06/18/13
GA: No reasonable expectation of privacy in jail mental health records
Defendant was behaving bizarrely in jail, so he was examined in the mental health section of the jail. He had a much diminished expectation of privacy in those records. When he filed a NGBRI defense, he waived it all. There was no Fourth Amendment violation by getting the records. Armstead v. State, 2013 Ga. LEXIS 544 (June 17, 2013).
The officers had reasonable suspicion the defendant was patronizing a prostitute when they approached his car and talked to him. He was still free to leave when he was talking to them. Holmes v. State, 2013 Ga. LEXIS 557 (June 17, 2013).*
Defendant’s stop was based on a concededly valid window tint violation, so his subjective intent to find drugs was irrelevant. The trial court’s findings the stop was not stalled were supported by the record. Walker v. State, 2013 Ga. App. LEXIS 478 (June 12, 2013).*
The traffic stop here was valid, and consent was obtained during the normal time of the stop. Defense counsel was not ineffective because any other ground of a motion to suppress would have been futile. Betancourt v. State, 2013 Ga. App. LEXIS 479 (June 12, 2013).*
CA3: 911 call about argument in motel lobby didn't support entering plaintiff's room
Officers responded to a 911 call about an argument in the lobby of a motel. They entered a room. There was no justification shown for entry into the room under the Fourth Amendment, and the district court’s entry of summary judgment on qualified immunity is reversed. Smart v. Borough of Bellmawr, 2013 U.S. App. LEXIS 12154 (3d Cir. June 17, 2013).*
The officers had reasonable suspicion to approach a group of men across the street from a hang up 911 call and there was nothing going on there. On the totality, there was reasonable suspicion as to defendant for a police encounter. United States v. Hightower, 2013 U.S. App. LEXIS 12141 (8th Cir. June 17, 2013).*
Defendant’s written consent to search his apartment included seizure of papers that supported that he was here illegally. United States v. Nyaga, 2013 U.S. Dist. LEXIS 84372 (E.D. Mo. June 17, 2013).*
06/17/13
New law review article: Constitutional Culpability: Questioning the New Exclusionary Rules
Andrew Ferguson, Constitutional Culpability: Questioning the New Exclusionary Rules (Florida Law Review forthcoming), Abstract:
Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’
Politico: DNI: Analysts can’t eavesdrop on domestic calls without ‘proper legal authorization’ by Alex Byers.
CA3: The search of defendant's car ditched on the highway after flight from a bank robbery didn't require a search warrant
Defendant fled from a bank robbery and ditched his vehicle on the side of the road. His argument that the police needed a search warrant to search it was found “to be without merit,” to put it mildly. He also abandoned it on the side of the road. United States v. Bentley, 2013 U.S. App. LEXIS 12010 (3d Cir. June 14, 2013).* [Sounds like defense counsel ordered to appeal, and this isn't even close.]
Defendant’s post-conviction petition stated a colorable claim for IAC for defense counsel’s failure to preserve a search issue for appeal. Carter v. State, 2013 Tenn. Crim. App. LEXIS 502 (June 14, 2013).*
A claim there is a Fourth Amendment right in a prison cell is manifestly frivolous. Laurensau v. Romarowics, 2013 U.S. App. LEXIS 11924 (3d Cir. June 13, 2013).*
Warscapes: Cryptogams & the NSA: Emailing oneself "Finnegans Wake" brings the FBI
Warscapes: Cryptogams & the NSA by John Sifton of Human Rights Watch:
The first thing I did after I heard about the highly classified NSA PRISM program two years ago was set up a proxy server in Peshawar to email me passages from Joyce’s Finnegans Wake. A literary flight of fancy. I started sending back excerpts from Gerard Manley Hopkins poems.
The cantankerous Seymour Hersh was my inspiration. He had told me about the program in a clipped expletive-filled summary in the summer of 2011: “They’re scooping fucking everything, man! Phones, Internet, the whole works.”
IL: Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage
Defendant’s buying a one-way train ticket with cash is not probable cause to search his luggage. Cash was suppressed and forfeiture denied, and it was affirmed on appeal. People v. $280,020 in United States Currency, 2013 IL App (1st) 111820, 2013 Ill. App. LEXIS 383 (June 12, 2013). [Yes, there still are drug courier profile cases. Just not as many as before.]
Defendant who sold drugs out of an apartment lacked standing to challenge its search where he was not the renter and not on the utility bills. It was a “stash house.” “While Jones may have spent some nights in the apartment, his primary activity was selling drugs, an illicit commercial function that society doesn't value. Therefore, the court finds that Jones has not met his burden of proving he has standing to challenge the results of the Melville Street search.” Even if he had standing, he loses on the merits of probable cause for the warrant based on the sale from inside. United States v. Jones, 2013 U.S. Dist. LEXIS 83128 (D. Mass. June 11, 2013).*
“[T]he [implied] agreement between the PVPD and the LPD [for a drug buy operation in one city] constituted a ‘request for assistance’ under K.S.A. 2012 Supp. 22-2401a(2)(b) and, therefore, the PVPD's drug buy was a lawful exercise of its law enforcement authority.” State v. Vrabel, 2013 Kan. App. LEXIS 54 (June 14, 2013).*
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by John Wesley Hall
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2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland
v. King, 2013 U.S. LEXIS 4165, 2013 WL 2371466 (June 3, 2013) (ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17, 2013) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb. 19, 2013) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26, 2013) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam)
(ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (2009) (ScotusBlog)
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—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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