How A 911 Tip, String Of Robberies, Loitering SUV Occupied 4 Times, Paroled Felon, And Chair Bag Can All Work Together

UNITED STATES v. LINDSEY, USCA-11 No. 05-11273, 2007 U.S.App. LEXIS 7062, on appeal from USDC-FLSD, before Chief USCJ Edmondson, USCJs Barkett, Cox, opinion by Edmondson, dissent by Barkett, filed 27 Mar 2007.

LONG STORY SHORT: Anonymous tip that reported four black males loading guns into a white SUV at a specific location, coupled with police knowledge of a pattern of robberies in the area and reasonably mistaking a chair bag for a rifle container, amounted to probable cause to search SUV. Binding in AL, FL, GA.

FACTS: Someone calling himself Davis reported to Palm Beach County 911 that behind a Mobil gas station across from a Wachovia bank branch were four black males loading firearms and putting them in a white SUV. The West Palm Beach, FL PD knew of a string of bank robberies wherein three to four black males arrived in a large white SUV and displayed assault-type weapons. [Note: Courts generally have no idea what "assault-type weapons" are, other than any gun that the news media doesn't like.] Also, that same Wachovia branch had twice recently experienced robberies perpetrated by two black males.

Sergeant Tierney, first to arrive, saw a large white SUV parked in the reported place, and as he watched, the SUV suddenly left, apparently in reaction to his arrival, and drove to the front of the Mobil station and stopped at a gas pump. Four black males got out; one raised the SUV's hood and the other three walked toward the station. Sergeant Tierney, believing a robbery was imminent, stopped the subjects at shotgun point and ordered them to get on the ground. Defendant, one of the three who had been heading to the station, asked "what did I do" before lying down and submitting to handcuffs. As responding officers put the subjects in police vehicles, an armored car pulled up to the bank and security personnel left the bank carrying satchels of cash. Mobil employees told police that the SUV had been parked there for two hours.

All four subjects were convicted felons, but none had any outstanding warrants. However, Defendant was the registered owner of the SUV and was on parole for armed bank robbery. After releasing the other three subjects, police kept Defendant to investigate possible parole violations (one of his conditions was that he not associate with convicted felons) and to confirm or disconfirm their suspicion that weapons were in the SUV. Defendant refused permission to search his vehicle. Inside it, police saw in plain view a pair of binoculars and a black canvas bag that looked like a rifle bag.

Police arrested Defendant for being a felon in possession of firearms, towed the SUV, and swore out a search warrant based on the 911 call and what they had learned. The bag turned out to be an empty bag for a folding chair, but in the center console was a .38 revolver loaded with two live rounds. At about the same time, Defendant waived his Miranda rights and admitted to buying the revolver and to owning all items in the SUV.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of Florida for possessing firearms and ammunition while a convicted felon, and for being an armed career criminal. Defendant moved to suppress the items seized and his post-arrest statements, arguing that police did not verify the anonymous tip and had no reasonable suspicion of criminal activity being afoot before they stopped him, had no probable cause to obtain a warrant, and had no probable cause to arrest him. The trial court ruled that on the totality of circumstances, police articulated reasonable suspicion and appropriately dealt with a potentially deadly situation as efficiently as they could. SUPPRESSION DENIED. A jury convicted Defendant as charged and the trial court sentenced him to 300 months. Defendant appealed his convictions and sentence to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Police were able to confirm the anonyous tip, as far as it went. Their recent experiences with three to four black males in a white SUV using guns to rob banks, and the two robberies at that same Wachovia branch, made their suspicions more particular. When the SUV suddenly drove off as Sergeant Tierney's vehicle came into view, suspicion increased. Police had more than a hunch that a robbery was about to go down.

Then, the armored car showed up within minutes, and there appeared to be a rifle bag in the vehicle that the caller had reported guns being loaded into, and police found that Defendant was a convicted felon. This added up to probable cause to arrest him for felon in possession.

The Eleventh Circuit did not consider whether the search warrant was valid, because it was unnecessary. The automobile exception to the warrant requirement applies if the vehicle is readily mobile (it was) and if police have probable cause to search it, that is, a fair probability that evidence or contraband will be found. From the facts already known, police had probable cause. DENIAL OF SUPPRESSION AFFIRMED. Defendant also raised issues of unfair trial, but they were without merit. CONVICTIONS AND SENTENCE AFFIRMED in all respects.

The dissent would have ruled Defendant's initial seizure at gunpoint to have been without reasonable suspicion. The anonymous tip was not reliable and at least its prediction that more than one gun would be in the SUV was incorrect. The recent robberies had nothing in common with Defendant and his companions other than they were four black males in a large white SUV, not an uncommon sight in West Palm Beach. Police held Defendant too long for a Terry stop and never saw any suspicious bulges consistent with concealed weapons on the subjects. All evidence and statements should have been suppressed.

EDITORIAL: Here's a rare event--the Eleventh Circuit publishes one of its Fourth Amendment cases! Good catch by West Palm Beach PD, but I can't totally disagree with the dissent. Judge Barkett is a known liberal and will resolve any doubt in favor of turning loose criminals. Here, she had something of a point. Three or four black guys in a white SUV is, indeed, not uncommon in West Palm and many other places. The more I learn about police work, the less inclined I am to assume that a group of black males MUST be up to no good. What's more, I can assure you that I can tell the difference between a chair bag and a rifle case, because I carry BOTH items to highpower rifle matches! Had I been there, I would have had to point that out, reluctantly.

Judge Barkett also seemed upset with the display of weapons by eight officers, and I suppose that people who know nothing about weapons and their proper use would not like that. However, you ensure peace and non-resistance by a sudden "excessive" show of force, making it abundantly clear that resistance will not be a good career move. Giving dangerous people a fair chance is extremely UNfair to officers and innocents.

This is an honestly debatable case, but what pushed it over the edge for me was that the SUV was parked for two hours in position to surveil a bank, and as soon as the police popped up, suddenly remembered an urgent need for gasoline and preventive maintenance. This is NOT ordinary behavior no matter how many occupants of whatever color and gender are involved. It was also a good gesture for police to go get a warrant even when they didn't need one. This is not the mark of a rush to judgment. With only one revolver and two rounds, these guys may not have meant to rob anybody right then, but it wouldn't have been long before they did. See you again in a couple decades, fella.

Officers On The Scene Of A Beating Can't Hide In The Crowd, Not In The 11th

VELAZQUEZ v. CITY OF HIALEAH, USCA-11 No. 05-13157, 2007 U.S.App. 5821, on appeal from USDC-FLSD, before USCJs Tjoflat, Carnes, Hill, opinion per curiam, filed 14 Mar 2007.

LONG STORY SHORT: Officers who admit to being at the scene of a beating and do not intervene may be liable for the harm and are not entitled to summary judgment. Binding in AL, FL, GA.

FACTS: Two officers of the Hialeah, FL PD, stopped Plaintiff for driving under the influence. After the officers handcuffed him, Plaintiff received a beating amounting to excessive force. Plaintiff did not see exactly who beat him, but both officers admitted to being present at the time.

PROCEDURE: Plaintiff sued the City of Hialeah and numerous Hialeah officers in U.S. District Court for the Southern District of Florida per 42 U.S.C. § 1983 for excessive force under the Fourth Amendment. Hialeah moved for summary judgment, arguing that even if Hialeah officers beat Plaintiff, he could not identify which ones did so and could not properly assign liability. The trial court agreed. SUMMARY JUDGMENT GRANTED. Plaintiff appealed to the U.S. Court of Appeals for the Eleventh Circuit.

DECISION: Plaintiff testified that he was beaten and both officers admitted to being on the scene. In the Eleventh Circuit, an officer who stands aside and lets other officers use excessive force will be liable for his nonfeasance. Because the law prohibits both the excessive use of force and the failure to intervene, the officers' presence at the scene permits a reasonable jury to infer that one or both of them either beat up Plaintiff or let it happen. Were the law otherwise, officers could throw a bag over anyone's head and do what they wished. While the officers may well testify at trial that neither of them used excessive force and therefore neither of them needed to intervene, a jury would have to decide. GRANT OF SUMMARY JUDGMENT REVERSED and cause remanded for further proceedings.

EDITORIAL: What!? Hialeah officers might have beat somebody up? Oh, heavens no, that's not possible. Everybody around Miami knows that Hialeah is the very model of a modern, progressive, enlightened, and incorruptible local government. The police there practically NEVER do ANYthing wrong or even appear to.

(perhaps my well-informed sarcasm is not coming through)

Then again, there are such things as professional plaintiffs. I don't know what the deal is here, but I do agree with the Eleventh that if you were more or less all right just before you got arrested, but seem rather the worse for wear shortly after, then somebody should be liable.

Misdemeanor Citations Aren't Seizures, But We Can Arrest You If You Really Want

MARTINEZ v. CARR, USCA-10 No. 06-2069, 2007 U.S.App. LEXIS 7074, on appeal from USDC-NMD, before USCJs Briscoe, Ebel, Gorsuch, opinion by Gorsuch, filed 27 Mar 2007.

LONG STORY SHORT: An officer's demand that a subject sign a misdemeanor citation promising to appear in court, or else be arrested, is not a Fourth Amendment seizure. Binding in CO, KS, NM, OK, UT, WY.

FACTS: Plaintiff was at the New Mexico State Fair and saw several police officers walking in his direction, one of whom was looking at him. Plaintiff asked the officers if there was a problem, and some level of verbal exchange ensued, during which Plaintiff said "what the f*** are the police doing here?" and an officer threatened to ban him from the fair. The officers radioed Defendant, a New Mexico State Police officer, to come over, and when he arrived, he saw that an officer had Defendant in a wristlock. Defendant accompanied Plaintiff and the officers to the central law enforcement station at the fair. Defendant wrote a citation for resisting, evading, or obstructing an officer, a New Mexico state misdemeanor, and told Plaintiff to either (1) sign the citation and thereby promise to appear in court, or (2) be arrested, as New Mexico law provided. Plaintiff willingly signed, and officers escorted him off the premises. Defendant never physically touched Plaintiff.

PROCEDURE: Plaintiff sued Defendant in state court, which Defendant removed to the U.S. District Court for the District of New Mexico, per 42 U.S.C. § 1983 for unreasonable seizure under the Fourth Amendment. Defendant moved for summary judgment on qualified immunity grounds, arguing that issuing a citation in lieu of arrest is not a Fourth Amendment seizure. The trial court ruled that Defendant did seize Plaintiff, and clearly unlawfully, which any reasonable officer would have known. QUALIFIED IMMUNITY DENIED. Defendant appealed to the U.S. Court of Appeals for the Tenth Circuit.

