AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
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Search and Seizure: Person
Monthly
Law Journal Article: No Warrant Needed to Search a
Cell Phone Found on an Arrestee, 2011 (3) AELE Mo.
L. J. 401.
Monthly Law Journal Article:
Search Incident to Arrest
– Drug Dealers, 2011 (4) AELE Mo. L. J. 401.
Monthly Law Journal Article: Drawing and Pointing Weapons
During a Terry Investigative Stop, 2013 (7) AELE Mo. L. J. 101.
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The plaintiffs in a lawsuit claimed that they had been stopped numerous times for violating various ordinances while they were panhandling on the streets of Chicago. During these stops, officers typically asked them to produce identification and then used the provided ID cards to search for outstanding warrants for their arrest or investigative alerts. The plaintiffs claimed that these checks unnecessarily prolonged street stops and that the delays constitute unreasonable detentions in violation of the Fourth Amendment. They further argued that the city of Chicago maintained an unconstitutional policy or practice of performing these checks, citing a Chicago Police Department Special Order regulating name-checks that purportedly omitted essential constitutional limits, and argued that the Department failed to train on these same constitutional limits. They also asserted that the former Police Superintendent issued an unconstitutional policy by promoting name-checks in conjunction with every street stop. A federal appeals court upheld the dismissal of the municipal liability claims. Officers may execute a name check on an individual incidental to a proper stop under Terry v. Ohio, #67, 392 U.S. 1 (1968), as long as the resulting delay is reasonable. The plaintiffs failed to establish that they suffered an underlying constitutional violation. Accordingly, the city could not be held liable. Hall v. City of Chicago, #19-1347, 953 F.3d 945 (7th Cir. 2020). A 74-year-old female mobile homeowner challenged the legality of the issuance and execution of a search warrant for her home, while looking for an illegal marijuana business. She further challenged the legality of her detention incident to the search. A federal appeals court found that there was probable cause for the search based on the reliability of the informant and the probability that evidence or contraband would be found in the residences on the property. The search warrant issued was not overbroad. The court also found that the officers acted reasonably when they continued to search the mobile home because the probable cause to search the mobile home did not depend on the suspect living there. Instead, the officers had probable cause to continue the search because they could still reasonably believe that the entire property was suspect and that the property was still under the suspect’s common control. Finally, the duration of the detention, which lasted about an hour, was reasonable. Blight v. City of Manteca, #17-17334. 2019 U.S. App. Lexis 36636 (9th Cir.).A man claimed that two officers violated his rights by subjecting him to a visual body cavity search incident to his arrest. A federal appeals court ruled that visual body cavity searches must be justified by “specific, articulable facts” supporting reasonable suspicion that an arrestee is secreting contraband inside the body cavity to be searched. This requirement was clearly established for purposes of qualified immunity by sufficient persuasive authority which made it clear to New York state police officers at the time. Disputed facts, however, precluded a finding of reasonable suspicion on a motion for summary judgment, so the appeals court remanded for a trial on the merits of the plaintiff’s claim against one officer. The court ruled that the plaintiff failed to present evidence indicating that the second officer was aware that the first one was conducting, or was going to conduct, the visual body cavity search. Sloley v. VanBramer, #16-4213, 2019 U.S. App. Lexis 36733 (2nd Cir.). Three police officers stopped a grey sedan with three black men in it while investigating a nearby shooting that occurred a few hours before. The passengers sued approximately a year later, at which time none of the officers remembered the Terry stop. They relied on other evidence to attempt to establish that reasonable suspicion for the stop had existed. Cell phone footage taken by one of the plaintiffs during the incident showed the officer who initiated the stop citing the plaintiffs’ suspicious behavior of driving by a location in the area of the shooting several times as the reason for pulling them over. A police report showed that dispatches to the officers identified the suspects as three black men in a grey car. The descriptions of the car’s model varied. The trial court ruled that these descriptions were close enough to justify the stop and that the officers were entitled to qualified immunity since it did not violate clearly established law. A federal appeals court agreed, rejecting an argument that the defendants’ failure of memory was a “concession” of liability. The Fourth Amendment does not dictate the specifics of how an officer proves reasonable suspicion for a Terry stop, and officers can rely on evidence other than memory. The police report demonstrated what the officer who initiated the stop knew and the cell-phone video showed him giving the shooting as the reason for the stop. Torry v. City of Chicago, #18-1935, 2019 U.S. App. Lexis 23205, 2019 WL 3521146 (7th Cir.). |
The Pennsylvania Supreme Court has held that the mere open or concealed carrying of a firearm, without more, could not be used by state and local law enforcement officers in the state as a reasonable suspicion of criminal conduct and thus justification for a stop and frisk of a gun owner. The defendant in this case was stopped and questioned solely because he was observed on a city camera carrying a firearm. The court stated that “government may not target and seize specific individuals without any particular suspicion of wrongdoing, then force them to prove that they are not committing crimes.” Mere possession of a concealed firearm, legal in the state for some persons, the court found, provides no basis for an investigative detention without further indications of illegal activity. “As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity,” the court stated. Commonwealth v. Hicks. #56-MAP-2017, 2019 Pa. Lexis 3064.
A police officer who responded to a report about two suspicious men in a neighborhood possibly looking for houses to burglarize found them standing together on a sidewalk. A Terry v. Ohio, #67, 392 U.S. 1, 21, 27 (1968) frisk led to a tussle on the ground, followed by the discharge of a concealed pistol one of the men had. The officer at one point attempted to use his Taser, but it didn’t work. The man whose gun discharged ran away and the officer shot him, resulting in his death. The dead man’s mother (who was also the administrator of his estate) sued the officer, the city, and the police officer for federal civil rights violations as well as state tort claims. The trial court denied the officer summary judgment on one claim concerning illegal search, which the officer appealed, while the plaintiff also appealed the grant of summary judgment on the other claims, including excessive force with regards to the shooting. A federal appeals court ruled that the officer was not entitled to summary judgment on the Terry stop-and-frisk search. The frisk and events leading up to it were captured on video. The appeals court found that, at the very least, a jury could watch the suspect’s behavior and disagree with the officer that an objective officer “would perceive furtiveness and reasonably suspect criminality or dangerousness. Walking away from a consensual conversation with an officer is not in itself enough to justify reasonable suspicion.” The appeals court also agreed that the plaintiff was not entitled to judgment in her favor on the other claims raised by the use of deadly force. “An officer may employ deadly force to prevent a suspect’s flight if, in the moments immediately preceding the officer’s decision, he ‘has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others.’” If so, deadly force may be used while the suspect attempts to flee, particularly when, as here, the suspect still had the recently discharged gun, as nothing prevented him from turning and firing at the officer. Wilkerson v. City of Akron, #17-4157, (6th Cir.).
A child and her mother claimed that a county caseworker wrongfully searched the child at a Head Start preschool in violation of the Fourth Amendment after receiving anonymous reports of signs of abuse. Without either consent or a warrant, she partially undressed the girl, visually examined her for signs of abuse, and then photographed her private areas and partially unclothed body. A federal appeals court found no error in the trial court’s dismissal of the lawsuit on the basis that the defendants were entitled to qualified immunity on the Fourth Amendment claims. Doe v. Woodard, #18-1066, 2019 U.S. App. Lexis 112 (10th Cir.).
A man leaving a train station was confronted by a plainclothes police officer who, with the assistance of other plainclothes officers, forced him to the ground. He was charged with resisting arrest and was acquitted, then sued the officers and the city for excessive use of force and malicious prosecution. He claimed the first officer had not identified himself as police, which the officer disputed, claiming that when he identified himself the plaintiff had fled to avoid being frisked. A federal appeals court overturned a verdict for the defendants. The trial court properly admitted evidence of the marijuana found in the plaintiff’s pocket. While the marijuana was unknown to the officers at the time, it arguably tended to corroborate their account of his behavior. The jury instructions on Terry investigatory stops, however, were inadequate. Over objection, the court instructed the jury only on investigatory stops but not frisks. The officer’s testimony indicated that he was starting a frisk when he first approached the plaintiff and that he did not have reasonable suspicion that he was armed and dangerous. The plaintiff was entitled to have the jury know that the attempted frisk, which produced the use of force, was unjustified. Further, the jury asked whether plainclothes officers must identify themselves when conducting a stop. The trial judge said no, while in all but the most unusual circumstances, where identification would itself make the situation more dangerous, plainclothes officers must identify themselves when initiating a stop. These errors were not harmless, requiring further proceedings. Doornbos v. City of Chicago, #16-1770, 2017 U.S. App. Lexis 15696 (7th Cir.).
After receiving an anonymous tip that an
African-American man dressed in a yellow shirt was selling heroin on a
particular corner. While the tip was uncorroborated, two detectives drove to
the intersection, where they saw a man fitting the description in the tip. The
man was talking to his aunt in a driveway. He identified himself without
objection, was frisked, and immediately complied with a request to remove his
right hand from his pocket. During the
frisk, a detective felt keys and what he described as a soft bulge that felt
like tissue. It was immediately apparent that neither item was a weapon. The
detective emptied the man’s pocket, removed keys, tissues, a photo ID, and
letters. He then examined the keychain’s attached flashlight, which he found
had been hollowed out and contained four small baggies with a substance he
believed was heroin. The man was charged with possession of heroin. A Wisconsin state court suppressed the evidence and
dismissed all charges, and the arrestee sued. The trial court granted the
detectives summary judgment, stating that “no reasonable jury could find that
plaintiff’s Fourth Amendment rights were violated.” A federal appeals court
reversed, holding that the trial judge improperly assumed disputed facts in
finding the detectives’ actions permissible under Terry v. Ohio. #67, 392 U.S.
1 (1968). There were
genuine disputes of fact including whether the tip's source was anonymous,
whether the plaintiff took any action that was sufficiently suspicious to
justify the stop, and whether the defendants had any other information that
provided at least reasonable suspicion to conduct a stop and frisk. Beal v.
Beller, #14-2628, 847 F.3d 897 (7th Cir. 2017).
Two police
officers initiated contact with a man who was in a city park after closing time
and riding his bicycle there in the dark without a headlight. The man fled, and
they pursued, detained, and searched him, finding cocaine. He was arrested for
the drugs, resisting, and using a weapon in a fight. A jury could not reach a
verdict on the drug charge and acquitted him of the other charges. The
arrestee, an African-American, claimed that the officers violated state civil
rights statutes by using excessive force during his arrest, pulling his
underwear into a “wedgie” while searching him, and conducting a nonconsensual
physical body cavity search of his rectum. The arrestee had a claim under one
of these statutes, even if the officers had probable cause for an arrest,
because alleged roadside body cavity searches necessarily amounted to
intentional conduct separate and independent from a lawful arrest for being in
a park after it closed, riding a bicycle in the dark without a headlight, or
for resisting. There was a triable issue as to whether officers searched the
plaintiff's rectum because body-worn camera footage showed the officers
manipulating the plaintiff's underwear using their hands in the vicinity of his
partially exposed buttocks. Simmons v. Super. Ct.. #D070734, 7 Cal. App. 5th 1113, 2016 Cal. App. Lexis 1170.
