Terry v. Ohio decided 50 years ago today

Today, Sunday, June 10th, is the 50th Anniversary of Terry v. Ohio, 392 U.S. 1 (1968). Ohio’s Eighth District Court of Appeals opinion is also noteworthy, drawing on common law and whatever recent authority there was, considering the court of appeals decided its case in 1966, and the officer’s 39 years experience [that means he started in 1924] that Terry and Chilton were up to no good, casing a jewelry store. Terry’s stop and frisk was Halloween 1963. The court of appeals made it clear the right to frisk was limited to weapons, to balance the gravity of need against the intrusion. And, it’s opinion was 28 months before SCOTUS’s. State v. Terry, 5 Ohio App. 2d 122, 214 N.E.2d 114 (1966). Louis Stokes argued for Terry, and he was later a legendary Congressman from Cleveland. Jack Day was co-counsel with Stokes in SCOTUS. He was NACDL President at the time.

There is an historical marker across the street where Det. McFadden was standing as he watched Terry and Chilton case the jewelry store. It was placed in 2003. I did a CLE in Cleveland in 2008, and I was taken by the FPD to the spot, still important to the local legal lore.

Terry is usually known to many as just the first “stop and frisk” case, but it is so much more to the Fourth Amendment and the concept of “reasonableness” and scope of search.
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Philly.com: The solution to stopping stop-and-frisk problems in Philly: Abolish it | Opinion

Philly.com: The solution to stopping stop-and-frisk problems in Philly: Abolish it | Opinion

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MotherJones: A Private Prison Company Gave 1,300 Recordings of Confidential Inmate Phone Calls to Prosecutors

MotherJones: A Private Prison Company Gave 1,300 Recordings of Confidential Inmate Phone Calls to Prosecutors by Tonya Riley:

Kansas’ US Attorney’s Office has admitted listening to opposing lawyers’ conversations.

Securus, the company responsible for recording the calls, has already faced legal action for illegally taping communications.

Securus has the Arkansas Department of Correction contract. They tell us they don’t record attorney-client calls because they are dealt with differently than regular calls because attorney’s phone numbers are entered in the system to not record them. I’ve never really trusted them, but I’ve seen no evidence they’ve done anything wrong in Arkansas.

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CA9: Shaving a spot on cattle to look at a brand doesn’t violate 4A

Shaving a spot on cattle to look at a brand doesn’t violate the Fourth Amendment. [Actually, nowhere does anything say that so qualified immunity must apply. The case doesn’t say that, but that’s the bottom line.] Gillette v. Malheur County, 2018 U.S. App. LEXIS 15535 (9th Cir. June 8, 2018).*

“Even if suppression was an available remedy [because of Hudson], the government has demonstrated that a no-knock entry was permitted, because the authorities had a ‘“reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime.”’ (D.I. 77 at 5) (quoting Richards v. Wisconsin, 520 U.S. 385, 394 (1997)). Here, the authorities’ no-knock entry was permissible, because (a) arrests of all co-defendants were being done simultaneously and extra time would have given Velez a chance to warn the others, (b) the known layout of the apartment created a heightened safety risk, and (c) the phone that the investigators were after could have been destroyed (and was indeed snapped in half). …” United States v. Velez-Encarnacion, 2018 U.S. Dist. LEXIS 95841 (D. Del. June 7, 2018).

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D.S.C.: Cut and paste “clerical error” on address of place to be searched was overcome by GFE

Officers sought a search warrant for defendant’s house at 2681 Houston Street. The search warrant itself, obviously called up on a computer from another case, had 3438 Navajo Street, and nobody noticed the difference, including the judge who reviewed the warrant. The Houston Street address was defendant’s and that was the one searched, and heroin was found. This is a mere “clerical error” even though it happened twice. United States v. Grant, 2018 U.S. Dist. LEXIS 94849 (D. S.C. June 6, 2018):

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D.Me.: In a knock-and-talk for CP, it was not unreasonable to tell defendant he had the choice of consenting to seizure of the computer or the house pending arrival of a SW

Officers came to defendant’s house essentially as a knock and talk to obtain child pornography on his computer which they knew he had. They told him he could consent to a seizure of the computer while they got a warrant or they would seize the house while they got the warrant and not let him inside. “As to Mr. Mumme’s claim that he became overwhelmed when Det. Tupper refused to allow him to enter the house to call his lawyer, I do not find Det. Tupper’s conduct coercive. Det. Tupper made clear to Mr. Mumme that the reason he was not allowed into his home was that the officers intended to secure the house while they applied for a warrant. This was a lawful step. … Moreover, Mr. Mumme was never told that he could not use a cell phone or leave the premises to place a call to his lawyer. Taking into account the totality of the circumstances, I find that Mr. Mumme’s consent to the seizure of his devices was voluntary.” United States v. Mumme, 2018 U.S. Dist. LEXIS 94892 (D. Me. June 6, 2018).

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E.D.Mich.: Gant didn’t bar a plain view of the interior of def’s car when he was handcuffed on ground

Defendant was arrested for drug dealing, and he was handcuffed on the ground near the car. The search of the car here was based on seeing a gun in the car in plain view, so Gant doesn’t bar the search. United States v. Biglow, 2018 U.S. Dist. LEXIS 94144 (E.D. Mich. June 5, 2018).

After a justifiable stop, the officer concluded that something was amiss between the defendant and the other man he claimed was his brother. The conversation didn’t add up, and when the other man was asked if everything was okay, the other man said yes but shook his head no. The court finds reasonable suspicion on the totality. A little later, the officer learns the other man was to be robbed. State v. Nicholson, 2018 N.C. LEXIS 435 (June 8, 2018).*

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D.Kan.: Officer’s attempt to use Google Translate to get consent to search car led to confusion; and govt failed in its burden of proof of voluntariness

Defendant was a native Spanish speaker, and the officer tried to use Google translate on his phone to ask him to consent to a search of this car. The result was confusing, and the court finds that the government failed in its burden of proving unequivocal consent. Moreover, the good faith exception does not apply here. United States v. Zamora, 2018 U.S. Dist. LEXIS 93906 (D. Kan. June 5, 2018):
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W.D.Ky.: Denial of one SW application is not res judicata to another different one

88 days wasn’t stale in a child pornography case. You can’t legally or factually compare marijuana possession to possession of child pornography. Denial of one search warrant application is not res judicata to another. [Usually, the second application is different with more facts to overcome the first denial.] United States v. Prine, 2018 U.S. Dist. LEXIS 93982 (W.D. Ky. June 5, 2018). As to the latter:
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EFF: Does the Government Really Need this Much Power to Deal with an Attack of the Drones?

EFF: Does the Government Really Need this Much Power to Deal with an Attack of the Drones? by India McKinney and Andrew Crocker

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The Atlantic: Drone Cops Take Flight in Los Angeles

The Atlantic: Drone Cops Take Flight in Los Angeles by Geoff Manaugh:

The L.A. County Sheriff has deployed a quadcopter drone for rescue and reconnaissance. But will the public accept that these aerial officers come in peace?

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Baylor Med School: [Medical] Ethicists examine law enforcement’s use of genetic databases

Baylor Med School: Ethicists examine law enforcement’s use of genetic databases by Allison Mickey:
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