05/24/13

Permalink 11:39:58 am, by fourth, 806 words, 33 views   English (US)
Categories: General

FL1: Police entry to the yard to peer in home's windows violated the Fourth Amendment

“Our state and federal constitutions declare that homes—whether castles or cabins, mansions or mobile homes—are protected spaces that require a warrant or other lawful basis to justify a governmental intrusion. At issue in this case is whether police officers entering the property of Russell Powell and Benjamin Wilbourn and peering into a window of their mobile home late at night after receiving an anonymous tip an hour earlier that marijuana plants were inside was a search that violated the Fourth Amendment. Because the officers intruded into a constitutionally protected area without a warrant and peered into a window from a part of the property where they had no lawful right to be, an unconstitutional search occurred.” Powell v. State, 2013 Fla. App. LEXIS 8166 (Fla. 1st DCA May 22, 2013):

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Permalink 11:22:31 am, by fourth, 128 words, 11 views   English (US)
Categories: General

NJ: Plain view of firearms cases in car is PC there are firearms there

Plain view of two firearms cases in the backseat is probable cause to believe the defendant is in possession of firearms. State v. Reininger, 2013 N.J. Super. LEXIS 73 (May 20, 2013).*

Defendant’s stop was valid based on a hit on license plate recognition software. Hill v. State, 2013 Ga. App. LEXIS 416 (May 21, 2013).*

The stop here was reasonably extended because the vehicle had Virginia LPN and the driver had a Illinois DL along with the driver’s inconsistencies. Calcaterra v. State, 2013 Ga. App. LEXIS 422 (May 22, 2013).*

An officer can engage in “small talk” with a motorist while the DL and LPN are checked on computer. Here, defendant’s escalating nervousness extended the stop because he made the officer concerned that he would do something bad. Moore v. State, 2013 Ga. App. LEXIS 414 (May 21, 2013).*

Permalink 11:11:39 am, by fourth, 167 words, 10 views   English (US)
Categories: General

CA11: Impoundment proper where owner of vehicle was in question

The claim of inventory fails because of possible standing. The vehicle was impounded because it could not be determined who the owner was, and defendant had three names he was using. United States v. Akinlade, 2013 U.S. App. LEXIS 10270 (11th Cir. May 22, 2013).*

Defendant validly consented to a search of his house. A consent is not involuntary just because the police tell the defendant that they will get a search warrant if he doesn’t consent when the have probable cause. United States v. Aguilar, 2013 U.S. App. LEXIS 10308 (11th Cir. May 22, 2013).*

Defendant consented to a search of his truck [with no more findings of fact]. United States v. Molina, 2013 U.S. Dist. LEXIS 72160 (W.D. Tex. May 22, 2013).*

In this anticipatory search warrant case, the package of drugs was on a “sure course” to defendant’s hands [as used in pre-Grubbs] cases, and the triggering event was specified in the warrant, so the search is valid. United States v. Barnett, 2013 U.S. Dist. LEXIS 72365 (E.D. Mich. May 22, 2013).*

05/23/13

Permalink 12:44:22 pm, by fourth, 224 words, 108 views   English (US)
Categories: General

New law review article: Maryland v. King: The Fourth Amendment Spirals down the Double Helix

Permalink 12:06:00 pm, by fourth, 137 words, 76 views   English (US)
Categories: General

BLT: Judge Says [Search Warrant] Filing Errors May Prompt Review of 'Hundreds' of Cases

Permalink 07:21:54 am, by fourth, 111 words, 45 views   English (US)
Categories: General

D.Nev.: Reliance on telephonic search warrant was in good faith

Reliance on a telephonic search warrant looking for evidence of a mugging by defendant was objectively reasonable and would not be suppressed. United States v. Davis, 2013 U.S. Dist. LEXIS 71696 (D. Nev. April 23, 2013).*

Knowledge of a warrant out for defendant is justification for a stop. United States v. Harper, 2013 U.S. Dist. LEXIS 71727 (W.D. Ark. May 21, 2013),* R&R 2013 U.S. Dist. LEXIS 71729 (W.D. Ark. April 4, 2013).*

Defendant’s coerced consent claim fails. United States v. Brown, 2013 U.S. Dist. LEXIS 71336 (S.D. Ga. April 16, 2013).*

Defendant had no standing in what was described as an unlivable crack house. United States v. Anderson, 2013 U.S. Dist. LEXIS 72144 (E.D. Tex. May 10, 2013).*

Permalink 07:10:59 am, by fourth, 1402 words, 113 views   English (US)
Categories: General

S.D.N.Y.: White collar records warrant failed particularity and good faith

Particularity and overbreadth in white collar crime: a rare granting of suppression in a no-fault insurance scheme search warrant. The particularity requirement protects important values. The good faith exception does not apply here. United States v. Zemlyansky, 2013 U.S. Dist. LEXIS 71818 (S.D.N.Y. May 20, 2013) (Oetken, J.):

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by John Wesley Hall
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Little Rock, Arkansas
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Most recent SCOTUS cases:

2013-14 Term:
   Fernandez v. California, granted May 20 (ScotusBlog)

2012-13 Term:
  Maryland v. King, granted Nov. 9, argued Feb. 26 (ScotusBlog)
  Missouri v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
  Bailey v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
  Florida v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19) (ScotusBlog)
  Florida v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23, 2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2, 2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13, 2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (June 25, 2009) (ScotusBlog)


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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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)

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