Archives for: January 2007, 27


Permalink 04:33:31 pm, by fourth, 261 words, 470 views   English (US)
Categories: General

Merely being a driver of a car does not give standing; defendant still has to prove it

Defendant's mere possession of a vehicle did not give him standing because he could show no legitimate connection to the car. United States v. Lopez-Gutierrez, 2006 U.S. Dist. LEXIS 86319 (D. Utah November 21, 2006):

Moreover, Defendant has failed to produce evidence to counter the Government's evidence that Defendant did not, in fact, know the owner of the vehicle, and therefore, could not legitimately be in possession of it. Although the Court believes that the difference in locations of the purported cousin and the state of registration is insignificant, that Defendant had to look at the registration to ascertain the name of the owner, and did not know the last name of his purported cousin, are significant. Such facts indicate that Defendant did not know the owner of the vehicle, and was not lawfully in possession of the vehicle.

Officers had probable cause to detain defendant based on a video that showed a hand-to-hand sale. United States v. Davis, 2006 U.S. Dist. LEXIS 86397 (N.D. Ind. November 20, 2006).*

Traffic stop was valid, and license produced was suspended. Officer noticed baggie of marijuana while defendant was looking for papers for car. Search incident or automobile exception supported the search. United States v. Hill, 2006 U.S. Dist. LEXIS 86320 (W.D. Ky. October 6, 2006).*

IAC claim fails because petitioner failed to show that any search claim would win. Talley v. United States, 2006 U.S. Dist. LEXIS 86401 (E.D. Tenn. November 27, 2006).*

2000 blood draw in a rape case was valid and it mooted defendant's argument that the 1998 blood draw was invalid because of inevitable discovery. State v. Gregory, 2006 Wash. LEXIS 890 (November 30, 2006).

Permalink 04:31:05 pm, by fourth, 690 words, 1360 views   English (US)
Categories: General

Anonymous 911 call about meth lab was sufficient for entry when police could not get the caller back on the phone

An anonymous 911 call said that a meth lab was in a farm building. The caller hung up, and the police could not get the caller to answer the call back, and that was enough to justify the entry. United States v. Elder, 466 F.3d 1090 (7th Cir. November 1, 2006):

A 911 call led to the dispatch of two officers to a farm in Humbolt, Illinois. A caller had told the dispatcher "I think we got meth out here" and added that "suspicious" people were "flying like quails." The caller hung up, and when the dispatcher called the originating number no one answered. One obvious possibility was that the caller had been injured. Officers saw lights and heard a TV within the farm house, but no one answered knocks on the front or rear doors. The door of a nearby outbuilding was open. (Whether it was open was disputed in the district court; the judge found that it was open and did not commit clear error in doing so.)

Looking through the doorway, the officers saw what appeared to be a laboratory. They entered in search of the caller and did not find him. But what they saw from outside (and both saw and smelled from inside) provided evidence against Elder, the property's owner. The caller turned out to have been Elder's father, who had not been abducted or injured -- though the officers could not have known that without checking, because even if (as Elder maintains) they knew or should have known that the proprietors of the meth lab were fleeing during the 911 call, the officers could not have known whether they took a hostage (or a life) in the process, or whether some third party was refusing to acknowledge his or her presence, and what danger that person posed (or was in).

The entry into the outbuilding was reasonable, and a warrant was not essential to make it so. The officers acted sensibly in attempting to assure the caller's safety. The fact that drug dealers often use guns and knives to protect their operations created a possibility that violence had been done, or that someone was still there and lying in wait. So considerations of safety -- the caller's and the officers' -- made a look-see prudent. See Brigham City v. Stuart, 126 S. Ct. 1943 (2006); Maryland v. Buie, 494 U.S. 325 (1990). Everything else followed from there, and the evidence was admissible against Elder. His argument that police cannot take steps to protect a caller's safety unless they know the caller's identity and "reliability" would require them to act unreasonably. Many 911 calls are brief, and anonymous, precisely because the speaker is at risk and must conceal the call. These persons are more rather than less in need of assistance.