DECISION: To defeat a qualified immunity defense, Plaintiff had to show first that Defendant violated one or more of his constitutional rights, and second that a reasonable officer in Defendant's place would have known that the complained-of conduct was illegal. Plaintiff acknowledged that Defendant wrote the citation but never touched him, and no officer who did touch him was before the court. The only question left was the purely legal one of whether a citation in lieu of arrest was a seizure for Fourth Amendment purposes.

Relatively recently, states have been providing officers with discretion to issue citations, tickets, or summonses for misdemeanors, instead of arrest. Detaining a subject long enough to write a ticket is much closer to a Terry stop than to an arrest. Officers cannot take the person to jail or conduct a search incident to an arrest. No court in America has held that a citation, summons, bail arrangement, or pretrial travel restriction is a Fourth Amendment seizure. In fact, giving Plaintiff the choice of being arrested or signing a citation, the Tenth Circuit opined, was very nearly the opposite of a seizure. Though Plaintiff could have been arrested for failing to appear, no seizure occurs until that happens, and it never did. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause remanded for entry of judgment in Defendant's favor.

EDITORIAL: I like it. Maybe some better crisis management skills would have headed the whole thing off; maybe not; but it ended well. The opinion went into some oddities of arrest v. citation, e.g., even though a motorist could be arrested for a traffic misdemeanor and have his person and car interior searched incident to the arrest, there is no such thing (yet) as "search incident to traffic ticket." An officer tried that once, and the Supreme Court busted his chops, so don't try it again, folks.

How many times have you heard "aw forget it, just take me to jail"? Some wise guys will say that (and their wish invariably is granted). Otherwise, everybody should be rooting for incentives to write citations, not arrest reports, especially in counties where there are just not enough beds in the jail. Also, watch your mouth when at the State Fair.

4A 4C 2006: Drug Warrants, Like Breakfast At Denny's, Can Be Served Anytime

UNITED STATES v. RIZZI, 434 F.3d 669 (4th Cir. 2006), No. 05-4240, 2006 U.S.App. LEXIS 450, on appeal from USDC-DMD, before USCJ Niemeyer, SrUSCJ Hamilton, USDJ-WDNC Conrad by designation, opinion by Niemeyer, filed 09 Jan 2006.

LONG STORY SHORT: Statute specifically authorizing search warrants for drugs to be served at night prevailed over criminal procedure rule generally requiring search warrants to be served only in the daytime, and the statute was not unconstitutional under the Fourth Amendement. Binding in MD, NC, SC, VA, WV.

FACTS: During an ongoing drug activity investigation at a particular bar, Baltimore PD officers saw Defendant apparently selling drugs out of his vehicle and in the bar's restroom. The officers found cocaine residue on abandoned trash bags from Defendant's home, and learned from federal LE that Defendant was a convicted felon and therefore not allowed to have firearms. Baltimore officers swore out a search warrant from state court directing them "forthwith" to search Defendant's house and vehicle for drugs, firearms, money, records, and drug paraphernalia. At 0430 (before sunrise) two days later, 24 federal, state, and Baltimore officers knocked and announced at Defendant's front door. They waited 15 to 20 seconds before forcing entry, arresting Defendant as he was walking up the stairs from where he had been asleep in the basement. Officers found no drugs, but after they Mirandized Defendant, he directed them to firearms in the basement.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possessing firearms while a convicted felon. Defendant moved to suppress the firearms, arguing that Federal Rule of Criminal Procedure 41(e) required all warrants to specify daytime execution unless the issuing judge authorized otherwise for good cause. The United States conceded that good cause did not preexist, but argued that 21 U.S.C. § 879 prevailed, because it specifically authorized that warrants relating to controlled substance offenses "may be served at any time of the day or night if the judge or United States magistrate issuing the warrant is satisfied that there is probable cause to believe that grounds exist for the warrant and for its service at such time."

The trial court ruled that the warrant, since it did not authorize service at night, fell under Rule 41(e), and § 879 began after Rule 41(e) ended, and thus did not control. SUPPRESSION GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit, and Defendant argued for the first time that even if § 879 prevailed, it amounted to a blanket exemption to the daytime search requirement for a class of cases, violating the Fourth Amendment.

DECISION: As a rule, specific laws trump general laws on the same subject. Here, Rule 41 covers search warrants generally and requires a special showing for night service, but § 879 specifically addresses drug warrants. Supreme Court precedent and the plain language "may be served at any time of the day or night" so long as the issuing court "is satisfied" that probable cause exists, and § 879's expression of congressional drug policy meant that it took away all Rule 41 authority over search warrants involving drug crimes. In the Fourth Circuit, therefore, search warrants involving violations of drug laws may be served anytime, so long as probable cause supports the warrant itself.

As to Defendant's Fourth Amendment argument, the Fourth Circuit addressed it as part of the review of the trial court's rejection of § 879, even though Defendant did not raise the issue below. Statutes may not except a class of searches from component protections of the Fourth Amendment. For example, the Supreme Court has held the knock-and-announce rule to be a simple and universal Fourth Amendment protection, subject only to case-by-case exceptions. However, the Supreme Court has never held daytime-only searches to be a Fourth Amendment rule, not least because that issue is much more complicated than knock-and-announce. Some people work during the day and sleep at night, and some days are holidays when searches would be more disruptive than on a regular night. § 879's recognition of law enforcement's special need for advantages against drug dealers did not fall below Fourth Amendment minimums and was within the government's police power. SUPPRESSION REVERSED; cause remanded.

EDITORIAL: Though I think 21 U.S.C. § 879 could have been better drafted--in fact, on first reading it, I thought Defendant had a good point--the Fourth Circuit is right that if the Supremes haven't implanted a particular requirement into the Fourth Amendment, it's fair game for legislation. It was news to me that a state warrant could be subject to federal law if the case went federal. Well, now I know.

Predictably, this guy pleaded to the charge and accepted a year and a day in prison, on condition that he could appeal the suppression again. He argued, among other things, that 24 police officers were just too many to be constitutional. On 12 Mar 2007, the Fourth Circuit flushed it in an unpublished opinion, noting that no court has ever ruled a search unreasonable on grounds that there were just too many cops present. If the excessive armed warm bodies had tried to intimidate him into confessing, that would have been another matter. Also, 15 to 20 seconds was plenty long to wait. Good job, Fourth.

4A 4C: Staying With Cooperating Witnesses Can Be Hazardous To Your Stealth

UNITED STATES v. MORELAND, 437 F.3d 424 (4th Cir. 2006), 2006 U.S.App. LEXIS 4166, on appeal from USDC-WVSD, before Chief USCJ Wilkins, USCJ Luttig, USDJ-VAED Kelley by designation, opinion by Wilkins, filed 22 Feb 2006.

LONG STORY SHORT: Defendant's host, who happened to be a CI, consented to a search of the residence by opening the door to police when they knocked, and evidence seized during Defendant's arrest would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant tipped off West Virginia state troopers that someone named Bones would be coming to CI's house to sell cocaine base. Bones showed up, but instead of staying, dropped off Defendant, and CI invited Defendant to stay. At CI's request, Trooper Perdue drove to CI's house with Trooper Berry, who gave Defendant marked currency in exchange for 5.93g cocaine base.

At 0200 the following morning, officers including Trooper Perdue knocked on CI's door and announced their presence. CI could not understand them through the door, and opened it. Once he saw the officers there, he considered them welcome to come in. They did so, even though they did not expressly ask permission and CI did not expressly give permission; rather, they directed CI to stand aside and he complied. Officers arrested Defendant, who had 1.92g cocaine base and $420 in marked bills that Trooper Perdue had given him for the earlier purchase.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of West Virginia on two counts of possession with intent to distribute cocaine base. Defendant moved to suppress all evidence taken after his arrest, arguing that the officers had neither a warrant nor the homeowner's consent to search. The trial court held that CI's close relationship with police and his implied consent were enough to make a warrant unnecessary. MOTION TO SUPPRESS DENIED. The U.S. introduced the cocaine base and money as evidence at trial, and the jury convicted Defendant on both counts. The trial court departed downward from the guideline of 30 to life as a career offender, holding that a sentence that severe would overrepresent Defendant's criminal history, and imposed the statutory 10-year minimum. Defendant appealed his convictions, and the U.S. cross-appealed his sentence, to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: The trial court made no clear factual errors in finding that CI had a close relationship with law enforcement and that he meant to consent to the officers' entry. Reasonable officers could have taken CI's voluntarily opening the door and not objecting to entry, combined with CI's cooperation in setting up the controlled buy earlier in the day, as a totality of circumstances establishing consent to entry and search for Defendant. DENIAL OF SUPPRESSION AFFIRMED. Since Defendant's trial was otherwise fair, his convictions would be affirmed as well.

However, while the trial court reasonably varied from the advisory guideline sentence, the amount of the variance was not reasonable. SENTENCE VACATED and remanded to the trial court for imposition of not less than 20 years.

EDITORIAL: Simple and sweet. I even agree with the sentencing decision. Gold star to whoever developed the CI here. The result was a dead-bang case and a safe, swift arrest.

Food-Fighting, Chair-Wrestling Spouses Tell Arresting Officers "We're Just Playing"; Unlikely, But Must Go To Jury

WASHINGTON v. HAUPERT, USCA-7 No. 05-4225, 2007 U.S.App. LEXIS 7129, on appeal from USDC-INND, before USCJs Cudahy, Manion, Rovner, opinion by Cudahy, concurrence by Manion, filed 27 Mar 2007.

LONG STORY SHORT: Married couple arrested for domestic battery on each other claimed that they were only playing instead of fighting and sued for false arrest, and their account was different enough from the arresting officers' testimony to preclude qualified immunity before trial. Binding in IL, IN, WI.

FACTS: Plaintiffs are Husband and Wife, who were not living together at the time but both were staying that night at Wife's house after coming back from Wife's brother's funeral. Fort Wayne, IN's 911 center received a call from Wife requesting a car, and then the call was disconnected. The 911 operator called back and asked to talk to Wife, who said Husband was trying to fight her and had hung up the first 911 call, but Wife denied that Husband hit her. Later, Wife testified that she had only called 911 to tell Fort Wayne police she thought her brother had been murdered, and that she told 911 that there was no problem when 911 called back. Earlier, she and Husband had playfully thrown a little water and juice on each other, and Husband had raised a chair over his head, pretending he was going to hit her--but there was no real problem.

