Officers executing an otherwise valid warrant brought along another officer, and that officer found something else in “plain view” during the search that was of evidentiary value. State v. Willock, 2007 Iowa App. LEXIS 278 (March 14, 2007):
Iowa law supports the district court’s rulings on the motions to suppress. As our highest court has stated, the seizure of an object found in plain view is justified where (1) the intrusion of the police was lawful and (2) the incriminating nature of the object was immediately apparent. State v. Chrisman, 514 N.W.2d 57, 60 (Iowa 1994). There is no question that the presence of the Waterloo detective in Robert Willock’s home was lawful and that the receipt was in plain view.
Our inquiry could end here, but both Willock and the State also cite federal authorities relating to pretextual searches. See United States v. Johnson, 707 F.2d 317, 320-21 (8th Cir. 1983); United States v. Wright, 641 F.2d 602, 605 (8th Cir. 1981); United States v. Sanchez, 509 F.2d 886, 889 (6th Cir. 1975). These opinions are inapposite. All relied on an articulation of the plain view exception to the warrant requirement that was rejected in Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). There, the United States Supreme Court stated “inadvertence” was not a necessary predicate to application of the plain view exception. Horton, 496 U.S. at 130, 110 S. Ct. at 2304, 110 L. Ed. 2d at 118-19. The court specifically stated,
“[t]he fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement.”
Id. at 138, 110 S. Ct. at 2309, 110 L. Ed. 2d. at 124. The court concluded, “if the scope of the search exceeds that permitted by the terms of a validly issued warrant or the character of the relevant exception from the warrant requirement, the subsequent seizure is unconstitutional without more.” Id. at 140, 110 S. Ct. at 2310, 110 L. Ed. 2d at 125. This opinion clarifies that the focus is not on the officer’s intent prior to executing the search. Instead, the focus is on the warrant requirement or a valid exception to the warrant requirement. Because the cited federal opinions have a broader focus, we find them unpersuasive.
In a § 1983 case over a no-knock warrant and entry, the court held that the entry was lawful so the city could not be held liable for its policy. Estate of Davis v. City of North Richland Hills, 2007 U.S. Dist. LEXIS 17648 (N.D. Tex. March 13, 2007):
General order 811.05 does not use the term “hazardous warrants” or “no-knock” warrants. Instead, that order provides,
“The Special Weapons and Tactics (S.W.A.T.) team will serve any search and arrest warrant that has a high potential for armed confrontation. These type of warrants may consist of kidnapping, mental patients, and known violent offenders.” (Emphasis added.)
The official policy is that a special tactical team is to serve warrants when there is a high potential for armed confrontation. The policy goes on to illustrate examples of when there may be a high potential for armed confrontation. But those examples are not a part of the official policy. And it neither authorizes nor directs the blanket execution of warrants on a no-knock basis in circumstances where a high potential for armed confrontation may occur. Thus, on its face, the general order is not, itself, unconstitutional. Consequently, Plaintiffs have the burden of showing that the general order “was adopted or maintained … with deliberate indifference as to its known or obvious consequences ….” Nacogdoches County, 379 F.3d at 309. Establishing deliberate indifference “generally requires that a plaintiff demonstrate at least a pattern of similar violations.” Id. (internal quotations and citations omitted).
Here, Plaintiffs have not presented any evidence that the general order has been adopted or maintained with a deliberate indifference to Fourth Amendment constitutional rights. They present no evidence that the NRH police department developed a practice or custom of executing all narcotics warrants on a no-knock basis. In fact, the policy itself supports various implementations. The policy only requires that a special tactical team execute warrants where there is a high potential for armed confrontation. But that does not translate into an authorization for a no-knock entry in every instance. The special tactical team could decide, based on the circumstances of the particular situation, that although there is a potential for armed confrontation, knocking and announcing may be safer for the officers because it will give the suspects a chance to surrender before any armed confrontation ensues. The reality is that police officers are well aware that a surprise, unannounced entry of a dwelling poses its own dangers. The surprise in and of itself may cause the armed confrontation. It makes little sense that the NRH police department would have an official policy or practice of blanket no-knock entries in cases where there is a high potential for armed confrontation. The sensible policy and practice is to let the officers decide, on a case-by-case basis and after concluding that reasonable suspicion exists to forgo a knock-and-announce entry, whether the benefits of surprise outweigh its risks. This probably explains Plaintiffs’ failure to present any evidence to support their claim that the NRH police department executes all narcotic warrants on a no-knock basis.
