Archives for: January 2007, 11


Permalink 01:13:13 pm, by fourth, 588 words, 505 views   English (US)
Categories: General

Named informant actually signed the affidavit for SW which showed basis of knowledge

Named informant actually signed the search warrant, and it was based on personal information so probable cause was shown. Officers went to the defendant's premises and found him outside and arrested him. They did not have the search warrant in hand but it was coming. They used defendant's key to enter the house and look for confederates who might destroy the drugs being sought while waiting for the warrant to arrive, and this was lawful under Segura. People v Osorio, 2006 NY Slip Op 8457, 2006 N.Y. App. Div. LEXIS 15969 (4th Dept. November 17, 2006).

Officers heard defendant on a wire admit to possessing stolen property and wanting to trade it for meth and having guns. "Johnson and Lebo stated that the Defendant had made threats about killing the cops if they came out. Considering the totality of the circumstances, it was reasonable to believe that contraband and/or stolen property was at the Defendant's residence and that the circumstances required that they go to the mobile home without a warrant." [Note that the court says "to" not "into."] The police then went to his house and kicked the door to announce as a knock and talk. The defendant let them in [it seems to me more like they barged in when the door was opened]. The USMJ's R&R that defendant consented is adopted. United States v. Medley, 2007 U.S. Dist. LEXIS 1175 (E.D. Mo. January 5, 2007).*

Plaintiff consented to entry but claimed that she did not consent to search. Court finds implicit consent from failure to object and finds apparent authority to implicitly consent to the search of her daughter's room. Owens v. Town of Delhi, 469 F. Supp. 2d 403 (W.D. La. 2007)* (Note: This case proceeds entirely on the judge's and government's assumption that a person knows that they can object when an armed police officer is going through their stuff who essentially barged in. It is all implied consent from failure to object.)

Inmate's § 1983 action for harassing searches was barred under PLRA for lack of exhaustion. The state provided an ALJ process which was not taken advantage of. Hills v. Kershaw Correctional Inst. Officers, 2006 U.S. Dist. LEXIS 94541 (N.D. S.C. November 27, 2006).*

Officer's reasonable suspicion for a trash search as required under Litchfield was shown in the affidavit for probable cause that was used to get a search warrant for his premises. Eshelman v. State, 859 N.E.2d 744 (Ind. App. January 10, 2007).

Defendant consented to a patdown, and continued stop was based on reasonable suspicion. "Officer Andrew Tischer testified at the suppression hearing that he stopped Lewer's car and that after the stop he asked Lewer for identification and that Lewer gave him either a driver's license or a state identification card, but that he was 'not a hundred percent sure which one.' Tischer told the trial court that Lewer 'wouldn't look me in the eyes[, his] hands were visibly shaking, and his voice stumbled as I spoke with him.' Tischer also testified that Lewer's 'right hand was making continued movements towards his right pants pocket and his right jacket pocket.' At this point, Tischer testified that he asked Lewer to get out of the car because he thought that Lewer might have a weapon. Tischer estimated that one to one and one-half minutes had passed from when he walked up to Lewer's car and when he asked Lewer to get out of the car." Heroin was validly found during the consensual patdown which defendant knew was for more than just weapons. State v. Lewer, 2006 Wisc. App. LEXIS 1223 (December 27, 2006).

Permalink 11:35:44 am, by fourth, 286 words, 620 views   English (US)
Categories: General

Handcuffing a vastly outnumbered child during execution of a search warrant was unreasonable

Officers handcuffing of child during execution of a search warrant was potentially unreasonable because he was compliant and vastly outnumbered by police officers. The law was settled in this Circuit, and qualified immunity did not apply. Schafer v. El Dorado County, 2007 U.S. Dist. LEXIS 1336 (E.D. Cal. January 9, 2007).

The trucking industry is a closely regulated industry under Burger, and the stop of this truck was supported by the administrative scheme. Once stopped, the defendants were found to be in violation of the log book rules and driving without a license. That made the detention reasonable. After a safety inspection, during which the defendants acted a little suspicious, one defendant validly consented to a search that turn up 92 lbs. of cocaine. United States v. Delgado, 2007 U.S. Dist. LEXIS 1313 (S.D. Cal. January 5, 2007)* (Note: The stop was near Springfield, Missouri, so Missouri law was examined.).

Defendant consented to entry of dwelling for the purposes of children being gathered up and turned over to their mother. Drugs were found in plain view. Seizure was valid. United States v. White, 2007 U.S. Dist. LEXIS 1476 (W.D. Tex. January 8, 2007).*

Defendant waived search issues by his guilty plea, but he would have lost on the merits anyway. United States v. Sanchez-Polanco, 2007 U.S. Dist. LEXIS 1485 (S.D. Tex. January 8, 2007).*

In a habeas case, the petitioner claimed Stone v. Powell did not apply to harmless error analysis, but it was defaulted because it was not raised in the state PCR petition. Walker v. Miller-Stout, 2007 U.S. Dist. LEXIS 1351 (E.D. Wash. January 8, 2007).*

Qualified immunity defeated § 1983 action of alleged unreasonable search where plaintiffs did not show how it was unreasonable. Housley v. City of Edina, 2007 U.S. Dist. LEXIS 1502 (D. Minn. January 5, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (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)

2010-11 Term:
  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, 560 U.S. 746, 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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
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  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"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)

"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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