First Quarter '04

Wednesday, March 31, 8:15 a.m.:
    Limitation of computer use and probation search of sex offender's computer: search "condition [likely] satisfied the 'special needs' of the probation system are sufficient to justify conditioning [defendant]'s probation upon his agreement to submit to computer monitoring: United States v Lifshitz (2004, CA2 NY) 363 F3d 158 (remanded.for further fact development on privacy interests concerned).
    RS found for detaining overnight shipped package for dog sniff: United States v Logan (2004, CA8 Mo) 362 F3d 530 (2-1, good dissent by Smith on lack of reasonable suspicion when compared to several recent cases from other circuits).
    IAC found in failure to properly argue suppression motion; conviction vacated: People v Miller (2004, 2d Dist) 346 Ill App 3d 972, 282 Ill Dec 462, 806 NE2d 759.
    Domestic violence TRO that authorized search of defendant's home for weapons governed by Fourth Amendment; no exigent circumstances shown for search at that time, so search was unreasonable: State v Cassidy (2004, NJ) 2004 NJ Lexis 155, 843 A2d 1132.

Tuesday, March 30, 11:15 a.m.:
    United States v Flores-Montano (see Recent Decisions for Syllbus and expanded discussion) was decided today by the Supreme Court, holding that reasonable suspicion is not required for a gas tank removal as a part of a border search. Although the government had reasonable suspicion in this case, it chose to disclaim reliance on reasonable suspicion and go with the border search exception, and the Supreme Court agreed that reasonable suspicion does not apply, holding that the Ninth Circuit's requirement of reasonable suspicion for more intrusive searches of persons could not be imported into searches of vehicles at the border because of the differing privacy interests involved in vehicles. As a practice matter, I do not see this case having much effect on the law of border searches. It serves one salutary interest of the government and the judiciary: not having to litigate whether reasonable suspicion was present. The result was not unexpected. Remember, however, under Terry that a search can be conducted unreasonably even if it was reasonable at its inception.

Tuesday, March 30, 6:15 a.m.:
    Forced DNA extraction § 1983 case allowed to proceed: inmate alleged that he had previously given same, and he was held down and this one was taken by force; stated enough to survive initial screen under PLRA: v Belfuel (2004, WD Wis) 2004 US Dist Lexis 4901 (note: 7th Circuit would also view this as an Eighth Amendment claim).
    Neighbot's tip that defendant wanted on weapons charge was at particular address was corroborated by seeing defendant on couch when door was opened by occupant; tip corroborated by observation; pat down was justified by the charge: Manuel v State (2004, Del) 2004 Del Lexis 141.
    Independent source rule and res judicata: Second search after suppression ordered on appeal in murder case; police redacted file of information about the suppressed evidence and gave it to a new investigator; he developed PC to conduct a separate search with additional information from a co-indictee; res judicata did not bar relitigating search: State v Lejeune (2004) 277 Ga 749, 2004 Fulton County D. Rep. 1140 (prior appeal affirming suppresion, State v Lejeune (2003) 276 Ga 179, 576 SE2d 888).
    Protective sweep and plain view: officer was permitted to follow arrested misdemeanant into house when she said she wanted to take her purse to booking; cocaine in plain view could be seized: State v Kull (2004, Wash) 2004 Wash App Lexis 572 (similar on facts to Washington v Chrisman (1982)).

Monday, March 29, 6:45 a.m.:
    No cases today. Today through Wednesday are oral arguments in the United States Supreme Court:
    Tomorrow is Sosa v Alvarez-Machain, 03-339 & 03-485 (see Cert. Grants) on whether an alien abducted to the U.S. for trial and then acquitted has a cause of action under the Federal Torts Claims Act or the Alien Tort Statute for Arrest in a Foreign County. This case will not have much impact on anybody's daily work, but it is an interesting case nevertheless because the government kidnapped the petitioner for trial.
    Wednesday is Thornton v United States, 03-5165 (see Cert.Grants) on whether a car can be searched incident to an arrest after the defendant was out of the car when first stopped and arrested. This case is important on the extent of Belton, and its facts appear to set it apart from Belton because the government's justifications for the search there are absent in this case.

Sunday, March 28, 8:30 a.m.:
    FAA requirement to show identification and agree to screening to board an airplane does not violate the Fourth Amendment or the right to travel clause: Gilmore v Ashcroft (2004, ND Cal) 2004 US Dist Lexis 4869.
    Driver with no DL, so it was proper to have passenger get out to see if he could drive, and valid plain view occurred: State v Abner (2004, Ala Crim App) 2004 Ala Crim App Lexis 59.
    Organized pretextual stop where snitch agreed to be speeding so officers could stop him and question passenger was unreasonable: Osborne v State (2004, Ind App) 805 NE2d 435, 2004 Ind App Lexis 487.

Saturday, March 27, 9:45 a.m.:
    Anonymous report of drug dealing and a dead body in a motel room justified officers going to the room to inquire and ultimately enter the room to check: United States v Beaudoin (2004, CA1 NH) 362 F3d 60.
    RS all that is required for a DUI stop: Gaddis v Redford Twp. (2004, CA6 Mich) 364 F3d 763.
    REP in motel room not forfeited by fact a stolen credit card was used to rent the room: United States v Bautista (2004, CA9 Cal) 362 F3d 584.
    No knock entry justified by fact, used in search warrant, defendant answered door during controlled buy wearing only tube socks and holding a semi-automatic handgun: United States v Bynum (2004, CA9 Nev) 362 F3d 574.
    Officer unduly prolonged stop when any suspicions proved unfounded: People v Jones (2003, 3d Dist) 346 Ill App 3d 1101, 282 Ill Dec 425, 806 NE2d 722.
    No REP in classroom computer of teacher accused of storing child porn on it: Voyles v State (2004, Tex App–Fort Worth) 133 SW3d 303.

Friday, March 26, 7:50 a.m.:
    Teacher had no REP in classroom desk; there was a REP in a locked file cabinet up to the time he surrendered the key at his discharge: Shaul v Cherry Valley-Springfield Cent. Sch. Dist. (2004, CA2 NY) 363 F3d 177 (§ 1983 case; office was cleaned out for him on his discharge).
    RS on totality to support stop of person expected to make a $190k cash drop which matured into further searches, including consent searches: United States v Acosta (2004, CA11 Fla) 363 F3d 1141.
    Knock-and-talk request requires advice of right to refuse search of home: State v Brown (2004, Ark) 2004 Ark Lexis 168 (decided under state constitution; 4-3).
    Appellate review of a search issue includes the evidence adduced at trial: State v McKelvey (2004, Mo App) 129 SW3d 456.
    Exigent circumstances supported entry into apartment to preserve the status quo while a warrant was procured; identification evidence not suppressed: People v Ellison (2004, Monroe Co.) 4 Misc 3d 319, 773 NYS2d 860.
    Staleness of observation of drying marijuana plants; 12 days not too long for PC: State v Hoffstatter (2004, Wisc App) 2004 Wisc App Lexis 255.

Thursday, March 25, 7:15 a.m.:
    Protective sweep: must be limited in scope and manner, and one need not be immediately concurrent with arrest; consent granted to enter to look for violent suspect who was represented to be in bed, but he was not there, so protective sweep of home was reasonable: United States v Gould (2004, CA5 La) 364 F3d 578 (en banc).
    No knock warrant: required showing of RS to dispense with announcement is same before magistrate as it would be at the scene: United States v Scroggins (2004, CA8 Mo) 361 F3d 1075 ("When the police obtain a no-knock warrant, they have anticipated exigent circumstances before searching, and have asked for pre-search judicial approval to enter without knocking. Of course, exigencies often do not appear before the officers arrive at the doorstep. But when the officers know, before searching, of circumstances that they believe justify a no-knock entry, it seems more consistent with the Fourth Amendment to ask a neutral judge for approval before intruding upon a citizen's privacy. For this reason, ‘the practice of allowing magistrates to issue no knock warrants seems entirely reasonable when sufficient cause to do so can be demonstrated ahead of time.' Richards, 520 U.S. at 396 n.7.")
    Forfeiture and summary judgment: Error to grant summary judgment motion in forfeiture action that owner did not respond to because face of record showed "genuine issue of material fact" precluding summary judgment: United States v One Piece of Real Prop. (2004, CA11 Fla) 363 F3d 1099.
    Electronhic Communications Privacy Act (ECPA): numbers transmitted to a pager are protected from disclosure under ECPA and there is a statutory right of privacy in them: Quon v. Arch Wireless Operating Co. (2004, CD Cal) 309 F Supp 2d 1204 (motion to dismiss ECPA civil action denied).
    Jail collection of defendant's jail clothing for DNA testing violated no REP: Commonwealth v Rice (2004) 441 Mass 291, 805 NE2d 26 (he regularly changed his clothes and sheets, so why can't they be segregated and tested?).
    Nexus to premises shown where two men matching description of wanted men fled apartment later searched with a warrant: Commonwealth v Querubin (2004) 60 Mass App Ct 695, 805 NE2d 84.

Wednesday, March 24, 7:40 a.m.:
    Protective sweep went a little too far in opening suitcase: Off-duty officer called in potential rape in his apartment building and had a person detained; other officers arrived and went to floor where it would have happened and saw a blood trial to an apartment door; they knocked and got no answer, but neighbors on the floor said they heard screams, a scuffle, then a slammed door; they broke in under exigent circumstances; plain views inside were reasonable except for opening a suitcase which was suppressed because there was no way somebody would have been hiding inside it: United States v Simpson (2004, SD NY) 2004 US Dist Lexis 4507 (compared to what else was found, this was not much of a win for the defense).
    Hearsay was admissible at a suppression hearing so counsel could not have been ineffective for not objecting to it: United States v Davilla (2004, ED Pa) 2004 US Dist Lexis 4431.
    Reasonableness of manner of search is a fact question; summary judgment denied in § 1983 case: Leaf v Marion County (2004, SD Ind) 2004 US Dist Lexis 4450.
    Assault on police officer after alleged illegal entry was independent of any alleged Fourth Amendment violation, so suppression of assault was not warranted even if entry was illegal: State v Windus (2004, Ariz App) 86 P3d 384, 2004 Ariz App Lexis 34. (Comment: This argument has never worked that I can see, but clients sometimes insist upon these issues being raised.)
    Re-entry after entry and removal of persons on exigent circumstance of a domestic disturbance was unjustified; police responded to 911 hang up call; at door, woman told them of disturbance, and they removed all occupants, observing marijuana and a bong in the process; officer re-entered to photograph interior and arrested defendant for possession: People v Allison (2004, Colo) 86 P3d 421, 2004 Colo Lexis 214.
    Officer observed argument and approached and defendant got in car and drove off; other person said that defendant threatened him with a knife; stop was valid and knife was found in plain view: State v Gaston (2004, Conn App) 2004 Conn App Lexis 116.
    PC for arrest from reliable CI calling defendant's pager, getting return call, arranging meeting for drug purchase, and defendant showed up and was arrested and searched: State v Jenkins (2004, Conn App) 2004 Conn App Lexis 120.
    CI's reliability was enhanced when he called officers back to say that defendant would be driving different car than one originally described, and defendant showed up in it: State v. Ross (2004, Minn App) 676 NW2d 301, 2004 Minn App Lexis 252.
    RS for stop on school parking lot; officers had an anonymous call of youths talking of placing a bomb at a high school, so they set up surveillance looking for vehicles that did not act like they belonged at school; defendant pulled into a parking spot at school, saw an officer looking at him, and backed out and started to leave lot and was pulled over by another officer; conversation led to admission he had a weapon; stop and conversation were justified: In re Lester (2004, Ohio App, 12th Dist) 2004 Ohio 1376, 2004 Ohio App Lexis 1229.

Tuesday, March 23, 7:00 a.m.:
    Fourth Amendment applies to execution of mental health warrants; recruitment of arrestees father in subterfuge to gain entry not unconstitutional: Linbrugger v Abercia (2004, CA5 Tex) 363 F3d 537 ("reasonableness is judged in light of often rapidly unfolding circumstances, viewed from the officers' perspective").
    Alleged Franks violation was not in bad faith, even though it undermined PC, so good faith exception would be applied: officer drafted presented information to an AUSA, otherwise detailed a detailed account of information (albeit missing a piece in the Franks violation), and presented it to a neutral and detached magistrate; all this weighs in favor of objective reasonableness: United States v Merritt (2004, CA7 Ind) 361 F3d 1005 (also, costs of exclusion here would be just too much; 74 firearms in possession of convicted felon would be suppressed, and he would go free).
    Roommate consent to enter by Social Security cops at 6:15 a.m. to check on whether Social Security card applicant was in the country legally; defendant asked to get out of bed and come into hallway for questioning: United States v Abdenbi (2004, CA10 Colo) 361 F3d 1282 (when did the SSA get armed cops?).
    Terry stop of driver of parked truck was legal because it was apparent that a domestic disturbance was occurring inside it; stop exceeded its justification, however, when officers ran defendant's name after they patted him down and learned that there was no further cause for any alarm; at that point, it became a general inquisition: People v Torres (2004, 1st Dist) 347 Ill App 3d 252, 283 Ill Dec 49, 807 NE2d 654.

Monday, March 22, 7:10 a.m.:
    No cases today, but today starts another two week argument calendar in the Supremes. Some cases of interest, on and off topic:
    Hiibell v Sixth Judicial District, 03-5554, on whether a state statute that requires a person to identify himself is constitutional. The cases poses questions of whether it violates the Fifth Amendment to require a recidivist to identify himself and whether it violates the Fourth Amendment by giving cause for arrests without probable cause of another crime. The Nevada Supreme Court sustained the statute. See Cert. grants.
    Blakely v Washington, 02-1632, on whether Apprendi requires that any fact that can increase a sentence be proved beyond a reasonable doubt.
    The Pledge of Allegiance case, Elk Grove Unified School District v Newdow, 02-1624: whether "under God" in the Pledge violates the First Amendment. Of note here is the fact that Justice Scalia recused because he had written a tract after the first Ninth Circuit panel decision stating that it was not unconstitutional, essentially laying out the petitioner's argument. Law.com has an article today by Tony Mauro entitled Showdown.

Sunday, March 21, 8:40 p.m.:
    Delayed today because of a 3:30 a.m. wake up call, two airports without internet connections, and a client call at SLC that kept me offline.
    Qualified immunity denied for strip search of defendant's wife and daughter in bathroom for drugs where the warrant said "occupants," but there was no reason to link them to drugs; applying Groh: Doe v Groody (2004, CA3 Pa) 361 F3d 232.
    Independent crime of causing police car to crash attenuated taint of any possible violation of defendant's Fourth Amendment rights, which was not even found by the court: State v Cal (2004, Ohio App 6th Dist) 2004 Ohio 1329, 2004 Ohio App Lexis 1176.
    Defendant is entitled to all search warrant papers before the preliminary hearing as a matter of due process: State v Boyd (2004, Tenn Crim App) 2004 Tenn Crim App Lexis 255 (seems to leave open the possibility of sealing the warrant papers if necessary to protect an ongoing investigation, but that issue was not before the court).
    No IAC on failing to pursue search issue by trial court in light of defendant's inconsistencies in the post-conviction proceeding on whether he consented to search or not: Cooper v State (2004, Tenn Crim App) 2004 Tenn Crim App Lexis 253.
    Consent by acquiescence: neighbor reported to police that defendant's dogs in indoor kennel were in distress from severe heat; police showed up and asked to look and defendant consented; she was charged with six counts of animal cruelty: State v Stevens (2004) 2004 VT 23, 842 A2d 330.

Saturday, March 20, 3:40 p.m.:
    Stone v Powell: Habeas petitioner had full opportunity to litigate search claim: "Absent new facts that were inadequately developed in the state court proceeding, Petitioner is barred from seeking federal habeas relief on this ground.": Hughes v Dretke (2004, ND Tex) 2004 US Dist Lexis 4210 (casting claim as a due process claim still defeats it under Teague).
    Traffic stop led to smell of alcohol and burnt marijuana; all passengers consented to search of their persons: State v Gooch (2004) 266 Ga App 746.
    Warrant for blood draw mooted claim that defendant be able to contact an attorney before consenting: Cook v. Commonwealth (2004, Ky) 129 SW3d 351.
    Window tint stop led to furtive activity by driver; justified patdown: State v Stewart (2004, Ohio App 2d Dist) 2004 Ohio 1319, 2004 Ohio App Lexis 1166.
    RS present from six men standing around looking at a brown pill bottle in the hands of one and the fact that one ran and everybody else piled into a Suburban when officers stopped; owner of vehicle present did not run, and he consented to search of vehicle: State v. Bell (2004, Ohio App 6th Dist) 2004 Ohio 1327, 2004 Ohio App Lexis 1174.

Friday, March 19, 6:40 a.m.:
    RS from using drug dog to sniff around the front door and garage door to defendant's house which alerted, coupled with valid traffic stop, was not overlong and consent to search house was valid: Garza v State (2004, Tex App–Texarkana) 2004 Tex App Lexis 2467 (dog sniff was based on an anonymous tip of drug activity at defendant's residence). (Comment: So, in Texas it is proper to bring a dog to the front door of a house and sniff for drugs? What's to stop them from doing it at any house for any reason? If an anonymous tip is good enough, then no reason at all is good enough, too.)
    This is the only reported case today; nine unreported cases received.