Comment: My problem with this case is how it works so diabolically: An anonymous 911 caller cannot be reached, so, in a drug case, the police are justified in entering without a warrant because of the mere possibility that the caller was injured by the person he or she was calling about. So, can the police just not call the caller back but say they did and then use that as an excuse to enter? The point really is: if they did not call back but say they did, can the defense ever prove it? Unlikely.

Defendant was stopped for suspicion of transporting illegal aliens, and ICE officer got him out of the car and had him put his hands over his head. To the extent this was a Terry stop, the ICE officer had authority to do so under 8 C.F.R. § 287.8(b). The defendant failed to prove that his Fourth Amendment rights were violated, so he loses. United States v. Ambris-Sebastian, 2006 U.S. Dist. LEXIS 79343 (N.D. Fla. October 31, 2006). Comment: This is incredible: A warrantless arrest and the court holds that the defendant has the burden of proof? Wrong!

Consent was voluntary where the defendant came to the police station saying that he wanted to cooperate and his "life was an open book." There was no indication that anything was coercive about the situation. United States v. P.A. Landers, Inc., 2006 U.S. Dist. LEXIS 79256 (D. Mass. October 31, 2006).*

Permalink 04:23:02 pm, by fourth, 1905 words, 2665 views   English (US)
Categories: General

IL: Hot pursuit in a DUI case into a house was lawful

Hot pursuit of a DUI suspect in Illinois is different than in Welsh which was really a hot pursuit case. An officer could enter a house in hot pursuit of a suspect. This case has a great discussion of hot pursuit into a dwelling and as an exigency in itself. People v. Wear, 371 Ill. App. 3d 517, 867 N.E.2d 1027 (4th Dist. 2007):

6. "Hot Pursuit" as an Exigent Circumstance Unto Itself

Defendant argues that Dawdy violated the fourth amendment by arresting him inside Foiles's home because Dawdy was aware of no "'exigent circumstances,'" within the meaning of Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), and Welsh v. Wisconsin, 466 U.S. 740, 80 L. Ed. 2d 732, 104 S. Ct. 2091 (1984), to justify his warrantless, nonconsensual entry of the home.

In Payton, 445 U.S. at 588-89, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, the Supreme Court held that entering a home without a warrant or consent and arresting someone therein--even for a felony that the police had probable cause to believe the arrestee committed--was presumptively unreasonable under the fourth amendment, applicable to the states via the fourteenth amendment (U.S. Const., amend. XIV) (Payton, 445 U.S. at 576, 63 L. Ed. 2d at 644-45, 100 S. Ct. at 1374-75), and that the state could rebut this presumption of unreasonableness only by showing "'exigent circumstances'" (Payton, 445 U.S. at 589, 63 L. Ed. 2d at 652, 100 S. Ct. at 1381, quoting United States v. Reed, 572 F.2d 412, 423 (2d Cir. 1978)). The Supreme Court declined to "consider the sort of emergency or dangerous situation, described in [its] cases as 'exigent circumstances,' that would justify a warrantless entry into a home for the purpose of either arrest or search" (Payton, 445 U.S. at 583, 63 L. Ed. 2d at 649, 100 S. Ct. at 1378), "thereby leaving to the lower courts the initial application of the exigent-circumstances exception" (Welsh, 466 U.S. at 749, 80 L. Ed. 2d at 743, 104 S. Ct. at 2097).

While no list of factors is exhaustive, our own supreme court has set out some factors that a court may take into account when assessing exigency in a particular situation. Those factors are as follows:

"(1) whether the offense under investigation was recently committed; (2) whether there was any deliberate or unjustifiable delay by the officers during which time a warrant could have been obtained; (3) whether a grave offense is involved, particularly one of violence; (4) whether the suspect was reasonably believed to be armed; (5) whether the police officers were acting upon a clear showing of probable cause; (6) whether there was a likelihood that the suspect would have escaped if not swiftly apprehended; (7) whether there was strong reason to believe that the suspect was on the premises; and (8) whether the police entry, though nonconsensual, was made peaceably." People v. Foskey, 136 Ill. 2d 66, 75, 554 N.E.2d 192, 197, 143 Ill. Dec. 257 (1990).

In Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093, the Supreme Court considered whether "'exigent circumstances'" allowed the police to make "a warrantless night entry of a person's home in order to arrest him for a nonjailable traffic offense" of DUI. In that case, a motorist, Randy Jablonic, saw a car changing speeds and veering side to side until it swerved off the road and came to rest in an open field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093. Another passerby stopped at the scene, and Jablonic asked her to call the police. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2093-94. Before the police arrived, the driver of the car got out and walked home, leaving the car in the field. Welsh, 466 U.S. at 742, 80 L. Ed. 2d at 738, 104 S. Ct. at 2094. Without obtaining a warrant, the police entered the driver's home, found him lying naked in bed, and arrested him for DUI. Welsh, 466 U.S. at 743, 80 L. Ed. 2d at 738-39, 104 S. Ct. at 2094. The Supreme Court held that the "warrantless, nighttime entry into the petitioner's home to arrest him for a civil traffic offense" was "clearly prohibited by the special protection afforded the individual in his home by the [f]ourth [a]mendment." Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100.

"[A]n important factor to be considered when determining whether any exigency exist[ed] [was] the gravity of the underlying offense for which the arrest [was] being made." Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. Under Wisconsin law, no incarceration was possible for a first offense of DUI. Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100. The State claimed a potential emergency in the need to ascertain the driver's blood alcohol level. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099. But considering that Wisconsin had "chosen to limit severely the penalties that [could] be imposed" (Welsh, 466 U.S. at 754 n.14, 80 L. Ed. 2d at 746 n.14, 104 S. Ct. at 2100 n.14), thereby designating the offense as a minor one, "mere similarity to other cases involving the imminent destruction of evidence [was] not sufficient" (Welsh, 466 U.S. at 754, 80 L. Ed. 2d at 746, 104 S. Ct. at 2100).

Unlike the state of Wisconsin in Welsh, Illinois does not limit the penalties for a first DUI: it is a Class A misdemeanor (625 ILCS 5/11-501(b-2) (West 2004)), punishable by imprisonment for up to 364 days (730 ILCS 5/5-8-3 (West 2004)). Fleeing or attempting to elude a police officer also is a Class A misdemeanor. 625 ILCS 5/11-204(a) (West 2004). Because Dawdy had probable cause to effect a seizure of the person for jailable offenses, Welsh is distinguishable. More important, Welsh was not a case of hot pursuit, as the Supreme Court pointed out. Welsh, 466 U.S. at 753, 80 L. Ed. 2d at 745, 104 S. Ct. at 2099.

We need not decide whether the factors in Foskey justify, on balance, Dawdy's warrantless, nonconsensual entry of Foiles's home; Dawdy was in hot pursuit of defendant and, for that reason alone, had the right to enter the house and arrest him. It appears that the majority of jurisdictions that have considered this question would so hold. D. Gilsinger, Annotation, When Is Warrantless Entry of House or Other Building Justified Under "Hot Pursuit" Doctrine, 17 A.L.R.6th 327, §§ 12, 14 (2006).

According to defendant, "the law is clear that hot pursuit is not itself an exigent circumstance or exception to the warrant requirement, but merely one factor to consider." He cites Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519, in which the Fifth District disagreed with the State's contention "that 'hot pursuit' [was] an exception to the warrant requirement separate and distinct from the exigent[-]circumstances exception." The Fifth District stated:

"The cases do not discuss a separate hot pursuit exception to the warrant requirement, but discuss it within the context of discussing exigent circumstances. Hot pursuit is merely one factor to be considered in determining whether exigent circumstances justified a warrantless home entry. See Dorman v. United States (1969), 140 U.S. App. D.C. 313, 435 F.2d 385, 391 ('Another doctrine excusing failure to obtain a warrant in case of entry for arrest has been cast in terms of "exigent circumstances," or "necessitous circumstances." While some decisions also refer to condition of "hot pursuit," this term is not a limitation but rather an illustration of the kind of exigent circumstance justifying entry without a warrant to arrest a suspect')." Lagle, 200 Ill. App. 3d at 955, 558 N.E.2d at 519.