Officers stopped a minor motorist for a broken tail light, but it turned into a
DUI investigation when alcohol was smelled within the vehicle. A federal
appeals court held that the officers had arguable probable
cause for the stop and a DUI investigation and arrest, given the totality of
the circumstances, the relatively low .02 BAC limit under the minor DUI
statute, and the absence of judicial decisions interpreting that statute. They
were therefore entitled to qualified immunity with respect to the claim that they
violated the driver's Fourth Amendment right to be free from unreasonable
seizures, and as to the claim that they violated the driver's Fourth Amendment
right to be free from unreasonable searches when she was frisked before being
placed in the patrol car, as the search was incident to a lawful arrest. Schaffer v. Beringer,
#15-3438, 842 F.3d 585 (8th Cir. 2016).
Two officers settled claims
with two women stopped in a car who were subjected to body cavity searches at
the scene by the female officers in a quest to find drugs after marijuana was
smelled. On claims for bystander liability against a third officer who was
present, the trial court denied qualified immunity. At the time of the
incident, it was clearly established in the Fifth Circuit that an officer could
be liable as a bystander in a case involving excessive force if he knew a
constitutional violation was taking place and had a reasonable opportunity to
prevent the harm. The trial court did not err in finding that excessive force
had not been waived. In this case, while the plaintiffs never used the word
"excessive force" in their complaint and were less than clear during
the proceedings about exactly what theories they were advancing, they had
clearly argued that they were subject to an unreasonable search and seizure in
violation of the Fourth Amendment, and have alleged facts that support a claim
for excessive force. Hamilton v. Kindred. #16-40611, 845 F.3d 659 (5th Cir. 2017).
An assistant
principal's decision to strip search a 12-year-old 7th grade student may have
been reasonable at its inception because there were reasonable grounds to
suspect that the search would have turned up evidence that the student was
violating marijuana drug laws. But he was not entitled to qualified immunity
for the manner in which he carried out the search. By forcing the minor student
to strip naked in front of his peers, the assistant principal exposed the
student to an unnecessary level of intrusion that rendered the search excessive
in scope and, therefore, unconstitutional, under the Fourth Amendment, because
the assistant principal's decision to have the student fully remove all of his
underclothing in front of his peers bore "no rational relationship"
to the purpose of the search. D. H. v. McDowell, #14-14960, 2016 U.S. App.
Lexis 13810, 26 Fla. L. Weekly Fed. C 581 (11th Cir.).
After a woman reported that her former boyfriend
had attacked and threatened to shoot her, police found the ex-boyfriend in a
car they stopped nearby and handcuffed him, putting him in their squad car. The
driver consented to a vehicle search that revealed a gun in a shopping bag,
which the ex-boyfriend admitted was his. Sentenced to prison for being a felon
in possession of a firearms, he sued over the stop of the vehicle. A federal
appeals court stated that while the search of the vehicle was consensual and
the arrest was not unlawful, the stop of the car, which the defendants admitted
that they lacked probable cause to stop, was an unreasonable seizure of the
plaintiff's person, entitling him to damages. Giddeon v. Flynn, #15-3464, 2016
U.S. App. Lexis 13735 (7th Cir.).
Over 20 officers armed
with assault rifles responded to a report of two armed black males in a parking
lot. When they arrived there, no one fitting the description was present, only
a large Samoan family celebrating a little girl's birthday. The family was
detained and searched for weapons, and their apartment was then searched
without a warrant or consent. The officers were not entitled to qualified immunity
for the seizure of the plaintiffs or the warrantless search of the apartment. Sialoi v. City of San
Diego, #14-55387, 2016 U.S. App. Lexis 9489 (10th Cir.).
A number of police officers claimed that two
other officers violated their Fourth and Fourteenth Amendment rights when they
complied with a court order to obtain DNA samples from them to exclude them as
possible contributors of DNA at a crime scene. The samples were of saliva,
obtained by use ol a mouth swab. A federal appeals court ruled that the court
order in question satisfied the Warrant Clause of the Fourth Amendment, and
that no undue intrusion occurred as the use of buccal swabs was brief and
minimal, intrusions that involve almost no risk, trauma, or pain. As to a
reasonable expectation of privacy, it was reasonable to require officers to
produce such samples to to demonstrate that DNA left at a crime scene was not
theirs and was not the result of inadvertent contamination of the crime scene
by on-duty officers. Bill v. Brewer, #13-15844, 799 F.3d 1295 (9th Cir. 2015).
A man claimed a violation of his constitutional
rights based on police using physical force to eject him from a city court
where he was waiting for his attorney in a public area outside th county
clerk's office. A federal appeals court held that the plaintiff's First
Amendment claim was properly dismissed because the plaintiff had not alleged
that he was engaged in any form of expressive activity at the time or that his
removal impaired his access to any judicial records. His Fourth Amendment claim
should not have been dismissed for failure to plead seizure, as the use of
physical force to restrain him and control his movements so as to eject him,
could be either reasonable or unreasonable, even though he was free to go
anywhere else he wanted after ejected from the court. Salmon v. Blesser,
#14-1993, 2015 U.S. App. Lexis 16070 (2nd Cir.).
A deputy sheriff stopped a female motorist for a
traffic violation. She smelled of alcohol, had poor balance, failed field sobriety
tests, and registered a blood-alcohol concentration of .109--beyond the
applicable .08 legal threshold for intoxication on a preliminary breath test.
The deputy tried to obtain consent for a urine or blood test to confirm the
intoxication as provided by a state statute. The motorist was informed that
under a state implied consent statute refusal to take a test was a crime and
that she could consult an attorney before making a decision. She waived having
an attorney and consented to a urine test, but did not produce a sample within
45 minutes. She was then taken to a medical center, where she agreed to a blood
test. The DWI charge was later dismissed and the driver pled guilty to a petty
misdemeanor traffic violation. The driver sued, arguing that the county had an
unconstitutional policy or custom of conducting warrantless, nonconsensual
blood-alcohol tests that violated the Fourth Amendment. A federal appeals court
ruled that the driver's consent had made the blood draw constitutional, and
that the dilemma of eiher having to consent or face prosecution for failure to
do so did not nullify her otherwise uninhibited consent. The deputy only
requested a fluid sample after the driver failed a number of field tests,
including the preliminary breath test, which gave the deputy probable cause to
believe that the driver had been driving while intoxicated. Wall v. Stanek,
#14-2878, 794 F.3d 890 (8th Cir. 2015).
The City of Chicago Police Department and the
Illinois ACLU, without litigation, negotiated a settlement agreement which will
result in monitoring how officers in the city conduct street stop and frisks.
The ACLU sought the agreement based on concerns that officers were
disproportionately targeting minorities for such searches. The monitoring will involve
documenting all such searches, not only those which result in an arrest. A
jointly named independent consultant, a former U.S. magistrate judge, will
issue public reports based on the monitoring twice a year and will recommend
changes in policy. Additional training will be conducted, pursuant to the
settlement to try to make sure that officers do not use race, ethnicity,
gender, or sexual orientation when deciding to stop and frisk, except when
those are listed characteristics in a specific suspect description. The
complete text of the agreement may be read at the link. Investigatory Stop and
Protective Pat Down Settlement Agreement, City of Chicago and Illinois ACLU
(August 6, 2015).
The plaintiffs, who were illegal aliens, sought
to pursue Bivens civil rights claims against federal border patrol agents who
allegedly illegally stopped and arrested them. A federal appeals court, noting
that it had not previously extended Bivens civil rights actions to include
claims arising from civil immigration apprehensions and detentions, other than
those involving excessive force, declined to do so. It further found that the
comprehensive rules and remedies found in immigration statutes and regulations
precluded "crafting" an implied damages remedy. Allowing claims for
damages in this context, which were likely to be minimal, would be unlikely to
provide significant additional deterrence to illegal acts, and the court also
noted that there were serious separation of powers issues that would be
implicated in trying to do so. De La Paz v. Coy, #13-50768, 2015 U.S. App.
Lexis 7977 (5th Cir.).
A couple were out walking with their daughter,
grandson, and a dog. The man carried a cell phone, holstered on his hip, next
to a semiautomatic handgun. a motorcyclist passing by stopped to complain about
the visible weapon, and after a heated argument, called 911. The dispatcher
stated that the weapon was legal in Ohio with a concealed carry weapon permit.
An officer was dispatched, and took possession of the man's weapon. The officer
threatened to arrest the man for inducing panic and placed him in handcuffs.
After the officer discovered that the man had a carry permit for the weapon, he
released him while citing him for failure to disclose personal information, a
charge later dropped. The man had produced his driver's license, but told the
officer to look up his carry permit. While the trial court rejected First and
Second Amendment charges against the officer on summary judgment, it permitted
Fourth Amendment and state law claims to go forward. A federal appeals court
upheld this result. It noted that the officer had the right to approach the
plaintiff and ask him questions, but that Ohio law permitted the man, with his
permit, to do exactly what he was doing, openly carry his firearm. The officer
had no basis for uncertainty abut the law, and had no evidence that the man was
dangerous. All that he saw was that the man was armed, and legally so. There
was no basis for reasonable suspicion of inducing panic or that the man needed
to be disarmed, and allowing stops in these circumstances would effectively
eliminate Fourth Amendment protection for legally armed persons. The court
noted that "Not only has the State made open carry of a firearm legal, but
it also does not require gun owners to produce or even carry their licenses for
inquiring officers." While the officer also claimed that the man made a
"furtive motion" towards his weapon before being disarmed, that was
disputed and was an issue of fact for a jury. A second officer, who did not
arrive on the scene until after the plaintiff was already handcuffed and placed
in the back of the first officer's car, however, was entitled to qualified
immunity, as he had not detained, disarmed, or handcuffed the plaintiff. Northrup
v. City of Toledo Police Dep't., #14-4050, 2015 U.S. App. Lexis 7868, 2015 Fed.
App. 0092P (6th Cir.).
An officer
approached a car he was parked at night in a rural unlit area. Two men holding
shotguns were encountered, and he pointed his service revolver at them. An
unlawful seizure claim filed by one of the men failed. The officer had
reasonable suspicion to stop him for investigatory purposes when he observed
him carrying a shotgun with a second armed man in the area, particularly as the
plaintiff failed to immediately comply with the request to place his weapon on
the ground. Under the circumstances, the officer was justified in temporarily
unholstering his weapon and pointing it at both men while assessing the
situation and gaining control. The men outnumbered the officer and he did not
know then that they were there for purposes of hunting. Stiegel v. Collins,
#14-1631, 2014 U.S. App. Lexis 23116 (Unpub. 3rd Cir.).
Under current security procedures imposed by the
Transportation Security Administration (TSA), some passengers cannot pass
through some security checkpoints without submitting to a pat-down that
includes security personnel touching areas around the groin and breasts to
search for concealed metallic and non-metallc weapons. A woman whose job
required her to fly frequently, had a metallic joint replacement and was often
subjected to such searches. She sued the TSA, claiming that its standard
pat-down constituted an unreasonable search in violation of the Fourth
Amendment, as well as violating federal disability discrimination law,
specifically the Rehabilitation Act of 1973. A federal appeals court rejected
both claims. The TSA could conduct pat-downs to search for weapons on
passengers who triggered walk-through metal detector alarms just as it did for
passengers who declined to pass through advanced imaging technology scanners.
