District Court rejects USMJ’s R&R and concludes that the affidavit for the search warrant failed to connect defendant’s property as a place where evidence of a crime would be found. Also, the affidavit was so difficient on the showing of probable cause that no reasonable officer could rely on the resulting warrant, so Leon does not apply. United States v. Davis, 2007 U.S. Dist. LEXIS 11258 (E.D. Mich. February 16, 2007):
Here, the information tying Defendant to Goldwin Street was not only vague and conclusory, but was not independently verified. Although there are cases where the Sixth Circuit found that probable cause did not exist, but applied Leon nonetheless because there was a modicum of evidence, however slight, to connect the criminal activity described in the affidavit to the place to be searched, those cases are inapposite.
. . .
The Government argues that an experienced investigator such as Agent Dosch could reasonably believe, based on his experience, that Defendant, an alleged drug dealer, would keep evidence of drug trafficking in his home. See United States v. Goward, 188 Fed.Appx. 355 (6th Cir. 2006)(unpublished). A search based on this suspicion seriously compromises the Fourth Amendment because the evidence observed by Agent Dosch and relied upon by the Magistrate does not reasonably indicate that Goldwin Street is, in fact, Defendant’s residence. At best, the affidavit indicates that someone driving cars associated with the Defendant visits Goldwin Street. If the Court were to adopt the Government’s reasoning, law enforcement would be free to search any home that a suspected defendant visited – – based on unverified allegations that he resided there, or uncorroborated observations of a car allegedly driven by the suspect, parked in the driveway.
“It is commonly held across the Circuits that there must be a sufficient nexus between drug trafficking, evidence of drug trafficking, and a drug dealer’s residence.” Goward, 188 Fed.Appx. at 359 (citing Wayne R. LaFave, Search and Seizure: A Treatise on Fourth Amendment § 3.7(d)(4th ed. 2004)). This nexus is absent here.
“We reject Boechler’s contention that the search of his home violated the Fourth Amendment. The search warrant was valid, … and the officers did not exceed the scope of the warrant in executing the search, …. Further, the officers’ seizure of numerous items in Boechler’s residence before issuance of the second search warrant was justified under the “plain view” exception to the warrant requirement. … Here, the officers were lawfully on Boechler’s property under authority of the lawful search warrant, and the incriminatory nature of the items seized was immediately apparent.” [seemingly conflicting?] United States v. Boechler, 2007 U.S. App. LEXIS 3615 (9th Cir. February 15, 2007)* (unpublished). (Comment: It looks like the Ninth Circuit’s new form of memorandum opinions is just like those of the N.Y. Appellate Courts in their brevity and occasional opacity.)
Plaintiff’s decedent, arrested on a misdemeanor, died of “anoxic encephalopathy due to probable cardiac dysrhythmia due to restraint/positional asphyxia” after refusing to change into a jail jumpsuit and being forcibly stripped while officers held her down. Plaintiff could not show sufficient facts to get past summary judgment on the question of overall reasonableness. Giannetti v. City of Stillwater, 216 Fed. Appx. 756 (10th Cir. 2007)* (unpublished):
Our conclusion is buttressed by the Seventh Circuit’s holding in Abdullahi, 423 F.3d at 771. In Abdullahi, unlike here, the plaintiff identified the specific misconduct at issue–the officer’s placing his knee on the decedent’s back with crushing force. The plaintiff also introduced competent medical evidence establishing that this act directly caused deadly injuries including a collapsed lung and other injuries consistent with extreme external pressure. But the court stated that “the mere fact that an injury occurred while an individual was in police custody is not sufficient to avoid summary judgment–a plaintiff must identify the specific unreasonable conduct that caused his or her injuries.” Id. at 770-71. Here, however, Mr. Giannetti can point to no specific act of misconduct that suggests the officers applied excessive force. Even when we construe the facts in the light most favorable to Mr. Giannetti, he cannot establish facts sufficient to survive summary judgement.
Questions of fact remained on whether officers could rely on apparent authority of consenter that precluded summary judgment. Kirley v. Williams, 2007 U.S. Dist. LEXIS 11238 (W.D. Pa. February 15, 2007).*
“In consideration of the totality of the circumstances, the Court finds that the officers had reasonable suspicion to approach the Defendant when they observed him walking in a grassy area between two buildings of the apartment complex where ‘No Trespassing’ signs had been visibly posted. Moreover, the Court finds that the officers’ initial contact with the Defendant constituted a police-citizen encounter for which the Fourth Amendment is not implicated.” United States v. Worsham, 2007 U.S. Dist. LEXIS 11165 (E.D. Va. February 15, 2007).*
Heck v. Humphrey applies to revocation of parole, too. Williams v. Massey, 2007 U.S. Dist. LEXIS 11069 (S.D. Ala. February 13, 2007).
