Unless police have reasonable suspicion that a subject is armed and dangerous, they may generally conduct a pat-down for officer safety only with the subject’s voluntary consent. Here, Defendant asked to step out of his truck during a traffic stop, and police made their permission conditional on a pat-down. Defendant argues that choice was inherently coercive and rendered his consent involuntary, but we disagree. Police could simply have required Defendant to remain in the truck, with no option of getting out, as part of their authority to control the scene of a traffic stop. Therefore, they could also make permission to exit conditional on consent to a pat-down, since Defendant had the option of staying in the truck and thus avoiding the search. We granted transfer after oral argument, and now reverse the trial court’s grant of Defendant’s motion to suppress evidence obtained as a result of the pat-down.” State v. Cunningham, 2015 Ind. LEXIS 145 (March 2, 2015).
The trial court’s decision not to credit the officer’s testimony because of memory problems of remembering a 2000 traffic stop in 2014 led to granting the motion to suppress. That’s binding on appeal. State v. Castillo, 2015 Ga. App. LEXIS 70 (March 2, 2015).*
After a foreign website was tracked to a child pornography shipping site in the U.S., a search warrant issued for defendant’s house for receiving some of it. It was issued with probable cause to believe that evidence of child pornography would be find. The request for a Franks hearing falls short. United States v. Hood, 2015 U.S. Dist. LEXIS 24394 (N.D. Ga. February 6, 2015).*
Defendant’s motion to suppress evidence and statements is deficient in what it alleges, so the court goes with the government’s version and denies the motion. United States v. Aleem, 2014 U.S. Dist. LEXIS 182475 (N.D.N.Y. April 30, 2014).
Officers had more than a mere hunch that defendant, believed to have crossed the border illegal after a 2004 deportation and a 2009 Iowa conviction for domestic battery, was driving this car when it was stopped. ICE had been looking for him, staked out where he lived, and reasonably believed he was in the car, although “not 100% sure.” United States v. Baez, 2015 U.S. Dist. LEXIS 24685 (N.D. Iowa March 2, 2015).*
Defense counsel was not ineffective for not filing a motion to suppress the search because the defendant cooperated and was debriefed before that. That was strategic and made sense. The federal firearms charge with a mandatory minimum wasn’t filed because of a state motion to suppress. Besides, it was essentially frivolous. Tran v. United States, 2015 U.S. Dist. LEXIS 24691 (N.D. Iowa March 2, 2015).*
A single access to child pornography from an IP address linked to defendant was not enough to find probable cause that the defendant had child pornography on the computer. The good faith exception, however, was sufficient to sustain the warrant because the officer was merely negligent in his representations to the issuing magistrate. United States v. Raymonda, 2015 U.S. App. LEXIS 3141 (2d Cir. March 2, 2015): Continue reading →
Tuesday’s argument in City of Los Angeles v. Patel, a Fourth Amendment case, presents a particularly difficult example of a common Supreme Court question: should the Court rule narrowly on the case before it, or answer far broader questions? That question does not always have obvious ideological parameters (although the Fourth Amendment context may color the Justices’ views in this case), and Tuesday’s argument may be most interesting for the perspective it may provide on each Justice’s jurisprudential approach.
. . .
Three reasons that this case is harder, and more important, than it may look
Chicago Tribune: Why Apple can afford to get all gooey-eyed over the Fourth Amendment by Justin Fox. The last paragraph:
Don’t get me wrong. It’s pretty awesome that Apple’s business model allows its chief executive officer to be an outspoken advocate for consumer (and citizen) privacy around the world. We need powerful people making that case. It wouldn’t be awesome, though, if he were ever so successful in his lobbying campaign that we rewrote our consumer privacy laws in a way that only allowed technology companies to make money the way Apple makes money.
Above all, don’t give them your cell phone password
Recently a lawyer asked me at a party, “If I’m arrested will police take my cell phone, and if they do, how will I be able to make my one phone call?”
People who might not have participated in civic demonstrations since the heady 60s are getting back into the action after the grand jury failures to indict in the Michael Brown and Eric Garner cases and wondering how the arrest process works.
