Post details: Consent to search a suitcase for drugs includes containers inside that could hide drugs

07/04/07

Permalink 02:22:00 pm, by fourth, 495 words, 945 views   English (US)
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Consent to search a suitcase for drugs includes containers inside that could hide drugs

Consent to search a suitcase for drugs revealed two candles that appeared to the officer to have been tampered with because they looked tampered with. Inside was drugs. The consent to search for drugs in a suitcase includes any closed containers inside that could contain drugs. United States v. Santana-Aguirre, 2007 U.S. Dist. LEXIS 47760 (D. Neb. June 29, 2007), following United States v. McKines, 933 F.2d 1412, 1423 (8th Cir. 1991) (en banc) (soft drink bottle inside suitcase contained drugs).

Plaintiff doctor came back to work at a university medical center from a life threatening illness, and she was transferred to another department. Her supervisor ordered that university police search her office and retrieve her university computer from her home so the hard drive could be copied. Plaintiff alleged a Fourth Amendment violation that apparently defeats qualified immunity. Maes v. Folberg, 504 F. Supp. 2d 339 (N.D. Ill. 2007):

Once we determine a reasonable expectation of privacy, we must consider whether plaintiff has sufficiently pled a violation of her Fourth Amendment [*20] rights. In O'Connor, the Supreme Court articulated a reasonableness standard for workplace searches. 480 U.S. at 725. The O'Connor court held that "public employer intrusions on the constitutionally protected privacy interests of government employees for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances." Id., at 725-26. The O'Connor reasonableness standard requires both justification in the inception and reasonableness of scope. Id., at 726. Plaintiff contends that the search was not justified in its inception, nor was it reasonably related in scope to the circumstances.

Plaintiff's complaint suggests no justification for a search of her computer. In fact, the complaint alleges that the search was taken in retaliation for plaintiff's exercise of her First Amendment and FMLA rights. Taking the complaint as fact, as we must, we find that Folberg's search was not justified in its inception, and therefore, violative of O'Connor's first prong. But compare Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir.1997) (workplace search was justified in its inception because anonymous tip of employee misconduct showed sufficient signs of reliability); Clark v. Regents of the University of California, 1997 WL 564066 (N.D. Cal. 1997) (receipt of tips from two employees as to plaintiff's misconduct justified search under O'Connor). Nor are we convinced that Folberg's search was reasonable in its scope. While escort by UIC police officers may not have created Fourth Amendment liability as to plaintiff's person, the use of a police escort may be considered unreasonably intimidating. But see Clark, 1997 WL 564066, at *4 (university supervisor's decision to choose plaintiff's supervisor as an escort to his house to retrieve university-owned computer was less intimidating than a university police officer or member of the audit team, and therefore, reasonable in scope).

[The officer had to know that the search was likely illegal, so qualified immunity denied.]

The presentment of claim requirement of the California Tort Claims Act does not apply to § 1983 claims. Barsch v. O'Toole, 2007 U.S. Dist. LEXIS 47538 (N.D. Cal. June 21, 2007).

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"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
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 property."
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 frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
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 here, has not–to put it mildly–run smooth."
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 bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth 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)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose 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)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé LePew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"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)

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