{"id":864,"date":"2007-06-25T13:23:14","date_gmt":"2007-03-22T08:30:38","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-03-22T08:30:38","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=864","title":{"rendered":"Brandeis’s Olmstead<\/em> dissent does not provide an equitable ground to suppress"},"content":{"rendered":"

Defendant lacked standing to challenge the search of the vehicle of another parked outside the place searched under a search warrant. Brandeis’s Olmstead<\/em> dissent does not provide an equitable ground of relief. United States v. Babb, 2007 U.S. Dist. LEXIS 19173 (N.D. N.Y. March 19, 2007):<\/p>\n

To overcome the hurdle posed by his lack of standing, defendant relies on the equitable principle that the government should not unfairly “profit from its lawless behavior.” United States v. Calandra<\/em>, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting). In support of his position, defendant further cites to the dissenting opinions written by Justices Brandeis and Holmes in Olmstead v. United States<\/em>, 277 U.S. 438 (1928). Justice Brandeis opined that “[i]f the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself ….” Id. at 485. Justice Holmes echoed similar concerns when he added that “[i]f the existing code does not permit district attorneys to have a hand in such dirty business it does not permit the judge to allow such iniquities to succeed.” Olmstead<\/em>, 277 U.S. at 470. Invoking fundamental fairness, defendant argues that the Court should not permit the government to circumvent the Fourth Amendment’s exclusionary rule and profit from its lawlessness. See Dkt. No. 16, Mem. of Law at 14. Since the writing of these dissenting opinions, however, the Supreme Court has yet to have expanded the exclusionary rule’s ambit and operation so as to permit a court to use its supervisory powers to circumvent settled Fourth Amendment law.<\/p><\/blockquote>\n

Consent to an interview of a child concerning paddling at school is not consent to a “beneath the clothes search,” and a reasonable person had to know that. Michael C. v. Gresbach, 479 F. Supp. 2d 914 (E.D. Wis. 2007).<\/p>\n

Liberally construing plaintiff’s pro se complaint, she sufficiently alleged excessive force and sexual battery in an officer’s attempt to remove her from her car during a traffic stop. Christian v. Anderson, 2007 U.S. Dist. LEXIS 19394 (D. N.H. March 15, 2007).*<\/p>\n

Another plaintiff stated a sufficient claim to have a “triable issue” for kicking and beating him after he was tackled by the police. Gray v. City of Hayward Police Dep’t, 2007 U.S. Dist. LEXIS 19280 (N.D. Cal. March 2, 2007):<\/p>\n

The next area of disputed fact concerns the amount of force that was applied by the defendants and other officers. Plaintiff alleges that after he was tackled to the ground and handcuffed, Cristofani and Dorn “beat him,” Carpenter kicked him in the back, these three officers dragged him to the stairs in handcuffs, defendant Hutchinson punched him in the face and hit him in the back, face and arms with a baton, Hutchinson pepper-sprayed him, Matthews threatened to shoot him while pointing a gun at his face, Matthews struck him in the face and on the top of the head with the scope of a rifle, “busting [his] head wide open,” Hutchinson directed Divinagracia to release a police dog which bit plaintiff on the legs and wrist, and Olsen “slapped” him. Matthews states that after Dorn tackled plaintiff to the ground, he struck plaintiff once in the head with his weapon, but denies having heard any officer threaten to shoot plaintiff. (Matthews Decl. P 24). According to Dorn, after tackling plaintiff to the ground, he tried to pull at plaintiff’s left arm, and attempted but did not complete a “Carotid restraint.” (Dorn Decl. PP 14-15.) The declarations submitted do not address plaintiff’s allegations of the use of force by the other defendants and officers present, but in their motion defendants concede “other officers” used “baton strikes, open hand strikes, and for a brief moment a K9” in the attempt to subdue plaintiff. n9 <\/p>\n

Assuming plaintiff’s version of these events is true, as the Court must do at this stage of the proceedings, plaintiff has raised a triable issue of material fact, as he has alleged facts from which a finding could be made that the officers’ actions were unreasonable under the circumstances. Certainly, the officers, at the outset, had reason to be concerned for their safety, as there is no dispute that plaintiff had a history of violence with the police, was wanted for violent crimes, and initially had run from his house to the deck. Plaintiff states, however, that once he was on the deck, he told the officers he was surrendering and showed them his hands, after which he was handcuffed. Thereafter, according to plaintiff, defendants and other officers participated in a beating in which they kicked him, dragged him, punched him in the face, hit him with a baton in the back, face and arms, pepper-sprayed him, pointed a gun at his face and threatened to shoot him, hit him in the face and the head with the scope of a rifle, and released a police dog who bit him on the legs and wrist. It is undisputed that at least seven police officers and a police dog were present, and there is no evidence plaintiff was armed. Further, it is undisputed plaintiff was injured and bleeding as a result of the altercation, and was immediately taken to a hospital by ambulance for treatment of his injuries. See Headwaters Forest Defense v. County of Humboldt,<\/em> 240 F.3d 1185, 1199 (9th Cir. 2001) (“Headwaters<\/em>“) (holding that whether use of force poses risk of significant injury is factor considered in evaluating need for amount of force used), judgment vacated on other grounds, 534 U.S. 801 (2001).<\/p><\/blockquote>\n

Officers lacked probable cause to arrest the plaintiff, and no reasonable officer could have believed he did. Therefore, the defendants had no qualified immunity. Blankenship v. Cox, 2007 U.S. Dist. LEXIS 19425 (D. Nev. March 19, 2007).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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