Nevertheless, even if Plaintiffs did present evidence that the NRH police department has a practice of executing all narcotics warrants on a no-knock basis, that fact would not be dispositive here. The fact that the NRH police department has a practice based on the implementation of an official policy of unconstitutionally forgoing the knock-and-announce requirement is irrelevant because the evidence here clearly establishes that the officers had a reasonable suspicion from the particular circumstances that justified their no-knock entry into the Davis residence. See Richards, 520 U.S. at 395 (holding blanket rule for no-knock unconstitutional but still upholding officers’ no-knock entry because circumstances of case established officers had reasonable suspicion that evidence may be destroyed). The Court has already decided in its September 30 order that the evidence justified the officers’ no-knock entry into the Davis home. Thus, the officers’ no-knock entry was not a constitutional violation. Accordingly, Plaintiffs have failed to meet the third element to establish municipal liability.
Plaintiff’s failure to show that his arresting officers lacked probable cause doomed his § 1983 claim. Dampier v. Donaglia, 2006 U.S. Dist. LEXIS 95656 (W.D. Wash. November 13, 2006).*
Reasonable suspicion existed for a stop but the scope of patdown became an issue and nothing was found. A remand was required. State v. Rollins, 922 A.2d 379 (Del. 2007):
Here, a similar situation occurred when the police patted Rollins down and did not find any indication of criminal activity. Then the police directly entered and searched Rollins’ right pocket (the same pocket into which Rollins had inserted his hand earlier when police approached him in the courtyard). Their purpose was to obtain evidence. It is manifestly clear that the officers’ interest in a more extensive search did not relate to protecting themselves. That said, the issue here is the import of the conversation between Rollins and the police after the Terry pat down. In the suppression hearing, it was not necessary for the Superior Court judge to determine whether Rollins consented to the second search because he found that the police did not have a reasonable articulable suspicion to stop Rollins and, therefore, had no need to explore whether Rollins voluntarily consented to a police probe directly into his pockets. While we hold that there was a reasonable articulable suspicion for the initial Terry stop, we nevertheless believe that the Superior Court must first decide whether Rollins voluntarily consented to an incursion into his pockets in order to determine whether the evidence seized as a result of that direct entry into his pockets should be admitted or suppressed. Therefore, we remand to the Superior Court with the following instructions: The Superior Court judge should find as a matter of fact whether Rollins voluntarily and knowingly consented to the officers’ direct search of his pockets following the uneventful Terry stop and frisk.
“The initial stop of defendant for driving with a broken taillight was proper and was not contested. In addition, the officer did not violate the Fourth Amendment by asking defendant to exit his vehicle for safety reasons. The police pulled over defendant for a valid reason and then discovered another possible violation (a restricted driver’s license) that provided a legitimate reason to detain and further investigate. The trial court found that the encounter turned into an investigatory stop. But, that did not prevent the police from asking defendant questions without giving Miranda warnings.” [Lexis overview] State v. Olave, 948 So. 2d 995 (4th Dist. February 21, 2007, released for publication March 9, 2007).
Defense counsel was not ineffective for not objecting to officers’ videotaping open fields before entry. Since it was open fields, there was nothing to object to. Jaeger v. Dubuque County, 2007 Iowa App. LEXIS 271 (March 14, 2007).*
