ATF agents, acting on the word of a concerned citizen that defendant was a felon in possession of a fiream, came to defendant’s house acting as real estate investors, and they went through the house and found a gun case and felt it, feeling a gun. (1) The entry into the closet and feeling the gun was beyond the scope of consent and an unlawful search. (2) The good faith exception did not apply because the search warrant had not yet issued. (3) Stripped of the unlawful search, the affidavit for the search warrant still provided probable cause, so suppression was not warranted. United States v. Lord, 230 Fed. Appx. 511 (6th Cir. 2007) (unpublished):<\/p>\n
The government responds that Agents Allen and Weaks “were invited to examine the residence and the closets by the defendant.” Although this is an accurate factual description of the circumstances surrounding the June 8 search, nothing in the record supports the government’s implication that Lord’s consent to look inside his bedroom closet extended to the examination of the contents of a closed case inside the closet. Our court has held that, in ascertaining the scope of a consent to search, a reviewing court considers what “the typical reasonable person [would] have understood by the exchange between the officer and the suspect.” United States v. Garrido-Santana,<\/em> 360 F.3d 565, 576 (6th Cir. 2004). We think it unlikely that a reasonable person would understand Lord’s consent to two men he believed to be prospective home buyers to encompass the “squeez[ing] and grab[bing]” of a closed case in his bedroom closet. We accordingly reject the government’s suggestion that Lord’s consent to examination of his closet extended to the handling of closed storage containers in the closet. Under Bond and Waller, Agent Weaks’s actions in squeezing the case constituted an unlawful search, the fruits of which must be excluded unless some exception to the exclusionary rule applies.<\/p>\n
The government contends that the district court properly admitted the evidence obtained as a result of Agent Weaks’s actions under the good faith exception to the exclusionary rule. The government’s invocation of the good faith exception is inappropriate here, as the search it seeks to justify occurred prior to the issuance of a warrant, and there was, therefore, no warrant on which the agents could have relied in searching Lord’s home. See United States v. Leon<\/em>, 468 U.S. 897, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984) (adopting good faith exception to exclusionary rule where police seize evidence in reasonable reliance on a warrant issued by a detached and neutral magistrate); United States v. Jenkins,<\/em> 396 F.3d 751, 761 (6th Cir. 2005) (noting that government’s reliance on good faith exception was “erroneous” where illegal search in question “occurred before the warrant was issued, and thus the [seized evidence] could not be admissible under a doctrine that requires reasonable reliance on a warrant”).<\/p>\n
The independent source doctrine is a more appropriate basis for the resolution of this case. Under that rule, the presence of unlawfully secured information in a search warrant affidavit does not necessarily make a subsequently obtained warrant invalid. See id.<\/em> at 758. Instead, a court reviewing a request for the suppression of evidence seized during the execution of a warrant issued on the basis of an affidavit containing both (1) information acquired during an unlawful search and (2) lawfully obtained, “untainted” information must evaluate “the sufficiency of the untainted affidavit to see if probable cause exists without the tainted information.” Id.<\/em> at 760 (interpreting rule announced in Murray,<\/em> 487 U.S. at 537-38). “If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry.” Id.<\/em> at 758 (internal quotation marks omitted).<\/p>\n
We turn our attention, then, to the representations Agent Allen made in his July 15 affidavit, disregarding the affidavit’s claim that, when Agent Weaks squeezed the case, he “felt a hard object that appeared to be a rifle or a shotgun.” Stripped of that information, the affidavit consists of the reports provided by the “concerned citizen” to Agent Allen on February 23, 2004, and July 6, 2004, concerning Lord’s possession of a firearm and Agent Weaks’s observation of a “soft long-gun case” inside Lord’s closet.<\/p><\/blockquote>\n
Defendant’s traffic stop was valid, and he fled. His flight justified an arrest that further justified a search incident. United States v. Patrick, 2007 U.S. Dist. LEXIS 30347 (D. Mass. April 25, 2007).*<\/p>\n
Plaintiff’s allegation of excessive force was insufficient to put defendants on notice, so plaintiff allowed to amend complaint. Reed v. City of San Diego, 2007 U.S. Dist. LEXIS 30420 (S.D. Cal. April 24, 2007):<\/p>\n
Because the Fourth Amendment test for reasonableness is inherently fact-specific, see Chew v. Gates<\/em>, 27 F.3d 1432, 1443 (9th Cir. 1994) (citing Reed v. Hoy<\/em>, 909 F.2d 324, 330 (9th Cir. 1989)), it is a test that escapes “mechanical application” and “requires careful attention to the facts and circumstances of each particular case.” Graham<\/em>, 490 U.S. at 396; Fikes v. Cleghorn<\/em>, 47 F.3d 1011, 1014 (9th Cir. 1995). “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20\/20 vision of hindsight.” Graham<\/em>, 490 U.S. at 396. In all, police officers are not required to use the least intrusive degree of force possible; they are required only to act within a reasonable range of conduct. See Forrester v. City of San Diego,<\/em> 25 F.3d 804, 806 (9th Cir. 1994). In fact, the officer’s right to make an arrest necessarily includes the right to use some degree of force. Graham<\/em>, 490 U.S. at 396; Cunningham v. Gates,<\/em> 229 F.3d 1271, 1290 (9th Cir. 2000) While Plaintiff need not allege evidentiary facts, she must at least allege, at a minimum, that excessive force was used on her, when, and by whom, if known. Absent such minimal allegations, County is unable to prepare an adequate answer and to investigate any alleged incident of excessive force.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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