Recycling business not shown to be a closely regulated business

NYC Sanitation officers entered plaintiff’s paper and cardboard recycling business property following a private hauler’s truck to inspect it. He sued over the entry, and they moved to dismiss on the ground that the recycling business held a permit and that made it closely regulated. The district court disagreed and denied the motion to dismiss without developing the record much more. Based on what was presented thus far, the court cannot conclude that the recycling business fits the Burger test for a closely regulated industry. Meserole St. Recycling, Inc. v. City of New York, 2007 U.S. Dist. LEXIS 4580 (S.D. N.Y. January 23, 2007).

Execution of a nighttime search warrant was permissible under 21 U.S.C. § 879 even though F. R. Crim. P. 41 limited nighttime searches. The Sixth Circuit has not held that special rules govern execution of nighttime searches. Plaintiff’s handcuffing in her bed with flashlights shining in her face at night was not unreasonable. (The probable cause for obtaining the warrant not being at issue.) All of plaintiff’s claims fall within the realm of a reasonable exercise of police authority in controlling the situation during the execution of a search warrant, even at night. Taylor v. City of Detroit, 2007 U.S. Dist. LEXIS 4587 (E.D. Mich. January 23, 2007).

Defendant had been arrested, handcuffed, and placed in a police car by the DEA. After being advised of a right to refuse consent, he refused consent to search his house, and the officers then got on a cellphone to call to see about getting a search warrant. Then the defendant consented to the search. On the totality of the circumstances, his consent was valid. United States v. Woods, 2007 U.S. Dist. LEXIS 4529 (D. Idaho January 22, 2007). (Note: The officers also had an admission from a jail telephone call to a woman that he consented to the search that was used at the suppression hearing.)

Defendant was involved in a traffic stop just before 3 a.m. in an SUV. When the officer ran his name, the driver came back as being involved in thefts. On the video, the officer mentioned that he was not accusing the defendant of anything but that his name had come up as being involved in some thefts, and the officer asked for permission to get the serial numbers off some car parts in the back of the SUV. The defendant consented to this search, and a gun was found. The search was valid. United States v. Bauer, 2007 U.S. Dist. LEXIS 4517 (N.D. Iowa January 22, 2007).

Defendant who broke into his parent’s house because he had been kicked out and had no key had no standing to challenge the police search of the house on the parent’s call to the police about the break-in. United States v. Ochse, 2007 U.S. Dist. LEXIS 4515 (D. S.D. January 19, 2007):

Although defendant formerly lived in his parents’ home, it is of no consequence now. At the time of the search, defendant did not live in his parents’ residence. This fact was corroborated by defendant’s father during his contact with the sheriff’s department as he reported defendant’s break-in. Defendant was not in possession of a house key and had no other way to access the home when his parents were not present; rather, defendant used extreme force to enter the house.