Both Defendants, who were Fort Wayne police officers, responded to Wife's house. Defendants testified that Wife said she and Husband were arguing and had thrown water and juice on each other; that Husband had grabbed and shoved her; and that she had taken up a chair in self-defense, which Husband used to pin and choke her. Defendants testified that Husband told them Wife had jumped on him, saying "you wanna fight mf" and scratched him on the back of the neck, of which the police took photographs. Husband also admitted they had been wrestling over a chair, and Defendants took photographs of an overturned chair on the kitchen floor. After a police supervisor arrived, Defendants arrested both Plaintiffs for domestic battery, which Indiana statute defines as knowingly or intentionally touching a spouse "in a rude, insolent, or angry manner that results in bodily injury."

Plaintiffs, though, testified that Husband was asleep when Defendants got there, and that Plaintiffs explained they were only playing with the juice and water; the overturned chair was an accident; Wife was depressed about her brother's death; and that nothing was wrong. When Defendants arrested Wife, Husband asked "you're not taking her to jail for this, are you?" and consequently was arrested too. Plaintiffs therefore considered any police report in support of their arrests to have been fabricated.

PROCEDURE: Plaintiffs sued Defendants per 42 U.S.C. § 1983 for false arrest in violation of the Fourth Amendment and for Indiana state torts. Defendants removed the case to the U.S. District Court for the Northern District of Indiana, and after discovery moved for summary judgment on qualified immunity grounds, arguing that Defendants had probable cause to arrest Plaintiffs for domestic battery, and that Plaintiffs' version of events was implausible. The trial court ruled that among other things, Plaintiffs' account of playfulness and accidentally dialing 911 were sufficient basis for a reasonable jury to find that Defendants had no probable cause to arrest either Plaintiff. QUALIFIED IMMUNITY DENIED. Defendants appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To get past summary judgment on their claim of unreasonable seizure in violation of the Fourth Amendment, Plaintiffs had to present enough evidence for a reasonable fact finder to conclude that their arrests were without probable cause. Though the trial court did not rely on the photographs in its findings of fact, the Seventh Circuit could do so since the photos were in the record on appeal and no one disputed their authenticity. The photos showed some minor injuries to Husband and an overturned chair on the floor, but because Plaintiffs and Defendants materially differed as to the facts behind the pictures, Defendants could not show qualified immunity. Even if the photos of Husband's injuries were enough to make probable cause, Defendants could only have arrested Wife, unless they also had evidence other than what appeared in the photos.

Given that enough evidence was forecast to establish the constitutional violation of arrest without probable cause, the Seventh Circuit then had to rule whether that right was clearly established at the time of the events in question. As a matter of law, a reasonable officer in Defendants' position would have known that arrest without probable cause, and fabrication of a police report in support of same, was unconstitutional, because innumerable appellate cases had said so by then. Though Plaintiffs might not prevail ultimately, the Seventh Circuit was not in a position to resolve swearing contests between litigants and had to agree that summary judgment was not available. DENIAL OF QUALIFIED IMMUNITY AFFIRMED.

The concurrence agreed with the result, but would have accepted the trial court's recital of the facts wholesale, and not looked to the photographs, which the trial court did not consider in reaching its decision.

EDITORIAL: Another Seventh Circuit anti-police WTF! Last week a couple of Child Protective Chekists perpetrate a career-ending false accusation against an officer--and walked. This week Mr. & Mrs. Dingleberry forgot why they were separated and got in no doubt their five hundredth mutual pounding, then made up a whale of a fish story to win the lawsuit lottery--and take the green flag. Of course they'll lose at trial and on their next appeal, after wasting six figs in defense fees, which they can't pay back after the Rule 11 motion.

NO repeat NO reasonable fact finder could read that 911 transcript calling for a police car and reporting a domestic battery, and then believe the second version that they were just playing. And if facts really WERE in dispute, the Seventh Circuit should have dismissed the appeal for lack of jurisdiction. This is one of those times where I just have to throw up my hands and say I only work here, I don't ask questions.

FCRA Short Note: Court Cannot Order Compliance

VARRICCHIO v. CAPITAL ONE SERVICES, USDC-FLSD No. 06-61860-CIV, 2007 U.S.Dist. LEXIS 20742, before USDJ Huck, order filed 23 Mar 2007. Not binding anywhere but may be persuasive.

Plaintiff, a private individual, sued several defendants, including Trans Union LLC, under the Fair Credit Reporting Act for inaccurate reporting of his credit information. Plaintiff asked for damages and for the court to order Trans Union to delete all inaccurate information. Trans Union moved to dismiss the application for injunction, arguing that FCRA did not provide for injunctive relief in private suits, only damages.

The U.S. District Court for the Southern District of Florida ruled that Congress gave power only to the Federal Trade Commission to "enforce" FCRA and to issue cease-and-desist orders. There was no provision for equitable relief in private cases, only provision for damages. In other words, courts in private FCRA cases can only punish noncompliance, not order compliance. If Congress had meant to allow private individuals to apply for injunctions, then FCRA would have said so. COMPLAINT DISMISSED IN PART.

Child Abuse Investigators Deliberately Violate Constitution, End Cop's Career, And Get Away With It

BOYD v. OWEN, USCA-7 No. 05-3587, 2007 U.S.App. LEXIS 6603, on appeal from USDC-ILSD, before USCJs Cudahy, Manion, Rovner, opinion by Rovner, filed 22 Mar 2007.

LONG STORY SHORT: Child welfare investigators falsely and recklessly accused a police officer of child abuse, which cost him a career in law enforcement and violated his Fourteenth Amendment due process rights, but since that right was not clearly established at the time, the investigators were not legally liable. Binding in IL, IN, WI.

FACTS: Danny Knight, a friend of Mother, claimed that Plaintiff, an officer with Washington Park, IL PD, had beaten and bruised the buttocks of Mother's five-year-old Girl, whom Knight babysitted sometimes. Knight also claimed that Plaintiff had held a knife to Mother's throat and she was very afraid of him. Knight told this to crisis center worker Mary Free, who called the Illinois Department of Children and Family Services hotline. Three days later, DCFS supervisor Mickey Owen and investigator Leslie Foott visited Mother and observed Girl's bruises. Girl claimed Plaintiff had done it but Mother denied that, naming other possible offenders. Owen and Foott took Girl into protective custody and drove away with her.

In the car, when Foott asked Girl who did it, Girl again claimed Plaintiff had. Without any further investigation, Owen and Foott decided then and there to "indicate" Plaintiff (determine credible evidence existed to proceed against him). This was contrary to DCFS policy, which required further investigation. Foott called Free again, who insisted that Plaintiff was potentially dangerous, violent, and psychotic, based on nothing more than what Knight had told her. Later that day, Foott talked with another babysitter of Girl, who confirmed bruising but did not say who did it. No DCFS person got around to talking with Plaintiff himself for at least another month. Owen and Foott also disregarded Girl's psychiatric history.

Seven months later, Plaintiff got a part-time job with Maryville PD, which possibly could have led to full-time employment. However, a background check discovered DCFS's report of indicated child abuse, and Plaintiff resigned in lieu of being fired. Plaintiff was subsequently unable to find any other law enforcement job.

PROCEDURE: Plaintiff sued Owen and Foott in U.S. District Court for the Southern District of Illinois per 42 U.S.C. § 1983 for violating his Fourteenth Amendment right to due process, resulting in the indicated child abuse report and deprivation of his protected liberty interest in a law enforcement career. Owen and Foott moved for summary judgment on qualified immunity grounds, arguing that they had not deprived Plaintiff of any protected liberty interest, that they had allowed him due process, and that any right violated was not clearly established at the time. The trial court ruled that DCFS policies requiring investigation of alternative explanations and mitigating evidence amounted to a clearly established due process standard, and Owen and Foott decided not to follow them. QUALIFIED IMMUNITY DENIED. Owen and Foott appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: In their appellate briefs, Owen and Foott did not preserve their argument that their indicated child abuse report did not infringe on Plaintiff's protected liberty interest in a law enforcement career, so the Seventh Circuit assumed that Plaintiff did have such a protected interest. At any rate, state action can violate a liberty interest when it wrongfully ruins a person's good name, reputation, honor, or integrity to the point that the person cannot find work in his chosen field.

The trial court erroneously held DCFS policies to set the standard of Fourteenth Amendment due process in this case. Owen and Foott's actions had to be judged not by how closely they conformed to state policy, but by their obedience, or lack of it, to the Constitution. Here, since Owen and Foott decided to consider only inculpatory evidence, and to disregard or not even look for any exculpatory evidence, when they should have considered both equally, violated Plaintiff's due process rights.

However, since Plaintiff could find no reported court case that held similar behavior upon similar facts to be a constitutional violation, a reasonable child welfare investigator would not have been on notice that Plaintiff's rights had been clearly established. Plaintiff's cited cases either concerned Fourth Amendment issues, or were not clearly similar, or had been decided after the events of which Plaintiff complained. Plaintiff therefore did not meet his burden of clearly establishing his rights, and could not recover. DENIAL OF QUALIFIED IMMUNITY REVERSED; cause REMANDED to the trial court for entry of summary judgment in Owen and Foott's favor.

EDITORIAL: What the [he]ck, over!? Eternal shame on Mickey Owen and Leslie Foott. I know the type--they think they're so much better than you because they are here For The Children. They consider themselves always right, above the law, and untouchable. The only thing that saved their sorry behinds is the Seventh Circuit's utterly absurd requirement that you have to show some exact court case already decided, otherwise the poor darlings aren't on notice that their arrogance violates the Constitution that SOME of us are under oath to preserve, protect, and defend to the death.

No clearly established right? Horsefeathers. Everybody with any LE background knows you're supposed to, on every case, make like O.J. and find the REAL killer. You do not add double hearsay to the word of a mentally disturbed child that you just took away from her mother, and then permanently brand someone a child abuser. EVERYBODY KNOWS THAT. Ever hear of Brady, Giglio, etc., that law enforcement and prosecutors have to follow? Why don't child abuse investigators have to do that too? The only consolation prize is that the next time this happens in Illinois, Indiana, or Wisconsin, the miscreants will get mashed. As it is, this Seventh Circuit panel just gave Mickey Owen and Leslie Foott each a coupon good for one free ruined life. That's a hundred kinds of wrong. Will the Seventh Circuit en banc, or better yet the Supremes, puh-leeeeze find it in their hearts to serve up Mickey Owen and Leslie Foott's heads on a large platter.

