Post details: Social worker's entry was based on consent and exigent circumstances and view of drugs paraphernalia was valid

03/28/07

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Social worker's entry was based on consent and exigent circumstances and view of drugs paraphernalia was valid

Foster care and social workers sought consent to enter defendant's premises to determine if the children were being properly cared for. The entry was based on consent. In that entry, defendant was found to have marijuana and drug paraphernalia in her bedroom and a valid warrant was obtained to search and seize it. Hallum v. Commonwealth, 219 S.W.3d 216 (Ky. App. 2007):

[I]n the present case, when Ms. Finnerty entered the closed bedroom to investigate the referral she had received, it was not unreasonable for the detective to enter the room because the visit was not criminal in nature. Thus, the detective did not need to receive Appellant's consent to enter the bedroom. Moreover, once Ms. Finnerty told Appellant that she was required to look in the bedroom, Appellant told her to go ahead and do so. He did not tell the detective that he could not go into the room with her.

Regardless, even if we were to assume, arguendo, that it was unreasonable for the detective to enter the bedroom and that he did so without Appellant's consent, exigent circumstances were present, so the entry was nevertheless proper. When exigent circumstances are present, such as the threat of imminent injury or the imminent destruction of evidence, police are permitted to enter a home without a search warrant.

A civil claim against a search implied the invalidity of plaintiff's conviction and was barred by Heck. Crawley v. Sirois, 2007 U.S. Dist. LEXIS 21195 (D. Conn. March 22, 2007):

A judgment in favor of the plaintiff as to the claims against defendant Amato would imply the invalidity of his conviction for possession of narcotics with intent to sell because plaintiff's racial profiling claim alleges that he was pulled over, he was searched, drugs were seized and he was arrested without probable cause. See Gibson v. Superintendent of N.J. Dep't of Law, 411 F.3d 427, 451-52 (3d Cir.2005) (stop based solely on pattern and practice of racial profiling, without any reasonable suspicion, is unlawful and evidence is excludable, and thus implies conviction was improper triggering Heck bar); Allen v. LaPorte, No. 02-CV-71361-DT, 2002 WL 1009563, at *1 (E.D. Mich. April 16, 2002) (holding Heck barred plaintiff's "racial profiling and Terry stop claims, inasmuch as those claims addresses the validity of his arrest and related state criminal proceedings."). The court concludes that the Bivens claims against defendant Amato are barred by Heck. The motion to dismiss is granted as to Bivens claims against defendant Amato in his individual capacity.

Defendant's responding to his name being called out was probable cause to detain him because of an arrest warrant for him. Search incident was valid. United States v. Thomas, 480 F.3d 878 (8th Cir. 2007).*

Plaintiffs' Franks claims were meager challenges to isolated facts that did nothing to undermine probable cause. Officers did not use excessive force in handcuffing plaintiffs. "Finally, and for all the reasons stated above, the court finds the use of handcuffs in this case to be the minimal force necessary to effectuate the safety of the officers and the occupants during the search. The use of force, in the form of handcuffs was reasonable in view of the governmental interests at stake." Bradley v. West, 2007 U.S. Dist. LEXIS 21009 (M.D. Ala. March 22, 2007).*

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by John Wesley Hall
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