Thursday, March 18, 2:00 p.m.:
    Defendant's false suppression hearing testimony about signing written consent form was still obstruction of justice even after court found verbal consent was valid; still material under U.S.S.G. § 3C1.1 and sentence enhanced 2 levels: United States v Salazar-Samaniega (2004, CA10 NM) 361 F.3d 1271.
    Private search: insurance company's auditor's seizure of records was primarily for its own purposes, and the fact that insurance company was cooperating with state's attorney in investigation did not make it subject to Fourth Amendment: Mutual Med. Plans, Inc. v County of Peoria (2004, CD Ill) 2004 US Dist Lexis 4059.
    § 1983 case: Officers could not show that warrantless entry into premises to investigate a loud New Year's Eve party was justified by any exigent circumstance; community caretaking function claim was a post hoc justification that would likely be rejected on merits; summary judgment denied: Strutz v Oakland County (2004, ED Mich) 308 F Supp 2d 767.
    Collective knowledge doctrine applies to RS for a stop: State v Van Dorne (2004, Ida App) 2004 Opinion No. 22, 88 P3d 780.

Wednesday, March 17, 7:45 a.m.:
    Totality of circumstances supported RS for detention for drug dog; defendant gave significantly disparate accounts of going to Michigan in the winter without winter clothes, and his accounts seemed to be made up on the spot that did not remotely match what was possible: State v Bizovi (2004, Mo App) 129 SW3d 429 (this is my version of facts; this case is really no different that a few hundred decided every year, so it will not be cited in the book).
    Plain view of marijuana pipe led to patdown led to PC to search: State v Petersen (2004) 12 Neb App 445, 676 NW2d 65 (an example of how one fact escalates to another fact to yet another fact).
    Substantial basis for finding of PC that defendant's brother was involved in an assault and that evidence of that assault would be found at the brother's house where defendant occasionally stayed; when executing the warrant, officers found 1,910 cases of microwave popocorn; they were justified in concluding that it likely was stolen property, so that observation was validly used to get a warrant for the 40,000 pounds of popcorn: State v Conway (2004, Ohio App 10th Dist) 2004 Ohio App Lexis 1074.
    Note—I'm on the road in a rural area, so updates will probably not be in the early morning through the rest of the week.

Tuesday, March 16, 7:00 a.m.:
    News—Law.com writes today of a wife's computer ordered seized in Connecticut divorce case at the opposing spouses request for potential e-mail. Two problems: (1) the computer was acquired at the time the husband moved out "to pursue another relationship," but fault is relevant in Connecticut; (2) a big problem is that the client communicated with her lawyer via e-mail, so sorting our privileged material will take time and in camera hearings. (Comment: Considering the timing of the purchase of the computer and the fact there may be no e-mail saved on the computer, it seems tenuous (to say the least) to order its seizure without also ordering access to all the e-mail accounts. A court ordered seizure in a divorce case can implicate the Fourth Amendment because the state has stepped in via the court. The article talks of a NJ Chancery case where the husband saved all his e-mails to an unpassword protected computer file cabinet and the wife had a computer expert access the computer at home. That husband objected on wiretap grounds, but the court held, as it should have, that the wiretap statute does not reach information in storage at home, not to mention the common usage of the computer.)
    Traffic stop was pretextual, and admitted as such by the officers, was of no matter where there was PC for the stop: United States v Lasso (2004, SD NY) 2004 US Dist Lexis 3897.
    Plain view: bag of crack protruding from over sun visor was in plain view: Hardin v State (2004, Del) 844 A2d 982.
    Passenger had standing to challenge stop, but no standing to challenge search of car: State v Wilson (2004) 2004 SD 33, 678 NW2d 176.
    Consent by attorney: attorney was proper agent to consent to a search since it appeared that he consulted with client before doing so: State v Sargent (2004, Me Super) 2004 Me Super Lexis 41.

Monday, March 15, 7:30 a.m.:
    No cases today. The Supremes are not in session again until next Monday when they start two weeks of oral argument, and cases will be coming down.

Sunday, March 14, 9:10 a.m.:
    Asking for and running DL of driver parked on convenience store lot with extension court running to store not unreasonable; no stop involved: State v Landreth (2004, Ida App) 88 P3d 1226 (produced arrest warrant which led to SI), review granted by State v Landreth (2004, Ida) 2004 Ida Lexis 102. (Comment: Court distinguishes Brown v Texas, 443 US 47 (1979), solely because Brown involved a stop and Landreth was already stopped on his own accord. There was no justification for asking for and running the DL on him at that moment. Pretty thin.)
    Criminal trial and appeal of Fourth Amendment claim collaterally estopped civil claim: Simpson v Rowan (2004, ND Ill) 2004 US Dist Lexis 3812 (civil case was filed during criminal proceedings and stayed pending all appeals).

Saturday, March 13, 9:30 a.m.:
    Urine test of river boat pilot by employer at hospital as required by 46 C.F.R. § 4.06-1 after accident could be used in federal prosecution seaman's manslaughter statute, 18 U.S.C. § 1115: United States v O'Keefe (2004, ED La) 2004 US Dist Lexis 3732.
    No standing to challenge search of motel room rented by another that a group of eight were there solely for the purpose of smoking meth: State v Gonzalez (2004) 32 Kan App 2d 590, 85 P3d 711 (probation officer found defendant's car in a motel parking lot, knew his associates, ascertained that one had rented room; probation officer with other officers knocked on door; when it finally opened, defendant ducked into bathroom and shut door, so probation officer went in).
    Stop for unlighted license plate led to "chit-chatting back and forth" about the defendant's rims, among other things, and officer threw out question about whether he could look in the car, and defendant said, "Sure, go ahead. Take a look in the car"; consent was valid: Commonwealth v Erickson (2004, Ky App) 2004 Ky App Lexis 64.
    Citizen informant (defendant's former girlfriend from 1992-95) gave eight year old information about defendant's strange responses to questions about a murder; he had been questioned at time of murder; when officers went to him again and asked if he had an affair with victim, defendant became angry with them; he had a history of violent assaults on women; gave inconsistent answers at various times; PC for DNA warrant found: State v Jones (2004, Minn) 678 NW2d 1.
    Assault on officer during allegedly illegal arrest is not fruit of the poisonous tree: State v Jobes (2004, Ohio App 2d Dist) 2004 Ohio 1167, 2004 Ohio App Lexis 1034.
    Finding two men apparently asleep in a car in a housing project parking lot, an area known as a high crime area, justified going to car and asking them to roll down window; obvious odor of marijuana supported patdown: State v Perryman (2004, Ohio App 8th Dist) 2004 Ohio 1120, 2004 Ohio App Lexis 989.
    RS from questioning and consent search led to officer asking about box, which defendant disavowed; box was abandoned property since consent was otherwise valid: State v Carter (2004, Ohio App 11th Dist) 2004 Ohio App Lexis 1006.
    

Friday, March 12, 7:00 a.m.:
    Consent to collect child porn off computer; defendant brought computer in for repair because it was freezing up, and repair person saw images in My Documents folder when he first turned it on; he called police who came and viewed the images; defendant was called in and consented to search of computer and collection of other disks: United States v Caron (2004, D Me) 2004 US Dist Lexis 3663 (Magistrate's R&R).
    IRS summons 26 U.S.C. § 7602 does not implicate the Fourth Amendment; not self-effectuating because IRS must seek judicial enforcement: Press v IRS (2004, SD NY) 2004 US Dist Lexis 3696.
    Indiana misdemeanor arrest warrant had expired; while there was an attempt to reissue it, but it was still void; however, officers acted in good faith in relying on the warrant for entry to arrest: United States v Martin (2004, SD Ind) 2004 US Dist Lexis 3655.
    Arrest warrants and PC to believe the defendant lived at the address shown supported entry to arrest: People v Miller (2004, Colo App) 94 P3d 1197 (also, knock and announce rule inapplicable, they knocked, talked to defendant's wife at door, and she let them in).
    No REP in illegally modified weapon defendant brought to a firearms training class that the instructors, two law enforcement agents, saw and seized: State v Carter (2004) 151 Wn 2d 118, 85 P3d 887.

Thursday, March 11, 7:00 a.m.:
    Open fields: officers with a wealth of PC that defendant was running a "Mexican National" style super-meth lab (surveilled trailer in clearing for several days and entered; area trailer in failed Dunn test (see Dunn's n. 4) as being part of curtilage: United States v Barajas-Avalos (2004, CA9 Ore) 359 F3d 1204, amended on denial of rehearing en banc, 2004 US App Lexis 15362 (July 26, 2004). (Comment: This is the type of case that the DEA needs to be making, not harassing medical marijuana users and providers in CA. This lab was capable of producing 50 lbs at a time, and the defendant got 30 years. We have people in the Arkansas DOC sentenced to similar actual sentences for manufacturing less than a few ounces at a time. That's just twisted.)
    Stop of man pushing bicycle at night in area known for thefts; his story about what he was doing in the area and information he provided was consistent with the knowledge of the officer, who also lived in the area; another officer arrived as was standard procedure; defendant had no ID on him, but they ran wants and warrants and he was clean, but, shortly after that, it came back that he did time for violent crimes; patdown and subsequent search of plastic shopping bag on the handlebar was unjustified: People v Croft (2004, Ill App, 2d Dist) 805 NE2d 1233 (the officers also complimented him on the fine artwork of his prison tattoo on his back).
    Standing in vehicle of another: defendant's claim he was just "test driving" vehicle containing cocaine denied him standing to challenge its search: McKee v State (2004, Miss App) 878 So 2d 232 (stop arose from traffic violation).

Wednesday, March 10, 7:30 a.m.:
    News—NJ prison inmates have sued over a prison mail policy that allegedly has prison officials reading legal mail because of fear of anthrax attacks into the prison, according to an article today on Law.com.
    Cases—
    Warrant application failed to show nexus of marijuana patch to house to be searched, but there was sufficient indicia of nexus to save the warrant under the GFE: United States v Carpenter (2004, CA6 Tenn) 2004 US App Lexis 4435, 2004 FED App 0072P (6th Cir) (en banc), rev'g United States v Carpenter (2003, CA6 Tenn) 317 F3d 618. (Comment: The court contrasted other cases where it had found no indicia of nexus, but there was some evidence here of nexus that just barely got it by.)
    Pedestrian's report to police officer he flagged down of man with gun supported stop of man fitting description seen two minutes later acting somewhat suspicious; patdown produced gun on convicted felon: United States v Holmes (2004, DC Cir) 360 F3d 1339.
    Surveillance of car and traffic stop under Whren; use of drug dog by one officer while another talked to the defendant was not unreasonable and did not extend the stop: United States v Couch (2004, MD Ala) 2004 US Dist Lexis 3478.
    Appellate review: One cannot change the grounds for suppression on appeal; relied on lack of PC below and did not mention no RS as an issue, so lack of RS could not be relied upon on appeal: State v Goff (2004, Mo) 129 SW3d 857.
    RS for stop: officer ran license and ascertained that regular driver had warrants out; watching car, he observed suspicious behavior around vending machines at two locations at 3 a.m.; approaching car he saw vending machine master keys and lots of change in plain view: Id.
    Traffic stop became overlong, and subsequent consent to search person was invalid; it was apparent to the motorist he was not free to go: State v Barks (2004, Mo) 128 SW3d 513.

Tuesday, March 9, 7:30 a.m.:
    Midnight knock and talk was not unreasonable, but sweep of backyard was unreasonable; remanded for redetermination of whether consent was tainted: United States v Carter (2004, CA10 Kan) 360 F3d 1235. (Comment: The facts of this midnight knock and talk are striking and contrary to some state cases. The facts were not good for the government on that issue, but that didn't seem to bother the Tenth Cirucit.)
    Hot pursuit into home was valid in § 1983 case; officer was chasing youth who threatened physical violence: Dewes v City of Bloomfield (2004, SD Iowa) 2004 US Dist Lexis 3390.
    Without even having to consider the merits, product of search was harmless beyond a reasonable doubt: Ex parte Harris (2004, Ala) 2004 Ala Lexis 44.
    Guest had standing in washroom off friends garage under HI Const.: State v Cuntapay (2004) 104 Haw 109, 85 P3d 634.

Monday, March 8, 4:50 a.m.:
    No new cases today; just updated citations.

Sunday, March 7, 7:30 a.m.:
    One two unreported cases today, but one maybe was worth reporting:
    Warrantless breaking into motel room was lawful only because of warrant for arrestee, but the search was illegal because of lack of exigent circumstances; the use of a photograph taken after the arrest to use in a photo array shown to defendant's carjacking victim would not be suppressed; developing photographs in disposable camera found in defendant's stolen car was not unreasonable: United States v Stamper (2004, CA6 Ky) 2004 US App Lexis 4297 (since trial court suppressed some evidence, it was not used at trial, so conviction was affirmed).

Saturday, March 6, 8:30 a.m.:
    Wrestling to the ground a pedestrian in a residential neighborhood was reasonable during a Terry stop where officers were responding to reports of a fleeing bank robbery suspect; when stopped, the defendant ultimately was ordered to put his hands up, and, when he did so, the handle of a knife became visible: United States v MaGuire (2004, CA1 Mass) 02-2698 (3/3/04).
    Continuance of suppression hearing should have been granted at state's request where officers' subpoenas were somehow unserved; no prejudice to defendant and justice requires that both sides have a fair opportunity to present their cases: State v Humphreys (2004, Fla App 2D) 867 So 2d 596.
    Security stop of vehicle at a Massachusetts reservoir in October 2001 solely for concerns of safety of the reservoir was a seizure without reasonable suspicion; to be valid, motorists had to be warned they were subject to stop just for being there: Commonwealth v Carkhuff (2004) 441 Mass 122, 804 NE2d 317 (DUI arrest).
    Window tint stop led to observation that muffler was loose, which led officer to believe that there was a hidden compartment under car; defendant consented to search of car, ostensibly for liquor bottles, and officer went straight to console; removing ashtray and shining flashlight inside, he found suspected cocaine; search invalid: People v Andeliz (2004, Kings Co.) 3 Misc 3d 384, 773 NYS2d 853.

Friday, March 5, 8:30 a.m.:
    Private search or not? Defendant raised enough issues to have a hearing on whether employee who faxed records to the government which later were seized by search warrant was acting as a government agent at the time: United States v Silesia Flavorings, Inc. (2004, ND Ill) 2004 US Dist Lexis 3147 ("In determining whether an individual acted as an 'instrument or agent' of the government, the court considers two 'critical' factors: (1) 'whether the government knew of and acquiesced in the intrusive conduct'; and (2) 'whether the private party's purpose in conducting the search was to assist law enforcement agents or to further [its] own ends.' .... Other useful factors include whether the individual acted at the request of the government, and whether the government offered the individual a reward. ....").
    Flight from premises about to be searched with a warrant is PC to search the person: Underwood v State (2004, Ga App) 2004 Ga App Lexis 318 (people bailed out the back as the police came to the front).
    Stop for seatbelt violation alone does not permit an officer to ask for consent to search the car: Clark v State (2004, Ind App) 804 NE2d 196.
    Stop of car based on warrant for driver led to furtive movements of driver, so drug dog was used to sniff vehicle, and dog alerted; alert used to get telephonic search warrant: State v Hart (2004) 2004 MT 51, 320 Mont 154, 85 P3d 1275.
    Testimony in support of warrant: magistrate took notes of testimony of officer and CI, and that is substantial compliance with statute: People v Mendoza (2004, App Div 3d Dept) 5 AD3d 810, 773 NYS2d 152.
    Knock and talk: officers could go through gate of chainlink fence to back yard where it was apparent the back yard was used for repair of vehicles of others and there was a well worn path from the gate around the back, and they smell ether: Buchanan v State (2004, Tex App–Amarillo) 129 SW3d 767 (nature of use of back yard reduced any REP defendant had there because it was apparent that others were often there).

Thurdsay, March 4, 12:45 p.m.:
    The late April argument calender of the U.S. Supreme Court has been posted for the Gitmo and "dirty bomber" cases:
       •Rasul and Al Odah, Tuesday, April 20 (consolidated)
       •Hamdi, Wednesday, April 28
       •Padilla, Wednesday, April 28
    Under the "for what it's worth" department, Justice Scalia's "quack, quack" case, Cheney v U.S. District Court, District of Columbia, is set for Tuesday April 27.

Thursday, March 4, 8:45 a.m.:
    Off topic news—Harry Blackmun's papers are unsealed today. The NY Times got an early look, and it reports today that Roe v Wade came within one vote of being overruled in 1992 when Justice Kennedy changed his vote to preserve Roe.