Deputy's Alleged On-Duty Stalking Not Unconstitutional, But Might Be Tortious

ALTY v. COUNTY OF BOONE, USCA-7 No. 04-4162, 2007 U.S.App. LEXIS 6451, on appeal from USDC-ILND, before Chief USCJ Easterbrook, USCJs Ripple, Kanne, opinion per curiam, dissent by Ripple, filed 21 Mar 2007.

LONG STORY SHORT: A deputy who was on duty, in uniform, and in a patrol car when he repeatedly surveilled and followed a dating couple did not search or seize them or deny them due process, and thereby did not violate the Constitution, but might still be liable in tort under state law. Binding in IL, IN, WI.

FACTS: Defendant took offense when Plaintiff, a Belvidere, IL police officer, arrested a friend of Defendant's for DWI. Defendant, a Boone County, IL deputy sheriff, began to use his duty time to harass, annoy, and intimidate Plaintiff and his girlfriend. Defendant abandoned calls for service and traffic stops to follow Plaintiffs around, or station his patrol car outside the girlfriend's workplace or other places that the couple happened to be. Eventually, Defendant provoked a personal confrontation with Plaintiff. Defendant went so far as to search a cell phone belonging to a friend of Plaintiff to see if they had called each other lately. Plaintiff filed numerous complaints with the Boone County Sheriff's Department regarding Defendant's behavior, without result.

PROCEDURE: Plaintiff and his girlfriend sued Defendant and Boone County in U.S. District Court for the Northern District of Illinois per 42 U.S.C. § 1983 for violating their First, Fourth, Fifth, and Fourteenth Amendment rights under color of state law, and for intentional infliction of emotional distress under Illinois law. Defendants moved to dismiss for failure to state a claim. The trial court ruled that even taking the complaint to be true, Plaintiffs had no legitimate expectation of privacy where Defendant stalked them, their relationship did not suffer, and Defendant's behavior was nowhere near as outrageous as Illinois tort law required to state a cause for IIED. COMPLAINT DISMISSED with prejudice. Plaintiffs appealed to the U.S. Court of Appeals for the Seventh Circuit.

DECISION: To invoke the protection of 42 U.S.C. § 1983, Plaintiffs had to show that Defendant, acting under color of state law, violated one or more of their constitutional rights. Defendant conceded that whatever his actions were, since he was on duty, in uniform, and in a patrol car at the time, they were under color of state law. However, that was all Plaintiffs could show, even taking the complaint as true.

Fourth Amendment liability requires an unreasonable search and/or seizure. A search is a state intrusion upon an individual's legitimate interest in privacy, which means that Plaintiffs had to show that they tried to keep private the object of the complained-of search. Here, Plaintiffs were on public roads when Defendant, on the same public roads, followed them. Plaintiffs were in businesses open to the public, and Defendant was himself in public places while he surveilled Plaintiffs. Though Defendant may well have searched a third person's cell phone in order to harass Plaintiffs, they had no standing to assert a reasonable expectation of privacy in someone else's cell phone.

A seizure may happen when police intentionally restrict the freedom of a person to move around in public. But Defendant, by doing no more than following and watching Plaintiffs, did not in any way keep them from going about their business, and Plaintiffs did not submit to any show of force. Defendant neither searched nor seized Plaintiffs or their property, and could not have violated the Fourth Amendment.

As to the other constitutional claims, Defendant did not interfere with Plaintiffs' right of intimate association, at least not to the point of shocking the conscience, which is the rare and high standard of relief necessary for substantive due process violations. Also, Plaintiffs could have sought a state restraining order, but never did. However disturbing his behavior was at some level, Defendant did not infringe Plaintiffs' First, Fifth, or Fourteenth Amendment rights. Consequently, neither could Boone County have violated Plaintiffs' constitutional rights. DISMISSAL AFFIRMED IN PART.

However, the Seventh Circuit ruled that the trial court incorrectly applied the stricter Illinois state pleading standards, instead of the more generous federal rule of notice pleading, and under the latter, Plaintiffs stated a cause for intentional infliction of emotional distress. With no federal question now pending, the trial court should relinquish supplemental jurisdiction over the state claims. DISMISSAL VACATED IN PART and cause remanded for further consistend proceedings.

The dissent concurred with much of the majority, but would have ruled that Defendant willfuly abused his governmental power for his own wrong purposes. His long-term and deliberate harassment of Plaintiffs deprived them of substantive due process to the point that it objectively shocked the conscience.

EDITORIAL: At least one of these people has too much time on his or her hands. I don't know what to think. It is mighty odd that a deputy could blow off calls and leave 10-61s to go bug somebody he's mad at, again and again, without any supervisor noticing. But stranger things have happened. If, on the other hand, this deputy was really NOT playing Fatal Attraction, then somebody needs to have a looong talk with the officer who brought this suit.

As I first started to read this case, I just looked at the basic facts and stopped to ruminate: Is following somebody around and waiting outside in your patrol car a search or seizure? (squeaking sounds of wheels turning) ummmm ... well no. That's how police can follow and watch bad guys, and pick up their trash with DNA on it, and run a K9 sniff, and lots of other tools in the toolbox, because when you and the police are both in public places, then it's a free-for-all. If you want privacy, go inside your house! SHOULD we have more privacy? Maybe we should, but we'd need to change the Bill of Rights. That is something that civil libertarians often don't understand; instead of judges making up law as they go along, or ignoring what they don't like, get the law changed by the democratic process so that we maintain a government of laws, not of courts.

Red Bull Gives You Reeeasonable Suspiciiion

STATE v. EUCEDA-VALLE, NC Court of Appeals No. COA06-898, http://www.aoc.state.nc.us/www/public/coa/opinions/2007/060898-1.htm , on appeal from Vance County Superior Court, before Judges Levinson, McCullough, Bryant, opinion by Levinson, filed 20 Mar 2007.

LONG STORY SHORT: Along with several other well-recognized drug courier behaviors, numerous empty Red Bull cans on the floor added up to enough reasonable suspicion under the Fourth Amendment to detain motorists for a K9 sniff. Binding in NC unless reversed by the NC Supreme Court.

FACTS: Defendant, with one passenger, was doing 71 in a 65 and following too closely on I-85 when Officer Spence of Henderson, NC PD stopped him. Defendant had a valid license but the car was registered to someone else. Defendant and the passenger's hearts were beating so hard, their shirts were nearly bouncing off their chests. Only one key, not on a keychain, was in the ignition. Inside the car, Officer Spence could smell a strong odor of air freshener, consistent with an effort to mask the smell of drugs, and noticed several empty cans of Red Bull energy drink, consistent with a driver trying to stay alert on a long trip.

Officer Spence asked Defendant to sit with him in the patrol car. Defendant was so nervous that Officer Spence could see Defendant's carotid artery pulsing. Officer Spence asked for K9 backup and began writing a warning ticket for speeding. Defendant would not look at him, and claimed he had the car for two or three days and was going to Richmond. This was materially different from how the passenger described the trip. The K9 officer arrived as Officer Spence was finishing the warning ticket, and he detained Defendant long enough for the K9 to alert on Defendant's car. The officers found ten packages in the trunk totaling 4.98kg of cocaine, all wrapped in fabric softener sheets.

PROCEDURE: North Carolina indicted Defendant and the passenger in Vance County Superior Court for trafficking in cocaine by transporting more than 400g, conspiracy to traffic more than 400g, and maintaining a vehicle for controlled substances. Defendant moved to suppress the cocaine, arguing that the totality of the circumstances did not establish reasonable suspicion. The trial court entered extensive findings of fact and ruled that Officer Spence had articulable and reasonable suspicion that criminal activity, probably involving controlled substances, was afoot. MOTION TO SUPPRESS DENIED. Defendant went to trial and was convicted as charged. He appealed his convictions and sentences to the North Carolina Court of Appeals.

DECISION: Trial courts' rulings on motions to suppress are entitled to great deference on appeal, because the trial court was there to evaluate witness credibility. Defendant did not challenge any factual findings on appeal, leaving only questions of law. Under both the Fourth Amendment and the North Carolina Constitution, Article I Section 20, a K9 sniff that detects only contraband is not an unreasonable search. An officer may not detain a person just to conduct a K9 sniff unless the totality of circumstances establish reasonable suspicion of criminal activity. Here, there were enough hallmarks of drug activity--strong air freshener scent, extreme nervousness, non-owner driver, single key in the ignition, different stories, and evidence of heavy Red Bull consumption to stay awake--to support a reasonable and cautious LEO's suspicion that criminal activity is afoot. DENIAL OF SUPPRESSION AFFIRMED.

However, other than both men being nervous in the same car, there was no evidence of conspiracy to traffic. Had the passenger been armed, or possessed drugs or a large amount of cash, that might have made a difference, but here, not enough evidence existed for a reasonable jury to eliminate reasonable doubt, and the trial court should have acquitted Defendant of conspiracy as a matter of law. REVERSED IN PART.

EDITORIAL: Maybe you saw the Australian Grand Prix, where David Coulthard tried to cut inside Alexander Wurz on Turn Three and wrecked both of them. Well, at least Alex's onboard cam caught a bodacious shot of the Red Bull logo on DC's car as he bounced over Alex's front fuselage (and nearly decapitated poor Alex). Is that why they say "Red Bull Gives You Wiiings"? Now we see that Red Bull, through no fault of its own, might be the drink of choice for long-haul dope drivers. Happily, they also say "there is no such thing as bad publicity."

There's always more to learn about drug activity telltales. How about a lot of coffee cups to stay awake--and to mask drug smells more convincingly? The dryer sheets are really getting to be cliche.

4A 4C 2006: Plenty Of Reliable Intel Makes Lemonade From Dry Hole, But About That Crack/Powder Disparity ...

UNITED STATES v. EURA, 440 F.3d 625 (4th Cir. 2006), NO. 05-4437, 05-4533, 2006 U.S.App. LEXIS 4535, on appeal from USDC-VAED, before USCJs Wilkinson, Michael, SrUSCJ Hamilton, opinion by Hamilton, concurrence by Michael, filed 24 Feb 2006.

