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Archives for: December 2006, 31

12/31/06

08:34:57 am, by fourth, 517 words, 403 views

Categories: General

Defendant's children were the CIs for the search warrant, providing highly detailed information

Department of Family Services did a "welfare check" of defendant's home that did not involve a search. While talking to her kids, however, the kids all mentioned that defendant was doing meth with their stepfather and others, providing detailed information going back five years. This was probable cause for a search warrant, even in light of Wyoming's standard of informant hearsay being greater than that of the Fourth Amendment. [The affidavit provided incredible detail.] Crackenberger v. State, 2006 WY 162, 2006 Wyo. LEXIS 178 (December 28, 2006):

[*P13] Under the "totality of the circumstances" approach, we find this information, when combined with the high degree of reliability of the informants and the experience and knowledge of the affiant, sufficient to establish probable cause that methamphetamine and methamphetamine paraphernalia would be found in the appellant's home. The appellant's arguments that the informants have no specialized knowledge of methamphetamine and that there are other explanations for the appellant's change in behavior are also not well received. While the informants may not have specialized knowledge of controlled substances and drug-related behavior, the affiant in the instant case did have such knowledge and properly applied it to the first-hand observations from the informants. The affiant's knowledge and training, combined with the informants' first-hand knowledge, was sufficient to provide the judicial officer with a substantial basis for concluding that probable cause existed in the instant case to search the appellant's home.

Heck bars a civil action against a Sheriff's deputy alleging that the charges pending against the plaintiff are unfounded. McCuin v. Maricopa County, 2006 U.S. Dist. LEXIS 93826 (D. Ariz. December 27, 2006).*

A traffic stop occurred in a high crime area of Boston known for shootings. Furtive movements of the defendant where he would not keep his hands in sight made the officer "skittish" and justified getting the defendant out for a patdown. As the defendant got out of the car, the butt of a gun was visible from under his seat. The seizure was lawful. United States v. McConnico, 2006 U.S. Dist. LEXIS 93749 (D. Mass. December 21, 2006).*

Giving the complaint its broadest possible reading, even though plaintiff did not cite § 1983 until his response to the motion for judgment on the pleadings, the complaint fairly alleges a Fourth Amendment violation, so judgment on the pleadings is denied. Varela v. San Francisco City & County, 2006 U.S. Dist. LEXIS 93668 (N.D. Cal. December 14, 2006).*

In a habeas case alleging ineffective assistance of counsel for not challenging a blood draw of the defendant in state court that apparently led to his conviction, the habeas court set a hearing on the merits of the claim. [Apparently the court is seeking to resolve the prejudice prong of Strickland before determining whether it is necessary to decide a failure of performance.] Emerson v. Yates, 2006 U.S. Dist. LEXIS 93713 (E.D. Cal. December 14, 2006).*

Citizen informant witnessed theft of her mail and tailed the defendant's car calling the police. That was justification for a stop. Kupper v. Commonwealth, 2006 Ky. App. LEXIS 388 (December 22, 2006).* (This was a simple issue, and the court seemed to spend a lot of time addressing it, likely explaining away the authorities cited by the defendant.)

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

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—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).
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—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

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—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).
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—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)
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—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."
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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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Archives for: December 2006, 31

12/31/06

Defendant's children were the CIs for the search warrant, providing highly detailed information