NYT: Judge Bars Testimony by Expert in Frisk Suit by Russ Buettner:

Mayor Michael R. Bloomberg has repeatedly said that the small number of guns found by police officers during stop-and-frisk encounters shows that the program is working as a deterrent, and not that the police are exercising poor judgment in deciding whom to stop, as critics have argued.

But a federal judge said on Friday said that the city had “no evidence” to make the deterrence claim, and called the argument “too speculative” to be admitted in court by New York City’s expert witness in a class-action lawsuit challenging the constitutionality of the city’s use of stop-and-frisk tactics.

The city’s expert appeared to be trying “to justify stops on the basis of their deterrent impact, regardless of their legality,” Judge Shira A. Scheindlin of Federal District Court in Manhattan wrote.

It's a Daubert challenge. Floyd v. City of New York, 08 Civ. 1034 (SAS) (S.D.N.Y. August 17, 2012), at 14-15:

Plaintiffs argue that “Smith’s crime reduction opinions” should be excluded because they “are irrelevant to the questions posed by Plaintiffs’ Fourth and Fourteenth Amendment claims: (1) Do NYPD officers conduct stops-and-frisks without reasonable suspicion?; (2) Do they stop civilians on the basis of their race?” Defendants respond by arguing that Smith’s opinion on the crime deterrent effects of these programs “are indeed relevant, as they represent alternative, race-neutral explanations for the racial patterns in [stops and frisks] which Fagan failed to consider in his analysis of the data” and that “[e]xcluding Smith's opinions would be highly prejudicial by forcing the jury to accept Fagan’s word unchallenged ... when such strong evidence of methodological problems exists.”

Defendants are conflating two different aspects of Smith’s report: his benchmarking critique and his separate conclusion that the NYPD’s programs are a proven strategy to combat crime and increase safety, particularly in minority neighborhoods. As I explained above, Smith’s benchmarking critique challenges Fagan’s finding that Blacks and Hispanics are stopped at disproportionately higher rates; it is a descriptive claim about the nature of racial disparities that is probative of the truth or falsity of plaintiffs’ Fourteenth Amendment claim, and it is therefore admissible.

However, Smith’s opinions about the deterrence and crime reduction impacts of the NYPD’s programs are inadmissible. Defendants argue that “Smith’s opinion that increased [stop and frisk] activity reduces neighborhood crime provides further evidence for his alternative hypothesis that [stops and frisks] are driven by where the crime occurs rather than by racial discrimination.” ...

Floyd v. City of New York, 283 F.R.D. 153 (S.D. N.Y. May 16, 2012), granted in part, denied in part, 2012 U.S. Dist. LEXIS 116540 (S.D.N.Y. Aug. 17, 2012). See also Floyd v. City of New York, 861 F. Supp. 2d 274 (S.D. N.Y. 2012), Class certification granted 2012 U.S. Dist. LEXIS 68676 (S.D.N.Y., May 16, 2012).

Defendants’ car was stopped for a traffic offense, and the driver wouldn’t look the officers in the eye and was nervous. His hands were on the steering wheel, and there were no furtive movements. A “protective sweep” of the car producing a gun hidden in the back seat was unreasonable because of a lack of furtive movements. The others were not abnormal. “[N]ervous or anxious behavior in combination with factors that add nothing to the equation will not support a reasonable suspicion that an officer's safety may be compromised.’ ... See Commonwealth v. Cardoso, 46 Mass. App. Ct. 901, 901, 702 N.E.2d 398 (1998) (officer may not conduct patfrisk just because nervous defendant does not maintain eye contact).” Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 973 N.E.2d 146 (2012). [There was also an arrest warrant outstanding for a traffic offense, but that adds nothing, either.]

There was probable cause for plaintiff’s arrest, so a Fourth Amendment false arrest case fails. Ghaith v. Rauschenberger, 493 Fed. Appx. 731 (6th Cir. 2012).*

In a federal DP case, defense counsel’s alleged failures on a motion to suppress which included challenging the search warrant under the state nighttime search law [not a Fourth Amendment issue] were not ineffective assistance and those issues were tried in the original proceeding and already appealed. Barrett v. United States, 2012 U.S. Dist. LEXIS 115360 (E.D. Okla. August 16, 2012).*

DailyReport.com (Law.com): Embattled N. Georgia magistrate resigns by R. Robin McDonald:

Murray County Chief Magistrate Judge Bryant Cochran has resigned, ending a judicial ethics investigation that included the judge's practice of distributing pre-signed, blank arrest and search warrants to local law enforcement officers.

The trial court improperly considered hearsay affidavits offered by the defense from witnesses not called at the suppression hearing that the officers were incorrect in how the search went down. State v. Crofoot, 97 So. 3d 866 (Fla. 1st DCA 2012).

Police came to a DV call and found a naked bloody, beaten and shaking woman covered with only a blanket. She said her assailant wasn’t there, but they didn’t believe her and came in. They found defendant in the closet and arrested him. The entry was valid under the emergency aid exception of Gallmeyer v. State, 640 P.2d 837, 841 (Alaska App. 1982), because there might have been other victims or it could happen again when they leave. Ahvakana v. State, 2012 Alas. App. LEXIS 125 (August 17, 2012).

Warrantless search of suitcase in a car where the car was searched by consent was invalid. The dog sniffed the bag after the heroin was found. The fact they might have done it lawfully another way doesn’t make this search legal. United States v. Carrion-Soto, 493 Fed. Appx. 340 (3d Cir. 2012):

=> Read more!

Officers entered defendant’s premises under a domestic violence warrant authorized by statute to seize weapons which defendant didn’t challenge. His challenge instead was to the collateral use of the seized weapons, and the court found no bar to prosecution for any crime revealed by the seizure. State v. Harris, 211 N.J. 566, 50 A.3d 15 (2012).*

“In applying the totality of the circumstances test, courts look to numerous factors including the time, place and purpose of the encounter, United States v. Weaver, 282 F.3d 302, 310 (4th Cir. 2002); the overall context of the traffic stop, United States v. Digiovanni, 650 F.3d 498, 514 (4th Cir. 2011); Defendant's nervous, evasive demeanor, Branch, 537 F.3d at 338; Defendant's delay in complying with the Officer's command to place his hands in plain view, United States v. Mayo, 361 F.3d 802, 807 (4th Cir. 2004) and contradictory and inconsistent statements obtained from the driver of the vehicle, Powell, 666 F.3d at 188.” All those factors were present here. United States v. George, 2012 U.S. Dist. LEXIS 114940 (E.D. N.C. August 13, 2012).*