The Second Circuit en banc refuses to recognize a Bivens claim in extraordinary rendition cases where Congress has not spoken. Arar v. Ashcroft, 585 F.3d 559 (2d Cir. 2009) (en banc):
Our ruling does not preclude judicial review and oversight in this context. But if a civil remedy in damages is to be created for harms suffered in the context of extraordinary rendition, it must be created by Congress, which alone has the institutional competence to set parameters, delineate safe harbors, and specify relief. If Congress chooses to legislate on this subject, then judicial review of such legislation would be available.
Applying our understanding of Supreme Court precedent, we decline to create, on our own, a new cause of action against officers and employees of the federal government. Rather, we conclude that, when a case presents the intractable "special factors" apparent here, see supra at 36-37, it is for the Executive in the first instance to decide how to implement extraordinary rendition, and for the elected members of Congress--and not for us as judges--to decide whether an individual may seek compensation from government officers and employees directly, or from the government, for a constitutional violation. Administrations past and present have reserved the right to employ rendition, see David Johnston, U.S. Says Rendition to Continue, but with More Oversight, N.Y. Times, Aug. 24, 2009, and not withstanding prolonged public debate, Congress has not prohibited the practice, imposed limits on its use, or created a cause of action for those who allege they have suffered constitutional injury as a consequence.
Defendant was present, but he was not asked for consent. This did not violate Randolph. Invoking Miranda is not a refusal of consent. Also, he never objected to her consent. United States v. Stanley, 351 Fed. Appx. 69, 2009 FED App. 0716N (6th Cir. 2009), cert. den. 2010 U.S. LEXIS 2960 (U.S., Apr. 5, 2010) (unpublished)*:
Stanley did not refuse consent to search the apartment. Stanley admits he was present in the apartment when Foster gave her consent to search. Stanley did not object after Foster gave her consent. Again, Stanley cites no authority, and we are unaware of any, that supports Stanley's assertion that the invocation of Miranda rights constitutes an express refusal of consent to search. The district court did not err in ruling that Foster's consent to the search gave the officers legal authority to search the apartment. See Lawrence, 308 F.3d at 626-627.
Failure to include an argument in a motion to suppress is a waiver of that specific argument. United States v. Hamilton, 587 F.3d 1199 (10th Cir. 2009).*
No Pingbacks for this post yet...
| Sun | Mon | Tue | Wed | Thu | Fri | Sat |
|---|---|---|---|---|---|---|
| << < | ||||||
| 1 | 2 | 3 | 4 | |||
| 5 | 6 | 7 | 8 | 9 | 10 | 11 |
| 12 | 13 | 14 | 15 | 16 | 17 | 18 |
| 19 | 20 | 21 | 22 | 23 | 24 | 25 |
| 26 | 27 | 28 | 29 | 30 | ||
©
2003-10
Online since Feb. 24, 2003
To search Search and Seizure on Lexis.com $
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
Fourth
Amendment cases,
citations, and links [New]
Latest Slip Opinions:
U.S. Supreme Court (Home)
Federal Appellate Courts
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
Military Courts: C.A.A.F.,
Army, AF,
N-M, CG
State courts
Google Scholar
Advanced Google Scholar
Google
search tips
LexisWeb
LII State Appellate
Courts
LexisONE
free caselaw
Findlaw Free Opinions
Most recent SCOTUS
cases:
2010-11 Term:
None yet
2009-10 Term:
Michigan
v. Fisher, 130 S. Ct. 546, 175 L. Ed. 2d 410, decided Dec. 7 (per curiam)
(ScotusWiki)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L. Ed. 2d 216, decided June 17 (ScotusWiki)
2008-09 Term:
Herring
v. United States, 129 S. Ct. 695, 172 L.Ed.2d 496, decided Jan. 13 (ScotusWiki)
Pearson
v. Callahan, 129 S. Ct. 808, 172 L. Ed. 2d 565, decided Jan. 21 (ScotusWiki)
Arizona
v. Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, decided Jan. 26 (ScotusWiki)
Arizona
v. Gant, 129 S. Ct. 1710, 173 L. Ed. 2d 485, decided April 21 (ScotusWiki)
Safford
Unified School District #1 v. Redding, 129 S. Ct. 2633, 174 L. Ed. 2d 354,
decided June 25 (ScotusWiki)
Research Links:
Supreme Court:
SCOTUSBlog
SCOTUSWiki
S. Ct.
Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
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
DOJ
Computer Search Manual
USSS
computer search website
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
"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).
"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 LePew
"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)