A Virginia ABC permittee sued in federal court to challenge the ABC's action against his liquor permit based, in part, on an alleged search and seizure. The E.D.Va. held that Younger abstention did not bar the action, that he proceeded to lose on the merits anyway. Ruttenberg v. Jones, 464 F. Supp. 2d 536 n.2 (E.D. Va. December 13, 2006):
As a preliminary matter, defendants' motion to abstain or stay this matter pending resolution of plaintiffs' appeal to the ABC Board and the Circuit Court for Prince William County, Virginia is unpersuasive. Specifically, Younger abstention is appropriate only where (i) there is an ongoing state judicial proceeding; (ii) the proceeding implicates important state interests; and (iii) there is an adequate opportunity to present the federal claims in the state proceeding. Cinema Blue v. Gilchrist, 887 F.2d 49, 52 (4th Cir. 1989). Here, however, Younger abstention is inappropriate because it does not appear that plaintiffs can raise their federal constitutional claims in the pending ABC Board proceedings. Even assuming, plaintiffs may raise constitutional issues before the Circuit Court for Prince William County, Virginia, that does not suffice to require abstention of this entire matter. Defendant's argument for Colorado River abstention merits the same fate. Colorado River abstention "allows a district court to abstain from adjudicating a controversy before it in favor of parallel state proceedings only under exceptional circumstances for reasons of wise judicial administration." Colorado River v. United States, 424 U.S. 800, 817-18 (1976). No such exceptional circumstances are apparent here. Finally, Burford provides that a federal court has the inherent right to abstain from cases if, in its sound discretion, it finds that its exercise of jurisdiction "may be prejudicial to the public interest, for it is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy." Burford v. Sun Oil Co., 319 U.S. 315, 318 (1943). There being no good cause to abstain, Burford abstention is inappropriate. Accordingly, neither a stay nor abstention is appropriate, especially given the result reached here.
Update: I received an e-mail from counsel for the plaintiff in this case, and he pointed out something that I regretfully overlooked
I took note of the 16 December entry in your blog re Ruttenberg v. Jones (Eastern District of Va.) and its ruling re the Younger Abstention. I believe, however, that of more importance with respect to the 4th Amendment is the fact that the Court dismissed Ruttenberg's 4th Amendment claim even though, as the complaint alleges, the authorities knew in advance of the search and seizure that they were going to violate Mr. David Ruttenberg's 4th Amendment rights.
The authorities were operating on false information that Mr. David Ruttenberg's office contained drugs and child pornography. Apparently, however, they were unable to get a search warrant for the office. Accordingly, the search, with more than 50 armed officers, was conducted in the guise of an ABC inspection. Nothing illegal was found in Mr. Ruttenberg's office (or for that matter in the entire premises which was a billiard parlor). The ABC, which took part in the search, admitted under oath at the ABC hearing, that they knew the office searched was not part of the licensed premises and therefore not subject to ABC inspection.Nonetheless, they went ahead with the search, and the seizure of two unopened bottles of vodka. In the Eastern District's zeal to protect the police, the Court ignored a clear, intentional violation of 4th Amendment rights. There is something scary about that.
More from the case:
Thus, the threshold question is whether, the facts alleged show that defendants' conduct violated the Fourth Amendment. See Saucier, 533 U.S. at 201. As plaintiffs concede, RNR is subject to warrantless administrative searches under 3 Va. Admin. Code § 5-50-70(B), which provides that the ABC Board and its special agents "shall be allowed free access during reasonable hours to every place in the Commonwealth where alcoholic beverages are manufactured, bottled, stored, offered for sale or sold, for the purpose of examining and inspecting such place," and 3 Va. Admin. Code § 5-50-70(C), which provides that, "[i]n addition to special agents, other law-enforcement officers in the performance of their official duties shall be allowed free access to any retail licensed establishment for the purpose of observation of activities on those licensed premises during reasonable hours." Plaintiffs do not challenge the ABC Board's search authority, but rather contend that the search was unreasonable given the manner in which it was conducted. In particular, plaintiffs allege (i) that Detective Lugo instigated the ABC raid to harm plaintiffs' business by seeking evidence of drug use and distribution at RNR; (ii) that over 50 police officers, including SWAT team members, were used to conduct the search; (iii) that law enforcement officers entered David Ruttenberg's private office; and (iv) that patrons were ordered to line up against the wall to be searched.