Thursday, March 4, 7:45 a.m.:
    Co-tenant in motel room could consent; room was in defendant's name, but both had keys and co-tenant paid for it: United States v Wyche (2004, ED NY) 307 F Supp 2d 453 (examinine facts under Rodriguez and finding apparent authority to consent).
    Exigent circumstances to search for another gun present from finding one gun; gun traffickers pose a danger, too Id. (citing statistics on officer shootings and noting at gun traffickers killed two NYC officers in past year).
    Pre-consent to search bargained for in probation was valid: United States v Barnett (2004, SD Ill) 2004 US Dist Lexis 3089. (Comment: This was the approach sought by the government in Knights, but the Supreme Court went with "special needs" instead; this may be the government's effort to resurrect the consent issue to take it up again.)
    Seatbelt violation was grounds to conduct traffic stop even though it was a fine-only offense (and legislature later denied officers power to stop merely for seatbelt violations); during stop, officers could ask for IDs of all occupants: State v Roe (2004, Ida App) 2004 Ida App Lexis 25.
    Stop was based on traffic offense and no pretext was shown; consent was valid: State v Mitchell (2004, La App 2 Cir) 869 So 2d 276 (the search issue in this case is not worth reporting, but other issues in the case are).
    Inevitable discovery by inventory; defendant was found asleep in his vehicle on the shoulder of a gravel road; when out of the vehicle he appeared under the influence, so vehicle would be towed: State v Volkman (2004, Minn App) 675 NW2d 337 (state also relied on consent which was not reached below or on appeal but might be on remand).
    NJ DOC policy permitting random searches of cells of civilly committed sexually violent predators is constitutional: R.M. v Northern Regional Unit (2004, NJ Super) 367 NJ Super 229, 842 A2d 308.
    Frisk invalid; officer had no RS defendant was carrying a weapon; the mere fact defendant repeatedly put his hands in his coat pockets during the stop in late December is not enough: State v Kyles (2004) 2004 WI 15, 269 Wis 2d 1, 675 NW2d 449.
    Actual suspicion or fear of weapon not required for frisk, but there must be some factual basis: Id.

Wednesday, March 3, 1:45 p.m.:
    Defendant's admissions to confederate that he would flush meth coupled with it being easy to see police approach justified no-knock and nighttime entry: Von Holt v State (2004, Ark App) CACR03-15 (preapproved no knock, but officer testified to facts in support of exigency).

Wednesday, March 3, 11:50 a.m.:
    The U.S. Supreme Court summarily granted cert. and vacated and remanded a Massachusetts unpublished decision finding a warrant to have sufficient particularity even though it only described the home to be searched and not the items to be seized in light of Groh v Ramirez (2004, US) 2004 US Lexis 1624: Forish v Massachusetts (2004, US) 2004 US Lexis 1634. The case below is Commonwealth v Forish (2002) 55 Mass App Ct 1114, 779 N.E.2d 1005 (table), rev. den. (2003) 438 Mass 1107, 782 N.E2d 1083 (table).
    Note: Curiae (curiae.law.yale.edu) from Yale Law School with cases, records, briefs, and arguments from the Supreme Court was added to the sources on the right today. This is a valuable source.

Wednesday, March 3, 7:40 a.m.:
    CA1 sustains search on GFE without examining PC: United States v Robinson (2004, CA1 Me) 359 F3d 66 (and PC was really thin). § 5.12A n. 239.11. (Comment: This dodging of the merits technique became the subject of new section § 5.12A two years ago. The PC here was really thin that there would be child porn at the defendant's house and on his computer, but the operative words here are "child porn." To me, there was no PC, and the PC was so lacking that no reasonable officer could rely on it, and the First Circuit does not adequately explain its rationale. Therefore, this case clearly fits within the third Leon exception that the GFE should not apply.)
    Plain feel in patdown or SI to DWI arrest? Both applied to patdown that produced the key to a wrecked vehicle off a person nearby who claimed he didn't know who was driving; SI may precede formal arrest: Conboy v State (2004) 155 Md App 353, 843 A2d 216.

Tuesday, March 2, 6:30 p.m.:
    Fake drug checkpoint: stop based on traffic offense observed after tractor-trailer avoided fake drug checkpoint in I-44 in Missouri was valid: United States v Martinez (2004, CA8 Mo) (03-2445) (consent after stop was voluntary).
    No IAC for failure to raise a Knowles v Iowa claim in Iowa before it was decided; no excuse for procedural default because the claim was "novel" because it was a viable issue as shown by dissents in Knowles in state court: Bailey v Mapes (2004, CA8 Iowa) 358 F3d 1002 (rejecting federal habeas).

Tuesday, March 2, 7:30 a.m.:
    Franks violation: conclusorily stating that CI was reliable and had no motive to testify and omitting CI's prior arrests and fact he gave up defendant after a misdemeanor arrest did not so undercut showing of PC to void warrant: United States v Ketzeback (2004, CA8 Iowa) 358 F3d 987.
    Knock-and-announce: Officers satisfied Wilsonby announcing their identity although not their purpose; defendant had his earphones on and couldn't hear them anyway: Walker v State (2004, Ala Crim App) 2004 Ala Crim App Lexis 28.
    Breath test is a search subject to exigent circumstances, and a substantially contemporaneous arrest no longer required: State v Blank (2004, Alaska) 2004 Alas Lexis 29 (overruling Layland v State (1975, Alaska) 535 P2d 1043).
    Consent search by estranged wife whose entry was permitted under divorce decree to recover property; she arranged with officer to go with her for her safety, and locks has to be cut off three interior doors to look; meth lab found in basement: Bray v State (2004, Ga App) 2004 Ga App Lexis 284.
    Private search of computer by repair technician; defendant gave up his REP in computer's contents (particularly these easily accessible files) when he took computer in for repair and the repairman opened the image to test computer: People v Phillips (2003, Ill App 3d Dist) 805 NE2d 667.
    Protective sweep of curtilage proper: Officer responded to complaint of strong chemical odor, and a check of wants and warrant of owner produced an arrest warrant; use of arrest warrant to enter and check others outside by burn pile was valid: Scott v State (2004, Ind App) 803 NE2d 1231.
    Stop in area of recent burglaries of jogging man; he gave false name and SS number, then admitted to having a kitchen knife on his person; after removing knife, patdown produced meth; all valid: State v Reinders (2004, Iowa App) 2004 Iowa App Lexis 294.
    Plain view did not justify entry after knocking on door concerning allegedly abandoned 12 year old boy; drug paraphernalia (a pipe) in plain view from door did not justify entry because its evidentiary value was not immediately apparent for plain view: Hatcher v Commonwealth (2004, Ky App) 2004 Ky App Lexis 49.
    Duration of stop exceeded its justification; stop for having headlight out led to questions about things defendant was carrying before he got into car: City of Chillicothe v Frey (2004, 4th Dist) 2004 Ohio 927, 156 Ohio App 3d 296, 805 NE2d 551.
    No-knock; burden "not high"; fact officers were looking for marijana which was easily flushable justified no-knock: Bedford v State (2004, Tex App–Waco) 131 SW3d 514 (dissent: this search violates Wilson and Richards because it essentially creates a per se rule). (Comment: The dissenter is correct; this decision does essentially create a per se rule.)

Monday, March 1, 6:30 a.m.:
    No cases today. The Supremes are in session today, but no are decisions expected. The April argument calendar has not been posted on its Website, but cases are already set and lawyers have been notified (Padilla was set for April 18th with the cert. grant).

Sunday, February 29, 8:30 a.m.:
    § 1983 case: Officers surveilling bar, the parking lot of which became a high crime area, stopped car full of people based on turn signal violation after it paused in alley to talk to someone; stop was valid; profiling claim totally unsupported: Lewis v City of Topeka (2004, D Kan) 305 F Supp 2d 1209.
    Opening defendant's pants on the street to look for secreted drugs moments after an apparent drug sale was not unreasonable because it was based on exigent circumstances, it was not a true strip search, and did not unreasonably expose him: People v Bain (2004, Bronx Co.) 3 Misc 3d 481, 776 NYS2d 750.
    Search warrant request for "residence" was particular where the officer testified to specific address before the issuing magistrate: State v Bergstrom (2004, ND) 2004 ND 48, 676 NW2d 98.

Saturday, February 28, 10:00 a.m.:
    No RS for stop; state's attempt to cast the detention as "community caretaking" was quite a stretch: People v Croft (2004, Ill App 2d Dist) 2004 Ill App Lexis 155 ("When an officer stops an individual to check on his well-being, without initial thought of criminal activity, he is within the purview of community caretaking. However, Officer Row did not stop defendant without initial suspicion of criminal activity. On the contrary, he stopped defendant to investigate his possible involvement in recent instances of theft and vandalism in the neighborhood. [¶] The danger of blurring the distinction between community caretaking and an investigative detention becomes apparent when an officer claims to be engaging in community caretaking but is, in reality, investigating reports of criminal activity. For this reason, we decline to extend the label of community caretaking to the facts of this case. To hold otherwise would grant police officers the authority to, in fact, 'investigate' criminal activity under the guise of community caretaking. Practically speaking, officers would be encouraged to originate contact under this pretense with the hope that the encounter would escalate into a valid Terry stop. In effect, this is an abuse of the community caretaking function. The requirement of reasonable suspicion under Terry is diluted if officers are permitted to 'ease into' a Terry stop by first engaging in community caretaking.").
    No IAC on search claim where only testimony was former defense counsel who said he thought stop was legal and reports support it: Harris v State (2004, Ga App) 2004 Ga App Lexis 283.
    DWI stop: smell of alcohol, admission of recent consumption of two beers, and bloodshot eyes enough to support requiring field sobriety test: State v Edwards (2004, Ohio App 5th Dist) 2004 Ohio App Lexis 802.

Friday, February 27, 7:00 a.m.:
    Continuation of a stop based on a hunch of illegal activity, based almost entirely on nervousness, was invalid: State v Miliany-Ojeda (2004, Del Super) 2004 Del Super Lexis 37 (once a person is ordered out of the car, he is not free to leave).
    Stop and patdown was consensual, but consent to patdown was revoked when officer found no weapon but wanted to look for contraband: E.B. v State (2004, Fla App 2D) 866 So 2d 200.
    MD rejects effort to require additional exigency requirement for automobile exception and require a warrant for all automobile searches: Derrick v State (2004, Md App) 2004 Md App Lexis 16. (Comment: That was a wasted effort. No state is going to go there.)
    ND no-knock warrants require PC of exigency and not reasonable suspicion; facts were shown here in affidavit which were not quite sufficient but sufficient enough to be saved by GFE: State v Utvick (2004) 2004 ND 36, 675 NW2d 387. (Comment: All jurisdictions hold that a knock-and-announce failure to not saved by the GFE. Here, ND allows no-knock preauthorizations on PC shown for an exigency. Since it was within the warrant, this court applied GFE. PC and announcement serve different constitutional interests. Thus, all-in-all, this case departs from the general rule.)
    Cannot change arguments between trial court and appeal; issue has to be raised and determined by the trial court to appeal it: State v Carrigan (2004, Ohio App 9th Dist) 2004 Ohio 827, 2004 Ohio App Lexis 771.
     Postcharging application for search warrant for a blood sample not subject to adversarial process: State v. Blye (2004, Tenn) 130 SW3d 776.

Thursday, February 26, 7:15 a.m.:
    Detention on RS permitted use of handcuffs where officers suspected occupants of similar car based on radio call before the stop had a weapon: Flowers v Fiore (2004, CA1 RI) 359 F3d 24 (case comes close to one requiring PC, but it never escalated to a complete arrest and they weren't Mirandized; once officers concluded they were not up to no good, they were let go).
    Five CIs' statements gave substantial basis for finding PC for search warrant in 12 ton cocaine conspiracy; some information was a little old, but it was not state: United States v Alvarez (2004, CA9 Ariz) 358 F3d 1194.
    Fourth Amendment applies to nuisance abatement actions; here, the process provided due process, and plaintiff had notice and opportunity to be heard before city officials entered his yard to clean it up: Santana v City of Tulsa (2004, CA10 Okla) 359 F3d 1241 (noting circuit split on issue; followed majority).
    Motion for return of property under FRCrimP 41(g) must be brought in the jurisdiction which tried the criminal case, if any, not where it was seized: Amadi v United States (2004, ND NY) 220 FRD 190.
    Court finds police testimony concocted after the fact to justify illegal search of rental car: United States v Goldsborough (2004, ED Pa) 2004 US Dist Lexis 2642 ("It is not a single inconsistency or an isolated incredulous portion of the testimony that defies credulity. It is the totality of the government's evidence that calls into question the believability of the officers' testimony regarding the reasons for the stop and for the search as well as the sequence of events. Hence, we conclude that the reasons for the stop and the search were concocted later to justify the end result–the seizure of the gun and the drugs.").
    RS for stop was based on an arrest warrant, but the person driving was not the wanted person, he was under the influence and validly arrested: Howard v State (2004, Ga App) 2004 Ga App Lexis 276, cert. denied Howard v. State (2004, Ga) 2004 Ga Lexis 495 (June 7, 2004).
    Use of spotlight and not overhead lights when pulling behind parked car did not make it a stop; plain view sustained: State v Baker (2004, Ida App) 2004 Ida App Lexis 20.
    REP in friend's apartment where defendant often spent the night; she was brought there after a single vehicle accident by a bystander, was reportedly under the influence; officer's warrantless entry to get her was unreasonable: State v Lovig (2004, Iowa) 675 NW2d 557.
    Curtilage: driveway not, fenced backyard was: State v Lewis (2004, Iowa) 675 NW2d 516.
    Statute permitting appointed commissioner to issue search warrant rather than an elected judge was not a violation of separation of powers or void the warrant: State v Umezulike (2004) 866 So 2d 794, 2004 La Lexis 616.
    Even if entry were unlawful (which was not decided), defendant's independent unlawful act of assaulting the officers inside rendered exclusionary rule inapplicable: City of Akron v Holmes (2004, Ohio App 9th Dist) 2004 Ohio 832, 2004 Ohio App Lexis 76.
    Defendant's admission he had misdemeanor paraphernalia in car after officer smelled burning marijuana justified search of trunk under automobile exception: State v Farris (2004, Ohio App 9th Dist) 2004 Ohio 826, 2004 Ohio App Lexis 773.

Wednesday, February 25, 7:30 a.m.:
    Standing of a visitor: the fact the defendant was lying on a bed does not establish that he was a guest entitled to standing; he carried the burden and his argument was only hypothetical: United States v Castillo-Bienvenido (2004, ED Pa) 2004 US Dist Lexis 2532. § 6.7 n. 225.
    PC for arrest for internet enticement under 18 U.S.C. § 2242(b) justified SI: United States v Tykarsky (2004, ED Pa) 2004 US Dist Lexis 2567. § 16.7 n. 141.
    Mootness of search issue: government's disavowal of using evidence allegedly seized moots suppression motion: Id. § 45.34 n. 159.1.
    Probation search: defendant on probation lived with his sister who was also on probation, and he was directed not to stay there; probation search occurred of sister's house, and he objected to a search of his room; search was reasonable and defendant lacked a REP because sister signed a general consent as a probation condition, and he knew he was violating his terms of probation by being there: State v Spencer (2004, Ida App) 85 P3d 1135, 2004 Ida App Lexis 18. § 25.16.
    CI's statement was insufficiently corroborated to provide PC; only generally known information was corroborated: State v Kirby (2004, Mo App) 128 SW3d 619. § 3.30 n. 293.
    RS led to request for identification which showed that defendant was driving on a suspended driver's license which justified a SI that produced meth: State v Schoolcraft (2004, Ohio App 4th Dist) 2004 Ohio 817, 2004 Ohio App Lexis 754. § 15.10.
    PC to question defendant whom officers saw on his porch; when they turned around and came back, defendant was gone, so they knocked on door, and defendant came to door; they asked for identification, and he said it was in bedroom; they asked if they could come in (for safety purposes) while he retrieved it, and he agreed; marijuana was seen in plain view on the inside and entry was by consent: State v Rios (2004, Wisc App) 2004 WI App 68. § 9.3.

