NJLJ: Editorial: Parking Space ‘Chalking’ Case Raises Questions on Fourth Amendment Jurisprudence:
Technology is making universal surveillance of public spaces possible, and the right to be lost in the crowd will not depend on chalk. The real issue is not search but scrutiny.
The search warrant for defendant’s cell phone was expansive, but it was evidence in a shooting case where defendant and others were involved. Moreover, the good faith exception applied. State v. Goynes, 303 Neb. 129 (May 17, 2019):
Continue reading
There is no reasonable expectation of privacy as to a pole camera on business property in a public area. United States v. Gbenedio, 2019 U.S. Dist. LEXIS 83682 (N.D. Ga. Mar. 29, 2019).
The alleged fact of a telephone call between defendant and a shooting victim was probable cause for the search warrant for defendant’s cell phone. Commonwealth v. Mack, 2019 Mass. LEXIS 291 (May 16, 2019).
There was probable cause for the search warrant of defendant’s cell phone, and he consented as well. The probable cause was also supported by the good faith exception. United States v. Garcia, 2019 U.S. Dist. LEXIS 82289 (C.D. Cal. May 16, 2019).*
The state blood draw is constitutionally suspect, but the court doesn’t have to go there. The officer’s actions in relying on it was still good faith. Stewart v. State, 2019 OK CR 6, 2019 Okla. Crim. App. LEXIS 8 (May 17, 2019).
Defendant’s claim that he shouldn’t have been subject to a probation search waiver wasn’t preserved. Hazelwood v. State, 2019 Ark. App. 270 (May 15, 2019).*
The record supports that there was reasonable suspicion for defendant’s traffic stop for following too close. United States v. Rodriguez, 2019 U.S. Dist. LEXIS 81517 (N.D. Tex. May 15, 2019).*
“¶1 David Morgan was convicted by a jury of first degree assault, attempted murder, and arson. A bloodstain pattern analysis performed on his clothing suggested he was in close proximity to the victim when she suffered her injuries. We must decide if the warrantless seizure of his clothing, which officers reasonably concluded contained evidence, was justified by an exception to the warrant requirement. ¶2 Based on our inconsistent articulation of the plain view doctrine, the Court of Appeals found that the State was required to establish inadvertence as a separate element and reversed Morgan’s convictions. We hold inadvertence is not a separate element required under the plain view doctrine, reinstate Morgan’s convictions, and remand to the Court of Appeals for further proceedings in that court.” State v. Morgan, 2019 Wash. LEXIS 324 (May 16, 2019):
Continue reading
The officer’s alleged subjective intent to search didn’t matter because there was justification under the automobile exception anyway. People v. HinesPeople v. HinesPeople v. Hines, 2019 NY Slip Op 03853, 2019 N.Y. App. Div. LEXIS 3884 (3d Dept. May 16, 2019).
Plaintiff didn’t show that the search violated the terms of his parole search waiver. Bogan v. German, 2019 U.S. App. LEXIS 14708 (7th Cir. May 17, 2019).*
Defendant didn’t show that the statements in the affidavit for search warrant were false, so the motion to suppress is denied. No Franks violation. United States v. Williams, 2019 U.S. Dist. LEXIS 83484 (W.D. Pa. May 17, 2019).*
“In this case, Defendant, the driver and sole occupant of the vehicle, had been arrested. It was likely the vehicle would be unattended for an extended period of time. Per department policy, the arresting officers caused the vehicle to be impounded. They had both the right and the duty to protect that automobile and its contents. Id. at 1290. Even though the vehicle was legally parked, this would not render the seizure invalid. Franco v. Kluge, No. EP-13-CV-00313-FM, 2015 WL 1637688, at *10 (W.D. Tex. Apr. 13, 2015) (citing Staller, 616 F.2d at 1290).” United States v. Gray, 2019 U.S. Dist. LEXIS 83438 (E.D. Tex. May 17, 2019).*
In a 20 year old murder case, there was probable cause for obtaining defendant’s DNA from him in a Texas prison. State v. Hernandez, 2019 Tenn. Crim. App. LEXIS 310 (May 15, 2019).*
“Thus, success on Weems’s unlawful entry, search, seizure, and arrest claims would necessarily imply the invalidity of his convictions. See Heck, 512 U.S. at 487; Hudson v. Hughes, 98 F.3d 868, 872 (5th Cir. 1996). Because Weems’s false reporting and testimony claims were related to the admissibility of the firearm, success on these claims would likewise imply the invalidity of his convictions. See Heck, 512 U.S. at 487. Accordingly, the district court did not err in concluding that the foregoing claims were barred by Heck. See id.” Weems v. Conley, 2019 U.S. App. LEXIS 14712 (5th Cir. May 17, 2019).*
Stationary video surveillance outside an apartment building of common areas is not at all analogous to Carpenter. “The defendant urges the court to compare his facts to those in Whitaker. Dkt. No. 223 at 9. The defendant argues that a video surveillance camera is analogous to a drug-sniffing dog—a ‘“sophisticated sensing device not available to the general public.”’ Id. (quoting Whitaker, 820 F.3d at 854). [¶] The comparison is not convincing.” United States v. Kelly, 2019 U.S. Dist. LEXIS 82507 (E.D. Wis. May 16, 2019).
