12/24/08

Permalink 12:46:28 pm, by fourth Email , 567 words, 4 views   English (US)
Categories: General

S.D. Fla.: Search incident of cellphone not justified

A search incident of a cellphone is not justified. United States v. Wall, 2008 U.S. Dist. LEXIS 103058 (S.D. Fla. December 22, 2008):

The Seventh Circuit has permitted the admission of phone numbers found on a pager during a warrantless search at the time of the arrest. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996). The court reasoned that pagers have a finite memory, and new incoming pages can potentially destroy previously stored numbers. Id. Thus, the court there found it necessary for law enforcement to immediately search pagers to prevent the destruction of evidence. Id. The Fifth Circuit has extended the holding of Ortiz to searches of cell phones. United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). However, the Finley court did not explain why cell phones should be treated the same as pagers for purposes of the Fourth Amendment.

After the Finley opinion was entered, a court in the Northern District of California distinguished cell phones from pagers and suppressed the information retrieved from the cell phones. United States v. Park, 2007 WL 1521573 (N.D. Cal. 2007). In Park, the court found that cell phones can store a great quantity of information, and the government made no showing that the search was necessary to prevent the destruction of evidence. Id. at *9. The court further found that the search of the cell phones could not be considered an inventory search, because such searches are used to document possessions of a person in custody, not as a "ruse for a general rummaging in order to discover incriminating evidence." Id. at *10 (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

To determine if the search was valid, the Court has considered whether a search incident to an arrest, an inventory search, or exigent circumstances provide an exception to the warrant requirement in this case. Further, the Court has taken into account the testimony Agent Mitchell gave at the evidentiary hearing regarding his reasons for searching the cell phones for text messages: 1) he regularly performs searches as an investigative measure because it is common to find evidence of a crime in text messages; 2) it is a standard practice of the DEA and is authorized by the DEA Legal Department so long as the search is performed during the booking process; 3) he was concerned that the text messages might expire after a certain amount of time; and 4) the cell phone battery may die.

The Court declines to adopt the reasoning of Finley and extend law to provide an exception to the warrant requirement for searches of cell phones. The search of the cell phone cannot be justified as a search incident to lawful arrest. First, Agent Mitchell accessed the text messages when Wall was being booked at the stationhouse. Thus, it was not contemporaneous with the arrest. Kucynda, 321 F.3d at 1082. Also, the justification for this exception to the warrant requirement is the need for officer safety and to preserve evidence. Agnello v. United States, 269 U.S. 20, 30 (1925) (recognizing the long-held right of law enforcement "to find and seize things connected with the crime ... as well as weapons and other things to effect an escape from custody"). The content of a text message on a cell phone presents no danger of physical harm to the arresting officers or others. Further, searching through information stored on a cell phone is analogous to a search of a sealed letter, which requires a warrant. See United States v. Jacobsen, 466 U.S. 109, 114 (1984).

Permalink 12:04:22 pm, by fourth Email , 130 words, 5 views   English (US)
Categories: General

D.Me.: Search of residence as a condition of bail in a state case was reasonable

Search of defendant’s house after his arrest outside his house for violation of bail, the search authorized as a condition of bail, was reasonable. United States v. Gates, 2008 U.S. Dist. LEXIS 102989 (D. Maine December 19, 2008), citing State v. Ullring, 1999 ME 183, PP 26-27, 741 A.2d 1063, 1073 (1999).

Defendant walking away from the police knelt down and hid a gun under a block in an alley. He had no reasonable expectation of privacy where he left the gun. The officer could see the gun sticking out from under the block, too. United States v. Harris, 2008 U.S. Dist. LEXIS 102976 (D. Del. December 22, 2008).*

Court finds that there was no traffic violation from a purported license plate light being out to justify the stop. United States v. Babarovic, 2008 U.S. Dist. LEXIS 103001 (S.D. Tex. December 22, 2008)

Permalink 10:30:48 am, by fourth Email , 102 words, 4 views   English (US)
Categories: General

LA5: Presence of two felons justified protective sweep

Protective sweep under Buie was justified by belief there were two felons present. Plain view of gun was valid. State v. Hicks, 2008 La. App. LEXIS 1706 (5th Cir. December 16, 2008).*

Record supports the trial court's conclusion defendant consented to the search of his car. People v. Visich, 2008 NY Slip Op 10029. 2008 N.Y. App. Div. LEXIS 9703 (2d Dept. December 16, 2008).*

Officers watched defendant purchase psuedo three times and then he committed a traffic violation. PC for a search of the car was present by the plain view of the psuedo he saw on the dashboard. Vafaiyan v. State, 2008 Tex. App. LEXIS 9501 (Tex. App. – Ft. Worth December 18, 2008).*

Permalink 06:30:08 am, by fourth Email , 153 words, 10 views   English (US)
Categories: General

Trash pulls 3 and 4 weeks before warrant showed ongoing operation, so warrant not stale

"[T]he trash pulls of April 17, 2008 and April 24, 2008 revealed drug paraphernalia and residue of both cocaine and marijuana suggesting an ongoing packaging, storing or distribution pattern. The search warrant was obtained on May 7, 2008, almost two weeks after the last trash pull, and executed on May 14, 2008, within three weeks of the last trash pull. Under these circumstances the information was not stale." United States v. Robinson, 2008 U.S. Dist. LEXIS 102689 (S.D. Fla. December 19, 2008).*

Landlords had no standing to challenge rental unit inspections of their tenants. Steinhauser v. City of St. Paul, 2008 U.S. Dist. LEXIS 102785 (D. Minn. December 18, 2008).*