The security procedures did not discriminate against persons with metallic
joint replacements as the plaintiff could not point to any government benefit,
service, program, or facility to which the TSA's screening denied her
meaningful access on the basis of a disability. Ruskai v. Pistole, #12-1392,
2014 U.S. App. Lexis 24350 (1st Cir.).
A motorist, having driven to a store's parking
lot and exited his car, was ordered to get back into his vehicle and show his
driver's license, registration, and proof of insurance by an officer who exited
a police vehicle that pulled in behind him. He was arrested for refusing to
comply, and subsequently pled guilty to driving on a suspended or revoked
license. He argued in a lawsuit that the officer had no basis for ordering him
to reenter his vehicle and that the order to do so constituted an unreasonable
seizure. The federal appeals court rejected a lower court ruling that the lawsuit
was barred by the conviction because a judgment in the plaintiff's favor would
imply that the conviction was invalid. Because the plaintiff had pled guilty, a
finding of illegal seizure would have no relevance to the validity of the plea
and subsequent sentence. Rollins v. Willett, #14-2115, 770 F.3d 575 (7th Cir.
2014).
A woman claimed that a deputy sheriff
subjected her to an unreasonable seizure and used excessive force at a
courthouse security checkpoint. Overturning summary judgment on her federal
civil rights claims, the appeals court ruled that the trial judge erroneously
applied a substantive due process/shocks the conscience legal standard rather
than the Fourth Amendment's objective reasonableness standard. The defendant
deputy was, however, entitled to official immunity on Georgia state law claims. West v. Davis,
#13-14805, 2014 U.S. App. Lexis 17319 (11th Cir.).
Two officers were not entitled to qualified
immunity or summary judgment on Fourth Amendment claims arising out of a doctor's
forcible non-consensual removal of a plastic baggie containing cocaine base
from the plaintiff's rectum. The doctor's actions could be attributed to the
officers if the jury determined as alleged, that the officers gave false
information to the hospital staff and doctor about the plaintiff's medical
condition and encouraged as well as actively physically assisted the doctor in
carrying out the removal. A jury could find that the doctor's actions violated
the plaintiff's Eighth Amendment rights. Fourteenth Amendment due process
claims were rejected as no prior case law showed a Fourteenth Amendment
violation under similar circumstances. George v. Edholm, #11-57075, 2014 U.S.
App. Lexis 9798 (9th Cir.).
While investigating a suspected misdemeanor violation of a
domestic violence injunction, a detective and a sergeant monitored,
intercepted, and listened to a privileged conversation between the suspect and
his attorney in an interview room in the county sheriff's office, acting
without a warrant or any notice. They also seized, from the attorney, without a
warrant, a statement written by the suspect. The defendants were not entitled
to qualified immunity on the claim that the warrantless interception of the
private privileged conversation violated the Fourth Amendment. The trial court
also found that the surreptitious electronic eavesdropping and recording
violated the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., which was not an
issue on appeal. The defendants failed to properly assert in the trial court
their argument that the warrantless seizure of the suspect's written statement
from his attorney was permitted by exigent circumstances. Gennusa v. Canova,
#12-13871, 2014 U.S. App. Lexis 6410, 24 Fla. L. Weekly Fed. C 1195 (11th
Cir.).
Plaintiffs filed a lawsuit in Nevada
claiming that a Georgia police officer who searched them at a Georgia airport
while working as a deputized DEA agent had seized a large quantity of cash from
them. After they returned to their Nevada residence, he allegedly drafted a
false probable cause affidavit in support of the forfeiture of the funds. No
forfeiture action was ultimately taken. The U.S. Supreme Court ruled that the
Nevada federal trial court could not exercise personal jurisdiction over the
Georgia police officer, because he lacked "minimal contacts" with
Nevada. Walden v. Fiore, #12-574, 188 L. Ed. 2d 12, 2014 U.S. Lexis 1635.
Police officials did not violate the Fourth
Amendment rights of police officers by searching them after the residents of a
home that they were searching accused him of stealing $1,750 in cash during the
search. A reasonable person in the plaintiffs' position would not have feared
arrest or detention if they had refused the defendants' request to search them
for the money. The fact that one of the plaintiffs agreed to the search only
because he was taking a nonprescription supplement to clean his colon and
therefore had an immediate need to use the restroom and couldn't do so until he
had been searched did not turn what occurred into a "seizure." Carter
v. City of Milwaukee, #13-2187, (7th Cir.).
Agents from the Transportation Security
Administration (TSA) and FBI were entitled to qualified immunity in a lawsuit
brought over airport screening. The plaintiff did not show that any individual
federal agent violated his clearly established rights under either the Fourth
or First Amendments. He was allegedly detained, interrogated, handcuffed, and
then jailed for a total of approximately five hours because he was carrying a
deck of Arabic-English flashcards and a book critical of American
interventionism. While the flashcards had numerous innocuous words, they also
contained "bomb," "terrorist," "explosion,"
"attack," "battle," "kill," "to
target," "to kidnap," and "to wound." George v.
Rehiel, #11-4292, 2013 U.S. App. Lexis 25604 (3rd Cir.).
A New York City Police Department order requires
that any officer who fires his weapon and such firing results in injury or
death to be administered a breathalyzer. Rejecting a Fourth Amendment challenge
to the order, a federal appeals court found that the order was aimed at both
personnel management and bolstering public confidence in the police, and
thereby fell within the definition of "special needs" when analyzing
the reasonableness of the search under the Fourth Amendment. These concerns
were different from ordinary law enforcement concerns, so the warrant and
probable cause requirements applicable to law enforcement searches did not
apply. These warrantless suspicionless tests were reasonable as a matter of law
since the special needs involved outweighed any privacy interests of the
officers concerning whether they had consumed alcohol. Lynch v. City of New
York, #12-3089, 2013 U.S. App. Lexis 23074 (2nd Cir.).
There was ample evidence to support a jury's
verdict in favor of four officers involved in the search and seizure and arrest
of the plaintiff on drug charges. The officers observed what appeared to be
open drug sales of crack cocaine in a lot involving four men and a juvenile with
passersby attracted into a lot by yells of "rocks, rocks," referring
to cocaine. There was probable cause for the search, seizure and arrest, so
there could be no liability despite the fact that the plaintiff was later
acquitted. The plaintiff's argument that one officer arranged to have three
others join him in fabricating a drug bust to bolster the possibility that he
would be assigned to the narcotics squad was characterized as "far
fetched." Morrow v. May, #12-1329, 735 F.3d 639 (7th Cir. 2013).
A federal judge ruled that the stop-and-frisk
tactics employed by the New York City Police Department violated the
constitutional rights of many thousands of people detained. The court found
that police routinely systematically stopped innocent people on the street
without an objective reason to suspect them of any wrongdoing. Predominately
young minority males were stopped and frisked for weapons or drugs before being
let go. The searches increased over the years, the courtfound, even as crime
declined, and violated the Fourth Amendment. The city acted with deliberate indifference to the
widespread practice and violated the equal protection rights of minorities. The
court also found that the practices that led to unconstitutional stops and
frisks were sufficiently widespread that they had the force of law. Floyd v.
City of New York, #08-1034, 2013 U.S. Dist. Lexis 113271 (S.D.N.Y). In an order
concerning remedies, the judge appointed a federal monitor to oversee broad
reforms of the stop-and-frisk practices, and mandated the officers wear body
cameras in selected precincts, among other measures. Floyd v. City of New York,
#08-1034, 2013 U.S. Dist. Lexis 113205 (S.D.N.Y).
A man was arrested for a suspected drug offense
based on information from a confidential informant. At the police station, he
was subjected to a visual body cavity search, which uncovered drugs. The man's
conviction was overturned, with the search ruled illegal. The defendant
officers were entitled to qualified immunity on false arrest and unlawful
search claims, since there had been arguable probable cause to arrest the
plaintiff and a reasonable officer at the time of the arrest would not have
known that conducting a suspicionless visual body cavity search of a felony
drug arrestee was unlawful. Gonzalez v. City of Schenectady, #11-5403, 2013
U.S. App. Lexis 17943 (2nd Cir.).
A bankruptcy court ordered a debtor's
home vacated and federal Marshals were authorized to remove the debtor's son
who was living there from the residence. He was patted down, removed, the house
was searched, and he was not allowed to reenter to claim his belongings. A
federal appeals court upheld the dismissal of the son's lawsuit against federal
employees as he did not properly plead his case for violation of his
constitutional rights against unreasonable searches and seizures. Claims
against a city and its police officers in their official capacities were
properly dismissed. Even if the bankruptcy court's order had been invalid, the
plaintiff had not shown any direct link between a city policy or custom and the
alleged violation of his rights. Alexander v. Hedback, #12-2834, 2013 U.S. App.
Lexis 13302 (8th Cir.).
Officers who make a lawful arrest for a serious
offense may take and analyze a cheek swab of the arrestee's DNA. Like
fingerprinting and photographing, it is a legitimate police booking procedure
that is reasonable under the Fourth Amendment. Maryland v. King, #12-207, 2013
U.S. Lexis 4165.
The U.S. Supreme Court has ruled by 5-4 that
officers, under ordinary circumstances, must attempt to get a search warrant
before compelling drunk driving suspects to submit to a blood test. "[T]he
natural dissipation of alcohol in the bloodstream does not constitute an
exigency in every case sufficient to justify conducting a blood test without a
warrant." A warrantless blood test might be justified by exigency in some
cases under the totality of the circumstances, determined on a case by case
basis. Missouri v. McNeely, #11-1425, 133 S. Ct. 1552.
A number of arrestees challenged the reliance by
the police department on "dog-scent lineups" to arrest, charge and
hold them. Inculpatory evidence obtained from dog-scent lineups, a federal
appeals court held, could raise a strong suspicion of guilt, but was "merely
supportive." When used alone, or as primary evidence, it was insufficient
to support a conviction. The plaintiffs failed to establish municipal
liability, however, and a number of individual defendants were entitled to
qualified immunity from liability. Curtis v. Anthony, #11-20906, 2013 U.S. App.
Lexis 4654 (5th Cir.).
A police officer was sued on a motorist's claim
that he violated her Fourth Amendment rights by reading a piece of her mail
while he searched her car with her consent following a traffic stop. It
violates a person's rights when an officer reads their private papers, the text
of which was not in plain view, while conducting a search based on generalized
consent to search an area in which the letter was found. The officer was entitled
to qualified immunity, however, as this right was not yet clearly established
at the time. Winfield v. Trottier, #11-4404, 2013 U.S. App. Lexis 4635 (2nd
Cir.).
A federal judge has ruled that a portion of the
New York City Police Department's "stop and frisk" practices is
unconstitutional, in violation of the Fourth Amendment. The case concerns stops
made by officers on suspicion of trespass outside of privately owned buildings,
often done with the permission of or at the request of the buildings' private
landlords. African-American and Latino residents claimed that the stops were
made without reasonable suspicion. Issuing a preliminary injunction against the
practice, the court found that officers frequently made such stops simply
because someone was seen entering and exiting or simply exiting a building
designated as a "Clean Halls" or "Trespass Affidavit Program
(TAP)" building, a program that allows officers to patrol inside and
around thousands of private residential buildings throughout the city. There
was evidence that officers thought that the mere fact that a building was
enrolled in the program made it legal for them to approach and question or stop
anyone in such a building even without a reason for doing so. The court also
pointed to department training materials "that continue to misstate the
minimal constitutional standards for making stops." The court found that,
as a result of these frequent stops, residents of the area feared being stopped
as they approached or left their own homes or those of their friends and
families. The court ordered the city to develop and adopt a formal written
policy specifying the limited circumstances in which it is legally permissible
under the Fourth Amendment to stop a person outside one of the buildings on suspicion
of trespass, and to revise its training material and programs on the subject.
