(Cases arrived after 8 a.m. again.)
“Custody” for Fifth Amendment is different than a “seizure” under the Fourth Amendment. Defendant was not seized, but he consented to go with the officers. United States v. Bowen, 2007 U.S. Dist. LEXIS 15744 n.5 (E.D. Pa. March 6, 2007):
Technically, Defendant argues that he was “in custody” when he consented to the search. However, it is apparent from Defendant’s submission that he understands the Fifth Amendment concept of “custody” to be synonymous with the Fourth Amendment concept of “seizure.” While the concepts of “custody” and “seizure” are similar, compare Steigler v. Anderson, 496 F.2d 793, 798-99 (3d Cir. 1974), with United States v. Mendenhall, 446 U.S. 544, 552 (1980), the legal significance of each is different. A person “in custody” can voluntarily consent to a search; custody is one factor in determining whether consent is voluntary. “[T]he fact of custody alone is never enough to demonstrate coerced consent.” United States v. Forbes, 181 F.3d 1, 6 (1st Cir. 1999) (citing United States v. Watson, 423 U.S. 411, 424 (1976)). However, under the terms of the Fourth Amendment, if a defendant is seized and that seizure is unlawful, then evidence recovered thereafter may be excludable under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 486 (1963) (consent must constitute an intervening act of free will in order to overcome exclusion). Defendant in effect makes a species of this latter Wong Sun argument, by explaining, “[w]hen a person manifests his consent contemporaneously with an illegal seizure, ‘the conduct of the person seized is not free from the taint of his unlawful detention and, thus, is insufficient to show consent.'” (Def.’s Supplemental Mem. of Law in Supp. of Mot. to Suppress Evidence at 22 (quoting United States v. Martel, 966 F. Supp. 317, 322 (D.N.J. 1997) (internal citations omitted)).)
Use of an ankle restraint move to subdue plaintiff broke his ankle, and he obtained a $301,000 verdict which was sustained on appeal. Jennings v. Jones, 479 F.3d 110 (1st Cir. 2007):
On appeal, Jennings challenges the court’s determinations on his Fourth Amendment claim. After careful review, we conclude that the court erred in granting qualified immunity to Jones. First, viewing the evidence in the light most favorable to the jury verdict, we conclude that the record establishes that Jones violated Jennings’ constitutional right to be free of excessive force. Second, we find that this right was clearly established at the time of Jennings’ injury. Third, we conclude that a reasonable officer in Jones’ position would have believed that his actions violated Jennings’ constitutional right. Finally, because Jones failed to obtain a conditional ruling on his motions for a new trial and a remittitur before the district court and failed to raise these motions on appeal, we find that he has abandoned these motions. Consequently, we vacate the judgment of the district court and order reinstatement of the jury award.
Defendant’s stop for a minor traffic offense in a national park was justified, notwithstanding that it was minor. The officer could then smell marijuana during the stop, and this was probable cause. United States v. Harvey, 2007 U.S. Dist. LEXIS 15791 (W.D. Va. March 6, 2007).*
Conclusory request for a Franks hearing was not a “substantial preliminary showing.” United States v. Vallejo, 2007 U.S. Dist. LEXIS 15555 (E.D. Wis. March 5, 2007)*:
[T]he court finds that Mejia has failed to make the requisite substantial preliminary showing and therefore is not entitled to an evidentiary hearing. Mejia simply makes conclusory assertions about the reliability of the informants that are undeveloped and unsupported. The defendant implies that because the CI may not have been an eyewitness to related events, this makes the CI unreliable. Such conclusory assertions are insufficient. Additionally, suppression is appropriate only if the allegedly false information would have undermined the probable cause determination. Franks, 438 U.S. at 156. Even though the search warrant is contained [*10] in the discovery materials, neither party has provided this court with a copy. Thus, Mejia has failed in his burden of demonstrating that the allegedly false statements were necessary to the finding of probable cause. Therefore, the court shall deny Mejia’s request for a Franks hearing. (Docket No. 767).
Plaintiff raised a sufficient fact issue that a traffic stop may have been invalid to overcome qualified immunity. Woods v. Hillin, 2007 U.S. Dist. LEXIS 15463 (D. Utah January 9, 2007)*:
Here, Plaintiff contends that he was not committing any traffic violations and that he was driving under the posted speed limit when he passed Deputy Hillin. Accordingly, Plaintiff asserts that the traffic stop, from its inception, was unreasonable under the Fourth Amendment. Viewing the facts in a light most favorable to Plaintiff, the court finds that Deputy Hillin’s stop of Plaintiff’s vehicle may have violated Plaintiff’s clearly established right to be free from unreasonable seizure. Thus, Plaintiff has established both prongs of the qualified immunity analysis: (1) Deputy Hillin’s conduct may have violated a constitutional right and (2) the right was clearly established at the time of the violation. Therefore, the court finds that Defendants are not entitled to qualified immunity.