There are a lot of myths about criminal law. For example, if a cop doesn’t read me my “Miranda Rights” the case gets thrown out, right? (No.) Or, a paid lawyer must be better than a public defender. (Not necessarily.) The idea of the “one” phone call remains a standard myth.
Body-cam video admitted, and the motion to suppress it wasn’t timely, even if it would have been granted as showing a potential Miranda violation. The video showed what officers would testify to; to limit it would require it be overly prejudicial. United States v. Roberts, 2015 U.S. App. LEXIS 3106 (6th February 27, 2015): Continue reading →
Probation searches in Indiana can be by any law enforcement officer on reasonable suspicion, and defendant was on electronic monitoring at home. Such searches are always governed by reasonableness, and the court does not find it unreasonable to walk a drug dog through defendant’s home at a reasonable hour. The reasonable suspicion was a CI’s report that defendant was bragging about stealing marijuana. Shelton v. State, 2015 Ind. App. LEXIS 118 (February 27, 2015): Continue reading →
A stolen phone’s locator app led the police to defendant, and he matched the description of the robber so there was reasonable suspicion. State v. Sykes, 2015 Tenn. Crim. App. LEXIS 132 (February 25, 2015).
Defendant was staying at an extended stay hotel for one week, and the lease agreement said it was not his dwelling and management reserved the right to inspect rooms. An inspection did occur because the hotel was planning on renovating some rooms. His room was entered and a significant quantity of marijuana was found, which the maintenance worker photographed with his phone. This was all a private search that led to a search warrant. Rabe v. Commonwealth, 2015 Ky. App. LEXIS 30 (February 27, 2015).
Seeing only enough marijuana to be a civil infraction is not probable cause for an automobile exception search of a car. Commonwealth v. Sheridan, 2015 Mass. LEXIS 102 (February 27, 2015): Continue reading →
Defendant was tried and acquitted of possession and was involved in a forfeiture action. Because he was acquitted the state can’t rely on losing the motion to suppress in the trial court because there was no appeal. The stop was admittedly pretextual because the officer was going to make a stop for alleged drugs and was waiting for a traffic offense to make the stop. The stop was objectively reasonable despite the pretext. In the Matter of Property Seized from Parsee, 2015 Iowa App. LEXIS 196 (February 25, 2015): Continue reading →
The collective knowledge rule applies to traffic stops on reasonable suspicion. Questioning while defendant is rummaging around for this papers does not extend the stop. United States v. Saldana, 2015 U.S. Dist. LEXIS 23850 (W.D.Tex. February 27, 2015).
The argument before trial was lack of consent at all, not scope of consent, and that was a reasonable strategy. Therefore, defendant’s IAC claim that failure to argue the search exceeded the scope of consent fails. Medrano v. United States, 2015 U.S. Dist. LEXIS 24123 (S.D.N.Y. February 27, 2015).*
“[T]he Court of Federal Claims lacks jurisdiction to hear plaintiff’s claims against the U.S. Marshal acting in his official capacity that could be construed as a Fourth Amendment violation.” Dillard v. United States, 2015 U.S. Claims LEXIS 183 (February 20, 2015).*
Defendant was a passenger on a Tornado Bus Company bus, a company that hauls primarily Hispanic passengers around the U.S. This trip was from Houston to Atlanta. The bus was stopped in Louisiana for swerving over the line. The driver consented to a dog sniff of the luggage compartment which extended the stop, resolving a credibility question, three minutes, not thirty. Bags were searched, but the dog alerted more so on a particular bag, and meth was found. [The opinion is long and detailed on factors of consent, but the court actually goes too far and finds that the driver had common authority over the luggage to consent, which one cannot remotely buy into. Automobile exception would have applied, but it’s unmentioned.] United States v. Hernandez, 2015 U.S. Dist. LEXIS 23730 (M.D.La. February 27, 2015): Continue reading →
Officers squeezing an express mail envelope not in recipient’s possession and feeling pills was not a “search” under Bond. United States v. Taylor, 2015 U.S. Dist. LEXIS 23978 (S.D.W.Va. February 27, 2015): Continue reading →
Obtaining Cell site location information doesn’t yet require a search warrant on probable cause under ECPA or the Fourth Amendment in the Ninth Circuit or in any district court in the circuit. Even if all those courts are wrong, the good faith exception would apply. United States v. Bailey, 2015 U.S. Dist. LEXIS 23693 (C.D.Cal. February 23, 2015):
As stated above, the statute pursuant to which the orders were issued requires that law enforcement support an application with “specific and articulable facts showing that there are reasonable grounds to believe that … the records sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) (emphasis added). Below, the Court first explains that the Fourth Amendment does not apply to the orders at issue (and that even if it did, the subscriber information and historical cell site data would likely be admissible under the good faith exception). Second, the Court concludes that the orders at issue met the applicable SCA standard for historical cell site data—and even if they did not, that statute would not permit the Court to suppress any evidence on that basis.