LONG STORY SHORT: Even though the warranted search of Defendant's house turned up no drugs, the police already had enough reasonable suspicion for a K9 sniff of Defendant's vehicle without offending the Fourth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: Fredericksburg, VA PD's narcotics unit knew Defendant to be a crack dealer. Relying on a confidential source who had repeatedly bought crack cocaine there, DEA agents obtained a search warrant for Defendant's house in Fredericksburg, VA. DEA agents served the warrant at 2130, finding Defendant at home and handcuffing him for safety reasons. Agents discovered several "automatic" weapons, which Defendant admitted were his. An unidentified person said, and DMV checks confirmed, that two cars on the street were Defendant's. After Defendant refused consent to search the cars, a K9 unit walked around the cars, alerting to the presence of drugs in one of them. Agents opened the car and with K9 assistance found 11g crack, 26.6g ecstasy, and a loaded firearm. They never did find any drugs in Defendant's house.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession with intent to distribute 50g or more of crack, possession with intent to distribute 5g or more of crack, and possession of a firearm in furtherance of a drug trafficking offense. Defendant moved to suppress all evidence found in his car, arguing that once the warranted search of his house turned up empty, the Fourth Amendment required him to be left in peace. MOTION TO SUPPRESS DENIED. A jury acquitted Defendant of possessing 50g or more of crack, but convicted him of possessing 5g or more and of possessing a firearm in furtherance of a drug trafficking offense.

The trial court gave him 60 months for the crack conviction, which was the mandatory minimum and below the 78 months bottom guidelines, but consistent with the Sentencing Commission's repeated recommendations to narrow the 100:1 crack/powder ratio. Defendant also got 60 months minimum mandatory for the firearm count, which the trial court ran consecutively, for a total of 120 months. Defendant appealed his convictions and sentences to the U.S. Court of Appeals for the Fourth Circuit, arguing that the motion to suppress should have been granted. The United States cross-appealed the crack sentence as unreasonably not in keeping with congressional intent to sentence crack offenders to 100 times what the same amount of powder cocaine would justify.

DECISION: Agents needed reasonable suspicion that drugs might be found in Defendant's car in order to detain it long enough for a K9 sniff. Reasonable suspicion, though, is not reducible to a neat set of rules; it depends on common sense and practical considerations of everyday life. Less than probable cause, but at least a minimal level of objective justification, is the hallmark of reasonable suspicion. By no means may the police always search a subject's car in hopes of finding drugs that were not in his home, but neither does such a disappointment negate all of the information that established probable cause to issue the search warrant. Here, many pieces of reliable information about Defendant's drug dealing added up to reasonable suspicion for a K9 sniff. Once the K9 alerted to Defendant's car from the outside, the agents had probable cause, by Fourth Circuit standards at least, to open the car and search further. The trial court correctly denied Defendant's motion to suppress. CONVICTIONS AFFIRMED.

The trial court was not necessarily free to vary from the congressional intent of 100:1 crack/powder sentencing and substitute the Sentencing Commission's recommendations to bring crack and powder cocaine sentences closer together. While trial courts might be justified in thinking this treatment inequitable, some trial courts would fix it by reducing crack sentences, and others would increase powder sentences, leading to massive inconsistency. Trial courts may not categorically reject the 100:1 ratio because it seems unfair, but must identify individual aspects of each defendant's case that justify variance. Here, there were no facts about Defendant's case that removed it from the typical crack offense, so the trial court should not have dropped below the bottom of the advisory guidelines. SENTENCE VACATED as to the crack count and REMANDED for imposition of 78 months bottom guidelines, consecutive to 60 months for the firearm count.

The concurrence agreed with the suppression decision, but concurred only in the judgment of 78 months instead of 60, but extensively discussed the significant evidence for reduction of the 100:1 ratio as exaggerating the effects of crack over powder.

EDITORIAL: Another dry hole that became not so annoying after all. Now this dope-slinger knows that moving his stash off premises doesn't help him, because cars on a public street are much LESS protected than private homes on private lots are. Good on DEA for building a strong case before getting a warrant, and it saved their bacon. I put "automatic" weapon in quotes because they must have been only semi-automatic, otherwise this guy would have been charged with possession of unregistered machine guns.

Then there's those U.S. Sentencing Guidelines, which are supposed to be dead, but they rule us from their mass grave. Even when, for once, they seem to help the defendant, out they go, because of politics. Again, I'm uncomfortable with the government being allowed to appeal sentences for anything other than rank illegality. Crack is BAD but not 100 times badder. I'd increase the powder sentences to make things less unfair.

4A 4C 2006: Miranda Might Protect You At Trial, But Probably Not At Sentencing

UNITED STATES v. NICHOLS, 438 F.3d 437 (4th Cir. 2006), No. 04-5020, 04-5021, 2006 U.S.App. LEXIS 5038, on appeal from USDC-NCWD, before Chief USCJ Wilkins, USCJs Michael, Traxler, opinion by Wilkins, filed 28 Feb 2006.

LONG STORY SHORT: The trial court could use Defendant's confession that he had carried a firearm during a bank robbery to increase his sentence, even though the trial court had already suppressed the confession on Miranda grounds. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant walked into a bank in Charlotte, NC and presented the teller with a note reading "This is A Robbery Give up the money or I shoot." The teller complied. Defendant's father soon phoned the Charlotte-Mecklenburg PD to say that his son probably had committed the robbery, was ready to surrender, and wanted a lawyer. The detective who talked with him assured Defendant that he would get one. Defendant and his father met the detective at a prearranged location, where Defendant returned all the money that was left. Defendant again said he wanted a lawyer, and the detective agreed. After the detective took Defendant in to the police station, Defendant signed a Miranda form, initialing the box that he wanted to talk without an attorney present. He and the detective talked for about four hours, without any threats or coercion, and eventually confessed to carrying a concealed pistol during the bank robbery.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of North Carolina for bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Defendant moved to suppress his confession to carrying a firearm during the robbery as in violation of his Fifth Amendment rights per Miranda. The detective denied ever hearing Defendant request counsel, but the trial court found Defendant's and his father's testimony more credible. MOTION TO SUPPRESS GRANTED. The United States dismissed the armed bank robbery and carrying a firearm charges, and Defendant pleaded to bank robbery. Defendant's presentence report omitted a recommendation for firearm enhancement under the advisory guidelines. The United States objected, arguing that suppressed evidence can still enter sentencing considerations. The probation officer who had prepared the PSR denied the request, on grounds that it would compound the constitutional violation, and the trial court agreed and sentenced Defendant to 46 months. The United States appealed the omission of firearm enhancement to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Trial courts have broad discretion to consider information relevant to sentencing, even if such facts depend on evidence inadmissible at trial. Only if misinformation of constitutional magnitude infects the sentencing decision will appellate courts intervene. In the Fourth Circuit, illegally obtained evidence is generally admissible for sentencing purposes, because the great interest in accuracy of sentencing outweighs the small deterrent value of suppression. The severe deterrent effect of not being able to use evidence during the government's case-in-chief at trial is enough to give effect to the Fourth and Fifth Amendments.

Suppression might still be appropriate when the government illegally seizes evidence for the purpose of enhancing a defendant's sentence, but this was not the case here. No one beat or tortured Defendant, or promised him anything in return; he just volunteered a probably reliable confession as part of a normal conversation with the detective. SENTENCE VACATED and cause REMANDED for resentencing consistent with the opinion.

EDITORIAL: This is not really a Fourth Amendment decision, but the same reasoning would apply to evidence gotten from an unreasonable search and seizure, so here it is. I'm still a tad uncomfortable with the guy's confession being the sole basis for concluding that he had a gun. Nobody else saw him armed, and no search turned up any gun. Also, I don't like the government being allowed to appeal anything but a blatantly illegal sentence. This is not one of those times.

4A 4C 2006: Good Faith Exception Applies To No-Knock Search Warrants

UNITED STATES v. SINGLETON, 441 F.3d 290 (4th Cir. 2006), No. 04-4108, 2006 U.S.App. LEXIS 7201, on appeal from USDC-MDD, before USCJs Niemeyer, Motz, King, opinion by Motz, filed 23 Mar 2006.

LONG STORY SHORT: Police reasonably relied in good faith on a no-knock warrant even if exigent circumstances might no longer have justified not knocking and announcing, and evidence would not be suppressed. Binding in MD, NC, SC, VA, WV.

FACTS: Officers of the Edgewood, MD PD applied for a search warrant to seize evidence of drug sales from Defendant's home. Officers requested a no-knock warrant for safety reasons because Defendant had a number of prior arrests, including second-degree murder in 1987 (although he had only one minor arrest since then); Defendant's apartment was in an open air drug market with a history of shootings and other violence; and the only way to Defendant's apartment was over open ground, where other residents would see the officers and warn Defendant. The court granted the no-knock warrant, and officers executed it that way.

In a locked safe were a 42g crack cookie, three baggies of marijuana, $1,400 cash, and a loaded handgun. Defendant admitted that he lived there, took all responsibility for the gun and drugs in the safe, and assured officers (correctly) that no other contraband was in the house. Later, in jail, he told an officer "I can't believe I did something this stupid."

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for possession of 5g crack with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and possession of a firearm while a convicted felon. Defendant moved to suppress the fruits of the search, because no exigent circumstances justified a no-knock warrant and the officers could not have relied in good faith on such a warrant. MOTION TO SUPPRESS DENIED. The United States had the gun, drugs, and incriminating statements admitted over objection at trial, and the jury convicted Defendant as charged. Defendant appealed his conviction and sentence to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Police serving a search warrant must generally knock and announce before forcing entry, unless they have a particularized basis to reasonably suspect that knocking and announcing would be met with violent resistance. Here, the facts that Defendant was a suspected drug dealer and that neighbors could see the officers coming were not particular to Defendant's situation, and by themselves would not justify immediate entry. Defendant's violent arrest history was 14 years old and no contemporary evidence suggested beforehand that Defendant was armed.

Nonetheless, in a question of first impression in the Fourth Circuit, officers may reasonably rely on a judicially-issued no-knock warrant, even if it is not clearly necessary for officer safety, and the good faith exception will apply to keep the evidence from being excluded. Since police had applied in good faith and gotten a warrant, penalizing the officers executing it would not deter police misconduct. DENIAL OF SUPPRESSION AFFIRMED; CONVICTION AFFIRMED; but SENTENCE VACATED for unrelated reasons and Defendant should be resentenced.

