Continuation of stop was by consent, even if defendant hesitated when giving it. United States v. Villa-Gutierrez, 2007 U.S. Dist. LEXIS 58403 (D. Neb. August 9, 2007):
If a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual, reasonable suspicion is not required, and the encounter will not evoke Fourth Amendment scrutiny unless it loses its consensual nature. … In this case, I conclude that after Officer Spaniel issued defendant a traffic citation, the officer’s subsequent request to search did not constitute a detention but was merely a consensual encounter between officers and a citizen. The officers did not use physical force, make a show of authority, or use demanding language, but simply asked the defendant whether he would consent to a search of his vehicle. While the defendant might have been initially hesitant when he responded “no” and questioned the officer’s tactics in not searching the previous vehicle, the fact remains that defendant agreed to allow the officers to search his vehicle. An officer that has no basis for suspecting a particular individual may generally ask questions of that individual, including a request consent to search, provided the officer does not convey a message that compliance with the request is required.
Comment: Hesitation would tend to indicate that the defendant did not feel free to leave, wouldn’t it?
Pepper spraying of plaintiff by arresting officers responding to a domestic disturbance call where plaintiff would not let the officers in to check on the caller and he struggled with them first was not excessive force. Wright v. City of Bridgeton, 2007 U.S. Dist. LEXIS 58285 (D. N.J. August 8, 2007).*
After spending about 15 pages on whether a Kansas Court of Appeals decision on the meaning of crossing the fog line would be followed by the Kansas Supreme Court, the District Court decides that the officer acted reasonably in stopping a vehicle which crossed the fog line while he was following [probably because the driver was looking in the mirror]. “A reasonable officer rationally could infer the likelihood that the car had been driven all night from these circumstances in combination with the pre-dawn hour of travel. An extended trip, the likelihood of overnight travel, the pre-dawn hour, and the sudden swerve are enough, though just barely, for a reasonable suspicion that the driver was having difficulty staying awake as to justify a stop for safety reasons.” The car was rented, and neither the driver or passenger were on the rental agreement. After getting consistent stories about the trip and finding both of their licenses suspended the officer said they could go, and stepped back, but he then stepped forward and asked for consent to search which was granted. An oddly gift wrapped package was supposed to be a 3D puzzle of Las Vegas, but it did not feel like it, and opening one end, the box was from car speakers. One end was opened on the consent and drugs were found. The search was by valid consent. United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007).*
In a vehicle forfeiture case, the District of Oregon holds that a dog alert on money is probable cause to believe that the money is drug money [despite the fact there are dozens of cases holding to the contrary], and the fact that money wrapped in discrete piles by rubber bands is also probable cause to believe it is drug money [despite the fact that all businesses do it that way]. The purchase of the $70,000 vehicle was done with cash and structure payments reported by the dealer. United States v. Camarillo, 2007 U.S. Dist. LEXIS 58335 (D. Or. August 7, 2007).*
Suit challenging plaintiff’s federal conviction suing everybody involved, including the judge, was barred by Heck because it was intended to challenge the conviction separate from an appeal or post-conviction claim. Halter v. Sargus, 2007 U.S. Dist. LEXIS 58279 (S.D. Ohio August 9, 2007).*