In its holding in Santana, the Supreme Court did not refer to hot pursuit as only one factor among others. Although the Court remarked upon the possibility of destruction of evidence, its final, unqualified holding was as follows: "[A] suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper under Watson, by the expedient of escaping to a private place." Santana, 427 U.S. at 43, 49 L. Ed. 2d at 305, 96 S. Ct. at 2410. The Court did not add the qualification "provided that other factors" (such as those listed in Foskey) "are satisfied." Most courts appear to take Santana's holding at face value, treating hot pursuit as an exception unto itself rather than as just another factor. E.g., People v. Tillman, 355 Ill. App. 3d 194, 198, 823 N.E.2d 117, 121-22, 291 Ill. Dec. 107 (2005), appeal denied, 215 Ill. 2d 616, 833 N.E.2d 8 (2005); People v. Wimbley, 314 Ill. App. 3d 18, 25, 731 N.E.2d 290, 295, 246 Ill. Dec. 762 (2000) ("Courts have also found exigent circumstances where police are in 'hot pursuit' of a suspect who flees from a public place into his residence"); State v. Blake, 468 N.E.2d 548, 553 (Ind. App. 1984) ("immediate and continuous pursuit from the scene of the crime formed the exigent circumstance"); People v. Lloyd, 216 Cal. App. 3d 1425, 1429, 265 Cal.Rptr. 422, 425 (1989) ("the officer's 'hot pursuit' into the house to prevent the suspect from frustrating the arrest which had been set in motion in a public place constitutes a proper exception to the warrant requirement").

Hot pursuit, as an exception unto itself, appears to have deep roots in 17th- and 18th-century English common law. Payton, 445 U.S. at 598, 63 L. Ed. 2d at 658, 100 S. Ct. at 1386. Hale stated: "[I]f the supposed offender fly and take house, and the door will not be opened upon demand of the constable and notification of his business, the constable may break the door, tho[ugh] he have no warrant." 2 M. Hale, Pleas of the Crown 92 (1736), quoted in Payton, 445 U.S. at 595 n.41, 63 L. Ed. 2d at 656 n.41, 100 S. Ct. at 1385 n.41.

One court has explained:

"Hot pursuit situations have a policy basis distinct from other exigent circumstances in that they involve arrests that have already been set in motion. Logic dictates that, regardless of the gravity of [*51] the offense, an individual should not be able to avoid an otherwise lawful warrantless arrest merely by outracing the police officers into the individual's dwelling." Erickson v. Commissioner of Public Safety, No. C2-92-507, slip op. at ____ (Minn. App. August 25, 1992).

Under Minnesota law, this unpublished opinion is "not precedential," but parties are permitted to cite it (Minn. Stat. § 480A.08(3) (2004)), and we find its logic to be persuasive.

Thus, we respectfully disagree with the Fifth District's discussion of the doctrine of hot pursuit in Lagle. Moreover, we are uncertain that the language the Fifth District quotes from Dorman actually supports the proposition that the Fifth District draws from it: just because one characterizes hot pursuit as an "exigent circumstance," it does not necessarily follow that hot pursuit is "merely one factor" among others.

When defendant repeatedly ignored Dawdy's commands to stop and tried to elude him by going (or, rather, staggering) into Foiles's house, reasonable suspicion ripened into probable cause, and the fourth amendment did not require Dawdy to simply shrug his shoulders and go obtain a warrant. Apparently, defendant thought the enforcement of traffic laws resembled a children's game of tag, whereby Dawdy was "it" and defendant was "safe" if he reached "home" before Dawdy apprehended him. See United States v. Schmidt, 403 F.3d 1009, 1014 (8th Cir. 2005). As Santana teaches, the fourth amendment does not contemplate this game.

The affidavit showed a substantial basis for showing probable cause, given that warrants are entitled to substantial deference. There was a substantial basis for believing that evidence would be found at defendant's house in a murder case based on what was presented to the magistrate. State v . Berry, 2007 Ohio 278, 2007 Ohio App. LEXIS 263 (8th Dist. January 25, 2007).* (Comment: The defense argument was more that the probable cause had other possible innocent explanations, but that is not the question for the reviewing magistrate.)

