05/20/13

Permalink 12:00:41 am, by fourth, 389 words, 11 views   English (US)
Categories: General

CA10: Def's subjective belief of officers' tribal authority irrelevant to objective facts of consent

Defendant was an American Indian, and he thought that the tribal governor had authorized the police to investigate his killing of eagles. His subjective belief as to the officers’ actions was not relevant to the Fourth Amendment inquiry as to what the officers believed from the objective facts. [So, boiled down to its essence: this is an example of a good faith warrantless search.] United States v. Aguilar, 2013 U.S. App. LEXIS 9894 (10th Cir. May 17, 2013):

=> Read more!

05/19/13

Permalink 09:34:48 am, by fourth, 290 words, 117 views   English (US)
Categories: General

AR: Prior false alert rate of 14% of drug dog did not undermine the PC

The question of reliability of the drug dog was for the trial court, and the court decided that past false alerts did not undermine the probable cause. Jackson v. State, 2013 Ark. 201, 2013 Ark. LEXIS 243 (May 16, 2013):

=> Read more!

Permalink 07:14:48 am, by fourth, 171 words, 42 views   English (US)
Categories: General

LA4: SW for gun permits search of duffle bag in house

A search warrant for firearms and its accessories permitted a search of a duffle bag. State v. Bentley, 2013 La. App. LEXIS 947 (La. App. 4 Cir. May 15, 2013).*

Defendant was on a bicycle and committed a misdemeanor offense for which he was arrested. His search incident to that arrest was valid. The state’s alternative argument was not made in the trial court, so it is rejected as waived. State v. Butler, 2013 La. LEXIS 1147 (La. May 17, 2013).*

The smell of marijuana coming from defendant’s car justified handcuffing him without escalating the stop into an arrest. “ To show that an investigatory detention involving the use of handcuffs did not exceeds the limits of a Terry stop, the State must show some fact or circumstance that could have supported a reasonable belief that the use of restraints was necessary to carry out the legitimate purpose of the stop without exposing the law enforcement officers, the public, or the suspect himself to an undue risk of harm.” State v. Turner, 2013 La. App. LEXIS 980 (La. App. 5 Cir. May 16, 2013).*

Permalink 06:20:33 am, by fourth, 1024 words, 114 views   English (US)
Categories: General

CA1 decides cell phone can't be searched incident to arrest

Invoking James Otis's concerns about "plac[ing] the liberty of every man in the hands of every petty officer," the First Circuit joins Ohio and Florida in holding a cell phone is a computer and not subject to search incident. [There is now a circuit split, too, and the issue should be taken by SCOTUS.] United States v. Wurie, 2013 U.S. App. LEXIS 9937 (1st Cir. May 17, 2013):

=> Read more!

05/18/13

Permalink 10:48:22 pm, by fourth, 131 words, 38 views   English (US)
Categories: General

D.S.C.: Officer's state law violation irrelevant in federal prosecution

Alleged violations of state law by the officer in making defendant’s stop and arrest are irrelevant under the Fourth Amendment when the case is brought in federal court. The sole question is Fourth Amendment reasonableness. United States v. Riley, 2013 U.S. Dist. LEXIS 69508 (D. S.C. May 16, 2013).*

Defendant arrested at home had the house subjected to a protective sweep, and cell phones were seized in plain view. The pre-raid briefing showed that they intended to seize them if they were seen, but that does not make it invalid. Search warrants were obtained for the cell phones. United States v. Hamad, 2013 U.S. Dist. LEXIS 68920 (E.D. Mich. May 15, 2013).*

In this death penalty case, there was probable cause for issuance of defendant’s arrest warrant. Batiste v. State, 2013 Miss. LEXIS 295 (May 16, 2013).*

05/17/13

Permalink 02:51:19 pm, by fourth, 745 words, 166 views   English (US)
Categories: General

KS: Taking a DL to run wants and warrants was unreasonable; RS needed

Holding a motorist's DL longer than necessary "to know who they're dealing with" and then running warrants for curiosity was unreasonable because it extended the stop. State v. Moralez, 102342 (Kan. May 17, 2013):

=> Read more!

Permalink 02:17:33 pm, by fourth, 197 words, 72 views   English (US)
Categories: General

Sen. Paul, please quit bitching and do something

One can always count on the Washington Times to get the Constitution wrong. This reports on Sen. Rand Paul, and he's wrong, too. See PAUL: A staggering abuse of power / Obama acts as though we no longer have a Constitution by Rand Paul:

From the cover-up in Benghazi to letting the Internal Revenue Service (IRS) target the Tea Party to First and Fourth Amendment violations in obtaining records from the press, Mr. Obama has shown disregard for the Bill of Rights and his responsibilities as commander in chief.

Sen. Paul: It is NOT a violation of the Fourth Amendment to subpoena records like this. Smith v. Maryland, ECPA which is at least 20 years out of date. There is no federal press shield law.

You are a U.S. Senator, for God's sake. Spare us your faux BS moral indignation and do something to create a third party privacy interest by legislation. Strike while the iron is hot, as it were.

I know, that didn't work for new gun legislation, but hey, everybody knows the only section of the Bill of Rights that Republicans care about is the Second Amendment. The rest are ancient history. Prove me wrong.

:: Next Page >>

FourthAmendment.com

Notes on Use

| Next >

May 2013
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 31  

Search

by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com

© 2003-13
Online since Feb. 24, 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
  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
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:

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)


Research Links:
  Supreme Court:
  SCOTUSBlog
  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

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (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 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

"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)

XML Feeds

What is RSS?

Who's Online?

  • towbloogy Email
  • poincorgo Email
  • tealtnace Email
  • nikeihuavt Email
  • martuao Email
  • Guest Users: 373

powered by
b2evolution