Post details: Consent to search a suitcase for drugs includes containers inside that could hide drugs
07/04/07
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).
Pingbacks:
No Pingbacks for this post yet...
FourthAmendment.com
Notes on Use
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
|---|---|---|---|---|---|---|
| << < | ||||||
| 1 | 2 | 3 | 4 | 5 | 6 | |
| 7 | 8 | 9 | 10 | 11 | 12 | 13 |
| 14 | 15 | 16 | 17 | 18 | 19 | 20 |
| 21 | 22 | 23 | 24 | 25 | 26 | 27 |
| 28 | ||||||
Search
©
2003-10
Online since Feb. 24, 2003
To search Search and Seizure on Lexis.com $
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
Latest Slip Opinions:
U.S. Supreme Court
Federal Appellate Courts
First Circuit
Second Circuit
Third Circuit
Fourth
Circuit
Fifth Circuit
Sixth
Circuit
Seventh
Circuit
Eighth
Circuit
Ninth Circuit
Tenth Circuit
Eleventh
Circuit
D.C.
Circuit
Military Courts: C.A.
A.F., Army,
AF, N-M,
CG
Hall's links to state
opinions
Google Scholar
LexisWeb
LII State Appellate
Courts
LexisONE
free caselaw
Findlaw Free Opinions
Most recent SCOTUS cases:
2009-10 Term:
Cert. granted:
City of Ontario v. Quon, 08-1338
granted Dec. 14, 2009 (ScotusWiki)
Decided:
Michigan
v. Fisher, decided Dec. 7, 2009 (per curiam) (ScotusWiki)
2008-09 Term:
Decided:
Herring
v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
Pearson
v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
Arizona
v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
Arizona
v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
Safford
Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354,
decided June 25 (ScotusWiki)
Research Links:
Supreme Court:
SCOTUSBlog
SCOTUSWiki
S. Ct.
Docket
Solicitor General's
site
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
General (many free):
LexisWeb
Google Scholar | Google
LexisOne
Legal Website Directory
Crimelynx
Lexis.com
$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
DOJ
Computer Search Manual
USSS
computer search website
Talkleft "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." "You've got to be very careful if you don't know where you are going because you might not get there." "There ought to be limits on freedom." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." "They that can give up essential liberty to obtain
a little temporary safety deserve neither liberty nor safety."
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
How Appealing Blog
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter,
J., dissenting)
—Yogi Berra
—George W. Bush (May 1999)
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J.,
concurring).
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
—Katz v. United States, 389 U.S. 347, 351 (1967)
—Benjamin Franklin, Historical Review of Pennsylvania (1759)
“A patriot must be ready to defend his country against his government.”
—Edward Abbey
“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)
"Freedom is just another word for nothing
left to lose."
—Kris Kristopherson, "Me and Bobby McGee" (sung by Janis Joplin)
“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)
Archives
- February 2010 (34)
- January 2010 (102)
- December 2009 (104)
- November 2009 (86)
- October 2009 (80)
- September 2009 (62)
- August 2009 (56)
- July 2009 (69)
- June 2009 (53)
- May 2009 (59)
- April 2009 (70)
- March 2009 (55)
- More...
Misc
XML Feeds
What is RSS?
Who's Online?
- Guest Users: 24
powered by