Tuesday, February 24, 9:00 p.m.:
    Supreme Court decision in Groh v Ramirez, 02-811 (5-4), 157 L Ed 2d 1068, 2004 US Lexis 1624, holding that a search warrant was defective and not saved by Leon or qualified immunity where the warrant failed to specify the items sought even though the affidavit did; the officer could not rely on the magistrate's signing off on a clearly deficient warrant as providing any refuge. In addition, the failure to incorporate the affidavit by refernce made the warrant general, and it shifted the burden back to the government to show that the search was valid, which it failed to do. The particularity requirement serves an important function in informing the target of the search what is being sought and in limiting the officer's search. (The Supreme Court affirmed the Ninth Circuit on this one: Ramirez v Butte-Silver Bow County (2002, CA9 Mont) 298 F3d 1022). §§ 5.7 n. 154.1-.3, 5.20 n. 300.1-.4, 19.4 n. 16, 43.11 n. 73.1 & 43.30 n. 188.1.
    The syllabus follows:
    "Petitioner, a Bureau of Alcohol, Tobacco and Firearms agent, prepared and signed an application for a warrant to search respondents’ Montana ranch, which stated that the search was for specified weapons, explosives, and records. The application was supported by petitioner’s detailed affidavit setting forth his basis for believing that such items were on the ranch and was accompanied by a warrant form that he completed. The Magistrate Judge (Magistrate) signed the warrant form even though it did not identify any of the items that petitioner intended to seize. The portion calling for a description of the 'person or property' described respondents’ house, not the alleged weapons; the warrant did not incorporate by reference the application’s itemized list. Petitioner led federal and local law enforcement officers to the ranch the next day but found no illegal weapons or explosives. Petitioner left a copy of the warrant, but not the application, with respondents. Respondents sued petitioner and others under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, and 42 U.S.C. § 1983, claiming, inter alia, a Fourth Amendment violation. The District Court granted the defendants summary judgment, finding no Fourth Amendment violation, and finding that even if such a violation occurred, the defendants were entitled to qualified immunity. The Ninth Circuit affirmed except as to the Fourth Amendment claim against petitioner, holding that the warrant was invalid because it did not describe with particularity the place to be searched and the items to be seized. The court also concluded that United States v. Leon, 468 U.S. 897, precluded qualified immunity for petitioner because he was the leader of a search who did not read the warrant and satisfy himself that he understood its scope and limitations and that it was not obviously defective.
    "Held: 1. The search was clearly 'unreasonable' under the Fourth Amendment. Pp. 5–11.
    "(a) The warrant was plainly invalid. It did not meet the Fourth Amendment’s unambiguous requirement that a warrant 'particularly describ[e] ... the persons or things to be seized.” The fact that the application adequately described those things does not save the warrant; Fourth Amendment interests are not necessarily vindicated when another document says something about the objects of the search, but that document’s contents are neither known to the person whose home is being searched nor available for her inspection. It is not necessary to decide whether the Amendment permits a warrant to cross-reference other documents, because such incorporation did not occur here. Pp. 5–6.
    "(b) Petitioner’s argument that the search was nonetheless reasonable is rejected. Because the warrant did not describe the items at all, it was so obviously deficient that the search must be regarded as warrantless, and thus presumptively unreasonable. This presumptive rule applies to searches whose only defect is a lack of particularity in the warrant. Petitioner errs in arguing that such searches should be exempt from the presumption if they otherwise satisfy the particularity requirement’s goals. Unless items in the af-fidavit are set forth in the warrant, there is no written assurance that the Magistrate actually found probable cause for a search as broad as the affiant requested. The restraint petitioner showed in conducting the instant search was imposed by the agent himself, not a judicial officer. Moreover, the particularity requirement’s purpose is not limited to preventing general searches; it also assures the individual whose property is searched and seized of the executing officer’s legal authority, his need to search, and the limits of his power to do so. This case presents no occasion to reach petitioner’s argument that the particularity requirements’ goals were served when he orally described the items to respondents, because respondents dispute his account. Pp. 6–11. 2. Petitioner is not entitled to qualified immunity despite the con-stitutional violation because 'it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted,' Saucier v. Katz, 533 U.S. 194, 202. Given that the particularity requirement is stated in the Constitution’s text, no reasonable officer could believe that a warrant that did not comply with that requirement was valid. Moreover, because petitioner prepared the warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that it contained an adequate description and was valid. Nor could a reasonable officer claim to be unaware of the basic rule that, absent consent or exigency, a warrantless search of a home is presumptively unconstitutional. '[A] warrant may be so facially deficient ... that the executing officers can-not reasonably presume it to be valid.' Leon, 468 U.S., at 923. This is such a case. Pp. 11–14.

Tuesday, February 24, 7:00 a.m.:
    Officer participating in a citizen removing stuff after an order of protection was issued saw a shotgun in plain view and could lawfully ask about presence of other weapons: United States v Miller (2004, SD NY) 306 F Supp 2d 414 (governed by Buie). § 9.5 n. 79.
    Safety roadblock at intersection within a housing project was valid for lack of randomness and because of supervisory control; no discretion in individual officers, all vehicles were stopped, paperwork of all were checked: Ex parte Jackson (2004, Ala) 2004 Ala Lexis 32 (analyzing all Supreme Court cases (Prouse, Brown, Martinez-Fuerte, and Lidster to conclude it was valid). (Comment: The opinion is completely unconvincing; it is Prouse in extremis and extremely hard to rationalize. Prouse, I submit, was always wrong, and this is just the case I was worried would come along as a result.) § 17.9 n. 123.
    Double hearsay, particularly from other officers, may be considered by issuing magistrate: Johnson v State (2004) 265 Ga App 777, 2004 Ga App Lexis 257. § 3.18 n. 149.
    Consent after stop was not invalid: all testimony showed that the conversation between the driver and officer was conversational and not confrontational, and consent was valid on totality: Commonwealth v Erickson (2004, Ky App) 2004 Ky App Lexis 38. § 8.10.
    Stop of suspected car used in a shooting was valid: officer received radio report of three Asian males in a black Lexus being driven by particular person from that town was involved in a shooting in a nearby city; considering driving time, a black car that the officer first thought was a Lexus showed up with two Asian males; considering time of day, stop was based on RS: State v Kang (2004, La App 5th Cir) 866 So 2d 408. § 15.16.

Tuesday, February 24, 12:05 a.m.:
    This website is one year old today. I can only estimate the visitors to the website, but it appears to be approximately 28,000 (I can only identify numbers and maybe the city or university the query originated from, not any unique users). In a month online, this site was number 15 on Google under "Fourth Amendment." Five months ago it was number 8. Two weeks ago it was number 3. Thank you for your support.
    I don't count MSN's location because their search engine couldn't find its own ass a year ago or even today. It brings up a page from last July buried among the junk. Go figure. That's really a really up-to-date search engine for a company that wanted to monopolize Internet searching. Thank goodness creative IT people work for companies besides Microsoft.

Monday, February 23, 8:40 p.m.:
    The Supreme Court denied cert. in M.K.B. v Warden, 03-6747 (docket sheet) in a case of a man detained for five months after September 11th for serving meals to two of the hijackers in a Miami restaurant. The government had successfully kept secret the proceedings, even from him. See CNN.com. The government's pleadings do not even appear on the Solicitor General's website under this case number. The government also kept secret the man's identity, but it was accidentally released by the appeals court.

Monday, February 23, 5:40 a.m.:
    News—Tony Mauro of Legal Times wrote High Court at Crossroads online today about the Supreme Court's taking of Rumsfeld v Padilla and what it means for the terrorism cases as a whole, scattered about the oral argument calendar, or all about that date. Mauro notes: "In his prescient 1998 book on civil liberties in wartime, [All the Laws but One: Civil Liberties in Wartime] Chief Justice William Rehnquist wrote that when bullets fly, 'laws speak with a somewhat different voice.' [¶] He could not have known it then, but Rehnquist and his fellow justices soon will be finding their own voices on the balance between national security and individual freedom."
    Oral argument this week—United States v Flores-Montano, 02-1794 on Wednesday, Februrary 25 (see Cert. Grants) the border search case and whether removing a gas tank is a "routine border search" requiring reasonable suspicion.
    Cases—
    Knock-and-talk: defendant stepping back when confronted by officers at the door who said "Let's speak to you inside," without more, does not show voluntariness of consent: United States v Gray (2004, D WVa) 302 F Supp 2d 646.
    Consent of co-owner of car proper, even if the co-ownder allegedly was trying to frame the defendant: United States v Mathews (2003, WD Wis) 2003 US Dist Lexis 24588. § 8.44 n. 488.
    Consent to search Fed Ex package taken from Mailboxes Etc. after dog alert; agents took the package to get a warrant, leaving their business card in box, after defendant did not pick up package that day; he called and told the DEA they could search it: United States v Bothun (2003, WD Wis) 2003 US Dist Lexis 24631 (Magistrate's R&R) (also discussion of private search when Mailboxes Etc. employee pulling package out to show to DEA without prompting). § 29.10 n. 60.
    Traffic stop led to RS to patdown defendant who refused to remove hands from pockets; when officer went to remove them, defendant tossed a baggie of crack; arrest led to valid consent search of motel room: United States v Wright (2003, WD Wis) 2003 US Dist Lexis 24629 (Magistrate's R&R). § 17.5 n. 88.

Sunday, February 22, 7:00 a.m.:
    No REP in conversations recorded in defendant's own motel room where: CI rented the room, FBI placed the recording equipment and left it there, and FBI recorded only when CI was in the room with defendant to assure consent: United States v Lee (2004, CA3 NJ) 359 F3d 194. § 33.4 n. 40.
    Knock-and-talk of a motel room; officers knocked only twice and offered to come back later if it was not a convenient time, but defendant opened the door anyway; he knew he was free to not open door: United States v Adeyeye (2004, CA7 Ill) 359 F3d 457. § 8.18.
    Trivia—Felix Frankfurther died 39 years ago today, about 2-1/2 years after he left the Supreme Court. Perhaps his most famous quote is from United States v Rabinowitz (1950) 339 US 56, 69, 94 L Ed 653, 70 S Ct 430 (dissenting):
    “The old saw that hard cases make bad law has its basis in experience. But petty cases are even more calculated to make bad law. The impact of a sordid little case is apt to obscure the implications of the generalization to which the case gives rise. Only thus can I account for a disregard of the history embedded in the Fourth Amendment and the great place which belongs to that Amendment in the body of our liberties as recognized and applied by unanimous decisions over a long stretch of the Court’s history.
    “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment. A disregard of the historic materials underlying the Amendment does not answer them.
    “. . . It is true also of journeys in the law that the place you reach depends on the direction you are taking. And so, where one comes out on a case depends on where one goes in. It makes all the difference in the world whether one approaches the Fourth Amendment as the Court approached it in Boyd v United States, 116 US 616, in Weeks v United States, 232 US 383, in Silverthorne Lumber Co. v United States, 251 US 385, in Gouled v United States, 255 US 298, or one approaches it as a provision dealing with a formality. It makes all the difference in the world whether one recognizes the central fact about the Fourth Amendment, namely, that it was a safeguard against recurrence of abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution, or one thinks of it as merely a requirement for a piece of paper."

Saturday, February 21, 8:45 a.m.:
    Cert. granted: The Supreme Court granted certiorari yesterday in Rumsfeld v Padilla (2003, CA2 NY) 352 F3d 695. CNN.com's story is here, and FindLaw's article is here. Argument is already set for April 18th. The government's cert. petition is here.
    Cases—
    Questions during searches are not seizures in themselves; if the stop is valid, questioning itself is not unlawful; consent to search of trunk revealed the gas tank had been removed and replaced: United States v Garrido-Santana (2004, CA6 Tenn) 360 F3d 565 (6th Cir.). § 8.58 n. 607.
    General consent to search a vehicle includes containers in it: Id.
    Nighttime knock-and-talk; defendant met officers on the front porch when officers approached, and he invited them inside; consent given when they were inside, which was voluntary on the totality: Pollard v State (2004) 265 Ga App 749, 2004 Ga App Lexis 246. § 8.18.

Friday, February 20, 9:15 a.m.:
    Consent to search car included bags belonging to passenger when no one spoke up; the question is apparent authority to consent: United States v Sparks (2004, SD NY) 2004 US Dist Lexis 2278. § 8.47.
    Avoiding fake roadblock led to traffic offense which justified stop, and then he consented: United States v Johnson (2003, AF Ct Crim App) 2003 CCA Lexis 309. § 17.15 n. 187.
    Search based on unlawfully obtained statement suppressed: State v Davolt (2004) 419 Ariz Adv Rep 3, 84 P3d 456. § 7.13.
    Since there was an objective basis for stop; officer could detain for suspicion of DWI: Dobrin v Florida Dep't of Hwy. Safety & Motor Vehicles (2004, Fla) 874 So 2d 1171. § 15.19.
    Exigent circumstances to look for missing woman was proper, and view was limited to places were a person could be seen: Miller v State (2004) 380 Md 1, 843 A2d 803.
    School assistant prinicpal's search of student's book bag was based on individualized suspicion: Appeal of A.D (2004, Pa Super) 2004 Pa Super Lexis 113.
    Mere presence at the time of a drug raid is sufficient to detain and search the person: Morrison v State (2004, Tex App–Houston (14th Dist)) 132 SW3d 37 (distinguishing Lippert v State (1984, Tex Crim App) 664 SW2d 712 where the defendant showed up during the search).
    Standing can be raised for the first time by state on appeal, and it is reviewed de novo: Turner v State (2004, Tex App–Houston (1st Dist)) 132 SW3d 504. § 6.3 n. 145.1.
    No REP when one attempts to board an airplane under 49 U.S.C. § 44901(a): Id. (marijuana found in cigarette pack). § 32.12 n. 116.1. (Comment: The court viewed this as a question of standing which was clearly wrong. How can a person not have standing to challenge a search of his own person? The court conflates REP and standing, and it did not need to to achieve the desired result.)
    RS from defendant's fidgeting when stopped; defendant was a regular, and his demeanor on this stop was completely different; detention for dog not unreasonable: State v Gray (2004, Tex App–Tyler) 2004 Tex App Lexis 1600. § 15.11.

Thursday, February 19, 5:15 p.m.:
    The Supreme Court today granted the Solicitor General's emergency application to keep a Gitmo detainee from meeting with his lawyer pending resolution of the Gitmo detainee cases, according to CNN.com.

Thursday, February 19, 7:40 a.m.:
    Impoundment of vehicle on defendant's arrest was valid either for safekeeping or because it was abandoned by fact of defendant tossing the keys at the time of arrest: United States v Boese (2004, D Kan) 2004 US Dist Lexis 2131. §§ 13.6 & 17.20.
    Consent given after warning ticket when defendant was free to go: United States v Alcaraz-Arellano (2004, D Kan) 302 F Supp 2d 1217. § 8.19.
    Consent to search vehicle: "taking a look" allows opening bags: Id. § 8.59 n. 619.
    Standing to contest search of vehicle given by employer which employer borrowed: United States v Carel (2004, D Kan) 2004 US Dist Lexis 2136. § 6.10 n. 267.
    Consent includes use of a fiberoptic scope to look in gas tank: Id. (toolmarks found on tank bolts). § 8.58 n. 607.
    Knock and talk did not justify going to back door under guise to look in backyard: People v Galloway (2003) 259 Mich App 634, 675 NW2d 883, appeal den. 470 Mich 890, 684 NW2d 266. § 8.18 n. 286.3.
    Crime victim was citizen informant whose credibility is less closely scrutinized: State v Delgado (2004, Neb App) 2004 Neb App Lexis 39. § 3.19.
    Dog sniff during driver's license check roadblock was invalid because the license were in order and officers thus extended the detention: State v Branch (2004, NC App) 2004 NC App Lexis 254. § 9.20 n. 338.

Wednesday, February 18, 6:00 a.m.:
    Particularity: Where warrant may be vague in particularity, it may be cured by affidavit if the affidavit is present at the search site, either by incorporation into the warrant by reference and attached or at least present: Battle v State (2004) 266 Ga App 532. § 43.29 n. 184.
    SI of purse on floorboard of car after passenger removed from car on her arrest on outstanding warrant was valid: State v Kull (2004, Wash App) 2004 Wash App Lexis 226. § 18.12.
    § 1983 pro se case for illegal search that resulted in arrest that kept plaintiff in jail nine months barely survives summary judgment on one claim; Eleventh Amendment immunity lets out Illinois SP: Patterson v Koerner (2004, ND Ill) 2004 US Dist Lexis 2103. § 47.9.

Tuesday, February 17, 8:30 a.m.:
    Controlled buy is PC: United States v Leatherbury (2004, D Del) 2004 US Dist Lexis 2002 (but there was more; defendant also quibbled over whether he fronted the drugs or the informant bought them, but, said the court, either way there is PC). § 3.8.
    § 1983 case: deliberate indifference may be shown from failure to discipline an officer where there are repeated claims of physical abuse against the officer; summary judgment for city and officer denied: Hayward v City of New Orleans (2004, ED La) 2004 US Dist Lexis 2010. § 47.11 n. 101.
    Arrest for DWI 50' from car does not justify SI of vehicle: Commonwealth v Rainey (2004, Ky App) 2004 Ky App Lexis 33. § 18.12 n. 246.
    Consent to blood draw by hospital is not consent to state taking and using it as evidence: State v Poppell (2004) 277 Ga 595, 592 SE2d 838. § 6.11 n. 307.2. (Comment: This is an interesting holding. Many prior cases have held that a suspect has no REP in his blood draw after the hospital draws it for medical purposes, but that was always pretty much a sham holding because the hospital draws it for medical treatment. Add to that the relatively recent (April 14, 2003) HIPAA requirements of confidentiality in medical records, it is now indefensible for the state to argue that there is no REP in a blood draw without a supboena or search warrant. See, e.g., 45 C.F.R. § 164.512 (subpoena or search warrant overcomes privacy requirements); In re Grand Jury Subpoena (2002, ED Va) 197 F Supp 2d 512 ("Although the result reached here requires production of the medical records sought, this does not mean that in all circumstances the government's interest in advancing an ongoing criminal investigation will always outweigh a patient's privacy interest in his medical records. There may be circumstances where a different result should obtain because a person's substantial privacy interest in certain medical records is not overcome by the government's interest in the contents of those records or perhaps requires the redaction of certain names or material. Those circumstances are not present here. Even so, it is worth noting that some measure of protection will be afforded the privacy interests of the patients whose records will be produced in this matter by virtue of the fact that 'the veil of secrecy attending grand jury proceedings will protect the disclosed information and will [restrict] its ... dissemination.' In re Subpoena Served Upon Zuniga, 714 F.2d 632, 642 (6th Cir. 1983); see also Fed. R. Crim. P. 6(e)(2) (mandating secrecy in grand jury proceedings).") HIPAA not cited by the GA court.)
    Blood sample not "property" subject to seizure under warrant under RI statute or rules: State v Dearmas (2004, RI) 841 A2d 659. § 24.13 n. 128.

Monday, February 16, 7:00 a.m.:
    No cases today, Washingon's (not Presidents') Day.

Sunday, February 15, 10:30 a.m.
    Standing in premises of another: defendant lacked standing to contest search of house where he occasionally stayed; he had only a few clothes there and the telephone was in his name; otherwise, he wasn't on the lease, and he did not have a key: United States v Wheeler (2004, WD Tex) 2004 US Dist Lexis 1972. § 6.7 n. 225. (Alternative holding; lessor found to have clearly consented to search; safe would have inevitably been searched with warrant based on what was found during the consent search). (Comment: Court also mentions inventory of safe would be valid. Contending that an inventory of the contents of a locked safe is necessary to protect the contents against theft is disingenuous at best, unless, of course, the purpose of inventory is to be a pretext for a criminal search.)
    PC found for state search warrant used in federal court: United States v Bailey (2004, D Minn) 2004 US Dist Lexis 1968 (without any discussion of the factual basis for us). Ch. 3.