To be sure, the Fourth Amendment requires that warrantless administrative searches, as here, be reasonable. New York v. Burger, 482 U.S. 691 (1987). In this case, it is doubtful that plaintiffs' allegations establish an unreasonable administrative search and hence a Fourth Amendment violation. First, plaintiffs' allegation that Detective Lugo was motivated by an improper desire to uncover evidence of drug use and drug transactions at RNR to cause the ABC Board to raid RNR does not suffice to render unreasonable an otherwise reasonable search. As the Sixth Circuit has stated, "the fact that the true motivation for the warrantless search may have been to gather evidence capable of supporting convictions under the criminal laws is not enough to make the search unreasonable." Hamilton v. Lokuta, No. 92-2361, 1993 U.S. App. LEXIS 29172 at *7 (6th Cir. 1993) (citing Burger, 482 U.S. at 715) (noting that the "presumed desire to put [plaintiff] out of business may or may not have been justified, but we do not believe that it could suffice to defeat [defendant's] qualified immunity defense"). Second, as numerous courts have noted, there is no "constitutional significance in the fact that police officers, rather than 'administrative' agents are permitted to conduct the [administrative] inspection." Burger, 482 U.S. at 717. Third, it is doubtful that defendants exceeded the scope of a permissible administrative search by entering David Ruttenberg's private office, as this office is located on the premises of RNR. This is so because the ABC Board and its special agents are allowed "free access" to "every place in the Commonwealth where alcoholic beverages are . . . stored, offered for sale or sold." 3 Va. Admin. Code. § 5-50-70(B). Finally, because the Fourth Amendment right to be free from unreasonable searches is a personal right, which cannot be asserted vicariously, plaintiffs cannot claim that the search was unreasonable because patrons, who are not parties to this suit, were subjected to an allegedly unreasonable search. See Rakas v. Illinois, 439 U.S. 128, 133-34 (1978); Crosby, 187 F.3d at 1346 (analyzing defendant's qualified immunity claim and stating that plaintiff's "cannot assert Fourth Amendment claims based on governmental intrusions on the rights of others than themselves"). Given these considerations, it is doubtful that defendants violated plaintiffs' Fourth Amendment rights by conducting the administrative search. In any event, where, as here, "there is a legitimate question as to whether an official's conduct constitutes a constitutional violation, the official is entitled to qualified immunity." Martin v. St. Mary's Dep't of Soc. Servs., 346 F.3d 502, 505-06 (4th Cir. 2003).
WTO protester arrest case in Seattle goes forward because the defense cannot show that any of the arrestees were on notice of the Mayor's Emergency Order not to congregate and to disperse before arresting them since it was not properly publicized and the arrest records all had photocopied statements of fact that they failed to disperse based on the Mayor's order. Hickey v. City of Seattle, 2006 U.S. Dist. LEXIS 90145 (W.D. Wash. December 13, 2006).*
Officer went to a location of a potential shooting suspect and saw that people were loading a moving truck, and he was afraid that the suspect could have been the one moving. He could smell burnt marijuana, and he conducted a patdown. The officer's justification for a patdown was that those who smoke marijuana might be armed, and the appellate court could not say that acceptance of this conclusion by the trial court was clearly erroneous. Brown v. State, 283 Ga. App. 250, 641 S.E.2d 551 (2006).* (Comment: This is really a stretch. Dealer, yes; smoker, no. Was the officer afraid that a bag of potato chips or a Twinkie would be pulled on him?)
Consent to search that started with a canine "free-air search" did not expand the consent. Noble v. State, 283 Ga. App. 81, 640 S.E.2d 666 (December 15, 2006).* (Comment: Note the use of "free-air search" by the Georgia courts is designed to move the subject of the dog sniff away from the car but to the air around it in an effort to keep a dog sniff out of the Fourth Amendment realm. Yes, it is technically just air, but this use of a new phrase seems to me like the court is trying too hard to sustain the search by creating new phrases that connote lack of rights.)
Record brought up on appeal by the State did not support the conclusion that the green leafy matter seen in the defendant's vehicle could be seen from outside the vehicle in a bona fide plain view, particularly where the officer who allegedly made the plain view was not even called by the State at the suppression hearing. Commonwealth v. King, 67 Mass. App. Ct. 823, 858 N.E.2d 308 (December 15, 2006).*
Valid traffic stop led to plain view of crack in a baggie in defendant's hand, and that was probable cause. State v. Thomas, 2006 Ohio 6612, 2006 Ohio App. LEXIS 6525 (2d Dist. December 8, 2006).*
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"If it was easy, everybody would be doing it. It isn't, and they don't."
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"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).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"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
—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
—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 Le Pew
"There is never enough time, unless you are serving it."
"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)