EDITORIAL: Since then, of course, the Supremes have gone further and flatly said that no-knock violations are not grounds for suppression, on the same reasoning that it would not prevent police misconduct. Police will find the evidence anyway, and who's to say how long is not long enough--courts have enough to do without having to decide whether five seconds, or two, or ten, or thirty, is long enough to wait. Liberals have squalled about this, but they do not carefully read the rest of the Supreme Court opinion, which says that officers still may be SUED for not waiting long enough. Not that truth matters to liberals--John Whitehead, the Christian leftist who never met an American soldier or cop he liked, simply lied about what the Supreme Court said.
Now I'm not the world's expert on serving search warrants, but no-knock warrants are a tool in the toolbox, not the default choice. As the guys in Atlanta found out, the 93-year-old great-grandma inside has no way to know you're the police if you just start busting down the door in the middle of the night, and she may start a gunfight that can have no winners.

LP Falsely Accuses Customer Of Boosting $5 Drill, Could Be Liable For State Torts

BOYKIN v. VAN BUREN TOWNSHIP, USCA-6 No. 06-1359, 2007 U.S.App. LEXIS 5830, on appeal from USDC-MIED, before USCJs Martin, Cole, Gilman, opinion by Martin, filed 14 Mar 2007.

LONG STORY SHORT: Store loss prevention officer who called police and had a customer arrested for shoplifting, only to discover that the customer had paid for the merchandise, was not acting in concert with the state for Fourth Amendment purposes, but could be liable for common-law torts; police were not liable at all. Binding in KY, MI, OH, TN.

FACTS: Plaintiff found a drill he wanted at a Meijer store in Belleville, MI. At the register, Plaintiff learned that the drill was only $5, so he paid for two drills and came back to the register with the additional drill. The cashier was busy with another customer and acknowledged Plaintiff with a nod as he left the store.

Meijer LP officer Chaney first caught sight of Plaintiff as Plaintiff picked up the second drill without checking the price or comparing it to other merchandise, and Chaney believed such "quick selection" not to be normal shopping behavior. Meijer LP policy required two LPOs to confront suspects, so as Plaintiff walked through an empty checkout lane, Chaney called LPO Youmans over. Plaintiff was already in his vehicle by the time Youmans responded, and Meijer LP policy forbade LPOs to approach suspects once they were in a vehicle. Youmans described Plaintiff and his vehicle and related Plaintiff's tag number to the Van Buren Township PD. Officers Hayes and Harrison arrived at Plaintiff's home and knocked on the door.

Plaintiff did not let the officers in, but spoke with them through the door. Dispatch advised the officers that Meijer LP wanted Plaintiff arrested for "good retail fraud," that is, where LP observes concealment of merchandise and walking out with it or attempting to. Plaintiff said he was calling a lawyer, and told his wife to videotape what was happening. Plaintiff opened the front door without letting the officers in, and they told him that Meijer was accusing him of retail fraud and claimed to have everything on videotape. Plaintiff professed innocence, but the officers would not let him go look for the receipt, and Plaintiff's wife could not find it. Plaintiff's wife's videotape recorded Officer Hayes saying: "I'm trying to avoid coming into your home and dragging you out of your home ... and we're going to do that if you don't listen to us." Plaintiff walked outside, where the officers cuffed him and took him, and a Meijer bag with two drills in it, back to the store. There, Chaney checked the register journal and talked with the cashier, confirming that Plaintiff had paid for everything. The officers uncuffed Plaintiff and drove him back home in a patrol car.

PROCEDURE: Plaintiff sued Meijer, Chaney, Youmans, the officers, Van Buren Township, and Van Buren PD in U.S. District Court for the Eastern District of Michigan on numerous causes of action, including per 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. After discovery, the Township defendants moved for summary judgment, arguing that the officers had probable cause to arrest Plaintiff. The Meijer defendants also moved for summary judgment, arguing that all they did was call the police and report information, which was not action under color of state law for § 1983 purposes, and they had probable cause for doing even that, exonerating them of state tort liability. The trial court agreed, ruling that on the record before it, Chaney and Youmans had indisputable evidence suggesting that Plaintiff had stolen the drill, giving them and the police probable cause for their actions against Plaintiff. SUMMARY JUDGMENT GRANTED in all respects; case closed. Plaintiff appealed to the U.S. District Court for the Sixth Circuit.

DECISION: The information that police had when they went to Plaintiff's house was sufficient to make probable cause. Officers Hayes and Harrison had no reason to doubt its reliability, because they often received reliable information from store LP personnel, and Plaintiff was the person they were looking for but was unable to produce any evidence confirming his version of events. Since the officers did not violate the Constitution, neither could the Township or PD be liable under § 1983. Furthermore, since state tort liability for the Township defendants depended on lack of probable cause, Plaintiff had no claim against any of them. Also, merely calling the police and supplying information is not sufficient to convert a private security officer into a state actor, so neither Meijer nor its LPOs could be liable under § 1983. GRANT OF SUMMARY JUDGMENT AFFIRMED IN PART.

However, there was material conflict in the evidence of just what LPO Chaney saw, and when.
A finder of fact would have to sort out whether a reasonable person in Chaney's place would have had probable cause to try to get Plaintiff arrested. GRANT OF SUMMARY JUDGMENT REVERSED IN PART; cause REMANDED for further proceedings.

The Sixth Circuit offered two suggestions: (1) with all the federal claims gone and probably no diversity of citizenship, the trial court might be free to decline further jurisdiction and dismiss the complaint without prejudice to refiling in state court; and (2) Officer Hayes' show of force, i.e., threatening to enter Plaintiff's home by force when Officer Hayes knew he had plenty of time to get a search or arrest warrant, violated the Fourth Amendment and probably would have subjected Officer Hayes to § 1983 liability, but since Plaintiff did not raise that claim at trial or on appeal, then it was abandoned.

EDITORIAL: The "I-coulda-had-a-V8" feeling is all too well known to every litigator. I missed that one myself, until the Sixth Circuit pointed it out, but then they had months to review the record. Must be nice.

Upon first reading this case, I was all ready to tear the LPOs a new one, but after going over it thoroughly, I'm less inclined to be so judgmental. Let's let the jury hash it out. I do hope this shopper gets some major money from Meijer, on the simple principle that with great power comes great responsibility.

Parolee Can't Dodge Allowable Search Of His Home By Staying At His Girlfriend's House

UNITED STATES v. TAYLOR, USCA-5 No. 06-60136, 2007 U.S.App. LEXIS 6048, on appeal from USDC-MSSD, before USCJs Reavley, Jolly, Benavides, opinion by Jolly, filed 15 Mar 2007.

LONG STORY SHORT: Parolees have the same right of privacy where they are overnight guests as they do when at home, but reasonable suspicion of criminal activity justifies a warrantless search of wherever the parolee is staying at the time. Binding in LA, MS, TX.

FACTS: Defendant went out on Earned Release Supervision from Mississippi state prison, and signed a consent to search of his person, residence, or vehicle by his Field Officer or any other LEO at any time. Acting on information from Defendant's Field Officer that Defendant had not reported as required and had acquired a handgun through his girlfriend, a team of MDOC officers, U.S. Marshals, and local police surrounded his girlfriend's apartment. The team had a misdemeanor criminal mischief arrest warrant for Defendant, but no search warrant. The team knocked on the door but no one responded. The team forced entry, found Defendant hiding in a back bedroom, and found a handgun in a dresser drawer in another bedroom.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Southern District of Mississippi for possessing a firearm while a convicted felon. Defendant moved to suppress the firearm, arguing that he only consented to warrantless search of his residence, not someplace where he happened to be an overnight guest, and no other exception to the warrant requirement applied. The trial court ruled that while overnight guests have the same reasonable expectation of privacy as they do in their homes, Defendant consented to search of his residence, which applied to wherever he was staying. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received 21 months on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fifth Circuit.

DECISION: Defendant was correct that he had a reasonable expectation of privacy, and Fourth Amendment standing to assert his right to be free from unreasonable search and seizure, at his girlfriend's residence while an overnight guest there. However, he had no greater right there than at his own home, and as a supervised releasee, any such rights were less than those of the average citizen. Though it was arguable that no suspicion at all is necessary to search a parolee's home, the police here had reasonable suspicion, based on the arrest warrant and the evidence that he possessed a firearm and failed to report, that Defendant was engaged in criminal conduct. The search may or may not have violated his girlfriend's right against unreasonable search of HER home, but Defendant would have been lawfully subject to the same search at HIS home. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Nice try, wise guy. Well, at least you have a loyal girlfriend waiting for you when your silly self gets out of prison. Why don't any of MY girlfriends buy pistols for ME? Nothing says "I love you" more romantically than a matched pair of Larry Vickers custom 1911s in a velvet-lined presentation case ... hint hint ...

4A 4C 2006: When Subject Shot First, OIS Was Justified, Quack Expert Wasn't

CARR v. DEEDS, 453 F.3d 593 (4th Cir. 2006), No. 05-1472, 05-2186, 2006 U.S.App. LEXIS 17461, on appeal from USDC-WVSD, before USCJs Traxler, Gregory, SrUSCJ Hamilton, opinion by Traxler, filed 21 Jul 2006.

LONG STORY SHORT: When decedent had credibly threatened to kill himself and others rather than go to jail or a mental hospital, was known to possess a handgun, and shot at officers instead of submitting to arrest, a trooper who shot at him was entitled to qualified immunity. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant, a Trooper of the West Virginia State Police, arrested Decedent on 20 June 2001 on an arson warrant. Medical evaluation at the jail showed that Decedent had minor cuts and scrapes, which he claimed Defendant had inflicted. Decedent did not file any complaints about this incident.

Plaintiff, Decedent's mother, obtained a court order on 10 July 2001 for Decedent to be involuntarily committed for a mental health examination due to his addictions to alcohol and controlled substances, and because Decedent had said he would rather take a bullet in the head than go to jail again. Decedent, who also had two outstanding arrest warrants, was last seen leaving a friend's house, smoking marijuana and carrying a handgun, after telling them he would do what it took not to go back to jail.

Deputy Farmer of the Greenbrier County Sheriff's Office spotted Decedent's vehicle and pursued it. After a few miles, Decedent stopped in the middle of the road and ran away. Deputy Farmer ran after him, and Decedent fired twice at him and disappeared into the woods. Deputy Farmer called for assistance, and many officers including Defendant converged on the area. Over the radio, the officers heard that a gunman had tried to stop a motorist nearby.

