Archives for: January 2007, 17


Permalink 06:04:31 pm, by fourth, 153 words, 490 views   English (US)
Categories: General

Bush Administration will accede to the FISA Court

The Bush Administration has agreed today to allow the Foreign Intelligence Surveillance Court to do its job and monitor surveillence, according to the, and posted within the last hour: White House Says Judiciary Will Monitor Spy Program:

The Bush administration, in what appears to be a concession to its critics, said today it will allow an independent court to monitor its warrantless electronic-eavesdropping program.

Attorney General Alberto Gonzales told the leaders of the Senate Judiciary Committee that the Foreign Intelligence Surveillance Court, created by the Foreign Intelligence Surveillance Act of 1978 to supervise anti-terrorism wiretapping within the United States, will supervise the eavesdropping operations from now on.

The attorney general sought to portray the administration’s change of posture as anything but grudging. “In the spring of 2005 -- well before the first press account disclosing the existence of the Terrorist Surveillance Program -- the administration began exploring options” for seeking such approval, he said.

Permalink 05:22:01 pm, by fourth, 430 words, 454 views   English (US)
Categories: General

An appellate prosecutor who is a part-time magistrate can issue search warrants in Arkansas

An appellate prosecutor in the Arkansas Attorney General's Office who is also a part-time magistrate 45 miles from Little Rock is still a "neutral and detached magistrate" for issuing a search warrant, although the practice is disapproved. Davis v. State, 2006 Ark. LEXIS 671 (September 28, 2006), pet. for cert. pending 06-8552. [Ok, you got me: this is our cert petition referred to in the January 1st post. Question presented: "Whether a part-time Arkansas District Judge who issued a search warrant who was also a full time career Assistant Attorney General in the Criminal Division in the Executive Branch is a 'neutral and detached magistrate.'" My research revealed that there are two lines of authority: Fourth Amendment and due process. Here they meet.] Update: Cert. denied March 26, 2007.

Defendant allowed officers in while she retrieved her identification for them. While they were there they decided to get a consent to search. This was a nighttime entry, and the Arkansas Supreme Court had previously held that a nighttime knock and talk requires a warning of a right to refuse, and this case fit within that rule. Motion to suppress should have been granted. Burroughs v. State, 2006 Ark. App. LEXIS 880 (October 11, 2006).

A claim against a New York state wiretap not following state law is not cognizable in habeas because it is not a constitutional claim. Alternatively, the petitioner had a full and fair opportunity to litigate the claim in state court on the constitutional question, and the holding below is not an unreasonable application of federal law. Hickey v. Conway, 2005 U.S. Dist. LEXIS 44249 (N.D. N.Y. July 6, 2005).*

Defendant was stopped for DUI and requested a blood test. The officer attempted to get one, but, because of the weather and a high number of calls for the paramedics, time was running out. He then told the defendant that he would have to submit to a breath test or lose his license. "[T]he Supreme Court orders the suppression of the breath test results because they resulted from an invalid consent to search, due to the arresting officer's erroneous and coercive advice to Turbyne that he could lose his license by not submitting to a chemical test he had not selected." Turbyne v. People, 151 P.3d 563 (Colo. January 16, 2007).

Having stipulated to having moved out of an apartment where a murder occurred, the defendant abandoned it, and he had no expectation of privacy in it. State v. Russell, 2007 Ohio 137, 2007 Ohio App. LEXIS 129 (2d Dist. January 12, 2007).*

Defendant could be handcuffed during a reasonable suspicion stop without violating the Fourth Amendment. State v. Porche, 943 So. 2d 335 (La. November 29, 2006, released for Publication December 13, 2006).*

Permalink 01:49:42 pm, by fourth, 280 words, 713 views   English (US)
Categories: General

Reasonable suspicion to frisk a person and a car are two different things

Officers had reasonable suspicion for frisk of defendant's person but not his vehicle. They asked for consent to search first and were denied. United States v. Spinner, 374 U.S. App. D.C. 347, 475 F.3d 356 (D.C. Cir. 2007).

Overbreadth in search warrant is remedied by suppresing that which was should not have been seized, not by suppressing the whole search. United States v. Alagic, 2007 U.S. Dist. LEXIS 2698 (E.D. Mo. January 12, 2007):

In any event, even if some portion of the search warrant were deemed to be overbroad, suppression would be limited only to those items seized pursuant to the overbroad portions of the warrant. See United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir. 1983) (en banc) (holding that despite seizure of firearms pursuant to invalid portion of warrant, evidence of participation in drug conspiracy admissible in accordance with sufficiently particularized portions of warrant); accord, United States v. Timley, 443 F.3d 615, 622 (8th Cir.) (holding that where warrant is invalid only in part, warrant is "severable," and items seized pursuant to valid portions need not be suppressed), cert. denied, 127 S.Ct. 299 (2006); United States v. Krasaway, 881 F.2d 550, 553 (8th Cir. 1989) (same). Here, Defendant has not identified any items seized pursuant to allegedly overbroad portions of the warrant. Indeed, the only item seized that was specifically identified at the hearing, was the $13,000 in currency, and currency was specifically listed in the warrant.