Saturday, February 14, 8:40 a.m.:
    Note—A list of acronyms added today in the notes above.
    Conclusory allegation failed Franks; in addition, affidavit was stronger than the one in Leon so GFE would apply anyway: United States v Gaston (2004, DC Cir) 357 F3d 77. § 42.17 n. 142.
    Investigatory stop based on wiretap and view of bundles of cash in shopping bag; then, they disclaimed any interest in the bag with $130k in cash which made it abandoned property; disavowing connection to the apartment made a protective sweep justified: United States v Cuevas (2004, SD NY) 2004 US Dist Lexis 1945. §§ 13.4 n. 51 & 15.11 n. 225.
     REP in a purse or handbag is probably greater than in any other property except the clothing worn by a person: Whisenant v State (2004, Ark App) 2004 Ark App Lexis 123. § 30.4 n. 51.1.
    No private search where officer enlisted individual to help: Id. § 12.4 n. 55.
    No REP in house foreclosed upon: Laney v State (2004, Md) 379 Md 522, 842 A2d 773. § 6.5 n. 196.1.
    Search of persons leaving premises to be searched which was valid under Michigan v Summers was also valid under MA Const.; stop was incrementally more than would have happened had they been detained at the premises rather than on the sidewalk: Commonwealth v Catanzaro (2004) 441 Mass 46, 803 NE2d 287. § 15.5 n. 105.
    Claim of racial profiling requires proof; allegations not enough: State v Harden (2004, Ohio App 2d Dist) 2004 Ohio 664, 2004 Ohio App Lexis 647. § 17.18 n. 220.4.
    Patdown revealing crack violated Dickerson; court did not have to reach question of whether patdown was valid to begin with: State v Groves (2004, Ohio App 2d Dist) 2004 Ohio 662, 805 NE2d 146 (good argument to be made that patdown based on a prior drug history was invalid as a matter of law.) § 15.5.

Friday, February 13, 7:40 a.m.:
    Apparent authority to consent to search apartment shown by girlfriend who showed officers the lease that had her name on it and she had keys to interior doors but not key to exterior door that had recently been broken: United States v Gillis (2004, CA6 Tenn) 358 F3d 386 (domestic disturbance call led to her complaining her boyfriend was cooking crack inside). § 8.39 n. 450.
    No REP in dilapidated car with no windows parked outside and used for drug storage because it was a common area: Id. § 18.5 n. 176.
    Consent to enter given by primary tenant; once inside, officers knocked on defendant's room door, and, when he opened it, they smelled marijuana; officers had a right to be at the door: Pike v State (2004) 265 Ga App 575, 2004 Ga App Lexis 189. § 8.44.
    Custodial arrest for no DL, no insurance, fictitious tags, coupled with no proof defendant owned car at all was proper; SI produced meth: State v Brown (2004, Ida App) 2004 Ida App Lexis 17. § 15.23.
    Community caretaking function supported approaching car in housing project parking lot where two men were reclined and apparently sleeping in the daytime (also allegedly a high crime area); on rolling down window, officer could smell marijuana, so he had cause for further inquiry: State v Perryman (2004, Ohio App) 8th Dist) 2004 Ohio 639, 2004 Ohio App Lexis 615. § 18.24.
    Combining suppression motion and court trial created jeopardy; even though motion to suppress was erroneously granted, it resulted in an acquittal, and defendant was to be discharged on remand: Id. § 45.45 n. 233.
    Officers discovered apparent meth lab and removed children from premises and put them in defendant's vehicle; back seat was full of large Rubbermaid containers which officer opened and found more meth in production; search of containers was unlawful: State v Morse (2004, Ohio App 5th Dist) 2004 Ohio 615, 2004 Ohio App Lexis 575. § 18.9.
    Inevitable discovery saved search where warrant was being sought at time of unlawful search: Id. § 7.19 n. 312.

Thursday, February 12, 5:50 a.m.:
    Using informant to gain entry into apartment without a warrant violated Fourth Amendment: State v Garcia (2004, Fla App 4D) 866 So 2d 124 (had PC but police created their own exigency). § 14.13.
    Informational roadblock similar to Lidster seeking witness to specific homicide was unconstitutional; stop of defendant before roadblock was suspicionless, but search of person was valid because defendant shoved officers and sought to escape: Strickland v State (2004) 265 Ga App 533, 2004 Ga App Lexis 175 (court only notes cert grant in Lidster even though it had been decided by the time this case was decided). (Note: case also appears at 2004 Ga App Lexis 195 for some reason.) § 17.14 n. 161.5.
    Stop of vehicle leaving house under surveillance for suspected drug activity was suspicionless: State v Washington (2004, La App 5 Cir) 866 So 2d 1058, 2004 La App Lexis 222. § 15.11 n. 227.
    Scope of search under warrant: warrant authorized search for "evidence of a fatal shooting including but not limited to any and all weapons and ammunition, spent casings, blood and/or any objects which may be on the premises which appear to have blood stains upon them" in death of defendant's wife; in home office, officers opened a brown expandable envelope and found evidence of an affair which was used at trial to show motive; search was valid: People v Fletcher (2004) 260 Mich App 531, 679 NW2d 127 (defendant was having an affair with a local judge; he conceded officers validly opened envelope but could not have looked more closely at the letters). (Comment: He should not have admitted opening the envelope was legal because it would have narrowed the question to be decided to whether the warrant was too broad to authorize opening an envelope when police were looking for "evidence of a fatal shooting".) § 43.22 n. 153.

Wednesday, February 11, 7:00 a.m.:
    Passenger has standing to challenge stop, and stop here had no basis: People v Brendlin (2004, 3d Dist) 115 Cal App 4th 206. 8 Cal Rptr 3d 882 (defendant was a parolee at large, and was found in possession of meth; suppressed). § 6.10 n. 278.
    Posse Comitatus Act, 18 U.S.C. § 1385, as amended, 10 U.S.C. §§ 371-378 (drug cases) not violated merely by DEA using military police and drug dog for sniff of a storage locker; dog alert was used in search warrant application: People v Bautista (2004, 6th Dist) 115 Cal App 4th 229, 8 Cal Rptr 3d 862. § 5.47 n. 516.
    Cold DNA hit off defendant's DNA taken on release from prison in 20 year old murder; no Fourth Amendment violation for drawing blood from those involved in certain violent crimes: People v Adams (2004, 6th Dist) 115 Cal App 4th 243, 9 Cal Rptr 3d 170. § 24.35 n. 295.2.
    Checkpoint stop was valid in DUI case; policy was introduced into evidence and policy avoided arbitrariness; supervisors properly involved in the decision how to proceed: State v Koncaba (2004) 12 Neb App 378, 674 NW2d 485. § 17.10 n. 132.
    Impoundment for lack of inspection sticker was valid, so subsequent inventory was proper: Fisher v Commonwealth (2004) 42 Va App 395, 592 SE2d 377 (vehicle had been rejected at inspection and defendant removed rejection sticker and continued to drive; lack of current inspection violated traffic laws showing vehicle was potentially unsafe). § 17.5 n. 90.
    Inevitable discovery supported search of defendant's person as passenger in car stopped for erratic driving and cocaine was seen in plain view on floorboard on his side of the car: Copeland v Commonwealth (2004) 42 Va App 424, 592 SE2d 391 (the court went too far in explaining its rationale; all it had to do was say "Pringle" and the arrest and SI were valid). § 7.16.

Tuesday, February 10, 8:10 a.m.:
    Probation search of vehicle: even if regulations were not technically followed, the search was still reasonable and had a factual basis from reliable CI: Fuller v State (2004, Del) 844 A2d 290. § 5.56 n. 634.
    Arrest of person being questioned about whether he knew another person was invalid; officers lacked reason to search his person just because he failed to properly identify himself when he was being questioned: Sanchez v State (2004, Ind App) 803 NE2d 215. § 15.20 n. 290.
    NJ investigative detentions for gathering evidence must follow the rules established for them; while PC not required, application had double and triple hearsay; remanded to give the State another chance: In re Investigation of the Alleged Aggravated Sexual Assault of A.S. (2004, NJ Super)366 NJ Super 402, 841 A2d 478. § 24.35 n. 294.
    DL checkpoint stop at which defendant accelerated and nearly hit officer justified stop which led to DUI arrest; defendant's actions formed basis for stop regardless of validity of checkpoint: State v Mitchell (2004) 358 NC 63, 592 SE2d 543 (trial court sustained checkpoint; appellate court did not have to go that far because defendant acted as Lidster did (Illinois v Lidster) at the informational roadblock there). § 17.9 n. 123.
    PC for SW based all on hearsay was sufficient on totality: State v Crawford (2004, 8th Dist) 2004 Ohio 500, 2004 Ohio App Lexis 461. § 3.10.

Monday, February 9, 8:40 a.m.:
    RS developed from defendant's sliding to passenger side to roll up window and lock doors as officer approached; appeared intoxicated just from observations of demeanor in car: United States v Aguilar (2004, D NM) 301 F Supp 2d 1263 (inventory after arrest justified). § 15.11.

Sunday, February 8, 8:20 a.m.:
    Nothing of any consquence today. A federal court granted summary judgment in § 1983 on an alleged illegal search decided last Thursday and received today that reads like about 100 others I read this year, so I'm not posting it.

Saturday, February 7, 11:50 a.m.:
    Continuation of detention longer than legally necessary invalidated search of vehicle; also, even if there was PC as to the driver, distinguishing Pringle, there was justification for searching passenger: United States v Starks (2004, D Mass) 301 F Supp 2d 76. § 15.19.
    Fictitious tag offense coupled with evasive actions after officer started following, including pulling into convenience store (learning from citizen that bag was hidden in squeegy water bin and retrieved after officer passed by because officer was waiting for back up to arrive), providing fictious identification then dog alert from back up all supplied PC for drug dealing: Thornton v State (2004, Ark App) 2004 Ark App Lexis 104. § 3.14.
    IAC allegation for defense counsel not showing standing in original motion to suppress by only general allegation defendant had standing; factual basis must be shown: Wilson v State (2004, Del) 2004 Del Lexis 50. § 6.3 n. 139.
     PC for arrest in child internet sting when defendant showed up at prearranged location, considering the contents of the chat sessions and defendant's exchange of photographs: State v Turner (2004, Ohio App 2d Dist) 2004 Ohio 464, 805 NE2d 124. § 3.10 n. 102.
    Exclusionary rule and non-compliance with extradition laws: exclusionary rule not applied to statements made during and after ride back to home state where warrants issued where officers did not comply with extradition process, where defendant participated in three-way call with police in home state originated by family member and agreed to meet the police at a convenience store and turn himself in and be returned: State v Lewis (2004, Tenn Crim App) 2004 Tenn Crim App Lexis 88 (for all practical purposes, defendant waived extradition, and the fact Tennessee officers drove to LA to pick him up and return him was not, on this record, any violation of due process). § 7.13 n. 240.2.

Friday, February 6, 8:15 a.m.:
    GPS placement on vehicle under state court order supported warrant for residence: United States v Berry (2004, D Md) 300 F Supp 2d 366 (recorded five trips to NYC, apparently to acquire drugs, but fifth was outside authorization period; GPS information was downloaded without even touching it; now they can be commercially monitored in real time over the Internet). § 33.10 n. 105.1.
    Staleness, child porn, and nexus: nature of child porn is that it is kept, and affidavit supported inference that it followed defendant to his new residence, even though the child informant had never seen the materials at the new residence: United States v Diaz (2004, D Conn) 303 F Supp 2d 84. § 3.39 n. 348.
    Third party consent to search of barn for weapons in FIPF case: United States v Cadieux (2004, D Me) 2004 US Dist Lexis 1403 (taking officer to barn and going in manifested assent; Magistrate's R&R). § 8.21 n. 303.
    IAC Fourth Amendment claim not shown where defendant's own idea for defense was to concede drugs were present but they belonged to someone else: Cohen v Gillis (2004, ED Pa) 2004 US Dist Lexis 1390. § 46.11 n. 100.1..
    Hot pursuit justified warrantless entry of home of fleeing suspect: Anderson v State (2004) 265 Ga App 428, 2004 Ga App Lexis 146. § 22.27 n. 208.
    NJ Const. requires search warrant or opportunity to be heard on subpoena for bank records because a depositor in NJ retains a REP bank records: State v McAllister (2004) 366 NJ Super 251, 840 A2d 967 (but harmless in this case). §§ 5.30 n. 385 & 39.9 n. 132.1.
    Vehicle "black box" could be downloaded at scene of a fatal accident; while it was a search or at least a temporary impoundment for investigation of the accident, it was reasonable: People v Christmann (2004, Wayne Co.) 3 Misc 3d 309, 776 NYS2d 437 ("Vetronix Corporation has produced a crash data retrieval system (CDR) which allows for the downloading of the above information into a lap top computer, which will then generate reports for the use of accident reconstruction. It is this system that Trooper Frost used to supplement his investigation of Defendant's accident. Physically, this was accomplished by connecting a wire to a plug located under the dashboard of Defendant's vehicle, which allowed the download."). § 33.10 n. 108.1.
    After papers returned in valid stop, officer asked about drugs, and driver consented to search; court declines invitation to construe state constitution more broadly because evidence would still be admissible in federal court and that would undermine confidence in state criminal justice system: State v Goins (2004, Okla Crim) 2004 OK CR 5, 84 P3d 767 (the last comment of the court does not even follow; feds will not take every case, and feds have to respect state law (well, not always, I had a case once where a search was invalid under state, but not federal, law, so the state nolle prossed and the feds indicted and convicted)). § 5.28 n. 373.
    Exigent circumstances: activation of security alarm and response by police justified entry to see if a crime was in progress: Commonwealth v Swartz (2003, Va Cir Fairfax Co) 2003 Va Cir Lexis 255, relying on the virtually identical United States v Porter (2003, WD Va) 288 F Supp 2d 716 (plain view of marijuana), cited in § 14.8 n. 65.4.

Thursday, February 5, 7:00 a.m.:
    Anonymous tip of man with gun ripened to RS because it was a high-crime area, defendant matched description, when approached he kept is back to officers, and then they saw a bulge in his waistband, at which point the frisked him: United States v Samuels (2004, ED Pa) 2004 US Dist Lexis 1296. § 15.15 n. 258.
    Administrative search; no warrant required when valid regulatory search turns into a criminal search: United States v Lagrou Distrib. Sys. (2004, ND Ill) 2004 US Dist Lexis 1276 (federal Meat and Poultry Acts). § 34.18 n. 224.
    Anonymous tip of erratic driving is valid where tip shows basis of knowledge from contemporary observation and gave detailed information about the vehicle (make, color, license number) was given: State v Prendergast (2004) 103 Haw 451, 83 P3d 714 (court surveys many cases on both sides of the issue before taking this course). § 3.24.
    Need to transport a citizen in a police vehicle presents an exigent circumstance justifying a minimally intrusive patdown of the citizen's outer clothing for weapons: People v Smith (2004, 2d Dist) 346 Ill App 3d 146, 281 Ill Dec 453, 803 NE2d 1074 (officer had a duty to transport passengers off toll road in a DUI case where none of them were capable of driving and they could not get a ride from cellphone calls (alternative holding; consent to patdown also present)). § 15.27 n. 338.3.
    Knock-and-talk; smell of burnt marijuana did not justify entry into home: State v Hanley (2004, Ind App) 802 NE2d 956 (decided under Fourth Amendment, but state directed to always address state constitutional issue). § 8.18 n. 285.
    RS from apparent hand-to-hand sale and defendant's flight when officers approached: State v Bradley (2004, La App 4th Cir) 2004 La App Lexis 124, 867 So 2d 31. § 3.14 n. 130.
    Stop of car because passengerly allegedly looked like somebody wanted was invalid where officer never described the wanted person: City of Chillicothe v Mitchell (2004, Ohio App 4th Dist) 2004 Ohio 430, 2004 Ohio App Lexis 380 (officer had last seen this person 4-5 years ago, had a passing glance, and gave no factual basis for his belief). § 3.12 n. 110.
    Consent of search of house by wife in bribery was valid; she had 40 minutes to think about it, made several calls to reach a lawyer, and finally asked "Let's say I let you search, could I see my husband after that happens?" and officer agreed: State v Picerno (2004, RI) 2004 RI Super Lexis 33 (consent form also warned of right to refuse consent; officer's agreement not coercion nor a promise to obtain consent). § 8.39 n. 446.

Wednesday, February 4, 9:15 a.m.:
    Consent by customs broker warehouseman: Operator of customs warehouse could consent to entry by Customs officers with a drug dog; sniff of boxes on pallets not unlawful: United States v Torres (2003, WD Tex) 2003 US Dist Lexis 24314. § 26.17 n. 158.
    SI can precede arrest: State v Mounds (2004) 81 Conn App 361, 840 A2d 29. § 18.11 n. 237.1.
     Actual custodial arrest is required for search of car; because of jail overcrowding, arrestee was to be cited and released, so car search unjustifid: State v Radka (2004, Wash App) 83 P3d 1038. § 31.7 n. 89.