Defendant and Trooper Bradley saw Decedent approach them in a crouched position, gun in hand. Trooper Bradley ordered Decedent to drop the weapon, but instead he dropped to the ground and began firing. Defendant fired his rifle and Trooper Bradley fired his shotgun while ordering Decedent to drop his weapon, but he kept firing until the lawmen killed him with more gunfire. A medical examiner's report indicated that multiple undetermined shotgun wounds to the head, back, abdomen, and upper and lower extremities were the cause of death, and there was no evidence of close range firing on the skin.

PROCEDURE: Plaintiff sued Defendant and others in U.S. District Court for the Southern District of West Virginia per 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, both as to the 20 June arrest and the 10 July gunfight. Attached to the complaint were reports from a purported independent medical examiner from California who concluded that the officers had unlawfully executed Decedent by means of close-range handgun bullets to the head after the shotgun wounds had disabled and disarmed him. Defendants submitted their required disclosures as to their medical expert, but Plaintiff supplied no further information about theirs.

After discovery closed, Defendants moved for summary judgment on qualified immunity grounds, and also to exclude Plaintiff's expert. The trial court ruled that Decedent's injuries in the 20 June arrest were de minimis, and that his death on 10 July was justified. QUALIFIED IMMUNITY GRANTED. Also, since Plaintiff had more than a year to provide her expert disclosures, her expert would be excluded. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: While the intrusiveness of a seizure by deadly force is unmatched, officers may use deadly force if they have probable cause to believe that a subject poses a threat of serious physical harm to the officers or others. Officers' decisions to use deadly force are not subject to the luxury of hindsight, and if the officer acted as a reasonable officer would have at that time, he will not be liable.

Here, Decedent had two warrants, a mental commitment order, a handgun, a history of threats to himself and others, and expressed intent not to be taken alive. He shot at the first officer he saw, and then when Defendant and his partner ordered him to disarm himself and surrender, he shot at them too. No record evidence contradicted this scenario. The Fourth Circuit had no trouble exonerating Defendant for shooting back.

Neither did the trial court abuse its discretion in excluding Plaintiff's expert, who provided the sole evidence for Plaintiff's contention that Defendant and others had executed Decedent after he was disarmed and no longer resisting. Expert disclosures are often the centerpiece of cases that depend on expert testimony, and the civil procedure rules requiring full and timely expert disclosure are to be taken very seriously. All Plaintiff did was attach dubious reports to her complaint, without listing his qualifications, prior cases, publications, or compensation, leaving Defendants unable to prepare for deposing him. Plaintiff did not show substantial justification for noncompliance with expert disclosure rules, so the trial court's discretion to exclude Plaintiff's expert would not be disturbed.

As to the 20 June arrest, Decedent's injuries were de minimis. No evidence showed that Defendant inflicted them maliciously or sadistically, or even (other than Decedent's claims to his family, which were hearsay) that Defendant inflicted them at all. The trial court's judgment was AFFIRMED in all respects.

EDITORIAL: I guess mothers are entitled to act this way, but assclown trial lawyers and their assclown quack doctors are not. No wonder they never provided any of his material, because it would have made them look even stupider than they already did. What's more, none of the gunshot wounds were rifle bullets, but what do they do? According to the opinion, they sue the officer with the RIFLE (despite the lack of rifle wounds) and don't get around to serving process on the officer with the SHOTGUN (despite the abundance of shotgun wounds). Who's picking on whom here?

Not only that, why didn't the Fourth Circuit or anybody else notice that since Trooper Deeds didn't even hit the guy, he should have walked on that basis alone! If you shoot at someone and neither hit him nor induce him to surrender, you haven't "seized" him and can't be liable--it's that simple.

Lord's peace on Troopers Deeds and Bradley for doing what they had to do in this tragedy.

4A 4C 2006: Looking Inside Bicycle Handlebar Is A Search Incident To Arrest

UNITED STATES v. CURRENCE, 446 F.3d 554 (4th Cir. 2006), No. 05-4894, 2006 U.S.App. LEXIS 11090, on appeal from USDC-VAED, before Chief USCJ Wilkins and USCJs Williams, Shedd, opinion by Shedd, filed 04 May 2006.

LONG STORY SHORT: After arresting a person riding a bicycle, police may remove the end cap from the bicycle handlebars and look inside as a search incident to arrest. Binding in MD, NC, SC, VA, WV.

FACTS: A confidential informant contacted Richmond, VA police and relayed a detailed description of a man on a bicycle selling drugs at a particular street corner. Detectives approached the location and found Defendant, who matched the description. Defendant submitted to a frisk, which revealed only money, but when Defendant identified himself, detectives discovered an outstanding arrest warrant. While Defendant was under arrest pending confirmation of the warrant, a detective, aware that drug dealers sometimes hide drugs there, slid the end cap off of Defendant's bicycle's right handlebar without using tools. Inside the hollow handlebar were baggies containing a substance that looked like, and later tested to be, crack cocaine. Defendant, who remained close to his bicycle the whole time, then made incriminating statements.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Eastern District of Virginia for possession of crack cocaine with intent to distribute and possession of crack cocaine with intent to distribute in a school zone. Defendant moved to suppress the crack and his incriminating statements, arguing that a warrantless search incident to arrest could not include the inside of the handlebar. The trial court analogized the minimal disassembly of the end cap to a search of a car trunk, which is not within an arrestee's area of immediate control, and ruled the search unreasonable because its scope exceeded the purpose of searches incident to arrest. MOTION TO SUPPRESS GRANTED. The United States appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Searches incident to arrest are an exception to the general warrant requirement, because arrestees might have weapons on or near them and also might want to hide or destroy evidence. Such searches may accompany any arrest, regardless of whether any particularized suspicion exists, and can include open or closed spaces or containers within the arrestee's lungeable area.

Defendant's arrest was reasonable as pursuant to an outstanding warrant, and the search of his handlebar was substantially contemporaneous with the arrest. His bicycle remained within his immediate area, but the question was whether removing the end cap and looking inside the structure was reasonable. The Fourth Circuit ruled that a detective's pulling off the easily removed end cap was less like opening a car trunk and more like opening a simple closed container such as a drawer or bag, which is allowed even if the container is locked. Though the Fourth Circuit cautioned that searches of all parts of a bicycle incident to arrest would not henceforth always be reasonable, under the specific facts of the case, the minimal intrusion into Defendant's handlebar was not unreasonable under the Fourth Amendment. GRANT OF SUPPRESSION REVERSED; cause remanded for further proceedings.

EDITORIAL: Good show. Also a bit of education, for me at least. Who'd a thunk to put your stash in the handlebar? I'd be more afraid of having it slip down the handlebar and then having to cut the handlebar open. I guess cocaine is more valuable than your average handlebar, though.

4A 4C 2006: Not-So-Happy Trail Over Private Property Was An Unreasonable Seizure

PRESLEY v. CITY OF CHARLOTTESVILLE, 464 F.3d 480 (4th Cir. 2006), No. 05-2344, 2006 U.S.App. LEXIS 24048, on appeal from USDC-VAWD, before USCJs Motz, Traxler, Shedd, opinion by Motz, concurrence in part and dissent in part by Traxler, filed 22 Sep 2006.

LONG STORY SHORT: A city's official map showing a public walking trail over a nonconsenting, uncompensated person's property, resulting in numerous trespasses and significant damage, amounted to an unreasonable seizure and violated the Fourth Amendment, even if it was also a possible taking under the Fifth Amendment. Binding in MD, NC, SC, VA, WV.

FACTS: In 1998, the Rivanna Trails Foundation published a map showing a walking trail over Plaintiff's land, and the City of Charlottesville posted the map on its official website. Plaintiff was mostly occupied with caring for her husband in a rest home, and did not realize the extent of the problem until her husband died in 2001. She came home to find hikers constantly trespassing on her land of less than one acre, destroying property, and sometimes setting up overnight campsites. Plaintiff posted many "no trespassing" signs, regularly called the police, and eventually installed razor wire. The City passed an ordinance outlawing razor wire and prosecuted Plaintiff for breaking it, but the charges were dismissed. By 2005, Rivanna Trails Foundation had not changed the trail map, and it was still posted on the City's website.

PROCDEDURE: Plaintiff sued the City and RTF in U.S. District Court for the Western District of Virginia per 42 U.S.C. § 1983, alleging the facts above and arguing that Defendants had conspired to violate her Fourth Amendment right to be free from unreasonable seizure and her Fourteenth Amendment due process rights. Defendants moved to dismiss the complaint for failure to state a claim. The trial court had to take the facts alleged in the complaint as true for purposes of the motion, and acknowledged that under those facts there might have been a Fifth Amendment taking, but no violation of either the Fourth or Fourteenth Amendment. MOTION TO DISMISS GRANTED; case closed. Plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Motions to dismiss test only the legal sufficiency of the complaint's alleged facts. Defenses, evidence, and witness credibility are not a factor. Civil rights complaints are entitled to special care in the Fourth Circuit, and may be dismissed only if the facts suggest no plausible legal theory at all. Some government actions may violate more than one constitutional right at the same time. Unless a specific constitutional provision overrides another general principle, plaintiffs may sue for as many violations as the facts support.

The Fourth Amendment protects some real property--at least a home and its curtilage--against unreasonable seizure. As it happens, a seizure may sometimes also be a taking, and subject to Fifth Amendment regulation as well. The key difference is that a seizure must be unreasonable to violate the Fourth Amendment, and a taking must be without just compensation to violate the Fifth Amendment. Some seizures are not takings at all, such as civil forfeitures. However, a seizure need not be a complete deprivation of possession, but only a meaningful interference with possessory interests.

Only governments can violate constitutional rights, but here, a private foundation acted as a government agent or with the participation and knowledge of government officials to publish a knowingly erroneous map that encouraged people to walk over Plaintiff's land at will. This resulted in a veritable army of trespassers who annoyed Plaintiff and damaged her property, and sometimes camped out overnight, all of which was certainly a meaningful interference with possessory interests.