Defendant's wife was excluded from the defendant's property because of a domestic violence order of protection. Nevertheless, he permitted her on the premises, and there was no reason why the police could not reasonably believe her apparent authority to consent. United States v. Barefoot, 2007 U.S. Dist. LEXIS 2548 (E.D. N.C. January 7, 2007).

Permalink 09:11:26 am, by fourth, 985 words, 452 views   English (US)
Categories: General

A standoff, two 12-packs, 18 guns, and the Fourth Amendment

In a bizarre case out of the Ninth Circuit, a panel holds 2-1 in a § 1983 case that a 12 hour police standoff with a potentially drunk and armed suspect at some point required a warrant, something that I would not have expected. The exigency was not continuing. "On the afternoon of Saturday, October 23, 1999, Fisher bought two twelve-packs of beer and settled in at home for an evening of watching the World Series and cleaning rifles from his collection of approximately eighteen World War II-era firearms. Both the guns and the beer figured prominently in the ensuing events." Fisher v. City of San Jose, 475 F.3d 1049 (9th Cir. January 16, 2007) (case name is free link). This case is just too complicated to explain, but the gist is that Fisher was never quite seized because he would not come out of his house, despite the use of a throw telephone to communicate with him and lobbing in tear gas cannisters. At some point, it became necessary to get a warrant to enter because, after 12 hours, there was no longer any exigency. Fisher was charged with a felony for pointing a gun at police, but the jury deadlocked, and he pled to a misdemeanor and filed the § 1983 case. That jury found for the defendants, but the district court on a judgment NOV awarded nominal damages, which were sustained.

A jury found for the defendants on all claims, including a claim for warrantless arrest. Fisher thereupon filed a renewed motion under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City alone, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officers. We uphold the district court's ruling on appeal, as we agree that the failure to obtain a warrant under the unusual circumstances of this case constituted a constitutional violation as a matter of law.

The conclusion:

Standoffs with barricaded suspects present hard decision-making problems for police, often requiring split-second tactical determinations. The results can be tragic even when the police behavior is for the most part quite reasonable. See, e.g., Ewolski, 287 F.3d at 499 (involving the object of a standoff who shot himself and his son during the standoff). A warrant may not prevent such tragic occurrences. But interposing a neutral and detached magistrate between the police, who are "acting under the excitement that attends the capture of persons accused of crime," United States v. Lefkowitz, 285 U.S. 452, 464 (1932), and the citizen, who may or may not have committed a wrong, may, on occasion, bring a useful perspective to the situation. Id. ("[T]he informed and deliberate determinations of magistrates empowered to issue warrants as to what searches and seizures are permissible under the Constitution are to be preferred over the hurried action of officers and others who may happen to make arrests."); see also Johnson v. United States, 333 U.S. 10, 14 (1948) (noting that the Fourth Amendment's "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"). The warrant requirement's goal is to permit a third party to evaluate whether the police should be intervening into a situation at all. If not, police retreat can prevent an awkward situation from escalating into a dangerous one.

Here, it may well be that a timely application to a magistrate would have resulted in issuance of a warrant for Fisher's arrest and events would then have proceeded pretty much as they did. But that is not certain, and is in any event beside the point. The criminal jury hung on the felony count presented to it, so it is at least possible that a magistrate would have thought the police lacked probable cause on the charge for which he was arrested. More importantly, it is precisely to require the officers involved to articulate the grounds for arrest and to obtain the views of a dispassionate magistrate on the adequacy of those grounds that a warrant is required.

Here, there were plenty of police officers involved and there was plenty of time -- at least several hours -- to obtain such a warrant [even a telephonic warrant]. It was unconstitutional to fail to do so.

The collective knowledge doctrine does not require that the officers making the stop know why. Defendants' arguments that all officers must be part of a "coordinated criminal investigation" is rejected as unworkable and contrary to Supreme Court authority. United States v. Ramirez, 473 F.3d 1026 (9th Cir. January 16, 2007):

Moreover, there is good reason to reject such a proposed limitation:

"The accepted practice of modern law enforcement is that an officer often makes arrests at the direction of another law enforcement officer even though the arresting officer himself lacks actual, personal knowledge of the facts supporting probable cause. ... [¶] ... The rule exists because, in light of the complexity of modern police work, the arresting officer cannot always be aware of every aspect of an investigation; sometimes his authority to arrest a suspect is based on facts known only to his superior or associates."

Jensen, 425 F.3d at 704-05 (citations and internal quotation marks omitted). The Supreme Court has shared these concerns, specifically endorsing our view "'that effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must often act swiftly, cannot be expected to cross-examine their fellow officers about the foundation for the transmitted information.'" Hensley, 469 U.S. at 231 (quoting United States v. Robinson, 536 F.2d 1298, 1299 (9th Cir. 1976)).

The Quarles public safety exception permitted officers to question a suspect about having a gun after an exigent circumstances entry into his motel room and then look for it after he admitted he had one. United States v. Newsome, 475 F.3d 1221 (11th Cir. January 16, 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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Most recent SCOTUS cases:
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)

Research Links:
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  F.R.Crim.P. 41

  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."

"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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