning at this point, the exchange between Molina and Alcantara potentially implicated the defendant's Miranda rights. We address this Miranda issue posed by the patdown in the section directly below.

Ultimately, however, it is only the admissibility of Alcantara's statements during the patdown -- not the physical evidence recovered from his pocket -- that depends on whether a Miranda warning should have been given. Alcantara may not have understood that he had a right to refuse to answer Molina's question, but he nevertheless told Molina that the bulge consisted of drugs. At that point, Molina had probable cause to reach into Alcantara's pocket and retrieve the drugs, see Oates, 560 F.2d at 63, which is legally sufficient to recover the drugs even if Alcantara's response to Molina's question during the patdown was an improperly un-Mirandized statement. See generally United States v. Morales, 788 F.2d 883, 886 (2d Cir. 1986) (absent trickery or coercion, an improperly un-Mirandized statement can furnish probable cause). Thus, under any Miranda scenario, there would be no basis for suppressing the cocaine recovered from Alcantara's pocket.

There was insufficient evidence defendant was in the place to be entered, of another person, to justify this entry. United States v. Luckey, 2009 U.S. Dist. LEXIS 115260 (S.D. N.Y. December 10, 2009):

Thus, a threshold question must be answered when law enforcement enters a home solely on the power of an arrest warrant: Did the officers know or have reason to know that they were entering a home belonging to a third party but not the arrestee? If the answer is yes, then Steagald controls. The question of whether the officers knew or had reason to know that they were entering the home of a person not named in the arrest warrant is another way of approaching the first prong of the test stated in Lauter: Where the officers had no reasonable basis to believe they were entering an arrestee's residence, Steagald requires a search warrant, consent, or exigent circumstances. Of course "[w]hat a citizen is 'assured by the Fourth Amendment ... is not that no government search of his house will occur' in the absence of a warrant or an applicable exception to the warrant requirement, 'but that no such search will occur that is 'unreasonable.''" 83

83 Lovelock, 170 F.3d at 343-44 (quoting Illinois v. Rodriguez, 497 U.S. 177, 183 (1990)).

. . .

In the totality of circumstances, the officers had reason to know they were entering the home of a person not named in the arrest warrant. Under Steagald, to enter apartment 1R, the officers needed a search warrant, consent, or exigent circumstances, all of which they lacked. Even if Steagald does not control, the information possessed by the officers was insufficient to support a reasonable belief that Lee was residing in apartment 1R or there at the time of the entry.

IV. CONCLUSION

The Court is acutely aware that crime and evidence of crime is often concealed within homes, as the facts of this case seem to illustrate. Illegal activity within homes is of "grave concern to society, and the law allows such crime to be reached on proper showing." "The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a police [officer] or Government enforcement agent." I have no doubt the officers here were acting in good faith to apprehend a fugitive and to enforce the laws that help to ensure a safe and orderly society. Law enforcement must, however, conduct itself in accord with the commands of the Constitution.

Defendant’s less than half-hearted argument that he had standing in a borrowed van was tantamount to an abandonment of the argument on appeal. United States v. Crisp, 355 Fed. Appx. 378 (11th Cir. 2009) (unpublished).*

In his brief, Crisp refers only three times, in passing, to the reasonableness of his privacy expectation. He alludes in one sentence to his pretrial suppression argument; he devotes two sentences to the proposition that his "custody and control over the van" gave him "a reasonable expectation of privacy"; and he asserts in his conclusion, without support, that he "had an expectation of privacy in the borrowed vehicle." Such cursory treatment of the issue that was dispositive in the district court--and thoroughly discussed in its order--works an abandonment of the issue on appeal. Without a legitimate expectation of privacy in the van, Crisp cannot challenge the validity of the search.

Defendant’s consent to a general search of his house was sufficient to open a false bottomed can. He also did not object to the use of a dog in the search [like anybody can know they can?]. United States v. Duncan, 2009 U.S. App. LEXIS 26711 (11th Cir. December 8, 2009) (unpublished).*

Habeas petitioner had a full and fair opportunity to and did litigate his Fourth Amendment claims in Kansas state court, so his COA is denied. Scott v. Werholtz, 355 Fed. Appx. 203 (10th Cir. 2009) (unpublished).*

The defendant was arrested on drug charges, and the police let him keep his cellphone while they discussed the possibility he would snitch for them. When it became apparent he wouldn’t snitch, they took the cellphone and searched it. It was still incident to the arrest. United States v. Georgiou, 2009 U.S. Dist. LEXIS 114729 (E.D. Pa. December 7, 2009):

As previously stated, Agent Joanson testified that at the time Georgiou was placed into custody on September 17, 2008, the Government believed that there was a possibility that Georgiou would cooperate with the FBI and "make recordings against other targets." (N.T. at 41-42.) The reason why Georgiou was not segregated from his devices, according to Agent Joanson, was because the FBI "like[s] to have the individual to have their cell phone or their Blackberry so that when they call these other targets, they have their own equipment and their own phone number." (Id. at 42.) Agent Joanson further explained that "when it became less and less likely that Mr. Georgiou was going to cooperate in that fashion, we separated him from his electronic devices." (Id.) In light of Agent Joanson's testimony, the Court finds that the delay in seizing Georgiou's devices was entirely reasonable under the circumstances.

In a case involving the arrest of persons actually innocent, the police failure to include every known fact in an arrest affidavit did not show that they made a misstatement that misled the magistrate. Also, a prosecutor reviewed the papers before filing. Ewing v. City of Stockton, 588 F.3d 1218 (9th Cir. 2009)*:

The Ewings contend that the officers omitted other information casting doubt on Shirk's identification of Heather. But "[t]he government need not include all of the information in its possession to obtain a search warrant .... The omission of facts rises to the level of misrepresentation only if the omitted facts 'cast doubt on the existence of probable cause.'" United States v. Johns, 948 F.2d 599, 606-07 (9th Cir. 1991) (quoting United States v. Dennis, 625 F.2d 782, 791 (8th Cir. 1980)); see also United States v. Streich, 759 F.2d 579, 586 (7th Cir. 1985) (noting that Illinois v. Gates does not require officers to apprise a judicial officer of everything); United States v. Luciano, 785 F. Supp. 878, 881 (D. Mont. 1991) ("Certainly, an investigating officer cannot be expected to include the sum total of all of his investigation in the affidavit supporting a search warrant."). None of the details appellants cite cast doubt on the existence of probable cause.