The Fourteenth Amendment due process claim could not stand because Virginia state law provided an inverse condemnation procedure whereby Plaintiff could have tried to obtain compensation. Neither could Plaintiff claim deprivation of substantive due process, because it fell under the rule that specific protections in the Fourth and Fourteenth Amendments cover more general notions of substantive due process. In the end, though, she did sufficiently allege a Fourth Amendment unreasonable seizure. DISMISSAL AFFIRMED IN PART as to the Fourteenth Amendment claims; DISMISSAL REVERSED IN PART as to the Fourth Amendment claims; cause remanded for further proceedings.

The dissent held that Plaintiff at most stated a Fifth Amendment takings claim and to allow a simultaneous Fourth Amendment seizure claim would undercut well-established jurisprudence under both Amendments. Also, governments would now be exposed to significantly more liability for what traditionally would have been no more than an inverse condemnation proceeding. The concurrence agreed that Plaintiff's Fourteenth Amendment claims could not survive.

EDITORIAL: This poor lady comes home, newly widowed, to find a parade of enviro-whackos so dedicated to disrespect for private property that not even a hundred No Trespassing signs will dissuade them. The City of Charlottesville not only won't prosecute them, but prosecutes HER for putting up razor wire (which is normal in Fayetteville) because they love the enviro-whackos so much. Yeah, it's sue time.

Unless, of course, maybe things are not as they seem. Remember, this is a 12(b)(6) motion to dismiss, and we all have to put our blinders on, or hold our noses, and pretend that all but the most utterly schizophrenic parts (like black helicopters mutilating cattle and spreading AIDS by mosquito) rank right up there with the Sermon on the Mount. Now I'll admit that governments are capable of astonishingly stupid constitutional violations, but I'll hold my opinion on this one until some more facts come out.

If this case is indeed somewhat as bad as it looks now, then I agree with the Fourth Circuit. If governments are now going to be looking at punitive damages for screwing with peoples' homes and curtilages, then that should discourage them from doing so. In the age where the Supremes think it's a "public purpose" for governments to confiscate private property and give it to developers so they can build subsidized for-profit establishments, we need all the punishment we can get to keep governments in line.

"Sir, Your Van Won't Start Because Of The Dope Compartment In The Gas Tank--That'll Be 30 Years Please"

UNITED STATES v. SELDON, USCA-4 No. 04-4473, on appeal from USDC-MDD, before USCJs Widener, Michael, King, opinion by King, filed 15 Mar 2007.

LONG STORY SHORT: If auto mechanics discovered secret compartments while repairing a known drug dealer's van and called the police to investigate, and later the same officer stopped the same van for a traffic infraction and found additional evidence of drug trafficking in plain view, then the Fourth Amendment does not require suppression of cocaine found in the secret compartments. Binding in MD, NC, SC, VA, WV.

FACTS: Sergeant Lewis of the Maryland State Police was patrolling Route 50 in Annapolis when he observed a van doing 71 in a 55 and stopped it. On the van's windshield were several decals of charitable police organizations. As soon as Defendant rolled down the driver's window, Sergeant Lewis smelled a strong odor of air fresheners and fabric softeners. Defendant reached for his driver license and a large wad of cash came out with it. Defendant was breathing heavily, his carotid artery was visibly pulsating, and he would not keep eye contact.

As soon as Sergeant Lewis read Defendant's license, he remembered that nine months before, he had responded to a call for assistance from another officer, who was looking at that same van in a dealer's service bay. The owner had brought it in, as he often did, for hard starting and cutting off, and mechanics determined the fuel pump was probably the issue. However, when they examined the fuel tank, they found what looked like a secret compartment inside it, and a second compartment near the fuel tank. Sergeant Lewis, who was the MSP instructor on how to detect hidden drug compartments, watched as the mechanics opened the first secret compartment. He was unable to figure out how to open the second compartment. Sergeant Lewis took copies of the shop's paperwork and checked the van's owner's name with a local drug task force and found that he was a known dealer.

His memory thus refreshed, Sergeant Lewis called for backup and this time was able to open the second secret compartment, which contained 500g cocaine and 850g marijuana, wrapped in fabric softener sheets, plastic wrap, and clear packing tape. This evidence helped make probable cause for searches of other places where Defendant had privacy interests, and evidence from these searches appeared in subsequent prosecution.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the District of Maryland for numerous drug, money laundering, and conspiracy offenses. Defendant moved to suppress all fruits of the searches, on grounds that Sergeant Lewis's original search at the dealer's service bay was unreasonable under the Fourth Amendment. The trial court ruled that it was reasonable for an officer to talk freely with mechanics who had seen the secret compartments, and learn from them who drove the van. This knowledge, independent of Sergeant Lewis's search of the secret compartments but together with what Sergeant Lewis had observed during the stop of the same van, amounted to probable cause to search after the traffic stop. MOTION TO SUPPRESS DENIED. Defendant pleaded guilty and received 360 months on condition that he could appeal the suppression to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Private citizens may happen to discover evidence of criminal activity, but that is not a Fourth Amendment search. Neither is it unreasonable for private citizens to tell law enforcement about what they found. Sergeant Lewis did nothing more than listen to the mechanics and look up information about the person they said was the driver.

When Sergeant Lewis happened to stop the same van later, his training and experience indicated that drug couriers use a lot of air fresheners, put a lot of pro-LE decals on their windows, pull out a lot of cash, and act very nervous. Combined with what the mechanics had freely told him, he had probable cause to search the van and open the secret compartment. It was not necessary to rule on the legality of Sergeant Lewis's search of the secret compartments at the dealership. DENIAL OF SUPPRESSION AFFIRMED.

EDITORIAL: Oh ... my ... goodness ... ROFLMAO! I pity da fool!! He seems not to have gotten the memo about all those air fresheners, better known as "Felony Forest," and all those PBA/FOP/Thin Blue Line stickers, "methinks the dope-slinger doth protest too much," being counterproductive. The cosmic justice of pulling over the same van out of the millions on the road, nine months later, is just too funny. Now he knows why you should set your cruise control at 68. The opinion also said his girlfriend, his mother, and his girlfriend's mother all went down too. Now THEY know why John Farnam keeps telling us "don't do stupid things, go to stupid places, or associate with stupid people."

"U Breaka Da Ankle, I Breaka U Bank Account"--$301,100 Plus Costs And Attorney Fees

JENNINGS v. JONES, USCA-1 No. 05-2522, 2007 U.S.App. LEXIS 5268, on appeal from USDC-RID, before USCJs Toruella, Lynch, and Lipez, opinion by Lipez, dissent by Lynch, filed 07 Mar 2007.

LONG STORY SHORT: Defendant officer was not entitled to qualified immunity when the evidence tended to show that he kept twisting plaintiff's ankle until it broke, even after plaintiff stopped resisting arrest, and the $301,100 jury verdict would stand, because defendant abandoned on appeal his motions for remittitur and new trial. Binding in MA, ME, NH, PR, RI.

FACTS: Plaintiff, a member of the Narragansett Indian Tribe, was working at the Tribe's smoke shop in Charlestown, RI when the RI State Police dropped in to seize all the cigarettes in the shop, pursuant to a valid warrant. Plaintiff loudly and profanely protested, and eventually an officer told him to go outside. When Plaintiff did so, RISP video showed that some officers moved to arrest him. He resisted for several seconds while the officers wrestled with him and Defendant applied an ankle turn control technique. Plaintiff stopped resisting and said he had broken that ankle before and had just had surgery. Plaintiff kept yelling in pain as Defendant increased the force on Plaintiff's ankle until it broke.

PROCEDURE: Plaintiff sued Defendant in U.S. District Court for the District of Rhode Island, seeking damages for state-law battery and per 42 U.S.C. § 1983 for excessive force constituting an unreasonable seizure in violation of the Fourth Amendment. The case went to jury trial, where a number of other officers that Plaintiff had sued were exonerated one way or another. As to Defendant, his expert witness in the use of force testified that an officer must adjust his use of force during an arrest, based on the subject's resistance or lack of it. Two other witnesses testified that they saw Plaintiff cease resisting and heard him yell in pain just before Defendant broke his ankle. The jury found Defendant liable for excessive force and battery and awarded Plaintiff compensatory damages of $301,100.

Defendant moved for judgment as a matter of law after the verdict (aka jnov), and alternative motions for a new trial and remittitur. The trial court ruled that Plaintiff had not presented evidence supporting a reasonable finding of excessive force, and even if he had, the law was not clearly established that Defendant's ankle turn was unconstitutional. Defendant was entitled to qualified immunity. JNOV GRANTED in all respects. The trial court further ruled that Defendant's motions for new trial and remittitur were moot. Plaintiff appealed to the U.S. Court of Appeals for the First Circuit. Defendant did not cross-appeal or raise as an issue the trial court's denial of its motions for new trial and remittitur.

DECISION: Use of force is necessary and expected in order to effect arrests, but such force must be reasonable under the Fourth Amendment. The First Circuit uses a three-step procedure to determine qualified immunity. First, Plaintiff had to show the deprivation of an actual constitutional right. He did so by means of eyewitness testimony that he stopped resisting, after which Defendant increased the force on his ankle. Also, Defendant's own expert conceded that force must be adjusted according to the subject's behavior, which was not essential to the jury's verdict but could have helped their decision.

Second, the right in question had to be clearly established at the time of the incident. Plaintiff met this one as well, because even without prior similar caselaw, it would have been plain that use of increased force after a subject stops resisting is objectively unreasonable. Third, a reasonable officer in Defendant's position would have known he was violating Plaintiff's rights. In other words, an officer may be mistaken and not be liable for an intentional violation, but here, a reasonable officer in Defendant's position would not have believed that it was lawful to increase the force on Plaintiff's ankle after Plaintiff had stopped resisting.

Defendant was not entitled to qualified immunity. Furthermore, even though the trial court erroneously ruled that Defendant's motions for new trial and remittitur were moot, Defendant did not press for a conditional ruling. Neither did he mention them on appeal. Together, these factors constituted Defendant's abandonment of new trial or remittitur. JNOV VACATED; JURY VERDICT REINSTATED; costs to Plaintiff.

The dissent would have affirmed the trial court's JNOV on qualified immunity grounds, or at least would have remanded for a new trial.

EDITORIAL: Gotta go with the jury. It's easy to get "target fixation" in the heat of battle and keep doing what you were doing even when you shouldn't, but here, looks like the officer stepped over the line. Not only is he now stuck with a verdict even bigger than my student loan balance, there's all those depo transcripts and expert fees to pay. What's more, since this was a 1983 case, next will be a six-figure attorney fee motion. I hope somebody has insurance.