Ligon v. City of New York, #12 Civ, 2274, 2013 U.S. Dist. Lexis 2871
(S.D.N.Y.).
A husband and wife, on their own behalf and on
behalf of their child, sued to challenge the use of advanced imaging scanners
and purportedly invasive pat-down searches at airport screening. The trial
court properly dismissed the lawsuit since the Transportation Security
Administration's standard operating procedures for airport screenings
constituted an order that 49 U.S.C. Sec. 46110 states can only be initially
challenged in a federal appeals court. This did not deprive the plaintiffs of
meaningful judicial review or due process. Other arguments about the
constitutionality of the searches would only have been reached if the
plaintiffs first sought review in a federal appeals court. Blitz v. Napolitano,
#11-2283, 2012 U.S. App. Lexis 24664 (4th Cir.).
A Tennessee state law allows holders of gun
permits to carry their handguns in a state-owned or operated public place,
provided that the barrel of the gun is less than a foot long. Relying on that
law, the holder of a permit slung his AK-47 pistol, which had an 11-1/2 inch
barrel across his chest, which bore camouflage, along with a 30-round clip, and
went for a walk through a state park. After this alarmed a number of other
people, a ranger in the park stopped him, ordered him to get on the ground, and
held him until a determination could be made that his weapon was legal. Doing
so did not violate the Fourth Amendment, as it was simply a legitimate
investigatory stop. The court also rejected an argument that the ranger's
actions violated the Second Amendment, since no court "has held that the
Second Amendment encompasses a right to bear arms in state parks." Embody
v. Ward, #11-5963, 695 F.3d 577 (6th Cir. 2012).
A man returning home to the U.S. after a trip
abroad had his laptop computer seized by an Immigration and Customs Enforcement
agent. The hard drive of the equipment failed while being detained, which
destroyed the plaintiff's business software and other information on the
machine. He filed a lawsuit against the U.S. government seeking damages for an
unlawful Fifth Amendment taking as well as for breach of contract. A federal appeals
court dismissed both claims, finding no plausible mutual intent to contract and
that there was no voluntary delivery of his property, as required for a
bailment contract. The seizure of the computer also did not amount to a taking
of it for a public purpose giving rise to a right to compensation. Kam-Almaz v.
U.S., #2011-5059, 2012 U.S. App. Lexis 12581 (Fed. Cir.).
A man active in advocating the right to carry
concealed firearms in public openly carried a holstered handgun into retail
stores on two occasions. Both times, he was arrested for disorderly conduct and
had his gun confiscated. He was not prosecuted and each time his gun was
eventually returned. He claimed that his conduct was not disorderly and was
protected under the federal and state constitutions. The officers were entitled
to qualified immunity on unlawful arrest claims. The officers could not have
anticipated that the U.S. Supreme Court would subsequently issue Second
Amendment opinions raising an issue about whether his conduct was lawful and
were not required to balance alleged firearms rights under the Wisconsin state
constitution against the disorderly conduct law. The officers also were not
liable for violating the plaintiff's rights under the federal Privacy Act by
requesting his Social Security number during one of the incidents, since it was
not clearly established that they had to inform him whether the disclosure of
his Social Security number was voluntary or mandatory, and they had not denied
him any "right, benefit, or privilege" based on his refusal to
disclose the number. The court also rejected claims for unlawful seizure of his
property, the handgun. Gonzalez v. Village of West Milwaukee, #10-2356, 2012
U.S. App. Lexis 1965 (7th Cir.).
A woman brought five children sleeping at her
house (her minor daughter and four minor grandchildren) to the hospital. She
had found blood on the underwear of her daughter and learned that the boys and
girls had slept together rather than in gender-separate rooms. After she refused
to consent to the sedation of the girl for purposes of a sexual assault
examination, she attempted to leave with the children. Medical staff members
and police imposed a 72-hour hold on the girl and the boy suspected of
assaulting her, and ultimately examinations of both children were carried out.
Police and medical personnel were entitled to summary judgment on civil rights
claims brought against them. They did not violate the Fourth Amendment or
Fourteenth Amendment rights of the woman or the children under the
circumstances. Doe v. Tsai, #10-2655, 648 F.3d 584 (8th Cir. 2011).
Police officers were entitled to qualified
immunity from liability for conducting searches of the members of a high school
soccer team following a heated match with another school. The officers were
searching for items of personal property athletes from the opposing school's
football team claimed were missing from the locker room. The search was
conducted with the apparent consent of the team's coach, although he
subsequently claimed that the officers coerced his consent. The appeals court
rejected the largely Hispanic plaintiffs' claim that the officers engaged in
"racial profiling" in conducting the searches. Lopera v. Town of
Coventry, #09-2386, 2011 U.S. App. Lexis 6757 (1st Cir.).
A motorist filed suit
for malicious prosecution on charges arising during a traffic stop and arrest
for several traffic infractions, civil infractions, and drunk driving. All
charges were dismissed when his blood alcohol level was determined to be 0.00%.
The federal appeals court held that summary judgment was properly granted on
malicious prosecution claims related to four of the seven tickets written,
since they were not criminal prosecutions, but civil infractions. The court
also upheld summary judgment on an unlawful search claim related to a second
blood test conducted, and on claims for municipal liability. Further
proceedings were ordered, however, on federal and state malicious prosecution,
unlawful arrest, and excessive force claims arising out of the criminal
charges. Miller v. Sanilac County, #09-1340, 2010 U.S. App. Lexis 11469 (6th
Cir.).
A federal trial court erred in granting summary
judgment for police officers in a lawsuit claiming that they lacked probable
cause to stop a vehicle for a traffic offense, which led to the seizure of
drugs. A state court had previously ruled that one of the officers provided an
"equivocal" reason for why he stopped the vehicle, and this officer,
in a deposition, admitted that he had not observed the motorist's unlawful
tinted window prior to stopping his car. Additionally, the officers failed to
provide any reason to support dismissal of claims relating to the allegedly
"offensive" manner in which a passenger was searched, including pulling
his pants partially down and pulling his underwear away from his body. The
court did uphold, however, a determination that state law claims, including
false arrest and malicious prosecution, had been waived. Carmichael v. Village
of Palatine, #09-1010, 2010 U.S. App. Lexis 10378 (7th Cir.).
A traveler was stopped and searched by customs
inspectors at a South Florida airport because she allegedly fit the profile for
alimentary canal drug smugglers. She allegedly acted in a nervous manner,
carried no luggage, provided inconsistent reasons for her trip, failed to
remember her husband's phone number or who bought her plane ticket, and was a
pregnant black female traveling alone and returning from a brief stay in a
known source country for illegal drugs, Jamaica. She also had notes in another
person's handwriting that appeared to provide her with a "cover
story." No x-rays were used, because of her pregnancy, and she was instead
taken to a hospital for two days, given laxatives, and subjected to a pelvic
exam, after which no drugs were found. The customs inspectors were entitled to
qualified immunity, and acted reasonably under the Fourth Amendment. Because
they acted under federal law in performing their official duties, Florida state
law claims for assault, battery, and false imprisonment were barred by the
Supremacy Clause of the U.S. Constitution, art.VI, cl. 2. Denson v. U.S.A.,
#05-15572, 2009 U.S. App. Lexis 15634 (11th Cir.).
An officer was justified in making an
investigatory stop of an attorney in front of a courthouse, which resulted in
the seizure of a handgun that the attorney was observed carrying in a holster.
The several minute delay that the officer's actions caused was justified by the
attempt to verify the validity of the attorney's gun license, and he was then
released, and told that he could later retrieve the gun and his gun license
from the police department. Schubert v. City of Springfield, #09-1370, 2009
U.S. App. Lexis 28251 (1st Cir.).
A city police department policy mandating that a
breathalyzer test be given to every officer who causes injury or death by
firing a weapon fell under the "special needs" doctrine of the Fourth
Amendment, so that the trial court properly declined to enjoin its enforcement
as unconstitutional. Based on the evidence to date in the case, the policy
seems to be reasonable, and the fact that crime control was a purpose, but not
the primary purpose, of the policy did not alter the result. The court found
that "the breathalyzer program qualifies as 'governmental action taken in
the public interest,' because it was designed, among other things, to
discourage officers from using their firearms while intoxicated—which is
plainly a matter of public concern." Lynch v. N.Y., #08-5250, 2009 U.S.
App. Lexis 26980 (2nd Cir.).
An extensive search of the plaintiffs' persons,
their car, and their cell phones, as well as taking of photographs of their
bodies went "well beyond" what was justified as an investigatory stop
and was not objectively reasonable. Upholding a jury verdict for the plaintiffs
on an unreasonable search and seizure claim, the federal appeals court found
that the jury was entitled to believe evidence presented that the plaintiffs
did not consent to the searches at issue. Carter v. City of Yonkers, #08-0193,
2009 U.S. App. Lexis 18061 (Unpub. 2nd Cir.).
A pregnant woman was detained and searched at an
airport based on suspicion that she might be smuggling drugs contained
internally in her body. A federal appeals court, rejecting claims of unlawful
search, ruled that preliminary searches and seizures are "per se
reasonable" when occurring at the border due to the government's
"long-standing right" to protect its territorial integrity. The
defendants, in detaining the plaintiff and transporting her to a hospital for
more intensive examination, acted in a reasonable manner. Denson v. U.S.,
05-15572, 2009 U.S. App. Lexis 15634 (11th Cir.).
The search by school personnel of a13-year-old
female student's underwear, seeking prescription strength and over the counter
pain medication barred by school rules without advance permission, was a
violation of the Fourth Amendment, as the facts presented did not provide
reasonable suspicion justifying extending a permissible search of the student's
belongings and person to one in which she was made to pull out her underwear.
Despite this, school officials were entitled to qualified immunity since there
was not, at the time, clearly established law on the issue. "We would not
suggest that entitlement to qualified immunity is the guaranteed product of
disuniform views of the law in the other federal, or state, courts, and the
fact that a single judge, or even a group of judges, disagrees about the
contours of a right does not automatically render the law unclear if we have
been clear. That said, however, the cases viewing school strip searches
differently from the way we see them are numerous enough, with well-reasoned
majority and dissenting opinions, to counsel doubt that we were sufficiently
clear in the prior statement of law." Safford Unified Sch. Dist. No. 1. v.
Redding, #08-479, 2009 U.S. Lexis 4735.
While a police officer's stop and seizure of a
man during a street encounter was lawful, despite the fact that no arrest
resulted and no contraband was found, there was a factual issue as to whether
the scope of the search was unreasonable. The plaintiff claimed that the
officer pulled his undershorts away from his body, both in front and in the
back, shined a flashlight on his genitals, and made physical contact with his
buttocks. Summary judgment for the officer was therefore properly denied.
Ellison v. City of New Rochelle, 2008-05452, 2009 N.Y. App. Div. Lexis 3913
(A.D. 2nd Dept.).
An officer ordered a man out of a parked car with
parking lights on outside a drug store when he observed him apparently
sleeping, and breathing rapidly. The officer patted him down and arrested him
for being under the influence of a controlled substance. A federal appeals
court found that there was reasonable suspicion to order that man out of the
car and investigate the possibility of use of a controlled substance, but that
the pat-down search violated the plaintiff's Fourth Amendment rights in the
absence of anything to provide reasonable suspicion of possession of a weapon.
