SCOTUS cert grant in Ashcroft v. al-Kidd, 10-98 (Kagan, J., recused). ScotusBlog here and here.

Questions presented:

Respondent was arrested on a material witness warrant issued by a federal magistrate judge under 18 U.S.C. 3144 in connection with a pending prosecution. He later filed a Bivens action against petitioner, the former Attorney General of the United States, seeking damages for his arrest. Respondent alleged that his arrest resulted from a policy implemented by the former Attorney General of using the material witness statute as a "pretext" to investigate and preventively detain terrorism suspects. In addition, respondent alleged that the affidavit submitted in support of the warrant for his arrest contained false statements.

The questions presented are:

1. Whether the court of appeals erred in denying petitioner absolute immunity from the pretext claim.

2. Whether the court of appeals erred in denying petitioner qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of respondent's arrest.

The underage defendant was on his porch drinking a beer, and a plainclothes detective saw him and pulled out his badge from under his shirt on a badge chain so it could be seen and came onto the porch. This was not a Fourth Amendment violation because it was in a public place that could be seen from the street. State v. Swonger, 2010 Ohio 4995, 2010 Ohio App. LEXIS 4208 (10th Dist. October 14, 2010).*

Defendant was involved in a traffic stop, and his DL was suspended. The officers searched his person and relieved him of $2,500. While the stop was valid, defendant was entitled to return of the money, and the City showed no reason to keep it. City of Cleveland v. Wells, 2010 Ohio 5014, 2010 Ohio App. LEXIS 4218 (8th Dist. October 14, 2010)*:

The State may not deprive an individual of his property without due process of law. State v. Lilliock (1982), 70 Ohio St.2d 23, 28, 434 N.E.2d 723; Cleveland v. Fulton, 178 Ohio App.3d 451, 2008 Ohio 4702, 898 N.E.2d 983, P47. Insofar as the Sheriff took the money pursuant to this arrest, but provided the trial court with no evidence that the money was legally being held elsewhere, we hold that the municipal court erred in denying Wells's motion for return of the money seized from him when he was arrested.

The police received a tip that a man with a gun used in a homicide would be at a certain location. They stopped the car when they saw it for an alleged traffic offense, and admitted that they couldn’t give a ticket. Based on an alleged furtive movement, they decided to impound the car and defendant left on foot. A later search warrant for the car was issued, and the gun was found. The motion to suppress was denied, and the jury hung at trial. Defendant later entered a conditional plea and appealed. The Kentucky Court of Appeals reversed the denial of the motion to suppress because the basis for the search warrant was the anonymous tip that defendant would show up essentially at his girlfriend’s house; this was insufficient to show probable cause as a matter of law. The motion to suppress should have been granted. Reversed. Abdul-Jalil v. Commonwealth, 324 S.W.3d 433 (Ky. App. 2010):

This fact is essentially a non-issue considering the registered owner of the car lived at the address given and the driver of the car was the car owner’s paramour. It is safe to assume that the car and driver in this case would eventually end up at the address given under normal circumstances. This tip, viewed in light of what the officer knew at the time of the impoundment, lacked enough information to give the officer a “reasonable basis for suspecting ... unlawful conduct” sufficient to warrant the immediate impoundment of Abdul-Jalil’s car. J.L., 529 U.S. at 271, 120 S. Ct. at 1379.

The fact defendant was handcuffed did not make consent invalid. “Finally, we reject Silverio’s argument that he merely acquiesced to a claim of lawful authority in allowing the search, as his assertion is not supported by the evidence. Rather, he and his sister testified that the officers never asked for his consent to search the premises. Having denied that officers requested his consent, Silverio cannot now claim that he permitted a search.” Silverio v. State, 2010 Ga. App. LEXIS 964 (October 13, 2010).*

Defendant had no objectively reasonable expectation of privacy in a shopping bag of drugs that he handed over to a co-conspirator who put it in the co-conspirator’s car when that other car was searched. He may have had a subjective expectation of privacy, but it was not one that society would recognize as reasonable. By turning it over, he assumed the risk that it would be taken from the co-conspirator. Tri Pham v. State, 324 S.W.3d 869 (Tex. App. – Houston 2010).*