The Fourth Amendment does not provide for suppression of evidence of a crime committed against the officers during the arrest in defendant's house. State v. Skipper, 2007 Tenn. Crim. App. LEXIS 53 (January 25, 2007).*

Permalink 01:09:56 pm, by fourth, 938 words, 797 views   English (US)
Categories: General

Overbreadth by cross-reference to any "documentary evidence" without limitation

Particularity was lacking for part of a warrant as to the items to be seized by the state's use of a cross reference to a statutory definition of "documentary evidence" which was really overbroad as applied here. United States v. Joe, 2007 U.S. Dist. LEXIS 5282 (N.D. Cal. January 10, 2007):

The third sentence and fourth sentences of the warrant are problematic, however. The third sentence authorized the seizure of "all documentary evidence defined in California Penal Code 1524(f) including, all U.S. currency, buyer/seller lists, records of marijuana cultivation, trafficking, and money laundering." California Penal Code Section 1524(f) states, "documentary evidence" includes, but is not limited to, "writings, documents, blueprints, drawings, photographs, computer printouts, microfilms, X-rays, files, diagrams, ledgers, books, tapes, audio and video recordings, films, and papers of any type or description." Cal. Penal Code § 1524(0. Although there was probable cause to search for U.S. currency, buyer/seller lists, and records of marijuana cultivation and trafficking, there was not probable cause to seize evidence of money laundering (as the government concedes), nor was there probable cause to search for all of the "documentary evidence" listed in Section 1524(f). Section 1524(f) is written extremely broadly to include, inter alia, "papers of any type or description." The warrant could easily have been written to limit the "documentary evidence" to be seized to material with a connection to marijuana cultivation or distribution. Instead, the warrant authorized the seizure of any writings, documents, papers, etc., whether or not they were connected to marijuana cultivation. This language was overbroad, see United States v. Kow, 58 F.3d 423, 426-27 (9th Cir. 1995), and the Court severs the language "all documentary evidence defined in California Penal Code 1524(f)" and "money laundering" from the warrant. See Fulbright, 105 F.3d at 453. Any evidence obtained pursuant to this portion of the warrant is suppressed. See United States v. Clark, 31 F.3d 831, 836 (9th Cir. 1994).

The fourth sentence of the warrant authorized the seizure of "computers and related or similar devices, and information on hard or floppy drives, which may contain any documents or records as described above." This sentence does not contain any specific limitation to criminal conduct, and instead simply references "documents or records as described above." However, as discussed supra, a portion of the preceding sentence authorized the seizure of, inter alia, "papers of any type or description." Because this language is overbroad, the fourth sentence's incorporation of that language similarly renders the fourth sentence defective. Accordingly, the Court severs this sentence and suppresses any evidence seized pursuant to this portion of the warrant. See id.

A veteran detective testified at a Franks hearing that he has never put named informants' criminal histories into an affidavit and he never will. Luckily for the government, it did not change the outcome because probable cause was otherwise shown, but the district judge did not like it. United States v. Heer, 2007 U.S. Dist. LEXIS 5151 (D. Ore. January 19, 2007):

"There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine '(t)he criminal is to go free because the constable has blundered.'" Mapp v. Ohio, 367 U.S. 643, 659 (1961) (quoting People v. Defore, 150 N.E. 585, 587 (N.Y. 1926)). This case represents a classic example of sloppy police activity in what should have been a simple warranted search and seizure, now made into a difficult legal issue not because of ignorance, but because of the stubbornness of the veteran officer-in-charge to change his ways and comply with current protocols. Law enforcement officers have ready access to the Oregon State Police Law Enforcement Data System ("LEDS"), a computerized database that is the primary source of criminal history information in Oregon, either through a radio dispatch center or a dedicated computer terminal at their agency's office. (Decl. of Investigator James Strupp in Support of Mot. to Suppress (# 18) hereafter "Strupp Decl.") at 3, PP8-9.)

Detective Davis testified during the Franks hearing that he did not learn how to perform LEDS checks, and did not run one on Sadie Lamberson because it was his standard practice not to perform criminal history and background checks when statements from a named (as opposed to a confidential) informant were used in a supporting affidavit. The simple act of disclosing to the magistrate who issued the warrant the history of drug use and accompanying criminal background of Ms. Lamberson would have provided a constitutionally solid foundation for the search warrant executed at 1245 Tutuilla Road, because there would then be no question that the magistrate had all of the information needed to assess Ms. Lamberson's credibility and reliability as an informant.

. . .