Tuesday, February 3, 8:00 a.m.:
    School search and seizure under § 1983: school officials did not violate First or Fourth Amendment rights of student in searching his bookbag and suspending him after a two year old drawing depicting violence against a school was found on his artist's pad by a friend: Porter v Ascension Parish Sch. Bd., (2004, MD La) 2004 US Dist Lexis 1175 (clearly had reasonable suspicion). § 38.10 n. 118.
    Search of a vehicle for gun when defendant is arrested away from it: officers had PC to believe that there was a gun in the car based on defendant's words to complaining witness that he would "shoot up" witness's store, so this search was governed by automobile exception and not SI: United States v William (2004, ED Pa) 2004 US Dist Lexis 1164. § 18.4 n. 171.1.
    Credibility of CI for stop of vehicle based on past reliability and highly specific and undated information that defendant would be driving a particular vehicle at a particular time and place: State v Abbott (2004) 277 Kan 161, 83 P3d 794 (defendant was found in backseat with hidden drugs and paraphernalia; at the jail, meth was found in his underwear). (Comment: Tough case. A CI could have made this all up, but it was so highly detailed and even updated when the driver was running late that the CI got extra points for reliability.) § 3.29 n. 289.
    No Franks violation: even if omitted information was included, there still was PC: State v Thomas (2004, Neb) 267 Neb. 339, 673 NW2d 897. § 42.16.

Monday, February 2, 9:00 p.m.:
    No new cases received from Lexis today.

Sunday, February 1, 9:00 a.m.:
    News—On July 9th, it was reported here that NYC school officials ordered gynecological exams of some girls who played "hooky" as a condition of reentry to school. The NY Times reports today that City Settles Suit by Girls Forced Into Sexual Disease Tests After Skipping School agreeing to a policy change and to pay an undisclosed amount of money.
    The Houston Chronicle has an interesting article about the nature of the dozens of amicus briefs being filed in the Gitmo cases, including one signed by 175 members of the British parliament: Briefs filed in support of detainees / Guantanamo prisoners should have access to U.S. courts, they argue. It is the first time MPs have filed a brief in the Supreme Court. See the docket sheets in Rasul and Al Ohah.

Sunday, February 1, 7:00 a.m.:
    Bus interdiction: defendant left bus during stop in Albuquerque and narcs with a dog entered the bus; they observed strange and furtive behavior from defendant in the bus station, so they went to talk with him; as they approached with the dog, the dog sniffed defendant, and alerting by sitting down, but defendant was not told of the alert; he was asked about drugs on his person and bag in hand and consented to search, but quickly fled, throwing 1.2 lbs of crack up on the roof of the bus station; held to have abandoned the drug without unlawful police prompting: United States v Williams (2004, CA10 NM) 356 F3d 1268. § 32.18 n. 155.
    Two men buying two packages each of cold medicine not RS for meth stop: State v Bulington (2004, Ind) 802 NE2d 435. § 15.11 n. 231.
    § 1983 and acquittal at trial and alleged Franks violation: officers granted summary judgment in procuring search warrant; officers did not need to disclose that SWAT team had previously entered house or that certain evidence was not found during search; they did not falsify nor were they reckless: Swanson v Perez (2004, ND Tex) 2004 US Dist Lexis 1120.
    § 1983 malicious prosecution is a Fourth Amendment claim under Albright v Oliver despite some confusion in 6th Cir. cases: Parks v City of Chattanooga (2003, ED Tenn) 2003 US Dist Lexis 24290 (defendant exonerated before trial by DNA test after victim ID'd him; claims against officers and city all dismissed). § 47.14 n. 140.
    § 1983 and failure to investigate and getting warrant on potential rumor alone stated claim against officers on the sparse record: Johnson v Crowe (2003, ED Tenn) 2003 US Dist Lexis 24291 (officers' defense pleadings did not defeat claim (opinion does not foreclose that summary judgment would be won by them later), all other defendants dismissed). § 42.10 n. 71.

Saturday, January 31, 9:25 a.m.:
    RS from 911 call: United States v Terry-Crespo (2004, CA9 Or) 356 F3d 1170. § 14.8 n. 65.1. ("First, as a threshold matter, the preliminary 911 call did not constitute an anonymous tip. The informant provided his name and narrowed the likely class of informants by providing identifying information during the recorded 911 call. Second, the 911 call was entitled to greater reliability than a tip concerning general criminality because the police must be able to take seriously, and respond promptly to, emergency 911 calls. Third, the victim jeopardized any anonymity he might have enjoyed by placing his 911 call and risking criminal sanction under Oregon law for any false report. Finally, his 911 call was entitled to greater reliability because it evidenced first-hand information from a victim-informant.").
    Consent after traffic stop shown by videotape of stop: United States v Welerford (2004, CA8 Neb) 356 F3d 932. Ch. 8.
    Clear showing of basis of knowledge and lack of motive to falsity detailed statement from minor CI encouraged to come forward that defendant admitted murder to him; coupled with second informant's story that defendant was getting out of town because of the "heat surrounding the investigation": United States v Taylor (2004, ND Ind) 302 F Supp 2d 909. § 3.24 n. 253.
    Border search of cabin of a cruise ship: defendant's nearly unplanned travel in flying from Toronto to Ft. Lauderdale to take Caribbean cruise coupled with knowledge of defendant's repeated trips to Curacao brought him to Customs' attention; ship arrived in Key West, and he was several hours in getting off the ship; during his absence, a Customs drug dog alerted to his door, and ship's security opened the door, and dog alerted on luggage; qualified as a routine border search and non-routine border search because other factors in investigation gave RS of smuggling, particularly lack of spending activities on ship at sea: United States v Brown (2004, SD Fla) 298 F Supp 2d 1317. § 28.8 n. 75.
    Inland border stop led to jacket being subjected to a dog lineup for a sniff rather than a patdown of the jacket and exceeded scope of stop because it was a seizure of the jacket: United States v Carrazco-Escalante (2004, D NM) 300 F Supp 2d 1155. § 26.10 n. 124.
    § 1983: shooting death of mentally ill man threatening suicide and "death by cop" raised sufficient questions on use of excessive force and lack of training in dealing with mentally ill to defeat defense summary judgment motion and qualified immunity claim: Herrera v Las Vegas Metro. Police Dep't (2004, D Nev) 2004 US Dist Lexis 1099. § 47.5.
    Random drug testing of city firefighters was unreasonable because there was no showing of need: Petersen v City of Mesa (2004, Ariz) 83 P3d 35, rev'g Petersen v City of Mesa (2003, App) 204 Ariz 278, 63 P3d 309 in printed supplement (adopting appellate court dissent's view; analogizing justification for searches to those of students in Earls and Vernonia and finding insufficient special needs). § 24.19 n. 217. (Comment: There is a better than average chance of a cert grant here. Analogizing students and firefighters is tenuous. There may have been a better way to have gotten there (e.g., Von Raab), but maybe not. At any rate, who wants an impaired firefighter coming to their aid? What firefighter wants to go into a dangerous situation with an impaired firefighter at his side when his life might depend on him or her? Watch for it.)
     Lack of exigent circumstances: Earlier alleged "marijuana rip-off" of a small grow patch reported by neighbors did not provide sufficient exigent circumstances to justify warrantless entry into defendant's yard: People v Morton (2003, 1st Dist) 114 Cal App 4th 1039, 2003 Cal App Lexis 1975 (originally unpublished; ordered published People v Morton (2004, 1st Dist) 2004 Cal App Lexis 10) ("The conclusion that 'there was evidence of a marijuana rip off' was the justification for the detectives' asserted concern about the safety of defendants' persons and property. The detectives' analysis evolved as follows: Two marijuana leaves were found on the neighbor's side of the fence and a small amount of debris was found on his driveway. The neighbor reported that the marijuana was not his. From these facts, the detectives concluded that the marijuana must have belonged to defendants and that defendants must have been cultivating the drug. Based on a small depression under the fence, the detectives further concluded this marijuana crop must have been stolen during the night. Because drug thefts may involve violence, the detectives concluded that a warrantless entry was required to protect defendants' life or property. These conclusions fall under the weight of their own faulty reasoning."). § 14.8 n. 65.1.
    Anonymous citizen informant of meth lab with particular description of vehicle and participant provided RS for stop of vehicle and person matching descriptions leaving the site: State v Davis (2004, Iowa App) 2004 Iowa App Lexis 96. § 15.15 n. 253.
    Standing of party guest; officers entered (allegedly with consent) to quell a loud party, and found defendant in possession of cocaine in plain view; defendant had standing: State v Sefcik (2004, Iowa App) 2004 Iowa App Lexis 99 (trial court never got to question of apparent authority to consent to entry; remanded for determination of that). § 8.36 n. 428.
    No RS for two stops of defendant: first was because he looked at officer and then wouldn't look at him, he was detained for 25 minutes while drug dog came, refused repeated requests to consent to a search, and dog did not alert, so defendant was allowed to leave; officer called ahead and arranged for another stop on eastern side of state which was obviously pretextual: State v Nikolsky (2004, Iowa App) 2004 Iowa App Lexis 131 (the only surprise about this case is the stretch the trial judge had to make to sustain it considering the extraordinary efforts of the police to search a car to which a drug dog did not alert). § 17.21 n. 239.
    Second look at property already lawfully in police custody is reasonable: State v Pena (2004, Ohio App 10th Dist) 2004 Ohio App Lexis 301 (they even got a warrant to do so, which was unnecessary under prior cases). § 31.25 n. 258.
    Second, more detailed, look at backpack for post-arrest inventory was not unreasonable: State v Grant (2004, RI) 2004 RI Lexis 22. § 31.25 n. 260.1.
    Unexplained "foul odor" from apartment and missing co-tenant had landlord and neighbor's concerned there was a dead body inside; locks had been changed, no one answered door, so landlord drilled the lock out; in looking for people (none were found), marijuana was in plain view: Rauscher v State (2004, Tex App–Houston (1st Dist)) 129 SW3d 714. § 14.8 n. 65.5.
    PC and nexus to place may be based on inference; direct evidence not required: Commonwealth v Matias (2004) 440 Mass 787, 802 NE2d 546, rev'g Commonwealth v Matias (2003) 58 Mass App Ct 231, 789 NE2d 165 in § 3.37 n. 326 in 2003 supplement & § 3.39 n. 344.
    Staleness and ongoing activities: evidence of ongoing drug operation relaxes the staleness inquiry: Id. § 3.39 n. 344.
    Same: State v Roth (2004) 2004 ND 23, 674 NW2d 495. § 3.39 n. 344.
    No-knock provision in warrant must be supported by facts justifying it, and this one wasn't; because officer did knock-and-announce, the defect in the warrant was of no consequence: Id. § 44.3 n. 68.
    Clerical error omitting house from premises to be searched (but including outbuildings) may be cured by "look[ing] to other parts of the warrant to determine whether the command portion of the warrant suffers from a clerical error": State v Bollingberg (2004) 2004 ND 30, 674 NW2d 281. § 43.14 n. 103.

Saturday, January 31, 5:00 a.m.:
    Wrong. I didn't get back on line until after 9:30 p.m., and several cases came through, none of them from Thursday, all from before. They are coming with today's.

Friday, January 30, 8:05 a.m.:
    It appears the Fourth Amendment took a holiday yesterday. No cases through 8 a.m. on the stored query, so I ran the search string through Lexis on my own with the date limited to yesterday. No cases came up. In the eleven months I've been doing this website, this is the first day following a weekday that there are no cases on Lexis. I'll check again later today, just in case the system has a glitch of some sort.
    Instead, I'll spend time updating the section references and the supplement sections.

Thursday, January 29, 10:40 a.m.:
    Entry on an arrest warrant: MA Const. "requires that police, with a valid arrest warrant, have a reasonable belief (PC not required) that the location to be searched is the suspect's residence, and that the suspect is in his residence at the time the arrest warrant is executed"; exceptions to knock-and-announce may also apply: Commonwealth v Silva (2004, Mass) 2004 Mass Lexis 29 (defendant's home is the first place police should look for him).

Thursday, January 29, 6:30 a.m.:
    Officer has a right to demand proof of identification during Terry stop about "man with a gun" call; it helps them determine whether the person they are dealing with has a warrant or a history of violence: United States v Christian (2004, CA9 Wash) 356 F3d 1103. § 15.20 n. 287.
    RS for stop and abandonment: officers approached a suspicious acting group in a high crime area and saw one pop something in her mouth; when "asked" to spit it out, it was crack; all was reasonable under Terry: State v Massey (2004, 5th Cir.) 866 So 2d 965, 2004 La App Lexis 54 (it was apparent to officer she was hiding contraband). §§ 3.13 n. 114 & 13.5 n. 63.
    GFE saves faxed unsigned warrant application: State v Gui dry (2004, La App 5th Cir.) 2004 La App Lexis 80. § 5.19 n. 291. (Comment: This case is a good example of how application of the GFE stifles the development of the Fourth Amendment. So, what happens next time? Is a faxed unsigned application for a warrant going to lead to suppression in Louisiana the next time or not? The court does not tell us whether the admittedly defective warrant application will be suppressed the next time it faces the issue or whether the GFE will always save it. Presumably, this case is merely reflective of judicial laziness and not a calculated effort to undermine the protections of the warrant clause. The court should have done a much better job of explaining what it was doing for the future. As it is, Louisiana law enforcement officers and judges apparently can rely on unsigned warrant applications as long as their motives are pure, no matter how empty their heads. Twenty years after Leon, one would expect a court to better explain itself, but Leon has always lended itself to this very kind of judicial laziness. (If you've read the book, you already know this.) Don't be surprised if this happens anywhere, but defense counsel must do his or her best to make sure courts explain themselves for posterity so the exception is not the rule. File for rehearing, call them out, and make them justify themselves. If they don't, take them on up.)
    Officer could run "wants and warrants" on a license plate without RS or PC; if owner comes back as wanted, officer may assume owner is driver to inquire further; inquiry led to defendant admitting he had a gun in ankle holster: People v Jones (2004) 260 Mich App 424, 678 NW2d 627.
    UAs in prison need no individualized suspicion; "unsigned 'snitch' note" inmate was using heroin was enough to order inmate to submit to UA: Hamilton v New Jersey Dep't of Corrections (2004) 366 NJ Super 284, 841 A2d 94 (administrative sanction affirmed). § 25.7 n. 90.
    Officer in pursuit of fleeing suspect could rely on apparently authority of person answering knock at interior apartment door to grant permission to enter: State v Farmer (2004) 366 NJ Super 307, 841 A2d 420. § 8.37 n. 432.
    Stop admittedly made after call from detectives and following defendant waiting for him to commit a traffic offense was not unreasonable, and neither was the detention when the officer was fishing around for any justification to conduct a search of the car: State v Walck (2004, Ohio App 4th Dist) 2003 Ohio 7340, 2003 Ohio App Lexis 6663. (Comment: Here, the detention was dragged out without RS and with the intention of finding any crime at all, based on the request from the other officers. How can they reasonably justify this? (Decided Dec. 30th; just posted on Lexis.)) § 3.18 n. 149.
    Questioning of student in school for suspected thefts in presence of school resource officer who only listened and did not even suggest questioning was reasonable under T.L.O.: J.D. v Commonwealth (2004) 42 Va App 329, 591 SE2d 721.

Wednesday, January 28, 9:00 a.m.:
    "Pinging" a cellphone to determine which cell it is in violates neither Title III nor the Fourth Amendment: United States v Forest (2004, CA6 Ohio) 355 F3d 942 (governed by Knotts, no REP in movements in public place; "pinging" is the vernacular, not the court's word). § 33.18 n. 165.
    Pedestrian stop for walking down middle of street resulted in RS for patdown when defendant would not remove hands from pockets and acted shiftily, patdown produced ammunition: United States v Pratt (2004, CA8 Mo) 355 F3d 1119. § 15.27 n. 336.
    Lack of exigent circumstances nullified entry on arrest warrant: United States v Misiolek (2004, ND Ill) 2004 US Dist Lexis 796. § 40.11 n. 122.
    Particularity in child porn cases: entire computer system and any videotapes because of the likelihood of deliberate mislabeling: United States v Aldahondo (2004, D PR) 2004 US Dist Lexis 830.
    Passenger has standing to challenge stop of car but not its search: People v Brendlin (2004, Cal App 3d Dist) 2004 Cal App Lexis 100. § 6.10 n. 278.
    DNA draw of prison inmate constitutional: People v Adams (2004, Cal App 6th Dist) 2004 Cal App Lexis 102. § 24.35.
    Patdown of vehicle passengers stopped in high crime area could not be justified: State v Santos (2004) 267 Conn 495, 838 A2d 981 (fact finding also clearly erroneous).

