Cert. grant today: Bailey v. United States, SCOTUSBlog here, opinion below here.

Issue: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.

Reichle v. Howards, 11–262 (June 4, 2012). SCOTUSBlog here. From the Syllabus:

Petitioners are entitled to qualified immunity because, at the time of Howards’ arrest, it was not clearly established that an arrest supported by probable cause could give rise to a First Amendment violation. Pp. 5−12.

(a) Courts may grant qualified immunity on the ground that a purported right was not clearly established” by prior case law. Pearson v. Callahan, 555 U. S. 223, 236. To be clearly established, a right must be sufficiently clear “that every ‘reasonable official would [have understood] that what he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U. S. ___, ___. Pp. 5−6.

(b) The “clearly established” standard is not satisfied here. This Court has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause; nor was such a right otherwise clearly established at the time of Howards’ arrest. P. 6.

(c) At that time, Hartman’s impact on the Tenth Circuit’s precedent was far from clear. Although Hartman’s facts involved only a retaliatory prosecution, reasonable law enforcement officers could have questioned whether its rule also applied to arrests. First, Hartman was decided against a legal backdrop that treated retaliatory arrest claims and retaliatory prosecution claims similarly. It resolved a Circuit split concerning the impact of probable cause on retaliatory prosecution claims, but some of the conflicting cases involved both retaliatory prosecution and retaliatory arrest claims and made no distinction between the two when considering the relevance of probable cause. Second, a reasonable official could have interpreted Hartman’s rationale to apply to retaliatory arrests. Like in retaliatory prosecution cases, evidence of the presence or absence of probable cause for the arrest will be available in virtually all retaliatory arrest cases, and the causal link between the defendant’s alleged retaliatory animus and the plaintiff’s injury may be tenuous. Finally, decisions from other Circuits in the wake of Hartman support the conclusion that, for qualified immunity purposes, it was at least arguable at the time of Howards' arrest that Hartman extended to retaliatory arrests. Pp. 7−12.

NYTimes.com: Bloomberg Backs Plan to Limit Arrests for Marijuana by Thomas Kaplan:

Mayor Michael R. Bloomberg said on Monday that he would support a proposal by Gov. Andrew M. Cuomo to significantly curb the number of people who could be arrested for marijuana possession as a result of police stops.

After the police entered with consent to seize ammunition, they saw other relevant stuff and they were able to “coax” an expanded consent with defendant’s wife, and it was effective. State v. Niles, 2012 Tenn. Crim. App. LEXIS 362 (June 1, 2012):

Although the record shows that Niles's wife initially objected to the detectives' attempts to seize the entire date planner and its contents and the computer, Niles's wife and the detectives were able to reach an acceptable compromise regarding these items. Niles's wife acknowledged at the suppression hearing that she consented to the detectives' photographing parts of the planner and seizing documents inside the planner. Although Niles's wife and William Niles testified that the detectives exceeded the scope of her consent, the trial court accredited the testimony of Detectives Crews and Merlo on that issue. As we have stated, "[q]uestions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact." See Odom, 928 S.W.2d at 23. Moreover, because the evidence from the computer and the letters between Niles and the victim were never admitted at trial, any issue regarding suppression of this evidence is moot. Accordingly, we conclude that the trial court did not err in denying Niles's motion to suppress.

Officers stopped defendant with reasonable suspicion of drugs, and they blocked his car and approached with guns drawn. That was not a per se arrest. State v. Carter, 96 So. 3d 1283 (La. App. 5 Cir. 2012):

The vast majority of courts have held that police actions in blocking a suspect’s vehicle and approaching with weapons ready, and even drawn, does not constitute an arrest per se. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). An investigatory stop necessarily involves an element of force or duress and the temporary restraint of a person's freedom. There is the complete restriction of movement in an investigatory stop, but for a shorter period of time than an arrest. [citing cases] Investigatory stops may be accompanied by features normally associated with an arrest, i.e., use of drawn weapons. An investigatory stop is reasonable even when the police block a vehicle to prevent its occupant from leaving and approach with weapons ready or even drawn. [citing cases] Because an officer's view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage when he approaches the occupant. United States v. Edwards, 53 F.3d 616, 619 (3rd Cir.1995). Furthermore, guns and drugs frequently go hand-in-hand. State v. Warren, 05-2248, p. 18 (La.2/22/07), 949 So.2d 1215, 1229.

The juvenile was found on the street in a high crime area in violation of the curfew. He was patted down and a gun was found in his waistband. His sister testified that he was summoned from his porch and arrested. The juvenile court credited the officer’s version, and that’s the end of it. State in Interest of R.L., 95 So. 3d 1147 (La. App. 4 Cir. 2012).*

The government proved the “well-trained” drug dog by training and certification and general lack of false positives sufficient for probable cause. However, the fact of an alert to a dresser in defendant’s house where no drugs were present is excluded from trial under F.R.E. 403 as more prejudicial than relevant. United States v. Pierre, 2012 U.S. Dist. LEXIS 76411 (E.D. Tex. May 10, 2012):

Here, the Court finds that any testimony about Bartje's alert on the dresser would confuse the issues and cause Defendant undue prejudice. In this case, the Government must prove that Defendant was involved in the distribution - not merely personal use - of cocaine and marijuana. Based on the testimony presented at the hearing, although Bartje's alert may have been reliable as an indicator that drugs were once present near the dresser, there is nothing about the alert that would show the amount of drugs that once were there, the amount of time that had passed since they were there, or the kind of drugs present. Any probative value Bartje's alert might have is outweighed by the risk that the alert was to an amount or type of drug not a part of the charged conspiracy and for a time period not within the charging indictment. Because the alert cannot define the who, what or when -- and because there is no possibility of examining or cross-examining Bartje as to the who, what or when of the alert -- any testimony about it would confuse the issues and unduly prejudice Defendant.

A Daubert motion is not the way to challenge a dog sniff because a dog is not an expert witness. A motion to suppress is required. n.1:

The Court notes that Defendant has challenged the introduction of the evidence of the canine alert through three different motions: a Daubert motion, a motion in limine and this motion to suppress. As this Court has previously noted, the Fifth Circuit has stated that, "a Daubert hearing is the wrong procedural tool to challenge the reliability of a drug detection dog." U.S. v. Three Hundred Sixty-Nine Thousand Nine Hundred Eighty Dollars ($369,980) in U.S. Currency, 214 Fed. Appx. 432, 435, 2007 WL 143240, 3 (5th Cir. 2007); see also U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001). See Dkt. 504. Because the Fifth Circuit has made this express statement, the Court declined to conduct a Daubert analysis as originally requested by Defendant (and ultimately denied by this Court), although factually this case — involving the requested exclusion of essentially a lack of physical evidence — does appear to be one of first impression in this Circuit. In U.S. v. Outlaw, 134 F. Supp.2d 807, 810 (W.D. Tex. 2001), after rejecting Defendant's challenges to a canine alert based on Daubert, the District Court instead turned to directly to whether the reliability of the canine inspection at issue. Without any express guidance to the contrary by the Fifth Circuit, the Court will adopt the Outlaw court's approach herein.