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Four guys came from Florida to Arkansas to pass counterfeit checks. Three got arrested fleeing from the police when called by a bank, and one had a hotel receipt on him. Police went to the hotel looking for confederates. The police saw defendant dispose of a bag with counterfeit checks in the parking lot, and he had luggage on a hotel cart about to flee. The checks matched those from the arrested three. The police went to prepare a search warrant for the hotel room he was in, but the clerk called to say he was checking out. They came back and arrested the defendant and searched the luggage finding blank check stock and a computer. On top of the luggage was a printer. The police claimed search incident or inventory because the luggage would have been left on the baggage cart, so they took it. The arrest was clearly with probable cause. The search of the luggage was justified either as inventory or inevitable discovery. “Since the evidence showed that all the items on the luggage cart would have inevitably been discovered and the officers were pursuing an alternative line of investigation, Nix, 467 U.S. at 433, the district court did not err in denying Allen’s motion to suppress.” United States v. Allen, 713 F.3d 382 (8th Cir. 2013). [Note: I was CJA appointed to one of the guys arrested passing the checks. They drove off from a bank when the police showed up, and were arrested at gunpoint. The "from Florida" in the first line was my own knowledge of the case; they all admitted to coming to Arkansas to pass counterfeit checks and then run back to Florida before anybody knew, they hoped. My guy wouldn't have standing in that luggage.]
Defendant was an airman who was believed by his landlord to have skipped out on rent and abandoned the premises. He wasn’t around and couldn’t be found. The landlord entered and found it needed a lot of repairs and appeared abandoned. He called defendant’s NCOs who came to the apartment as Air Force representatives to the community to see what was going on. The landlord unquestionably had a right of entry under the lease, and this extended to making the NCOs his “representative.” They did not enter for any regulatory or law enforcement function. In the apartment, they found a piece of a B-1 bomber that was missing from the air base. The entry was valid. United States v. Irizarry, 72 M.J. 100 (C.A. A.F. 2013):
Iowa concludes that a parole agreement with a consent provision is not true consent under the state constitution. The case has a complete analysis of consent of probationers v. parolees and concludes there is no bargaining power for the parolee. [Not that anybody truly has that much bargaining power.] State v. Baldon, 829 N.W.2d 785 (Iowa 2013):
The Heck bar to § 1983 relief doesn’t apply if the plaintiff loses his habeas remedy because of release without a decision on the merits. Here, he pled to a lesser, but that may not bar the claim. Poventud v. City of New York, 715 F.3d 57 (2d Cir. 2013):
Since Jenkins and Leather, we have repeatedly affirmed that Heck's favorable-termination requirement applies only to plaintiffs who are in custody, and that all other claimants—those who have no remedy in habeas—may pursue their claims under § 1983. See McKithen v. Brown, 481 F.3d 89, 101 (2d Cir. 2007) ("Over time, [Heck's] implicit exception [to § 1983's otherwise broad coverage] has been carefully circumscribed."); Huang ex rel. Yu v. Johnson, 251 F.3d 65, 75 (2d Cir. 2001) ("In light of our holding in Leather, and in light of ... the fact that the Spencer concurrences and dissent 'revealed that five justices hold the view that, where federal habeas corpus is not available to address constitutional wrongs, § 1983 must be,' we conclude that Huang's Section 1983 claim must be allowed to proceed.") (quoting Jenkins, 179 F.3d at 26); Green v. Montgomery, 219 F.3d 52, 60 n.3 (2d Cir. 2000) ("We have held ... that Heck acts only to bar § 1983 suits when the plaintiff has a habeas corpus remedy available to him (i.e., when he is in state custody). Because it does not appear that Green is presently in state custody, his § 1983 action is not barred by Heck." (internal citations omitted)).
The facts in this case differ somewhat from the facts in the cases just cited, but not in a way that is material to the issue before us. After Poventud's original conviction was vacated, but before that vacatur was affirmed on appeal, Poventud pled guilty to a lesser, related offense.2 This fact, however, does not alter the underlying principle that a claimant who cannot seek relief under habeas must be able to seek it under § 1983. Poventud's guilty plea may (or may not) supply defendants with a defense that no § 1983 violation occurred. But it does not entitle them to summary judgment under Heck.
Answering door at a knock-and-talk smoking a joint creates cause for entry. State v. Walker, 2013 N.J. LEXIS 355 (April 10, 2013).
A cursory visual search through the windows of a car does not dissipate probable cause. A judge issuing a search warrant doesn’t need to know that already happened, and failure to put it in the affidavit is not a Franks violation. United States v. Johnson, 2013 U.S. Dist. LEXIS 55907 (W.D. Pa. April 15, 2013).*
After the hearing on the motions to suppress, the court asked for briefing, and the defendants didn’t file any. That means the motions are withdrawn. “In addition to be subject to denial for having been withdrawn, the motions lack merit.” United States v. Gutierrez-Martinez, 2013 U.S. Dist. LEXIS 55323 (N.D. Ga. March 22, 2013).*
Defendant was stopped for a traffic violation and the officer was going to give a warning. After the computer checks came back clean and a drug dog who had been immediately called for went around the vehicle and did not alert, the officers were stymied and conversed about how to get consent. The stop was unreasonably long [and only by two minutes] because the officers didn’t let him go. Instead, they sought consent which was coerced “to make sure there were no drugs in the van.” United States v. Rodriguez, 2013 U.S. Dist. LEXIS 56456 (D. Utah April 15, 2013):
After telling Defendants he wanted to make sure there were no drugs or weapons in the van and asking Defendants to exit the van, Nazer asked for consent to search. At that time, Defendants were moved away from the van and each placed with one of the other officers. There were three officers total and a canine at the scene. It was the middle of the night on a dark and secluded street. The officers were all in uniform, armed, and providing the only real light at the scene by holding flashlights. The officer gave no indication that Defendants could refuse consent and, in fact, had prefaced his request by stating that he wanted to make sure Herrada had given a truthful response. Under the circumstances, the court finds that no reasonable person would have felt free to refuse the officer's request to search. Therefore, the court concludes that Herrada's consent to the search was not freely given and the search violated Defendants' Fourth Amendment rights. Accordingly, the court suppresses all evidence seized in the search.
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"If it was easy, everybody would be doing it. It isn't, and they don't."
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
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—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
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— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
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—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
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—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
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—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
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Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
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of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
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it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)