I am satisfied that Detective Davis did not omit the details of Ms. Lamberson's criminal background with the intent to deceive the magistrate who was reviewing the warrant application. However, Detective Davis admitted that he did not include the above information because he never had before and did not want to change his ways to conform to current practices. Such disregard of protocol is, at the very least, reckless; the good faith exception to the Fourth Amendment provided in United States v. Leon, 468 U.S. 897 (1984), does not salvage what otherwise could have been an oversight or inadvertent mistake. Therefore, the issue remains: "Would the omitted information about the informant's background have affected the decision of the magistrate who issued the warrant on August 4, 2005?" I conclude that the answer is, "No."

47 minute delay in arrival of the drug dog was permissible because there was reasonable suspicion. If this were just a traffic stop and they waited that long for a drug dog, it would have been unreasonable. United States v. Kelley, 2006 U.S. Dist. LEXIS 88350 (E.D. Ark. December 5, 2006, filed January 18, 2007).

Permalink 07:14:09 am, by fourth, 749 words, 558 views   English (US)
Categories: General

$300,000 judgment against officers for detaining a family of four on a remote highway for four hours and finding nothing was fully supported by the evidence; remittitur denied

The plaintiffs were a family of four stopped in a remote spot on a Florida highway. The father was a suspect in a drug deal that occurred hours earlier, and that was the justification for the stop. When stopped, he readily consented to a search, and nothing was turned up. The officers kept conferring and finding other ways to search. Nothing was found, and they were ultimately released after four hours on the side of the road. In a § 1983 case tried to a jury for six days in what the judge found was an unusually "clean" trial virtually without error, the plaintiffs recovered a total of $300,000 [before attorneys fees]. McCloud v. Fortune, 2007 U.S. Dist. LEXIS 5292 (N.D. Fla. January 25, 2007). This is an interesting opinion, but just the opening summary is provided here:


This § 1983 action arises from the prolonged detention of a family of four following a traffic stop on a remote highway after midnight by law enforcement officers who had evidence that the father made a drug sale earlier in the evening. The father (who was driving) readily consented to a search of the car, and officers conducted a thorough search (including with a dog). They found nothing. Officers held the father and the other family members for nearly three hours after the conclusion of the search of the car, releasing them shortly after 4:00 a.m. Holding the family members (other than the father) after completion of the search of the car was lawful if and only if they consented. After a full and fair trial, the properly instructed jury found that they did not consent and awarded both compensatory and punitive damages. Defendants have moved for a new trial or alternatively for remittitur of the punitive damages awards. Because the verdict was fully consistent with the weight of the evidence and the jury's assessment of damages was reasonable, I deny the motion.

The Eastern District of Arkansas, after a two day court trial, entered an order in an excessive force case awarding the plaintiff $558,000. The officer testified that he was arresting a misdemeanant prone to flee, and a struggle ensued where the officer had to use his baton against the plaintiff, but the plaintiff got the baton away from him and advanced on him so he fired his .357 from 3-4' away. The court credited the testimony of the plaintiff, corroborated by the medical testimony that plaintiff was shot in the back near the spine and the exit wound was in his stomach. This use of force was objectively unreasonable under the Fourth Amendment. Medicals were $186,000, and pain and suffering was calculated at twice that, $372,000. Cooperwood v. Wages, No. 4:05CV00902 JLH (E.D. Ark. January 25, 2007).* (Update and Comment: Since this was first posted, I have talked to defense counsel (because we have a case together, too), and he said that the defense evidence that supported the plaintiff coming at the officer with the baton which appears in admissions in the medical reports and elsewhere were not even mentioned in the opinion, so the findings will get less deference on appeal, which there definitely will be.)

Plaintiff was a certified boiler maintenance worker for the Cuyahoga Metropolitan Housing Authority (CMHA), and he came to work one day and went to an empty building to use the bathroom. Inside the building, he was confronted by CMHA police who ignored he was working where he belonged, pushed him up against a wall, searched him, peppersprayed him, and left him laying face down in the snow for 45 minutes with pepperspray in his eyes. Their motion to dismiss was denied in part. His excessive force claim was not contested in a F.R.C.P. 12(b)(6) motion. Fuller v. Cuyahoga Metro. Hous. Auth., 2007 U.S. Dist. LEXIS 5387 (N.D. Ohio January 25, 2007).