Impoundment of the suspect's car after his arrest was justified under the
"community caretaking" doctrine. Wrongful arrest and detention claims
were rejected. Ramirez v. City of Buena Park, #04-56832, 2009 U.S. App. Lexis
6394 (9th Cir.).
Subjecting a female arrestee to lowering her
jeans enough to enable a police chief to take a photograph of a tattoo on her
abdomen two inches from her hipbone did not constitute a strip search, and the
taking of the photo was necessary in order to establish the arrestee's
identity. Additionally, the arrestee was not required to disrobe, and the photo
was not taken in a public setting. The underage arrestee had given false
personal information after open beer cans were seen in the vehicle in which she
was riding, and after she failed a sobriety test and was arrested for underage
drinking. The chief did not violate the arrestee's Fourth or Fourteenth
Amendment rights. Schmidt v. City of Bella Villa, #07-3053, 2009 U.S. App.
Lexis 4017 (8th Cir.).
In a criminal appeal, an intermediate California
appeals court finds that police officer did not have a sufficient basis to
handcuff a motorist whose truck they stopped in a high gang, high narcotics
area, and whose passenger had admitted that she was carrying drugs. The court
rejected the argument that an officer's concern about the motorist's height,
which was 6'6", and fears for safety in light of the fact that those
involved in drugs may carry weapons justified the handcuffing. The court found
that the handcuffing was not reasonably necessary for the investigative
detention, that the motorist's subsequent consent to a search was coerced, and
that drugs subsequently found on the motorist should be suppressed. People v.
Stier, #D051505, 168 Cal. App. 4th 21 (4th Dist. 2008).
A public school's use of "timeouts,"
and the characteristics of a "timeout room" used to confine a child
suffering from severe mental health and emotional problems did not constitute
unreasonable seizures under the Fourth Amendment or a violation of procedural
due process under the Fourteenth Amendment. Couture v. Bd. of Educ. of the
Albuquerque Pub. Sch., No. 07-2133, 2008 U.S. App. Lexis 16648 (10th Cir.).
Child welfare caseworker who interviewed a
brother and sister at a private school as part of a child abuse investigation
was not entitled to qualified immunity for examining the children's bodies,
including under their clothes, for signs of abuse. Consent from the school's
principal for the interviews did not extend to a search of the children's
bodies, and their right to be free from unreasonable searches under these
circumstances, absent a warrant, probable cause, exigent circumstances, or
valid consent, was clearly established. Michael C. v. Gresbach, No. 07-1756,
2008 U.S. App. Lexis 10805 (7th Cir.).
While police acted properly in stopping a
motorist's vehicle for a traffic violation, and in asking her to exit the
vehicle when she could not produce her vehicle registration or proof of
insurance, there were questions of genuine fact as to whether they acted in an
objectively reasonable manner in acting as though she posed a risk to them or
others based on her "argumentative" behavior, and in conducting a
pat-down search, even though they never stated that they believed that she was
armed. During the traffic stop, the motorist fell, appeared to have a seizure,
and died, apparently of a ruptured berry aneurysm. The court rejected a state
law wrongful death claim, since there was no evidence that anything the
officers did caused the bleeding or the motorist's death. The plaintiff, the
motorist's estate, could proceed with a Fourth Amendment claim arising out of
the pat-down search. Pinnock v. City of New Haven, No. 3:05cv927, 2008 U.S.
Dist. Lexis 39008 (D. Conn.).
The U.S. government has "plenary
authority" to control entry into the country through the border, and also
had statutory authority to detain and search five U.S. citizens, practicing
Muslims with no criminal records, when they were returning from a Canadian
Islamic conference. Additionally, intelligence the government had received that
persons with known terrorist ties would be attending the conference provided
the government with a compelling interest in preventing potential terrorists
from entering the county. The searches, which took place at the border were not
intrusive enough to violate the Fourth Amendment, and also did not violate the
plaintiffs' constitutional or statutory rights to religious freedom. Tabbaa v.
Chertoff, No. 06-0119, 2007 U.S. App. Lexis 27258 (2nd Cir.).
Officers acted reasonably when they approached a
pedestrian leaning on a guardrail next to a highway who had a firearm nearby,
drew their weapons, and ordered him to move away from his weapon and lay face
down on the pavement, after which they frisked him and handcuffed him. The
officers carried out this investigatory stop after receiving a call reporting
that a man had been on the side of a road pointing a rifle at passing
motorists. The officers let him go after questioning him and determining that
he had not been engaged in any criminal activity. Campbell v. Stamper, No.
06-6198, 2007 U.S. App. Lexis 16516 (6th Cir.).
Police officer was justified in reaching into the
pockets of a man who repeatedly attempted to evade a frisk after he emerged
from his hotel room with his hands in his pockets. The man appeared to the
officer to be on drugs or mentally ill, and had previously refused to leave the
hotel room after check-out time. The officer could reasonably believe, under
the circumstances, that the suspect's concealed hands represented a safety
risk, was justified in reaching into the pockets to determine whether any
weapons were present. After the officer found a glass methamphetamine pipe in a
pocket, he had probable cause to make an arrest for a drug offense. As there
was no violation of the arrestee's constitutional rights, summary judgment in
favor of the defendant officer was appropriate. Inouye v. Kemna, No. 06-15474,
2007 U.S. App. Lexis 21879 (9th Cir.).
California appeals court rejects state
constitutional challenge to "pat down" search policy requiring a
search of all persons attending football games at a San Francisco stadium. The
policy was adopted at the direction of the National Football League. The court
found that those in attendance at the games could not show that they had a
reasonable expectation of privacy which encompassed not being subjected to such
searches, particularly since advance notice of the search policy was provided.
Accordingly, by deciding to attend the football games, they gave implied
consent to the searches when they purchased their season tickets. Sheehan v.
San Francisco 49ers, Ltd., No. A114945, 2007 Cal. App. Lexis 1186, 153 Cal.
App. 4th 396 (Cal. App. 4th Dist.).
Holders of concealed weapon permits did not have
a right to enter a courthouse without submitting to a magnetometer search for
firearms. Conducting such searches, which were carried out along with a posted
notice that it was a crime to possess a weapon in a court facility did not
violate the plaintiffs' rights under Pennsylvania law, and there was no
reasonable expectation of privacy barring such searches. Minich v. County of
Jefferson, Pennsylvania, No. No. 1750 C.D. 2006, 2007 Pa. Commw. Lexis 119.
Ferry transportation company's policy of randomly
selecting passengers and vehicles for searches of their carry-on baggage or
trunks, adopted in response to the Maritime Transportation Security Act, 46
U.S.C. Secs. 70101-70119, did not violate the Fourth Amendment under the
"special needs" doctrine. The searches conducted were not overly
intrusive and there was a special need to prevent terrorist attacks on large
vessels involved in mass transportation which were found by the Coast Guard to
be at an elevated risk of attack. Cassidy v. Chertoff, No. 05-1835, 2006 U.S.
App. Lexis 29388 (2nd Cir.). [N/R]
Library user accused of stealing computer
equipment failed to show that his consent to search his bag was invalid, based
on a police officer's alleged failure to inform him of his right to refuse to
give consent. The plaintiff had no right to any such notification, and the
evidence showed that his consent was voluntary. Only v. Cyr, No. 06-1086, 2006
U.S. App. Lexis 27410 (3rd Cir.). [N/R]
Federal appeals court upholds a judgment for a
plaintiff who claimed that police officers violated his rights by ordering a
warrantless blood test for an alleged misdemeanor DUI offense without his
consent or exigent circumstances. The officers themselves agreed that their
actions violated his Fourth Amendment rights, and a federal appeals court
rejected their claim that the constitutional right violated was not
"clearly established," entitling them to qualified immunity from
liability. Jury awarded motorist $90,000 in compensatory damages and a total of
$400,000 in punitive damages against the two defendant officers. Marshall v.
Columbia Lea Reg'l Hosp., No. 05-2173, 2007 U.S. App. Lexis 389 (10th Cir.).
[N/R]
Drug Enforcement Administration (DEA) agent was
entitled to qualified immunity for forcibly seizing a small recording tape
while searching a residence. The woman from whom he seized it was present and
stated that she was closely related to the occupants of the house, and placed
the tape in her mouth to prevent him from obtaining it after telling him that
she did not want the police to hear it. While the presence of the tape, by
itself, might not be suspicious, the woman's actions and statements created a
suspicion that it contained evidence of crime justifying its seizure. Cooper v.
Bonaventura, No. 7:06CV00053, 2007 U.S. Dist. Lexis 5126 (W.D. Va.). [N/R]
Affidavit for warrant for the seizure
of a suspect's DNA in an investigation seeking a serial killer and rapist
was not supported by probable cause. Anonymous tips which were not corroborated
were insufficient to provide probable cause, as were a 20-year-old burglary
conviction and the fact that the suspect was unemployed. Other information
allegedly relied on by the detective who submitted the affidavit to the judge,
such as an FBI profile of the man sought, was irrelevant, since it was not
provided to the judge. Kohler v. Englade, No. 05-30541, 2006 U.S. App. Lexis
28841 (5th Cir.). [N/R]
Based on an individual's unwashed appearance and
his "evasiveness," officers were justified in making an investigatory
stop of a man who appeared outside a courthouse hours before it opened, and in
making a protective search of both his person and briefcase to make sure he did
not possess weapons. Cady v. Sheahan, No. 04-3518, 467 F.3d 1057 (7th Cir.
2006). [N/R]
Federal appeals court approves New York police
department's anti-terrorist suspicionless, random searches of subway
passengers' baggage and containers. MacWade v. Kelly, No. 05-6754-cv, 2006 U.S.
App. Lexis 20587 (2nd Cir.). [2006 LR Sep]
A federal agency's use of its mandatory random
drug testing of its criminal investigators to gather evidence given to a
federal prosecutor for the primary purpose of deciding whether to initiate
criminal proceedings was a violation of the employee's Fourth Amendment rights,
but agency officials were entitled to qualified immunity from liability because
the law on the issue was not clearly established at the time of the tests in
early 2000. Freeman v. Fallin, No. 02-0386, 422 F. Supp. 2d 53 (D.D.C. 2006).
[N/R]
Police officer had justification for his
protective pat-down search of a stopped motorist. He could reasonably suspect
that the man was armed and dangerous when a computer search for his records
indicated that he was designated as someone to be considered dangerous, he
could not produce registration for the vehicle, and he said that the car
belonged to an individual the officer recognized as a known or suspected drug
trafficker. Officer was entitled to qualified immunity from liability, and that
qualified immunity was not barred by a state appeals court decision overturning
the motorist's conviction for possession of crack cocaine based on a ruling
that the pat-down search was illegal, since that court did not discuss the
issue of qualified immunity, and the officer was not a party to that appeal,
and therefore did not have an opportunity in the state court to litigate the
issue. Coleman v. Rieck, No. 04-1895, 154 Fed. Appx. 546 (8th Cir. 2005). [N/R]
Suspect questioned, and searched on the premises
of his employer, an auto manufacturer, during an auto vandalism investigation,
voluntarily consented to answer questions and to be searched by sheriff's
deputy, so that he could not pursue a federal civil rights claim for these actions.
