Defendant on community corrections release with electronic monitoring living with sister was treated as a parolee

A defendant on release after conviction in a community corrections program on electronic monitoring is to be treated as a parolee in Michigan. Officers with a corrections officer could enter the house. United States v. Smith, 457 F. Supp. 2d 802 (E.D. Mich. October 18, 2006).

A violation of state law by police does not require suppression if the Fourth Amendment was not violated. United States v. Barger, 2006 U.S. Dist. LEXIS 78388 (D. Colo. October 27, 2006)*:

Assuming, arguendo, that the Fort Collins police officers violated Colorado law by executing the search warrant in Weld County, this violation would not mandate suppression. The exclusionary rule only applies to violations of the United States Constitution. United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999). Police officers’ “violation of state law is not, without more, necessarily a federal constitutional violation.” United States v. Mikulski, 317 F.3d 1228, 1232 (10th Cir. 2003). Indeed, the Tenth Circuit has specifically held that where police officers conducted a search pursuant to a lawful warrant outside of their jurisdiction in violation of Kansas law, the search did not offend the United States Constitution. Green, 178 F.3d at 1104-06. Accordingly, the search and seizure did not violate Colorado law, and even if it did violate Colorado law, the search and seizure does not provide grounds for the suppression of the evidence and statements obtained. Defendant’s argument as to this point is therefore without merit.

Comment: I had a case years ago with a clear violation of Arkansas’ nighttime search rule, which the Arkansas Supreme Court takes quite seriously. I filed a motion to suppress in state court. Before the suppression hearing could be held, the client was indicted federally because the search did not violate the federal nighttime search rule. The client later pled because there was no Fourth Amendment issue in the execution of the warrant.

Evidence inadmissible at trial may be relied upon in determining a motion to suppress. The defendant claimed standing in a search of his friend’s barn where he stored things that were seized. The friend told the police that the defendant had no permission to keep the stuff there. The District Court credited the hearsay over the defendant’s live testimony. United States v. Kellogg, 202 Fed. Appx. 96 (6th Cir. October 27, 2006)* (unpublished):

The district court had before it two contradictory pieces of evidence: White’s statements to the police that he did not give Kellogg general permission to store items in his barn, and Kellogg’s testimony that he did. The district court had an opportunity to assess Kellogg’s demeanor during his live testimony and obviously chose not to credit his testimony, an assessment that receives deference on appeal. And while White’s statements were hearsay, there was no reason not to rely upon them: They were consistent with what White had told police officers at the time of the search; Officer Gutierrez declared under penalty of perjury that the transcript was accurate; and there is no reason to think that White, who had consented to the search in the first instance, suddenly had a reason to dissemble to the police. In ultimately choosing to credit White’s statements, see JA 196 (crediting “evidence that Mr. White did not permit the defendant to store items on the property, other than his vehicle” in “find[ing] that the defendant had no reasonable expectation of privacy”), we cannot say that the district court committed clear error.