Officers had defendants under surveillance for marijuana distribution for a long time and had conducted a "sneak and peak" search [which itself necessarily had to be based on probable cause] that did not reveal marijuana but did reveal some incriminating evidence that added to their investigation. The officers saw bags being transferred to cars from a truck and warehouse. They had sufficient suspicion for a stop. United States v. Prentice, 2007 U.S. Dist. LEXIS 5211 (W.D. Wash. January 24, 2007).

No reasonable expectation in a drain spout where a street corner dealer doing hand to hand sales kept his stash. United States v. Lewis, 2007 U.S. Dist. LEXIS 5192 (N.D. Va. January 24, 2007).

(Many cases today; more later.)

Permalink 06:43:23 am, by fourth, 614 words, 605 views   English (US)
Categories: General

De novo review sustaining searches: Two examples, one reversing a suppression order

On de novo review of whether there was reasonable suspicion for a traffic stop, having reviewed the transcript and the videotape of the stop, the Eighth Circuit disagrees with the district court that there was no objective basis for a stop for driving over the fog line for 10-15 seconds and reverses. United States v. Herrera-Gonzalez, 474 F.3d 1105 (8th Cir. January 26, 2007):

To the contrary, under the circumstances of this stop--the 10 to 15 second crossing of the fog line, the time of day (morning), the clear weather conditions, the fact that there was a full lane of travel between Herrera-Gonzalez and the tow trucks, the lack of any additional adverse conditions that would have made it impractical for Herrera-Gonzalez to keep his car in the lane, and the fact that Herrera-Gonzalez returned to his lane to avoid the bridge and then continued within his lane as he passed the tow trucks--and given the obvious difficulty of observing from a patrol car whether a driver has ascertained that his move can be safely made, we conclude that Faiferlick had an objectively reasonable basis to believe that a violation of the Iowa statute had occurred. See Alvarado, 430 F.3d 1305, 1309; cf. Washington, 455 F.3d at 828 (noting that where there is a basis in state law for an officer's actions and some ambiguity exists that caused the officer to make the mistake, it may still be objectively reasonable). We recognize that this is a relatively close question, but we believe that based on what he reasonably knew at the time of the stop, Smart, 393 F.3d at 770, Faiferlick "could have formed" a reasonable suspicion that Herrera-Gonzales had committed a traffic violation, Martin, 411 F.3d at 1001. Accordingly, we conclude that the traffic stop was lawful.

On de novo review of consent, the Fifth Circuit states its test and attempts to focus on the recurring question of courts which "ought to be skeptical of a defendant's alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found." United States v. Arias-Robles, 477 F.3d 245 (5th Cir. 2007):

Voluntariness of consent is a finding of fact reviewed for clear error, but where there are "virtually no uncontested facts," review is "essentially de novo." Where a defendant challenges the voluntariness of consent to search, the Government must prove voluntariness by a preponderance of the evidence. A court should consider the totality of the circumstances, focusing on six factors: 1) the voluntariness of the defendant's custodial status; 2) the presence of coercive police procedures; 3) the extent and level of the defendant's cooperation with the police; 4) the defendant's awareness of his right to refuse consent; 5) the defendant's education and intelligence; and 6) the defendant's belief that no incriminating evidence will be found. Although all factors are relevant, none is dispositive.

. . .

Marshaling all six factors, we cannot say that the district court erred in concluding that Arias's consent was voluntary. Concededly, under our cases a defendant faces a high hurdle in his effort to escape an affirmative response to an officer's request for permission. At the least we are persuaded that our test ought to be skeptical of a defendant's alleged consent when the defendant persuades that he did not know that he had a right to refuse the request for consent to search and it is plain from the facts that the contraband would likely be found. That said, we cannot conclude that such recurring circumstances so often produce a coerced consent that we ought to find them inherently coercive. There is no "Miranda requirement" attending a simple request for permission to search.

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by John Wesley Hall
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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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  "On the Docket"–Medill
  S.Ct. Monitor:
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  General (many free):
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx $ (criminal law/ 4th Amd) $ (4th Amd) $
  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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