Despite his argument that he did not feel free to leave and that the deputy
read him his Miranda rights, the court found that there was no "objective
coercion" in the incident. Aquino v. Honda of America, Inc., No. 04-4274,
158 Fed. Appx. 667 (6th Cir. 2005). [N/R]
California motorist arrested for DUI
failed to show that officers violated either his federal or state rights by
using force to obtain a blood sample for testing. Ritschel v. City of Fountain
Valley, No. G034264 2006 Cal. App. Lexis 275 (Cal. 4th App. Dist.). [2006 LR Apr]
Federal government's civilian airline passenger
identification policy does not violate passengers' constitutional rights in
requiring them to present identification or submit to screening searches or be
denied the ability to board airline flights. No violation is found of the
constitutional right to travel, the Fourth Amendment protection against
unreasonable searches and seizures, the First Amendment, or due process.
Gilmore v. Gonzales, No. 04-15736, 2006 U.S. App. Lexis 1856 (9th Cir.). [2006
LR Mar]
Police officer's initial investigatory stop of
suspect and detention of him for one hour near his house was not shown to be
unreasonable. The plaintiff failed to allege the reason for the initial
detention or an explanation why the one-hour delay was unreasonable. The
evidence available, which included that he was a known methamphetamine user and
dealer, that he had been stopped many times before, and that the officers
smelled anhydrous ammonia (a key ingredient in manufacturing methamphetamine)
coming from his house, "suggests tat the officers did have reasonable
suspicion." The officers had asked for permission to search his house, and
when this was refused, they placed him in the back of a police car where he sat
until the officers obtained a search warrant for the residence. Bowden v. City
of Electra, No. 04-10767, 152 Fed. Appx. 363 (5th Cir. 2005). [N/R]
Texas state troopers were entitled to qualified
immunity for using force against vehicle passenger during traffic stop which
resulted in her suffering a broken arm when there was reasonable suspicion to
investigate whether she was guilty of public intoxication, and her
"aggressive demeanor" and the possibility that she had a weapon
justified a pat-down search and handcuffing. Her "further resistance"
to the search and handcuffing provided the authorization for the amount of
force used. Padilla v. Mason, No. 08-03-00123-CV, 169 S.W.3d 493 (Tex. App.--El
Paso 2005). [N/R]
Information concerning the frequency and location
of random searches of N.Y. subway riders' backpacks and containers were
protected against discovery by a law enforcement privilege in a lawsuit
challenging the city's program to carry out such searches. Macwade v. Kelly,
No. 05 CIV.6921, 230 F.R.D. 379 (S.D.N.Y. 2005). [N/R]
Police officer's videotaping of a traffic stop,
and of a subsequent search of the motorist's home, did not violate any clearly
established right of the motorist, who was stopped for speeding. The officer
was also entitled to qualified immunity for asking the driver whether he would
be willing to submit to a search of his person, vehicle and home, which
revealed marijuana in his pocket. While the drugs were suppressed during a
criminal prosecution against the motorist on the basis that the consent given
was not voluntary, the federal appeals court ruled that a reasonable officer,
under the circumstances, could have believed that the consent was consensual.
The Vermont Supreme Court ordered further proceedings, however, as to whether
officers engaged in unnecessarily destructive behavior of the motorist's
property during the search of his home, and whether they violated his rights
when, following the initial search of his home, they returned and allegedly
forced their way in again over his wife's objections. Sprague v. Nally, No.
03-489, 882 A.2d 1164 (Vt. 2005). [N/R]
Police officer on patrol could reasonably believe
that a disabled adult's initial "retreat" upon seeing the officer
justified an investigatory stop, so that he was entitled to qualified immunity
in a federal civil rights lawsuit. Lee v. Hefner, No. 04-5445, 136 Fed. Appx.
807 (6th Cir. 2005). [N/R]
Federal regulation prohibiting airline passengers
from interfering with airline screeners in the performance of their duties was
not overbroad, unconstitutionally vague, or in violation of passengers' First
Amendment rights. Rendon v. Transp. Sec. Admin., #04-4229, 2005 U.S. App. Lexis
20285 (6th Cir.). [2005 LR Nov]
City's alleged unwritten policy banning signs and
banners on highway overpasses was not unconstitutional. Appeals court rejects
constitutional claims of anti-abortion protester barred from displaying her
banner there. Faustin v. City of Denver, #04-1025, 2005 U.S. App. Lexis 19834 (10th
Cir.). [2005 LR Nov]
Officers who subjected a female shopper to a body
cavity search after she activated a security sensor while leaving a store were
entitled to qualified immunity, when the evidence showed that she told a male
officer she had no objection to being searched, or to waiting for a female
officer to arrive to conduct the search. Even if there was a question as to
whether the shopper's consent was actually voluntarily, based on alleged prior
statements by store personnel before the officers arrived, the officers acted
reasonably and on the basis of information indicating the shopper's consent.
McNeal v. Roberts, #04-30660, 129 Fed. Appx. 110 (5th Cir. 2005). [N/R]
Police officer's alleged pat-down search of protest
organization's office manager during execution of a search warrant was
unreasonable when carried out without any individualized reasonable suspicion
that he was involved in criminal activity or possessed weapons. In light of the
fact that the warrant was not for weapons or contraband, but rather for protest
documents and photographs, it did not justify generalized detention and
pat-down of all those present in the absence of such reasonable suspicion.
Denver Justice Comm. v. City of Golden, No. 03-1470, 405 F.3d 923 (10th Cir.
2005). [2005 LR Jul]
Federal trial court declines to set aside jury's
verdict for defendant officers in a lawsuit against them by a pedestrian they
stopped for investigatory purposes when he was observed carrying a knife in the
woods. The issue of whether the stop was reasonable, in light of the fact that
it was not unlawful, by itself, to carry an open knife in a public place, was
for the jury, rather than an issue of law for the court. Zirlin v. Village of
Scarsdale, No. 03CIV.9903, 365 F. Supp. 2d 477 (S.D.N.Y. 2005). [N/R]
Search warrant requiring suspect to submit to DNA
testing in connection with a murder investigation was adequately supported by
probable cause and therefore did not violate the suspect's constitutional
rights. Kohler v. Englade, No. CIV.A.03-857, 365 F. Supp. 2d 751 (M.D. La.
2005). [N/R]
Strip searches of more than twenty male and
female students by schoolteachers, seeking to recover stolen money, carried
out, in part, at the direction of a police officer, were unconstitutional, but
defendants were entitled to qualified immunity from liability because the law
on the issue was not clearly established in May of 2000. Beard v. Whitmore Lake
Sch. Dist., No. 03-1904, 402 F.3d 598 (6th Cir.2005). [2005 LR Jun]
Conducting an investigatory strip search to
attempt to discover drugs on persons already arrested for a different offense
violated the arrestees' civil rights, federal appeals court rules, in the
absence of reasonable suspicion of possession of drugs. Officer was entitled to
qualified immunity on carrying out strip searches at all, but not on the
clearly unreasonable manner in which he was alleged to have carried them out.
Evans v. Stephens, No. 02-1642, 2005 U.S. App. Lexis 8071 (11th Cir.). [2005 LR
Jun]
Officers acted reasonably in conducting a
protective weapons search that resulted in the discovery of a gun. The
officers, while questioning the suspect on reports that he had threatened to
shoot people, observed an object under his clothing which appeared to be
"weapon-like," after he refused to tell them whether he had a weapon,
and initiated physical contact with them. Feinthel v. Payne, No. 04-3057, 121
Fed. Appx. 60 (6th Cir. 2004). [N/R]
Deputies who allegedly stopped and searched two
men because they appeared "nervous" while walking through a
"high crime" area at night lacked reasonable suspicion for the search
and detention. The subsequent knowledge the deputies obtained that one of the
men was a parolee subject to search as a condition of parole and that there was
a bench warrant for his arrest did not "retroactively" justify their
earlier detention and search, so that the deputies were not entitled to
qualified immunity. Moreno v. Baca, No. 02-55627, 2005 U.S. App. Lexis 3739
(9th Cir.). [2005 LR Apr]
Elementary school's detention and questioning of
ten-year-old student after her classmates claimed that she had brought a
handgun to school, and the subsequent involvement of police officers in
continuing to detain and question her, and searching the school grounds for the
gun, did not violate the constitutional rights of either the student, or her
mother, who was not notified of the detention or questioning until it was over.
Wofford v. Evans, No. 03-2209, 390 F.3d 318 (4th Cir. 2004). [2005 LR Mar]
City's policy requiring everyone participating in
a protest demonstration to submit to a metal detector search violated both the
First and Fourth Amendment. Bourgeois v. Peters, #02-16886, 2004 U.S. App.
Lexis 21487 (11th Cir. 2004). [2004 LR Dec]
Officers had sufficient reasonable suspicion for
an investigatory stop of a restaurant patron when restaurant personnel told
them that customers had overheard him discussing bank robberies with his
companions and that he appeared to be a person identified as a wanted bank
robber on a television program. Eisnnicher v. Bob Evans Farms Restaurants, No.
2:02-CV-1020, 310 F. Supp. 2d 936 (S.D. Ohio 2004). [N/R]
Former Massachusetts Commissioner of Public
Safety was not liable, on the basis of his role as supervisor, for state
trooper's allegedly unlawful strip search of and lewd comments to female
motorist during vehicle stop. Commissioner's prior discipline of trooper
following investigation of four prior incidents, which included a six-month
suspension without pay, could not be said to show deliberate indifference to
the rights of female motorists. Clancy v. McCabe, 805 N.E.2d 484 (Mass. 2004).
[2004 LR Aug]
The alleged "manipulation" of
supposedly "random" drug testing procedures in order to gather
evidence of alleged drug use by particular federal employees for use in
criminally prosecuting them, if true, would violate clearly established Fourth
Amendment rights, so that agency officials were not entitled to qualified
immunity from unreasonable search and seizure claim. Freeman v. Fallin, 310 F.
Supp. 2d 11 (D.D.C. 2004). [N/R]
Delaware police officer was privileged, under
state law, to pat down a passenger approached and questioned as he waited for a
bus, under the terms of a statute allowing officers to search for dangerous
weapons any person detained for questioning if officer possesses reasonable
grounds for the belief that he is in danger if the person possesses a deadly
weapon. Atamian v. Hauk, 842 A.2d 654 (Del. Super. Ct. 2003). [N/R]
Police officer was entitled to qualified immunity
for making investigatory stop of woman even if based merely on suspicion of
possession of gun, which is not necessarily a crime, when investigatory stop
and search occurred prior to U.S. Supreme Court decision clearly establishing
the law on the issue. He was not, however, entitled to qualified immunity on
the manner in which the stop was carried out, using a "sensory
overload" technique designed to frighten and disorient the person. Brown
v. City of Milwaukee, #02-C-0178, 288 F. Supp. 2d 962 (E.D. Wis. 2003). [2004
LR Apr]
Reasonably competent police officers could have
disagreed as to whether probable cause was required to search a student
suspected of drug possession when the search was conducted by school officials,
so that an officer who suggested that the principal search the student in a
school office was entitled to qualified immunity from the student's lawsuit
claiming that he was unlawfully detained and searched. Doyle v. Rondout Valley Central
School District, 770 N.Y.S.2d 480 (A.D. 3d Dept. 2004). [N/R]
Strip searches of patrons during execution of
search warrant for drug transactions at nightclub were unlawful when carried
out without individualized reasonable suspicion of possession of drugs or
probable cause, and sheriff was not entitled to qualified immunity for
conducting the searches. Federal appeals court upholds award of $100 in nominal
damages and $15,000 in punitive damages for each plaintiff. Williams v. Kaufman
County, No. 02-10500, 352 F.3d 994 (5th Cir. 2003). [2004 LR Mar]
City ordinance which allowed police officers to
subject persons under 21 years of age to a warrantless breath test for alcohol
use upon reasonable suspicion was unconstitutional and not justified by a
"special needs" exception to the warrant requirement or exigent
circumstances. Spencer v. City of Bay City, 292 F. Supp. 2d 932 (E.D. Mich.