Defendant’s connection to the property for standing purposes was less than tenuous. A six second call from the house was about all he could show. United States v. Jackson, 2019 U.S. Dist. LEXIS 82858 (S.D. Fla. May 1, 2019).*
The judge issuing the Facebook warrant in this case was within her discretion in recusing from determining the merits. Besides, there was probable cause, and the search warrant was particular.
People v. Grose, 2019 NY Slip Op 03808, 2019 N.Y. App. Div. LEXIS 3742 (2d Dept. May 15, 2019).*
Defendant was a mere passenger in the car with no standing to challenge its search. Even so, the search of the car was justified under the automobile exception. United States v. Cruz-Mercedes, 2019 U.S. Dist. LEXIS 81619 (D. Mass. May 15, 2019).*
Just because hearsay can be used to get a search warrant, that doesn’t make that same hearsay admissible at trial without violating the Confrontation Clause. United States v. Jones, 2019 U.S. App. LEXIS 14550 (5th Cir. May 16, 2019).
“Here, contrary to the People’s contentions, the detective’s on-the-scene observations during the two controlled drug buys fell short of probable cause without the information provided to him by the CI. Although the detective observed the CI enter and exit the building, the detective was unable to confirm that the CI had actually purchased the narcotics from the subject apartment ….” Remanded for an evidentiary hearing. People v. Nettles, 2019 NY Slip Op 03816, 2019 N.Y. App. Div. LEXIS 3762 (2d Dept. May 15, 2019).*
ABA Journal Web 100, Best Law Blogs (2017); ABA Journal Blawg 100 (2015-16)
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
www.johnwesleyhall.com
© 2003-19,
online since Feb. 24, 2003
WebPage Visits: real non-robot hits since 2010; approx. 25k posts since 2003
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts Opinions
First Circuit
Second Circuit
Third Circuit
Fourth
Circuit
Fifth Circuit
Sixth Circuit
Seventh
Circuit
Eighth Circuit
Ninth Circuit
Tenth Circuit
Eleventh
Circuit
D.C.
Circuit
Federal Circuit
Foreign Intell.Surv.Ct.
FDsys, many district courts, other federal courts
Military Courts: C.A.A.F., Army, AF,
N-M, CG, SF
State courts (and
some USDC opinions)
Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To
search Search and Seizure on Lexis.com $
Research Links:
Supreme Court:
SCOTUSBlog
S. Ct.
Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Oyez
Project (NWU)
"On the Docket"–Medill
S.Ct.
Monitor: Law.com
S.Ct.
Com't'ry: Law.com
General (many free):
LexisWeb
Google Scholar | Google
LexisOne
Legal Website Directory
Crimelynx
Lexis.com
$
Lexis.com
(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
Westlaw.com
$
F.R.Crim.P.
41
www.fd.org
Federal Law Enforcement Training Center Resources
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
Computer Search Manual (2009) (pdf)
Stringrays (ACLU No. Cal.) (pdf)
Congressional Research Service:
--Electronic
Communications Privacy Act (2012)
--Overview
of the Electronic Communications Privacy Act (2012)
--Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
--Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Frontier Foundation
NACDL’s Domestic Drone Information Center
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"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