Tuesday, January 27, 8:00 a.m.:
    Exigent circumstances lacking: Officers may have had PC for entry to look for meth lab, but no exigent circumstances at all: People v Gott (2004, 5th Dist) 346 Ill App 3d 236, 281 Ill Dec 279, 803 NE2d 900. Ch 14.
    Plain view after traffic stop: Stop for expired temporary tag that was dispelled as officer approached the car did not require officer to just leave; he could ask driver for license: People v Bartimo (2004, 4th Dist) 345 Ill App 3d 1100, 281 Ill Dec 192, 803 NE2d 596. § 17.5 n. 92.
    Arrest of driver for no DL and calling for tow truck did not justify prolonging the stop to question the passenger: People v Staple (2004, Ill App 4th Dist) 345 Ill App 3d 814, 803 NE2d 586. § 17.5 n. 95.
    Retaining papers after traffic stop prevented defendant from leaving and unlawfully prolonged the traffic stop: People v Miller (2004, Ill App 4th Dist) 345 Ill App 3d 836, 803 NE2d 610. § 17.5 n. 96.
    SI of trunk: defendant arrested for DUI who was leaning into trunk at time officers approached and he became belligerent threatening to punch a female officer justified search of briefcase where gun was found: People v Green (2004, Mich App) 677 NW2d 363. § 18.16 n. 273.
     Stop justified on seeing driver with four-way flashers on and driving to slow stop: officer noticed from damage all around the car; on talking to defendant he could smell intoxicants: Commonwealth v Johonoson (2004, Pa Super) 2004 PA Super 17, 2004 Pa Super Lexis 30.
     Appellate review: defendant's failure to get search warrant and affidavit into record limited review to what the trial judges said about them in sustaining the search: State v Smith (2004, Tenn Crim App) 2004 Tenn Crim App Lexis 48 (Comment: ALWAYS make sure the warrant and affidavit are in the record; in a warranted search, it is defendant's burden anyway.).
    Particularity of address not incorporated into warrant and affidavit not incorporated by reference; particularity fails because it is a basic requirement: State v Shaw (2004, Tenn Crim App) 2004 Tenn Crim App Lexis 44 ("we conclude that inclusion of a 'particular description' is a minimal requirement, as would be an incorporation by reference of the affidavit. While the executing officer's prior knowledge may be sufficient to cure some defects, there must be limitations to such curatives in order to protect from intrusions based on an overly extensive officer's discretionary power. We hold that adhering to particularity in description is a safeguard worthy of protection.").

Monday, January 26, 6:40 a.m.:
    No new cases today from Lexis.

Sunday, January 25, 8:00 a.m.:
    Consent to search a motel room included bag which included metal container within: United States v Jones (2004, CA4 W Va) 356 F3d 529 (police called to motel by management who could smell strong odor of burning marijuana in the hallway). § 8.58 n. 610.
    Full Faith and Credit Clause and traffic equipment as RS for stop: the fact window tint was valid in state of origin did not immunize stop in another state where it wasn't: United States v Ramirez (2004, CA10 Utah) 2004 US App Lexis 1023. § 15.12 n. 232.
    School search under § 1983: not unreasonable to search a student's belongings after a drawing was found depicting what the school would look like "under siege"; school officials were concerned about a risk of violence on campus: Porter v Ascension Parish Sch. Bd. (2004, MD La) 301 F Supp 2d 576 (court draws on several authorities of similar searches under similar circumstances in lengthy opinion). § 38.10 n. 118.

Saturday, January 24, 6:30 a.m.:
    § 1983 case: How long is too long to book for a minor offense? 14 hours not in this case: Chortek v City of Milwaukee (2004, CA7 Wis) 356 F3d 740 (other 7th Cir. cases had said that four hours might be too long and remanded; each case based on its own facts).
    Consent and assumption of risk that CI will provide documents to government: United States v Segal (2004, ND Ill) 299 F Supp 2d 856.
    PC to arrest on street and search car after officers observed apparent hand-to-hand sales and defendant getting more from car: United States v Vasquez (2004, SD NY) 297 F Supp 2d 696.
    Prison strip search does not require even RS: People v Collins (2004, Cal App 2d Dist) 115 Cal App 4th 137 (prison administration received anonymous notes defendant was selling drugs inside ("From all of the above precedents, we distill the following principles. A prison has a compelling and uncontroverted interest in preventing the introduction into or the transporting throughout the prison of contraband and in maintaining order in the institution. A prisoner has a very limited reasonable expectation of privacy in regard to a search of his person. There is no requirement that a search be supported by either probable cause or reasonable suspicion; instead the relevant inquiry is whether under all of the circumstances the search was reasonable. And the determination of reasonableness depends, as it does in any Fourth Amendment case, on the specific facts presented. In particular, a court 'must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.' (Bell v. Wolfish, supra, 441 U.S. 520, 559.)"
    Multiple 911 calls with specific information about shots being fired from a certain style vehicle was RS: Beverly v State (2004, Ind App) 801 NE2d 1254 (far different than single anonymous call).
    Stop for investigation of trash dumping at night and entering highway without stopping valid: Joubert v State (2004, Tex App–Waco) 129 SW3d 686. § 17.6 n 99a.

Friday, January 23, 8:00 p.m.:
    The government having appealed the Padilla case (see Dec. 18), the Second Circuit has stayed its order. See NY Times.

Friday, January 23, 8:20 a.m.:
    Indictment of police officers for conspiracy to violate civil rights including overt acts involving illegal searches did not have to state that each defendant had standing to challenge each search; that is a matter for trial: United States v Melendez (2004, ED Mich) 2004 US Dist Lexis 620.
    Consent and apparently authority: what the police saw on a police assist to retrieve belongings gave them reason to believe consenter had apparent authority to enter although, in fact, she did not, so plain view was valid: State v Devonshire (2004, Del Super) 2004 Del Super Lexis 9.
    Avoiding a sobriety checkpoint not RS for stop; does not mean driver is intoxicated: People v Bigger (2004, Monroe Co.) 2 Misc 3d 937, 771 NYS 2d 826.

Thursday, January 22, 3:30 p.m.:
    Vehicle searches of visitor's vehicles on prison grounds not unreasonable where they were warned before entering property; there is no constitutional right to visitation: Neumeyer v Beard (2004, MD Pa) 301 F Supp 2d 349 (§ 1983 case, rejecting Magistrate's R&R; 2003 US Dist Lexis 24066).

Thursday, January 22, 6:30 a.m.:
    No updates received yet. Check back later this morning.

Wednesday, January 21, 7:20 a.m.:
    Trucking is heavily regulated industry; stop of moving van for speeding, and log book found not up-to-date and driver without a license; tow truck called for impound, but arrest not yet contemplated; search of cab for paperwork after implausible explanations from driver was justified; lack of even a gas receipt created RS; officer could reasonably use bolt cutters to get into back of truck to see "cover load" and discovery of marijuana before drug dog arrived not improper: United States v Maldonado (2004, CA1 Me) 356 F3d 130. § 34.18 n. 223.
    Exigent circumstances justified looking through window: caller reported man jumped or fell from apartment window and was trying without success to get back in; officers arrived and encountered defendant who would not talk to them or confirm that he lived in apartment, and he fled to a convenience store and tried to use a bar code scanner like a gun; officers concluded he was on PCP; they returned to apartment and could not look in window because it was too high; they procured a ladder and saw a gun, then got a search warrant: United States v Gill (2004, CA8 Mo) 354 F3d 963. § 14.8 n. 65.1.
    Exigent circumstances and 911 call from motel room did not justify entry into adjoining room which revealed a meth lab: United States v Deemer (2004, CA9 Alaska) 354 F3d 1130. § 14.8 n. 65.1.
    Stop based on weaving led to consent: State v Jacobs (2004) 162 NC App 251, 590 SE2d 437 (consent argument not fully developed in brief and summarily rejected). § 17.5.
    Stop based on criminal threats that led to DWI did not need to occur at first possible instance to be valid: City of Columbus v Wright (2004, Ohio App 10th Dist) 2004 Ohio App Lexis 162 (trial court suppressed, apparently feeling that lack of immediate stop showed some pretext). § 17.4.
    Traffic stop and call for drug dog without RS before license check not unreasonable: State v Bolden (2004, Ohio App 12th Dist) 2004 Ohio 184, 2004 Ohio App Lexis 171. § 9.20 n. 338.

Tuesday, January 20, 6:30 a.m.:
    Train station consent: conversation with accused on train station platform was conversational and not coercive: United States v Lockett (2004, ED Pa) 2004 US Dist Lexis 517.
    § 1983: PC is generally a question of law for the court, unless the facts are just lacking: Snell v Duffy (2004, ED Pa) 2004 US Dist Lexis 520.
    § 1983: no constitutional right to a thorough investigation prior to arrest; Fourth Amendment only requires PC: Id.

Monday, January 19, 8:00 a.m.:
    No cases from Lexis this morning.

Sunday, January 18, 3:30 p.m.:
    § 1983 case: illegal search that created PC to prosecute could not form the basis of a civil rights action for malicious prosecution or false arrest: Bradshaw v Mazurski (2004, ND Ill) 2004 US Dist Lexis 454 (so much for Chief Justice Burger's claim in Bivens that a civil rights action would deter violations of the Fourth Amendment).

Saturday, January 17, 8:50 a.m.:
    Sufficiency of showing in motion to suppress; general allegations not enough in the 2d Cir.: United States v Rose (2004, D Conn) 2004 US Dist Lexis 436 (defendant alleged a general "rummaging," that officers exceed the scope of (what appears to be an extremely particular) warrant in looking for papers (a notebook with the kidnapping plans was found) and seizing a computer in a Hobbs Act extortion case).
    Equitable jurisdiction exists for hearing on return of property after administrative forfeiture alleging illegal search under NV law (which is based on Rule 41(e) (now (g))) when no criminal case pending: Maiola v State (2004) 120 Nev Adv Rep 1, 82 P3d 38.
    Standing: no standing to challenge stop of vehicle on property of another that produced a plain view of drugs on the seat: State v Turner (2004, 2d Dist) 2004 Ohio 159, 2004 Ohio App Lexis 151 (interesting investigation: police watched a payphone that was commonly used by drug dealers because it was the only one in the area that received calls; followed a car where the driver took a call from the payphone to a meeting of two cars in an alley and walked up on them) (Comment: The observation happened in an alley, not a place where one could claim a REP. The defendant framed the issue as including the stop in the alley and an alleged illegal search of the other person's house which he obviously had no standing to challenge.).
    Hot pursuit across jurisdictional lines in DUI case not a Fourth Amendment violation: State v Underwood (2004, 5th Dist) 2004 Ohio 125, 2004 Ohio App Lexis 124.
    Exigent circumstance: officers responded to 911 call but got no response after repeatedly knocking; an occupant came out back sliding door on balcony, saw police below, looked startled, and went back in; entry justified by exigent circumstances, and plain view sustained: State v Portes (2004, RI) 840 A2d 1131.
    Computer seizure by consent; defendant brought computer in for repair, and repair tech found child porn; when defendant came to pick up computer, the store said that either he or they would call police, so defendant assented to them calling the police; consent to seize computer given at store: Williford v State (2004, Tex App–Eastland) 127 SW3d 309. (Note: Court also holds that images off a cloned hard drive are admissible the same way that photocopies are admissible, assuming foundation and relevance are otherwise established.)
    Abandonment of motel room: defendant was suspected illegal alien, and officers came to motel room door with INS; defendant opened door, saw them, and ran off in his underwear, leaving door ajar; officers entered to look for companion he checked in with, and did a protective sweep; officers also lifted up mattress looking for weapon and found gun; likely invalid as a search incident, but abandonment was apparent; gun was later linked to a homicide, and defendant was convicted of murder: Mondragon-Garcia v State (2004, Tex App–Eastland) 129 SW3d 674.

Friday, January 16, 10 p.m.:
    Cert. granted, but a due process case dealing with indefinite detention of excludable aliens: Benitez v. Wallis, 03-7434. Decision below: (2003, CA11 Fla) 337 F3d 1289. See the S.Ct.'s docket sheet. Benitez came from Cuba and was conditionally admitted. He was arrested and sought permanent status. He was arrested again for armed burglary, and an INS judge ordered him out as a societal danger. Cuba, however, wouldn't take him. The Eleventh Circuit upheld the decision to keep him in detention. The SG's response is not posted on its website at this point.

Friday, January 16, 7:30 a.m.:
    § 1983 and qualified immunity; record silent as to how officers came to possess information allegedly showing exigent circumstances; reversed for a finding on that issue: Colao v Mills (2004, 3d Dept) 3 AD3d 702, 770 NYS2d 474.
    Reasonable seizure in placing defendant in back seat of police car during stop due to furtive movement; drugs later found there were thus abandoned during legal seizure: State v Foster (2004, RI) 842 A2d 1047.
    Protective sweep: police entered on burglary and "shots fired" call and talked to defendant in doorway to bedroom dressed only in underwear who acted like he could have been holding a gun behind him; he refused to respond to requests to come out of the doorway, and it took two officers to wrestle him down; flipping on light switch, to observe room, officers saw gun on bed and drugs and drug paraphernalia, and a warrant was sought; seizure of drugs was reasonable: State v Abdullah (2004, App) 357 SC 344, 592 SE2d 344 (defendant was protesting he was the one who called the police, but he was acting too suspicious and uncooperative in the door way; finding the drugs was then a valid plain view).

Thursday, January 15, 7:40 a.m.:
    Stop based on traffic violation was valid; led to consent: United States v Martinez (2004, CA8 SD) 354 F3d 932 (per curiam) (scathing dissent by Judge Lay: "If there ever was a clear case of racial profiling, it is this case. By affirming these convictions, the majority gives support to police officers in this circuit who seize and search individuals because of their race. I respectfully dissent. ... Involved here is an important issue as to whether police may stop any vehicle traveling upon a highway because the driver is a member of a minority race, under the whim that the driver has committed a misdemeanor traffic offense, and then conduct a full search of the vehicle in the hope of uncovering drugs or other contraband. In my mind, the Fourth Amendment stands as a bulwark to such action, requiring some evidence of reasonable suspicion or probable cause of drug activity before a drug sniff can be used attendant to a seizure, especially one premised upon a superficial allegation that the driver of a vehicle has crossed over the fog line. The majority holds otherwise and thereby lends its approval to selective seizures by reason of racial profiling. I hope our court en banc does not come to that result."). (Comment: I practice in the Eighth Circuit, so allow me: Judge Lay was appointed by President Johnson just about when I graduated from high school. He and a couple of other senior judges, and only a couple of regular judges, are the Eighth Circuit's constitutional conscience. Senior judges, except those on the panel, do not sit on en bancs, so en banc review will not likely change the result, even though it should.)

Wednesday, January 14, 5:50 a.m.:
    RS based stop led to warning ticket, and officer "asked to speak to him for a moment if he did not mind"; driver came back and consented to search; only evidence was officer's so trial court erred in suppressing on alleged invalid consent: State v Benjamin (2004) 266 Ga App 205, 596 SE2d 623.

Tuesday, January 13, 4:50 p.m.:
    Illinois v. Lidster, 02-1060, 2004 US Lexis 656, decided today, holding that an informational gathering, not general crime control, roadblock was constitutional. Lidster was found DWI when he came to the roadblock. §§ 1.19 n. 289.1 & 17.14 n. 161.1-.4.
    From the Court's Syllabus:
    "Police set up a highway checkpoint to obtain information from motorists about a hit-and-run accident occurring about one week earlier at the same location and time of night. Officers stopped each vehicle for 10 to 15 seconds, asked the occupants whether they had seen anything happen there the previous weekend, and handed each driver a flyer describing and requesting information about the accident. As respondent Lidster approached, his minivan swerved, nearly hitting an officer. The officer smelled alcohol on Lidster's breath. Another officer administered a sobriety test and then arrested Lidster. He was convicted in Illinois state court of driving under the influence of alcohol. He challenged his arrest and conviction on the ground that the government obtained evidence through use of a checkpoint stop that violated the Fourth Amendment. The trial court rejected that challenge, but the state appellate court reversed. The State Supreme Court agreed, holding that, in light of Indianapolis v. Edmond, 531 U.S. 32, the stop was unconstitutional.
    "Held: The checkpoint stop did not violate the Fourth Amendment.
    "(a) Edmond does not govern the outcome of this case. In Edmond, this Court held that, absent special circumstances, the Fourth Amendment forbids police to make stops without individualized suspicion at a checkpoint set up primarily for general 'crime control' purposes. 531 U.S., at 41, 44. Specifically, the checkpoint in Edmond was designed to ferret out drug crimes committed by the motorists themselves. Here, the stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask the occupants, as members of the public, for help in providing information about a crime in all likelihood committed by others. Edmond's language, as well as its context, makes clear that an information-seeking stop's constitutionality was not then before this Court.
    "(b) Nor does the Fourth Amendment require courts to apply an Edmond-type rule of automatic unconstitutionality to such stops. The fact that they normally lack individualized suspicion cannot by itself determine the constitutional outcome, as the Fourth Amendment does not treat a motorist's car as his castle, see, e.g., New York v. Class, 475 U.S. 106, 112-113, and special law enforcement concerns will sometimes justify highway stops without individualized suspicion, see, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444. Moreover, the context here (seeking information from the public) is one in which, by definition, the concept of individualized suspicion has little role to play, and an information-seeking stop is not the kind of event that involves suspicion, or lack thereof, of the relevant individual. In addition, information-seeking highway stops are less likely to provoke anxiety or to prove intrusive, since they are likely brief, the questions asked are not designed to elicit self-incriminating information, and citizens will often react positively when police ask for help. The law also ordinarily permits police to seek the public's voluntary cooperation in a criminal investigation. That the importance of soliciting the public's assistance is offset to some degree by the need to stop a motorist–which amounts to a 'seizure' in Fourth Amendment terms, e.g., Edmond, supra, at 40–is not important enough to justify an Edmond-type rule here. Finally, such a rule is not needed to prevent an unreasonable proliferation of police checkpoints. Practical considerations of limited police resources and community hostility to traffic tie-ups seem likely to inhibit any such proliferation, and the Fourth Amendment's normal insistence that the stop be reasonable in context will still provide an important legal limitation on checkpoint use.
    "(c) The checkpoint stop was constitutional. In judging its reasonableness, hence, its constitutionality, this Court looks to 'the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.' Brown v. Texas, 443 U.S. 47, 51. The relevant public concern was grave, as the police were investigating a crime that had resulted in a human death, and the stop advanced this concern to a significant degree given its timing and location. Most importantly, the stops interfered only minimally with liberty of the sort the Fourth Amendment seeks to protect. Viewed objectively, each stop required only a brief wait in line and contact with police for only a few seconds. Viewed subjectively, the systematic contact provided little reason for anxiety or alarm, and there is no allegation that the police acted in a discriminatory or otherwise unlawful manner."
    I watched the oral argument, and one could see this coming.
    Stevens, Souter, and Ginsburg concurred in part and dissented in part, concluding that the case should have been remanded for a reasonableness determination.
    See the NY Times article, Court Upholds Police Use of Roadblocks to Seek Witnesses. The Washington Post headline is misleading: High Court Rules Roadblocks Don't Violate Privacy. All roadblocks are constitutional? Hardly, roadblocks to locate witnesses to a vehicular homicide are a big difference. (Comment: Headline writers aren't lawyers, and half the time don't carefully read the articles. The problem is that police officers sometimes base their actions on newspaper headlines as accurately reflecting the story.)
    I warned you Monday this was likely coming.