2003). [2004 LR Mar]
Federal trial court erred in dismissing convicted
plaintiff's federal civil rights lawsuit asserting claims for alleged
unreasonable searches and seizures prior to, during, and subsequent to his
arrest. A finding that the arrestee's Fourth Amendment rights were violated did
not necessarily imply the invalidity of the convictions. Hughes v. Lott,
#02-11508, 350 F.3d 1157 (11th Cir. 2003). [2004 LR Mar]
Several African-American women subjected to
pat-down and strip searches by airport security officers satisfied the
requirements for showing discriminatory purpose and effect by presenting
evidence of officers' false statements in their incident logs (such as falsely
stating that a canine had alerted to the presence of drugs) and that the
searching officers conducted intrusive searches on more than twice (and as high
as three times) as many African-American women as white women. Anderson v.
Cornejo, 284 F. Supp. 2d 1008 (N.D. Ill. 2003). [N/R]
Officers were not entitled to qualified immunity
on the claim that they violated the rights of spectators at a basketball
tournament by conducting a "wholesale, invasive search" of a large
number of people present without individualized suspicion that they possessed
weapons, since the need for individualized suspicion before a search for
weapons was clearly established. Williams v. Brown, 269 F. Supp. 2d 987 (N.D.
Ill. 2003). [N/R]
Federal appeals court grants judgment as a matter
of law to African-American high school basketball coach arrested by police
officer solely for calling him a "son of a bitch." Arrestee's
statement did not constitute "fighting words," and were therefore
protected by the First Amendment. Officer also did not, prior to the arrest,
have reasonable suspicion sufficient to detain the coach for an investigatory
stop on the basis of motel clerk's report of his "suspicious" behavior
of appearing nervous while drinking coffee and looking at newspapers in motel
office. Johnson v. Campbell, No. 02-3580, 332 F.3d 199 (3rd Cir. 2003). [2003
LR Oct]
Two police officers were each properly assessed
$10,000 in compensatory and $20,000 in punitive damages, appeals court rules,
for unreasonable and "unnecessarily degrading" and prolonged
detention of female resident of home who was not a subject of their
investigation during the execution of a search warrant. Plaintiff was allegedly
kept in handcuffs for several hours, marched barefoot through the rain, and
unnecessarily questioned about her citizenship status. Mena v. City of Simi
Valley, #01-56673, 332 F.3d 1255 (9th Cir. 2003). [2003 LR Sep]
Neighborhood residents allegedly detained and
searched by officers en masse following basketball tournament were properly
certified as a class in a federal civil rights lawsuit challenging the actions
as unlawful and seeking damages. The fact that individual plaintiffs might
claim differing amounts of damage did not support the defendants' motion for
decertification. Williams v. Brown, 214 F.R.D. 484 (N.D. Ill. 2003). [N/R]
Psychiatrists were qualified to testify as expert
witnesses as to the psychological impact on juveniles attending a basketball
tournament of allegedly unlawful detentions and searches of them by police
officers. Since psychiatrists did not need forensic training or
board-certification in child psychology to treat juveniles, their lack of these
qualifications did not bar them from testifying. Psychiatric team leader who
relied on data collected by a team member and did not himself personally
examine the civil rights plaintiffs could testify as to his opinion. Williams
v. Brown, 244 F. Supp. 2d 965 (N.D. Ill. 2003). [N/R]
UPDATE: While
officers' investigatory stop of a man standing on his own porch based solely on
a tip from an anonymous source violated the suspect's Fourth Amendment rights,
the officers were still entitled to qualified immunity because the dispatcher
had told them that the man could be intoxicated and armed, which the officers
could reasonably rely on without knowing the source of the information. The
officers acted properly in preventing him from retreating inside the home,
which would have interfered with their investigation, and in arresting him once
he resisted and bit an officer. Feathers v. Aey, No. 02-3368, 319 F.3d 843 (6th
Cir. 2003). [2003 LR Jun]
Officers could properly enter an apartment in
order to complete an investigatory stop of an individual who fled inside, and
did not use excessive force in stopping his relatives from preventing them from
removing him from the apartment to complete his questioning. Rivera v.
Washington, No. 01-1595, 57 Fed. Appx. 558 (4th Cir. 2003). [2003 LR Jun]
Sweep of high school for drugs with drug sniffing
dogs by sheriff's personnel at the request of school authorities, combined with
pat-down searches and a strip search of a student in a private room on the
basis of individualized suspicion once a package of drugs was found were not
unreasonable. Officers also did not use excessive force in allegedly choking a
student to prevent him from swallowing a package of marijuana seeds, but their
subsequent strip search of him in the school's parking lot was "excessively
intrusive." Rudolph v. Lowndes County Board of Education, 242 F. Supp. 2d
1107 (M.D. Ala. 2003). [2003 LR Jun]
Officers had a reasonable basis for making an
investigatory stop of a man reported to be walking "wet and barefoot"
through a neighborhood while talking to himself. Information provided by
neighborhood residents gave officers grounds to be concerned about his well
being, since they could believe that he might be under the influence of drugs,
in need of medical assistance, or suffering from mental illness. Jogger's equal
protection rights were not violated by the fact that the officers stopped and
questioned him while he was barefoot, but did not stop and question other
joggers who were wearing shoes. Cady v. Village of McCook, #02-2579, 57 Fed.
Appx. 261 (7th Cir. 2003). [N/R]
Male officer's alleged cross-sex pat-down
searches of female arrestees, even if in violation of police department
policies, were reasonable under the Fourth Amendment and therefore were not a
basis for a constitutional civil rights claim when searches were minimally
intrusive and carried out in a routine manner. Searches were adequately
contemporaneous with the arrests when they were carried out upon the arrestee's
arrival at the police station. Wyatt v. Slagle, 240 F. Supp. 2d 931 (S.D. Iowa
2002). [N/R]
State social worker violated Fourth Amendment
rights in conducting a visual body cavity search of a female minor based on
accusations of sexual abuse without demonstrating probable cause and obtaining
a court order, getting parental consent, or showing emergency circumstances,
but she was entitled to qualified immunity because the violation was not
clearly established in July of 1999. Mother of child did consent to
investigative home visit and therefore had no individual claim for Fourth
Amendment violations. Roe v. Texas Department of Protective and Regulatory
Services, #01-50711, 299 F.3d 395 (5th Cir. 2002). [N/R]
Federal officials could not be held liable for
alleged violation of civil rights of accused drug smuggler who underwent
emergency surgery to remove leaking balloons of heroin from his abdomen.
Plaintiff admitted that he was not aware of any direct involvement
"whatsoever" by the named federal defendants, but sued them purely in
their supervisory capacity. Nwaokocha v. Hagge, #02-0057, 47 Fed. Appx. 55 (2nd
Cir. 2002). [N/R]
Airline passenger gave implied consent to a
random search of his bag by security personnel, enforced by a city police
officer, by placing the luggage on an x-ray conveyor belt. The random search of
the bag for weapons and explosives did not violate the passenger's Fourth
Amendment rights. Torbet v. United Airlines, #01-55319, 298 F.3d 1087 (9th Cir.
2002). [N/R]
Children's Fourth Amendment rights were not violated
when they were subjected to medical examinations for suspected sexual assault
pursuant to a search warrant despite their claim that it violated their rights
to conduct the search over their objections. The exams were properly conducted
by medical personnel and were authorized by a warrant supported by probable
cause, so that the search was not unreasonable. Pelster v. Walker, 185 F. Supp.
2d 1185 (D. Ore. 2001). [N/R]
Federal customs agents who strip-searched and
x-rayed a female traveler entering the country at an airport, and ordered a
pelvic exam after she disapproved of the treatment of the only other
African-American passenger on the plane were not entitled to qualified
immunity. Initial stop and search was "routine," but subsequent
actions were not supported by reasonable suspicion and violated the Fourth
Amendment. Brent v. Ashley, No. 99-12169, 247 F.3d 1294 (11th Cir. 2001). [2002
LR Mar]
A beautician on her way home from a vacation
camping trip was awarded $129,750 in damages by a jury for an allegedly
"humiliating" strip search conducted at an airport by U.S. Customs
agents after a drug dog alerted to her. The plaintiff was required to strip,
bend over and spread open her vagina and buttocks as the agents looked for
drugs which were not found, and then agreed to be x-rayed at a local hospital.
Kaniff v. U.S. No. 99C-3882 (U.S. Dist. Ct. N.D. Ill.), reported in The
National Law Journal, p. B3 (Sept. 17, 2001). [N/R]
342:83 Hospital's policy, developed in
cooperation with local police and prosecutors, of subjecting some pregnant
women patients to drug tests, the positive results of which were turned over to
law enforcement to prosecute patients for use of cocaine, resulted in searches
which were unreasonable under the Fourth Amendment in the absence of patient
consent. Ferguson v. City of Charleston, No. 99- 936, 121 S. Ct. 1281 (2001).
340:62 Officer's alleged penetration of
arrestee's vagina with his finger, squeezing of her hips and kneading of her
buttocks with his ungloved hand while he searched her in her open nightgown in
the street before putting her in the squad car violated clearly established
Fourth Amendment rights when there was no justification for the search, and she
was being arrested for a misdemeanor 2-day old noise ordinance violation.
Amaechi v. West, No. 00-1129, 237 F.3d 356 (4th Cir. 2001).
338:29 Officer's "deceptive" use of a
civilian, allegedly identified as an officer although he was only an
unauthorized "ride-a-long", to detain two persons entering a hotel
lobby, if true, violated clearly established law, so that he was not entitled
to qualified immunity. Polk v. District of Columbia, 121 F. Supp. 2d 56 (D.D.C.
2000).
337:14 Strip search of minor female, not named in
search warrant, during search of trailer for marijuana, would not be reasonable
absence particularized suspicion that she was concealing drugs on her person;
deputy was not entitled to qualified immunity from liability. Sims v. Forehand,
112 F. Supp. 2d 1260 (M.D. Ala. 2000).
329:77 Female motorist who exposed her breasts
and nipples outside her vehicle to a female and a male officer in order to show
that she was not the suspect wanted in an arrest warrant (who had a tattoo on
her breast) could not recover damages from the officers when she herself
spontaneously engaged in the exposure and the officers did not order or demand
that she expose herself in this manner then and there; officers were entitled
to qualified immunity. Nelson v. McMullen, No. 98-6454, 207 F.3d 1202 (10th Cir.
2000).
330:85 Federal appeals court upholds $245,000
award of compensatory and punitive damages to three 17- year-old boys, two
African-American and one white, on claim that two police officers illegally
stopped and searched their vehicle and used excessive force, including pulling
and squeezing their testicles, during pat-down search, and were motivated by
racial bias in carrying out one-hour stop, search and detention; alleged racial
bias was a proper basis for punitive damages award. Price v. Kramer, #97-56580,
#98-55484, 200 F.3d 1237 (9th Cir. 2000).
