Archives for: December 2006, 09

12/09/06

Permalink 07:16:26 pm, by fourth, 162 words, 382 views   English (US)
Categories: General

Search incident does not require independent exigent circumstances

A search conducted under the search incident doctrine does not have any independent requirement of exigent circumstances, although one of the purposes of search incident is to neutralize potential weapons. State v. Cooney, 2006 MT 318, 2006 Mont. LEXIS 642 (December 5, 2006).

Consent was found based on testimony of officers and a recording of defendant's voluntary Mirandized statement where he consented. State v. Ayer, 917 A.2d 214, 154 N.H. 500 (2006).*

Defense counsel could not be ineffective for not challenging what was clearly a private search. State v. Howard, 2006 Ohio 6410, 2006 Ohio App. LEXIS 6372 (8th Dist. December 7, 2006).*

Defendant came to a fire station and was talking to volunteer firemen as they were leaving for a call. They saw and smelled that it was apparent defendant was drunk. They called the police who went to defendant's home where his vehicle was outside still running. His girlfriend invited them in, and there was the defendant drunk. Entry was by consent and there was cause for arrest. State v. Runge, 2006 SD 111, 725 N.W.2d 589 (2006).*

Permalink 06:59:37 pm, by fourth, 551 words, 1326 views   English (US)
Categories: General

Officer's training in interpreting body language ("kinesics") supports reasonable suspicion

Defendant was stopped for speeding. His suspicious behavior led to reasonable suspicion justifying a greater detention. United States v. Porchay, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006):

At the time of the stop, Barnett had more than eleven years of experience with the highway patrol. He also had received training in kinesics, which is the interpretation of non-verbal behavior related to movement. As Barnett pulled the vehicle over, he noticed unusual movement by the occupants of the vehicle, who appeared to be reaching in the backseat and perhaps under the seat. When Barnett asked Kelley where he was going, Kelley became unusually nervous. He told Barnett that he was going to visit Fred and Dominique Coleman. However, Kelley did not know the Colemans' street address. When Barnett asked Speed where they were going, Speed became unusually nervous as well. She told Barnett that they were going to visit her friends Karen and Carolyn, after which she became defensive and refused to answer anymore of Barnett's questions. Speed was unusually reluctant to identify herself. The inconsistent answers that Speed and Kelley gave Barnett, combined with their nervousness and unusual behavior, justified Barnett's expansion of the scope of the stop to investigate further. Cf. Edmisten, 208 F.3d at 694; Lyton, 161 F.3d at 1170.

Comment: So, police departments are sending their officers for training in body language interpretation, and they use an uncommon word ("kinesics") to make it sound more important and, presumably, more reliable? Will they try to get them declared expert witnesses next? Can the defense get a Daubert hearing?

Customs did not have to have reason to believe that defendant's luggage contained contraband or dutiable goods to conduct a border search. They found ledgers that the FBI was looking for and their turning them over to the FBI was not unlawful. United States v. Gurr, 374 U.S. App. D.C. 21, 471 F.3d 144 (D.C. Cir. 2006).

Officers believed that the renter of a trailer and space had apparent authority to consent to a search of the trailer that was supposedly empty. In plain view, officers found a small quantity of drugs and then found evidence that somebody might be living there, and then they got a warrant. Up to that point, the warrantless search was based on apparent authority and it was valid. United States v. Haynes, 2006 U.S. Dist. LEXIS 88573 (D. Alaska December 6, 2006):

Here, the officers knew that Prato owned the Viskari Trailer Court. Moreover, Prato told them that he owned the trailer and that no one was living in the trailer. Based on the above information, the officers reasonably believed that Prato had actual authority to consent to a search of the trailer. When the officers commenced the consent search and found signs that someone may have been living in the trailer unbeknownst to Prato, the officers decided to apply for a search warrant. During the initial consent search, the police officers saw in plain view a plastic baggie containing a white crystalline substance which later tested positive for methamphetamine. Because Prato had apparent authority to consent to a search of a trailer he owned, the court will deny the motion to suppress the fruits of the consent search on February 21, 2006.

(As of today, the number of cases on Lexis from the U.S. District Courts is double 2005's total.)

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by John Wesley Hall
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Little Rock, Arkansas
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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"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)

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"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."
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Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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