Tuesday, January 13, 8:10 a.m.:
    Staleness of SW: Defendant's wife consented to search of home after defendant arrested for assault and trespass and was a suspect in an arson, and a red gas can was seen; warrant obtained nine days later was not stale: Tarvin v State (2004) 277 Ga 509, 591 SE2d 777.
    Particularity: Warrant for house in small town was adequate when it was particularly described, but without address, and photographs of it were attached to warrant application: State v Wilcox (2004, Me) 2004 ME 7, 2004 Me Lexis 3.
    RS for stop based on officer's knowledge defendant previously had driven on suspended license; license had been reinstated; consent after that was voluntary: Anderson v State (2004) 265 Ga App 146, 592 SE2d 910.

Monday, January 12, 6:00 a.m.:
    No cases yet today, but there usually aren't any on Mondays. I have a gut feeling that one or both of the November argued cases are coming down this week.

Sunday, January 11, 8:00 p.m.:
    No cases today, it was checked at 8 am, 4 pm, and 8 pm.

Saturday, January 10, 8:00 a.m.:
    DNA testing of inmates under WI law not unconstitutional: Green v Doyle (2004, CA7 Wis) 2004 US App Lexis 236 (interesting concurrence by Judge Easterbrook discusses the differing constitutional interests of four classes: prisoners, parolees and probationers, felons whose term has expired, and those not convicted).
    Asst. AG fired from job granted preliminary injunction against office viewing personal files on his computer that he tried to download before leaving; irreparable harm shown, and government had no apparent interest in looking at the files; O'Connor distinguished: Haynes v Office of Attorney General Kline (2003, D Kan) 298 F Supp 2d 1154.
    Stop for traffic offense of rental car led to consent to dog sniff and dog alerted, driver consented to open trunk; no drugs found, but rifle and empty holster were; driver admitted to having gun in purse; when passenger got out, officer noticed bulge of gun in pocket; frisk justified that produced gun: United States v Stokes (2003, D Kan) 2003 US Dist Lexis 23563.
    Knock-and-talk: consent to enter was acquiescence to authority; three officers showed up and suggested that she would be better off inside rather than have neighbors see them talking to her; while advice of right to refuse entry not constitutionally required, it was important here that they never advised her of her right to refuse because it would remove ambiguity from show of authority: Miller v State (2004, Fla App 5D) 2004 Fla App Lexis 62 (also, sending three officers was a show of authority).

Friday, January 9, 4:20 p.m.:
    Cert. granted in Hamdi—The U.S. Supreme Court granted certiorari today in Hamdi v. Rumsfeld, 03-6696 (docket sheet), involving a U.S. born detainee taken into custody in Afghanistan and held since late 2001 without charges. The Bush Administration had fought certiorari, asking the court to await Padilla (but with different facts since Padilla was arrested in Chicago) coming from the Second Circuit, and the NY Times and Washington Post took it as a "rebuff." See the articles in the NY Times, Supreme Court Expands Review of 'Enemy Combatant' Cases, the Washington Post, High Court to Hear U.S.-Born Detainee's Case, and on CNN.com, Supreme Court to rule in case of U.S.-born terrorism detainee. The District Court held that the Federal Defender was entitled to unmonitored access to Hamdi, but the Fourth Circuit reversed holding that the District Court failed to give adequate consideration to national security implications. 296 F3d 278 (4th Cir. 2002).

Friday, January 9, 8:00 a.m.:
    Handcuffing at school: § 1983 claim stated against school disciplinarian for ordering student handcuffed by school resource officer "to teach him a lesson" when there was no indication that a physical altercation would occur: Samuels v Indep. Sch. Dist. 279 (2003, D Minn) 2003 US Dist Lexis 23481 (summary judgment granted for other defendants acting at his direction, however).
    Use of wrist hold to take down wife during domestic dispute stated § 1983 claim: Dingus v Moye (2004, WD Va) 2004 US Dist Lexis 60 (officers had qualified immunity as to entry with husband to collect evidence of adultery, but, as to the restraint in the kitchen that allegedly harmed the wife, they did not, because the allegations showed the force to be unreasonable).
     RS lacking for stop of man only fitting an exceedingly general description of a suspected double rapist stopped on street seven weeks after second attack near scene of second attack: Commonwealth v Scott (2004) 440 Mass 642, 801 NE2d 233, rev'g (2003) 57 Mass App Ct 36, 781 NE2d 27.
    Knock-and-talk for child porn: defendant consented to entry into his home for officers to look for child porn: State v Johnston (2004, NH) 839 A2d 830 (decided under state constitution; saving for another day whether a coercive knock-and-talk might be unconstitutional: "Although we do not adopt the Ferrier [State v Ferrier (1998) 136 Wn 2d 103, 960 P2d 927, 930] rule, trial courts should scrutinize the facts of each knock and talk case with special care to determine whether the procedures rise to a level of coercion that is constitutionally impermissible.").

Thursday, January 8, 6:30 a.m.:
    Kincade, § 24.35 n. 295.4, from the Ninth Circuit holding that federal prison DNA extractions are for a law enforcement purpose and require individualized suspicionn has been granted rehearing en banc: United States v Kincade (2003, CA9 Cal) 345 F3d 1095 (2-1 decision), rehearing en banc granted (2004, CA9 Cal) 2004 US App Lexis 15.
    Fifth Cir. again refuses to enjoin DNA extraction; follows its prior authority and notes Kincade: Groceman v United States DOJ (2004, CA5 Tex) 354 F3d 411.
    State record of suppression hearing could be considered by federal court when prosecution moved there before case was concluded: United States v Clay (2004, CA11 Ga) 355 F3d 1281 (PC shown, so GFE not an issue; defendant sught to apply GA law to search as well, but federal courts always apply federal law in federal court to state searches).
    Private search: SC law requiring those repairing computers to report finding child pornography does not create a state search; persons finding it are required to report, but they are not mandated to look for it: United States v Peterson (2003, D SC) 294 F Supp 2d 797.
    Nexus shown: child porn on desktop computer left for repair creates nexus to the house it came from that pictures may be there: Id.
    Fake drug checkpoint on I-20 in TX; cars exiting at little used exit were stopped; stop here for traffic offense, and defendant consented to vehicle search: United States v Johnson (2003, AF Ct Crim App) 59 MJ 666.
    Anonymous tip of erratic driving is entitled to more credence than a tip about a person maybe concealing something; it describes readily observable behavior which is corroboratable: Bloomingdale v State (2003, Del) 840 A2d 641, 842 A2d 1212.
    Anonymous tip of erratic driving led officers to approach defendant at truck stop parking lot; strong odor of marijuana from defendant's person and car supported search: State v Crawford (2003, Tex App–Dallas) 120 SW3d 508 (this case was decided Oct. 30 and originally shown to be a memorandum to be unpublished, but it was published).
    Detaining all occupants on entry in response to "shots fired" call was based on presence of drugs in plain view in living room; defendant asked if he could leave if he consented to search of person, and search revealed drugs: State v Fairres (2003, NM App) 2003 NMCA 151, 81 P3d 611, cert. denied (2003, NM) 2003 NM Lexis 305.
    Odor of marijuana on defendant's person, a person with a known drug problem, as he walked by officer twice in Waffle House created reasonable suspicion and then exigent circumstances: State v Yates (2004) 162 NC App 118, 589 SE2d 902.

Wednesday, Jaanuary 7, noon:
    Informant hearsay showed PC: known and reliable informant and information was corroborated: United States v Hodge (2004, CA4 Va) 354 F3d 305 (GFE not even mentioned).
     No REP in records subpoenaed by IRS from state officials who seized them where the legality of the original search was not at issue: Hell's Angels Motorcycle Corp. v McKinley (2004, CA9 Cal) 360 F3d 930(Bivens action) (as amended Feb. 6).
    Abandonment: backpack dumped on back step of townhouse apparently picked at random was abandoned property: United States v Bratzel (2004, ND Iowa) 2003 US Dist Lexis 23397 (Magistrate's R&R).

Wednesday, January 7, 6:00 a.m.:
    Cases today are a little late in arriving, and I have an early AM commitment to prepare for. Check back by noon central.
    News—The NY Law Journal today on Law.com reports that NYC will pay $3M "to the parents of Amadou Diallo, an unarmed immigrant from Guinea who was killed in a hail of police gunfire in 1999."

Tuesday, January 6, 6:00 a.m.:
    Consent to "look at" a boat included consent to look in comparments since the officer was already on the boat looking around: United States v Lee (2003, CA8 Iowa) 356 F3d 831 (he was already there, so he was already past stage of merely).
    RS to take handbag with apparent gun inside justified officer opening bag to control the gun; RS later ripened to PC to seize it: United States v Thomson (2003, CA10 Utah) 354 F3d 1197.
    RS based on informant tip defendant had gun that was corroborated by 30 minutes of observation of drug deals; street drug dealers commonly carry weapons for purposes of RS: United States v Dailey (2003, D Conn) 2003 US Dist Lexis 23290.
    Companion's possession of meth in defendant's garage did not justify warrant for defendant's house: People v Bachofer (2003, Colo App) 85 P3d 615 (no finding below whether GFE or common authority for consent could apply, so remanded for determination of those issues).
    Conflict of laws: federal law applies to border search issue litigated in state court: Backus v State (2003, Fla App 4D) 864 So 2d 1158.
    Drug dog search after traffic stop: stop was completed and warning ticket issued, but officer continued to ask questions until drug dog arrived for walk around; detention for even 10 minutes on this record was too long; defendant obviously did not feel free to go: Marshall v State (2003, Fla App 4D) 864 So 2d 1139.
    Drug dog search after traffic stop: dog sniff while waiting for report back on LPN was permissible: State v Desman (2003, Ohio App 2d Dist) 2003 Ohio 7248 2003 Ohio App Lexis 6555.
    Illegal dog fighting in back yard did not justify protective sweep of house: Minter-Smith v State (2003, Fla App 1D) 864 So 2d 1141 (plain view suppressed; also no inevitable discovery).
    Aguilar-Spinelli satisfied by showing of CI's basis of knowledge by his own drug purchases at defendant's house which was a statement against penal interest: State v Marney (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 1115.
    Officers had PC to search vehicle, so his invalid consent or alleged improper inventory were of no consequence: State v Anthony (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 1108.
    Note—The first case of 2004 was unreported from the Fifth Circuit.

Monday, January 5, 10:00 p.m.:
    The principal who requested the early morning drug raid in South Carolina referenced in the past here resigned today according to the Associated Press on the Washington Post website.

Monday, January 5, 6:45 a.m.:
    No cases today, at least not yet. I have court a six hour round trip drive from home today, so I will not be able to check again until 6 p.m.
    History—According to JURIST's Paper Chase (received at 1:17 am CT), yesterday was the 25th Anniversary of the settlement of the 1970 Kent State shooting case that killed 4 and wounded 9, which happened five weeks before I graduated from college. The Supreme Court dealt with that ugly deadly force incident in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), a case that, I recall, being a baby lawyer at the time, confounded § 1983 litigators for years.
    Internet searching—I only put this here because you wouldn't be here if you didn't have the Internet to search: The Associated Press in the Washington Post has an article from a couple of days ago about a search engine that appears to be more sophisticated than Google: Vivisimo. Vivisimo categorizes searches in an effort to eliminate the irrelevant; Google gathers everything.

Sunday, January 4, 9:20 p.m.:
    News—Rueters via the Washington Post reports today that FBI Checked Las Vegas Hotel Lists in Terror Alert in a story posted this afternoon based on unnamed law enforcement sources revealing it today. On New Year's Eve, the FBI fanned out collecting guest lists from LV hotels to compare the lists to suspected terrorists. One hotel balked and was subpoenaed to provide the list: "The FBI demanded Las Vegas hotels turn over their guest lists leading up to New Year's Eve to check against a U.S. master list of suspected terrorists, a law enforcement official said on Sunday. [¶] The demand for 'patron information' went to all major hotels in the Nevada casino and entertainment city, said the official who declined to be named."
    And so it goes....

Sunday, January 4, 1:50 p.m.:
    News—The Washington Post has an editorial today about the "National Security Letters" that the FBI got Congress to adopt, signed into law December 13th, permitting the FBI to get bank records without subpoena or even a factual basis, as long as it relates to "terrorism" or a threat on the executive branch: Too Much Power.
     When one reads the act; PL 108-177, 117 Stat 2599 (Dec. 13, 2003), § 354; no Member of Congress would even know that they were approving unless some watchdog group brought it to their attention. Several did, but it passed anyway. Try reading it and doing all the cross-references to figure out what they are saying; it is enough to give you a headache. DOJ feels compelled to get USA PATRIOT Act II adopted section-by-section, and Congress is defaulting its job to DOJ and letting them do it. But, remember who controls Congress....

Sunday, January 4, 10:30 a.m.:
    Airport screening: no right to refuse search and leave once passenger enters the TSA search area: United States v Hartwell (2003, ED Pa) 296 F Supp 2d 596 (pants kept setting magnetometer off, so passenger was taken for private screening which produced drugs; whether he requested it or it was directed was of no consequence). § 32.12 n. 116.1.
     PBT admissible at suppression hearing to show PC for arrest: People v Rozela (2003, Ill App, 2d Dist) 345 Ill App 3d 217, 802 NE2d 372.
    Wal-Mart meth stop: Based on Wal-Mart tip, officers followed defendant's vehicle and observed traffic offense which led to stop; in plain view were lithium batteries and Coleman fuel; defendant and passenger were obviouisly nervous and gave deceptive answers; court finds not only RS but PC; 1,104 psuedophedrine tablets found: People v Reatherford (2003, Ill App, 4th Dist) 345 Ill App 3d 327, 802 NE2d 340.
    No RS to stop defendant standing alone in front of a closed business at 6:46 p.m. on a Saturday night; defendant charged with obstruction for giving name as "Tony" when legal name was "Antonio"; arrest on outstanding warrant and search of person suppressed: People v Brown (2003, Ill App, 4th Dist) 345 Ill App 3d 363, 802 NE2d 356.
    Scope of appellate review: In evaluating the correctness of a trial court's ruling on a pretrial motion to suppress, appellate courts may consider the proof adduced both at the suppression hearing and at trial: State v Vaughan (2003, Tenn Crim App) 2003 Tenn Crim App Lexis 1104 (trial court found at suppression hearing that defendant consented, and evidence at trial further supported that finding).

Saturday, January 3, 10:00 p.m.:
    News—The NY Times has an article in Sunday's paper about Toledo school security officers arresting unruly students instead of just sending them to detention: Unruly Students Facing Arrest, Not Detention. Remember the Goose Creek SC school raid fiasco? Guns drawn, students on the floor spread-eagle, not a hint of reasonable suspicion, no drugs found. The whole country saw the surveillance video. What an embarrassment for the police and school officials to have been stupid enough to have thought they could legally get away with it. The timing of the raid is alleged to have made African-American students the primary target since their buses had already arrived, and the white students were far fewer in number than they should have been. "Raid at High School Leads to Racial Divide, Not Drugs" See Abstract of 12/9/03 NY Times article.
    It is remarkable how government these days teaches by its bad example, as Justice Brandeis, dissenting, warned in Olmstead v. United States, 277 U.S. 438, 468 (1928): "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." The Supreme Court can take credit: cases like Earls and Acton (§ 38.18) only embolden school officials to treat school children like prison inmates.

Saturday, January 3, 10:00 a.m.:
    No new cases from Lexis today, but a couple of updated cites came through. While some courts take off through the holidays, we should be soon be inundated with cases. Also, remember that SCOTUS submitted three cases in three days November 3-5, and one has already been decided. January may prove to be busy. The lull before the storm?

Friday, January 2, 6:30 a.m.:
    No cases from Lexis today (surprised?).

Thursday, January 1, 7:30 a.m.:
    REP in computer kept in home defendant shared with parents gave standing; seizure of second computer not listed in consent form conceded by state to be illegally seized if he had standing: People v O'Brien (2003, 3d Dept) 2 AD3d 1222, 769 NYS2d 654.
    If product of seizure is not used at trial, legality of seizure is irrelevant: State v Elersic (2003, 11th Dist) 2003 Ohio 7218, 2003 Ohio App Lexis 6501.