335:174 Police chief was not entitled to
qualified immunity for forcing bartender to submit to a frisk search of his
person when there was no reasonable objective suspicion that the bartender was
dangerous or had committed any crime; chief allegedly knew that bartender only
pulled a pistol in self-defense after bar patron threatened to kill him for
macing him while ejecting him from the premises. Painter v. Robertson,
#98-3340, 185 F.3d 557 (6th Cir. 1999).
328:61 Arrestee stated a claim for unreasonable
search when alleging that police officers strip searched him in a public area
of a store, addressed him with racial slurs, and taunted him about the size of
his penis. Campbell v. Fernandez, 54 F.Supp. 2d 195 (S.D.N.Y. 1999).
{N/R} Federal jury awards $750,000 in damages to
male-to-female transsexual placed with male prisoners after her arrest and then
strip searched to determine her gender. Schneider v. San Francisco, No.
97-2203, U.S. Dist. Ct. (N.D. Calif. April 16, 1999), reported in The Natl. Law
Jour., p. B5 (May 3, 1999) and discussed in the AELE Jail & Prisoner Law
Bull., #272, p. 126.
315:36 Grabbing arrestee's arm and turning her
body before ordering her to get into police vehicle was not an excessive use of
force, even if unnecessary to effect the arrest. Curd v. City Court of
Judsonia, Ark., #97-2858, 141 F.3d 839 (8th Cir. 1998).
318:83 U.S. Supreme Court holds that search of a
defense attorney, pursuant to a search warrant, at the courthouse where his
client was appearing before a grand jury did not violate due process; search of
attorney, even if calculated to "annoy" or to prevent consultation
with his client did not violate his right to practice his profession. Conn v.
Gabbert, #97-1802, 119 S.Ct. 1292 (1999).
310:158 Officer who conducted pat-down search of
man at courthouse after being told that member of judge's staff feared that he
had a gun was entitled to qualified immunity; officer had reasonable suspicion
sufficient to justify stop and frisk. McPherson v. Kelsey, 125 F.3d 989 (6th
Cir. 1997).
303:46 Car driver whose wallet was searched as he
stood outside car, uncovering cocaine, awarded $8,500 for illegal search and
seizure when pat down search of driver provided no justification for looking
inside wallet; federal appeals court rejects officer's argument that cocaine in
wallet would have been inevitably discovered if officers conducted search of
car after arresting passenger for drug offense, since they then would have
found gun in vehicle, arrested driver for possession of weapon, and then
performed inventory search of his wallet. Chatman v. Slagle, 107 F.3d 380 (6th
Cir. 1997).
{N/R} Man subjected to pat down search when
officers suspected him of repeatedly harassing woman and chasing her from her
place of employment did not suffer violation of any clearly established right,
so officers were entitled to qualified immunity in his federal civil rights
lawsuit. Jones v. City of Dothan, Alabama, 121 F.3d 1456 (11th Cir. 1997).
282:91 Police officers' alleged failure to read
Miranda warnings to woman they were questioning about alleged theft, without
more, did not give rise to federal civil rights claim, federal appeals court
rules; further, woman's Fourth Amendment rights were not violated when she
voluntarily responded to officers' questioning and later voluntarily went to
police station for further questioning to attempt to clear matter up Neighbour
v. Covert, 68 F.3d 1508 (7th Cir. 1995).
278:30 Use of profile of probable suspects,
including race as a factor, in affidavit for search warrant to seize blood
sample from Afro-American male as part of investigation into rape did not
violate clearly established Fourth Amendment law, federal appeals court rules
Simmons v. Poe, 47 F.3d 1370 (4th Cir. 1995). [Cross-references: Defenses:
Qualified (Good-Faith). Immunity]
281:79 Breathalyzer testing of high school
student for alcohol use was supported by probable cause when there was reliable
information concerning a party at which many students drank and odor of alcohol
was detected around student Juran v. Independence or Central School District,
898 F.Supp. 728 (D.Ore 1995).
283:109 Determination, in criminal proceeding,
that police officers' search of arrestee was unlawful did not bar officers or
city from contesting that issue in later false arrest/malicious prosecution
lawsuit brought by arrestee Taveras v. City of New York, 635 N.Y.S.2d 608 (A.D.
D 1995). [Cross-references: False Arrest/Imprisonment: No Warrant; Malicious
Prosecution]
265:3 Plaintiffs awarded $250 in damages for
warrantless search of two-year-old child also awarded $34,61281 in attorneys'
fees and costs despite failure to prevail on some claims; trial court rules that
importance of plaintiff's success could not be measured solely by size of
damage award Franz v. Lytle, 854 F.Supp. 753 (D.Kan 1994).
Child's rash did no justify officer's warrantless
searches of her body for evidence of sexual molestation,; officers were not
entitled to qualified immunity for searches Franz v. Lytle, 997 F.2d 784 (10th
Cir. 1993).
Officers did not conduct an
"unreasonable" search and seizure when they momentarily grabbed a
loaded revolver from a parked car while questioning a man in the car who turned
out to have a permit to carry the weapon Wray v. Donaca, 820 F.Supp. 1263 (D.Or
1993).
Extraction of blood and urine by medical
personnel from driver who was injured in auto accident did not violate his
Fourth Amendment rights; police officer had justification for requesting the
extraction of blood and evidence failed to show that he made any request
concerning the extraction of urine Lovett v. Boddy, 810 F.Supp. 844 (WD Ken
1993).
Arrestee had no constitutional right to have his
lawyer present or consult with his lawyer prior to consenting to having blood
drawn for testing intended to match blood found at the scene of a burglary
Woods v. Lemonds, 804 F.Supp. 1106 (E.D. Mo 1992).
Airport passenger detained as suspected drug
courier awarded $90,000 in compensatory and $100,000 in punitive damages; tip
which basically made all black males suspect did not provide officer with
reasonable suspicion for investigatory stop Morgan v. Woesner, 975 F.2d 629
(9th Cir. 1992).
Officers' warrantless visual inspection of
two-year-old female child's vaginal area violated clearly established law;
officers lacked probable cause to suspect child sexual abuse when neighbors'
complaints only concerned unsupervised and unclean condition of child Franz v.
Lytle, 791 F.Supp. 827 (D.Kan 1992).
City's alleged policy of allowing male officers
to do patdown searches of females suspected of misdemeanors did not violate
female's constitutional rights; even if officer in this case did touch female's
breast, thigh and genitals, a single incident of misconduct would not establish
municipal liability Martin v. Swift, 781 F.Supp. 1250 (E.D. Mich 1992).
City liable for $2,500 for police officer's
unreasonable use of force to get motorist to give blood sample after he was
stopped for DUI; Fourth Amendment standard, rather than due process
"shocks the conscience" standard applies Hammer v. Gross, 932 F.2d
842 (9th Cir. 1991), cert denied, Newport Beach Calif v. Hammer, 60 USLW 3397 (Dec
3, 1991).
Officer's obtaining of search warrant for
suspect's vagina to seek drugs was not so unreasonable as to be a basis for
liability Rodriguez v. Furtado, 771 F.Supp. 1245 (D.Mass 1991).
Under-age reserve officer's misrepresentation of
age and attempt to purchase beer from tavern was not a "search" under
the Fourth Amendment Winkel v. Reserve Officer of City of Beloit, Kan, 773
F.Supp. 1487 (D.Kan 1991).
Appeals court finds qualified immunity for
officer's obtaining of search warrant for drug suspect's vagina Rodriguez v.
Furtado, 950 F.2d 805 (1st Cir. 1991).
Policy requiring attorney to go through metal
detector a second time with his shoes off, while exempting courthouse personnel
with employee badges did not violate equal protection; further proceedings
ordered on Fourth Amendment claim Klarfeld v. United States, 944 F.2d 583 (9th
Cir. 1991).
Woman present during execution of search warrant
for drugs in residence was denied permission to use bathroom before she was
strip searched; officers were entitled to qualified immunity for strip search,
based on exigent circumstances Burns v. Loranger, 907 F.2d 233 (1st Cir. 1990).
Driver's criminal conviction for DUI and ruling
in that trial that he voluntarily took breathalyzer test barred civil rights
suit for forcible imposition of test Grochowski v. Commonwealth of Va, 741
F.Supp. 1230 (WD Va 1990).
Border patrol agent's seizures of
Hispanic-looking individuals were unreasonable; damages awarded Ramirez v.
Webb, 719 F.Supp. 610 (WD Mich, 1989).
Officers had reasonable cause to conduct strip
searches of female arrestees held for misdemeanor possession of marijuana Doe
v. Berberich, 704 F.Supp. 269 (DDC 1988).
Seizure of rifle as evidence of unlawful use of
weapon did not lead to liability for violation of "right to bear
arms" Rhea v. Umfleet, 680 F.Supp. 322 (E.D. Mo 1988).
Attorney for narcotics suspect not entitled to
injunction against future subpoena or search warrants absent court order Ray v.
Vincent, 682 F.Supp. 307 (M.D. La 1988).
Damage to car following seizure was not a
constitutional violation; seizure of gun at time of arrest did not violate
"right to bear arms" Bemis v. Kelley, 671 F.Supp. 837 (D. Mass 1987).
Requiring arrestees to submit to a drug testing
and treatment program is a search or seizure Berry v. District of Columbia, 833
F.2d 1031 (DC Cir. 1987).
Civil rights action challenging search of all
entering courthouse dismissed for failure to rely on fourteenth amendment
Justice v. Elrod, 832 F.2d 1048 (7th Cir. 1987).
Officers may not indiscriminately pat down
persons at Ku Klux Klan rallies for weapons; no liability for damages found
Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987).
California appeals court allows police to conduct
full body searches and open closed containers on persons arrested for being
under the influence of alcohol in public People v. Dennis, 172 Cal App. 3d 287
(App. 1985).
Officer jointly liable with mother for abducting
son Shields v. Martin, 706, P.2d 21 (Idaho 1985).
State ordered to issue driver's license without
requiring photograph Quaring v. Peterson, 728 F.2d 1121 (8th Cir. 1984).
Officer's search of plaintiff for revolver
following traffic dispute reasonable; no physical or verbal abuse by officer
Lacascio v. Maurice, 447 So.2d 6 (La App. 1984).
Bullet ordered surgically removed from defendant
Ex parte Johnson, 452 So.2d 889 (Ala Cr App. 1984).
Pedestrian properly ticketed for walking in
street, despite that sidewalk was snowy Newman v. Village of Hinsdale, 592
F.Supp. 1307 (N.D.Ill. 1984).
U.S. Supreme Court rules students can be searched
without probable cause Bilbrey By Bilbrey v. Brown, 738 F.2d 1462 (9th Cir.
1984); Garmon v. Foust, 741 F.2d 1069 (8th Cir. 1984).
Stop and questioning under local ordinance upheld
Porta v. Mayor, City of Omaha, Neb, 593 F.Supp. 863 (D. Neb 1984).
Strip-search of children during search of house
violated Fourth Amendment rights Doe v. City of Chicago, 580 F.Supp. 146
(N.D.Ill. 1983).
Routine warrant less pat-down searches at rock
concerts held unconstitutional Jacobsen v. City of Seattle, 658 P.2d 653 (Wash
1983).
Officials can not remove bullet from suspect for
use as evidence Lee v. Winston, 717 F.2d 888 (4th Cir. 1983).
No liability for recording informant's
conversation with plaintiff; possible liability for search of plaintiff's
safety deposit boxes allegedly without warrant Watts v. Graves, 720 F.2d 1416
(5th Cir. 1983).