Defendant had no standing in a stolen trailer even though he owned the truck pulling it. Similar is United States v. Abreu, 935 F.2d 1130, 1132 (10th Cir. 1991). United States v. Hayes, 2015 U.S. Dist. LEXIS 22860 (D.Utah February 9, 2015).
Defendant was a suspect in brandishing a weapon in a neighborhood. Police checked to see if he was on probation or parole, and he was a convicted sex offender with lifetime supervision who had never been registered. They obtained an arrest warrant and went to his house to arrest him. His wife consented to a search of the house and a gun was found. The affidavit for the warrant said he was to have reported for registration “on or about November 17, 2011” when it was actually December 1st. This was hardly material for Franks purposes in February 2013. United States v. Holmes, 2015 U.S. App. LEXIS 3043 (6th Cir. February 25, 2015).*
There is a vast amount of federal law. So much that no one can hope to keep it all in mind, much less master the mass of it. But it was not always so. The current universe of federal law did begin with a bang, although not a big one. It began with a Constitution on four parchment pages, followed by a Bill of Rights on one more.1 But the Constitution begat Congress, and Congress begat statutes –– lots and lots of statutes –– the current version of them fills 45,000 pages of the United States Code.2 Those statutes begat hundreds of administrative agencies, and many of those agencies begat regulations –– lots and lots of them. So many that the Code of Federal Regulations fills 235 volumes and is 175,000 pages long, give or take a few thousand pages.3 As the number of statutes and regulations has multiplied exponentially, so has decisional law. Supreme Court decisions fill 573 volumes of the official United States Reports, while federal court of appeals decisions fill 2,000 or so volumes of the Federal Reporter series.
Truly, federal laws have multiplied to become “beyond number, like the stars in the sky and the sand on the seashore.”4 Charting a course through this universe of federal law, which is expanding at an ever-accelerating rate, can be difficult. Attorneys and judges sometimes overlook a statutory provision, a regulation, or a decision that directly controls a case. We have all done it occasionally. It happened in this case.
__________________
1. The parchment pages containing the Constitution are 28 and 3/4 inches by 23 and 5/8 inches. The Bill of Rights parchment page is 28 and 1/2 inches by 28 and 1/4 inches.
2. This number is based on the 2012 edition of the United States Code, excluding volumes 35 through 41 (which contain conversion tables and indices) and annual supplements.
3. Those numbers are based on the latest official statistics from the Office of the Federal Register. See Office of the Federal Register, Code of Federal Regulations – Total Pages 1938 Through 1949, and Total Volumes and Pages 1950 Through 2013, https://www.federalregister.gov/uploads/2014/04/OFR-STATISTICS-CHARTS-ALL1-1-1-2013.pdf (last visited Jan. 27, 2015).
4. Genesis 22:17 (New Living Translation); see also Raymond Chandler, The Long Goodbye 315 (Vintage Books 1988) (1953) (“[Lawyers] write the laws for other lawyers to dissect in front of other lawyers called judges so that other judges can say the first judges were wrong and the Supreme Court can say the second lot were wrong. Sure there’s such a thing as law. We’re up to our necks in it.”).
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
—Pepé Le Pew
"There is never enough time, unless you are serving it."
—Malcolm Forbes
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