The omitted information in the affidavit was material, but it was not intentionally omitted because it would have aided in showing that the information was not stale. Even if alleged false information was omitted the affidavit reconsidered as reformed, PC would still exist. United States v. Holt, 2008 U.S. Dist. LEXIS 102769 (M.D. Fla. December 10, 2008).*

12/23/08

Permalink 06:26:04 am, by fourth Email , 239 words, 16 views   English (US)
Categories: General

OH2: Patdown revealing pill bottle was not a plain feel; officer knew it wasn't a weapon

Patdown was justified by reasonable suspicion, but opening pill bottle in pocket was not justified by plain feel because it was obvious it was not a weapon. State v. Dickerson, 2008 Ohio 6544, 2008 Ohio App. LEXIS 5586 (2d Dist. December 12, 2008):

[*P22] Applying that standard, the Supreme Court pointed out that "once the officer determines from his sense of touch that an object is not a weapon, the pat-down frisk must stop. The officer, having satisfied himself or herself that the suspect has no weapon, is not justified in employing Terry as a pretext for a search for contraband." Evans, 67 Ohio St.3d at 414.

[*P23] Officer Blackburn's testimony indicates that upon patting down Dickerson's clothing, he felt something hard in his coat pocket and that he did not know what it was. He could not testify that it felt like a weapon or that it was contraband; his testimony was that "[i]t could have been anything." He also testified that he could not determine that the pill bottle that he retrieved from this pocket contained contraband until he opened it. And, at the point of opening it, it was apparent that it was not a weapon.

Private security guard was not a state actor when he approached defendant in apartment complex to question what he was doing there. Even if he was, the conduct hardly rose to the level of a seizure. State v. Branch, 2008 Ohio 6721, 2008 Ohio App. LEXIS 5594 (2d Dist. December 19, 2008).*

Permalink 06:06:33 am, by fourth Email , 103 words, 11 views   English (US)
Categories: General

OH2: Freezing home was based on PC

Freezing defendant's home until a search warrant could be obtained was justified by probable cause and fear that the house might be accessed and drugs disposed of. State v. Prater, 2008 Ohio 6730, 2008 Ohio App. LEXIS 5625 (2d Dist. December 19, 2008).*

Defendant's stop and arrest for DUI was based on trial court's finding that she did not dim her lights for oncoming traffic. State v. Graves, 2008 Tenn. Crim. App. LEXIS 976 (December 17, 2008).*

Defense counsel was not ineffective for not moving to suppress a patdown just to put him in a patrol car that produced drugs by plain feel. State v. Rippy, 2008 Ohio 6680, 2008 Ohio App. LEXIS 5562 (10th Dist. December 18, 2008).*

Permalink 05:57:35 am, by fourth Email , 435 words, 13 views   English (US)
Categories: General

MA: Stop, handcuffing, and removal for a showup not an arrest

Defendant's investigative stop in response to a radio call of a shooting was justified. His actions justified handcuffing, and he was constitutionally removed for a show up without it being an arrest. Commonwealth v. Phillips, 2008 Mass. LEXIS 807 (November 24, 2008):

Phillips's claims that the description of him given by Echols (a black male wearing a green jacket) was insufficient to justify his stop. He ignores the entire circumstances surrounding his stop, namely, the temporal proximity of the stop to the reported crime, his geographical proximity to the scene of the reported crime, his presence in a location that matched the reported direction in which the suspects had fled, and his bizarre conduct of crouching behind a tree in front of a house. Based on all these facts, as well as Phillips's match to a general description of one of the suspects, the police possessed the requisite reasonable suspicion to justify Phillips's stop. See Commonwealth v. Mercado, 422 Mass. 367, 371 (1996).

We reject Phillips's contention that, by handcuffing him and placing him in a police wagon (until Echols made the identification), the detention constituted an arrest. A "justifiable threshold inquiry permits a limited restraint of the individuals involved as long as their detention is commensurate with the purpose of the stop." Commonwealth v. Feyenord, 445 Mass. 72, 77 (2005), cert. denied, 546 U.S. 1187 (2006), quoting Commonwealth v. Torres, 424 Mass. 153, 162 (1997). "The degree of suspicion the police reasonably harbor must be proportional to the level of intrusiveness of the police conduct." Commonwealth v. Feyenord, supra, quoting Commonwealth v. Sinforoso, 434 Mass. 320, 323 (2001). As conceded by Phillips, he acted "evasively" when stopped. The police reasonably could have viewed Phillips's movement to the front porch of the house, and noncompliance with police commands, as an attempt to flee, and physically restrained him. The fact that they also handcuffed Phillips is not dispositive. See Commonwealth v. Williams, supra at 118, and cases cited. Because of the violent nature of the reported crimes, his attempt to flee, and the possible danger to the safety of the officers as well as the potential occupants of the house, the scope of Phillips's detention was permissible. Id. at 118-119. He was handcuffed and placed in the patrol wagon for only ten minutes until Echols made his positive identification. The brief detention was made with the permissible purpose of completing the identification. We add that Phillips's short detention in this manner, and for this purpose, was further justified when, minutes after he was handcuffed, the officers who had detained him learned that other officers had found two handguns nearby. The police did not exceed the scope of a lawful investigatory stop when they handcuffed and detained Phillips. See id. at 117-119.

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"Affidavits [for search warrants] are like sex. Even when they're bad, they're good."
—John Wesley Hall, Jr., Ark. Democrat-Gazette, Aug. 26, 2001

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."
—Benjamin Franklin, Historical Review of Pennsylvania (1759)

A patriot must be ready to defend his country against his government.
—Edward Abbey

“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)

"Freedom is just another word for nothing left to lose."
—Kris Kristopherson, "Me and Bobby McGee" (sung by Janis Joplin)

“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 & Kieth 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 US 10, 13-14 (1948)

"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).

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