ICE officers used the ruse of identity theft to gain access to defendant’s computer in his home. Once the child porn was found, the ruse had to end, but it did not, so the computer was suppressed. United States v. Richardson, 501 F. Supp. 2d 724 (W.D. Pa. 2007):
The Government legally obtained consent to enter the Defendant’s residence and image the hard drive of the Hewlett Packard computer and physically gain possession of the second Nascar PC by CISNET through the means of a ruse. The ruse was that the ICE agents implied without explicitly stating, and otherwise permitted the Defendant and his wife to suppose that they were victims of identity theft without discounting such a belief and that the ICE agents were present to investigate this possible identity theft. Actually, the agents believed that it was likely that the Defendant had in fact attempted unsuccessfully to purchase a subscription to a child pornography website based upon the information obtained from Operation Emissary with regard to the Defendant’s credit card account number, physical address, computer IP address and possible email address. The ruse was a permissible tool to obtain the Defendant’s consent to enter his residence and subsequently search these articles because the ICE agents were obtaining a view of matters that one would view if they were investigating a possible theft of one’s identity over the Internet. Indeed the ICE agents had not excluded the possibility that the Defendant was a victim of identity theft when they first approached him and requested his consent to review the contents of his computers. The ICE agents’ review of the copy of the Hewlett Packard hard drive and the Nascar PC by CISNET computer was thus consensual and permitted under the Fourth Amendment. However, once the ICE agents confirmed the presence of child pornography on the Hewlett Packard hard drive and continued to allow the Defendant to believe he was a victim of identity theft and proceeded to request that he produce the actual Hewlett Packard computer, such production by the Defendant under the ICE agents’ continued guise of investigating identity theft was not consensual under the Fourth Amendment and the Hewlett Packard computer itself must be excluded from evidence at trial absent the Government demonstrating that it would have obtained that computer in another lawful manner under the Fourth Amendment. Because the Defendant’s statements of September 22, 2006 were obtained based upon references to lawfully obtained evidence, such statements are admissible at trial.
Bankruptcy trustee was governed by the Fourth Amendment in seeking assets that belonged to the debtor that the trustee believed were being secreted. The court ordered entry complied with the Fourth Amendment. Youngman v. Bursztyn (In re Bursztyn), 366 B.R. 353 (Bankr. D. N.J. April 10, 2007):
Based on an investigation of court records of the debtor’s divorce, the trustee believed that the debtor was concealing valuable jewelry and artwork. The trustee applied to the court on an ex parte basis for an order authorizing her to enter the debtor’s home to inspect and obtain the jewelry and artwork that constituted property of the estate. The court granted the request. The United States Marshals Service, accompanied by the trustee, her counsel, and appraiser personally served the order upon the debtor at her residence. The search uncovered 189 pieces of fine jewelry and 10 works of art, which were, according to an appraisal, valued at $242,767. The court held that the Fourth Amendment was applicable to the trustee, because the position, status, and function of a bankruptcy trustee evidenced a sufficiently close nexus to governmental action. The court held that the trustee did not violate the debtor’s Fourth Amendment rights because the trustee justifiably believed that the debtor was hiding valuable assets, which were of the type easily transported and concealed, and the scope of the trustee’s search was reasonably related to the circumstances. [Lexis overview]
A conviction for obstructing an officer or resisting arrest can bar a separate 1983 claim under Heck. Mitchell v. City of Ypsilanti, 2007 U.S. Dist. LEXIS 56575 (E.D. Mich. August 3, 2007).*
After obtaining a search warrant and conducting a raid, officers decided only to conduct a protective sweep and they left the residence when it was decided that the persons inside could not have been the drug dealers they were looking for. At best for plaintiffs, this was an honest mistake which officers are allowed to make, and summary judgment was granted for the officers. Also, there was no constitutional right to display of the warrant before the search occurs under Groh as long as particularity is observed. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 56657 (E.D. Cal. August 3, 2007):
In discussing the execution of the search warrant on the subject residence, Detective Lincoln, stated, “It was–I believe now it to be false. I believe that my–I’m not going to say that I didn’t make a mistake.” Deposition of Lincoln, 64:16-19. However, the Fourth Amendment is not violated solely by a mistaken execution of a valid search warrant on the wrong premises. L.A. County v. Rettele, 127 S. Ct. 1989 (2007) (search did not violate Fourth Amendment where search warrant executed on home despite its sale four months prior and search discontinued within reasonable time); Graham v. Connor, 490 U.S. 386 (1989); Maryland v. Garrison, 480 U.S. 79 (1987) (search does not violate Fourth Amendment when police entered adjacent apartment and discontinued search as soon as they became aware of that fact). The Supreme Court has recognized that police officers have “latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.” Maryland v. Garrison, 480 U.S. 79, 88 (1987).
There was reasonable justification for plaintiff’s arrest based on an incorrect computer entry which was a mistake of fact, not of law. Plaintiff also exacerbated the situation by her own conduct. Defendant’s motion for summary judgment granted.Weinstein v. City of Eugene, 2007 U.S. Dist. LEXIS 56554 (D. Or. August 1, 2007)*:
In sum, Alford, Beier, and Frunz are distinguishable because in those cases, the arresting officers based their decisions on misguided legal conclusions. In contrast, Officer Harrison’s determination was fact-based. Furthermore, observed facts and information available from trustworthy sources provided probable cause for plaintiff’s arrest. Summary judgment in favor of Officer Harrison is appropriate.
