Statute of limitations for unlawful search claim ran from the date the New York appellate courts reversed his conviction based on the search. After the charge was dismissed on remand, the statute of limitations began to run. The search was in 1994 and reversal came in 2001, and suit was filed a few months later. Perez v. City of New York, 2006 U.S. Dist. LEXIS 94211 (E.D. N.Y. December 29, 2006).
Removal: A Fourth Amendment claim brought in state court is removable to federal court because federal courts have jurisdiction over Fourth Amendment claims under 28 U.S.C. § 1331. Donaldson v. City of Walterboro Police Dep’t., 466 F. Supp. 2d 677 (D. S.C. November 28, 2006).
Defendant who lived with a woman with whom he had a rocky relationship still had standing to challenge seizure of things from her property because he still retained an expectation of privacy in the premises. United States v. Brown, 2006 U.S. Dist. LEXIS 94224 (N.D. Ga. September 12, 2006):
Although a close question, the court finds that Defendant had a reasonable expectation of privacy in Ms. Moore’s residence on October 7, 2005, which he had not abandoned at the time of the search. While it is evident that Defendant was not a fulltime resident at Ms. Moore’s home, the court finds that she and Defendant had a long-term relationship which included having had a child together who also resided in the home. (Tr. at 15-16, 46, 110-11, 113-14, 112-23). And, while it appears that Ms. Moore’s and Defendant’s relationship was undergoing difficult times, as it had apparently in the past, the relationship obviously was not over as evidenced by the fact Ms. Moore had just leased a vehicle for Defendant’s use. (Tr. at 16-17, 110). Defendant also had clothing and other items in the residence, which Ms. Moore, and not he, had begun to pack. (Tr. at 16, 21, 110-11, 122). Even assuming that Defendant’s visits to the residence were more sparse than claimed by Ms. Moore and that he had not, contrary to her claims, spent the night before at the residence, Defendant had a sufficient relationship to the home and its occupants to assert a reasonable expectation of privacy therein.
Nor does the court find that Defendant had, at the time of the search, abandoned his expectation of privacy in the residence. In arguing that Defendant abandoned his property left in Ms. Moore’s residence, the Government points to the facts that his relationship with Ms. Moore was breaking up, that she was packing up his belongings, that there was only a possibility that she would allow him to return, and that he was located months later with his girlfriend in North Carolina. [Doc. 27 at 12]. None of these factors demonstrate that on October 7, 2005, Defendant had abandoned his property or severed his relationship to the residence. In fact, Ms. Moore testified that if Defendant sought to return, there was a “big possibility” that she would allow him to do so. (Tr. at 111). Defendant’s association with the residence followed the pattern, as Ms. Moore explained, of being there and then not being there. (Tr. at 16, 122). Although Ms. Moore was equivocal about her relationship with Defendant, she denied that he had moved out of the residence as of October 7, 2005. (Tr. at 110-11, 122-23).
As to the car defendant recently leased for his paramour, the defendant lacked standing in that vehicle. As to consent, the heat of the moment of the arrest had dissipated by the time consent was granted, so did the show of force and authority. Consent was valid. Id.
Defendant arrived at premises when a search warrant was being executed, and he asked to be able to retrieve his son. The officers ran his name and found a warrant for his arrest. The officers conducted a search incident, and they found a hard object which they thought was conceivably a weapon. It was a meth pipe. The search was valid. State v. Cooney, 2006 MT 318, 335 Mont. 55, 149 P.3d 554 (December 5, 2006).
Search warrant based on 45 day old information of a drug buy was stale, and search was suppressed. State v. Jendrusik, 2006 Ohio 7062, 2006 Ohio App. LEXIS 6983 (7th Dist. December 29, 2006).
Hudson excused state’s failure to properly knock and announce, so exclusionary rule did not apply. State v. Marcum, 2006 Ohio 7068, 2006 Ohio App. LEXIS 6995 (7th Dist. December 28, 2006).
