Archives for: May 2007, 16

05/16/07

Permalink 08:18:09 am, by fourth, 553 words, 608 views   English (US)
Categories: General

Misstatements and omissions from affidavit for search warrant precluded summary judgment for defendants in § 1983 case

Suit against state SPCA would proceed for time being because of misstatements shown in the affidavit for the search warrant which undermined the probable cause. Also, federal § 1983 case was not "inextricably intertwined" with state case and state law to be barred by Rooker-Feldman doctrine. Allen v. Pennsylvania SPCA, 488 F. Supp. 2d 450 (M.D. Pa. 2007).*

The government failed to show reliability of their informant and reasonable suspicion, and the motion to suppress should have been granted. The government argued that the defense did not properly assert that there was no reasonable suspicion, but it carried the burden. United States v. Martinez, 486 F.3d 855 (5th Cir. 2007):

Without establishing the reliability of the informant, the government had to establish reasonable suspicion based on some or all of the other factors listed above: the specificity of the information provided, the extent to which the information is corroborated by officers in the field, and whether that information concerns recent activity or has instead gone stale. At the time of this stop, the police had (1) a tip that a person named "Angel" was storing weapons that had been used in a crime in his girlfriend's house; (2) corroboration by the individual leaving the specified house that a man named "Angel" was inside; and (3) visual verification that two people left the residence 20 minutes after a phone call was placed asking Angel to pick up his car, and that those two people drove toward the location where the pick-up was supposed to occur. Therefore, at the time of the stop, the only verified information that the police had was that a man named Angel was in a specified residence. Notably absent, however, is any verified information that "criminal activity may be afoot." Jaquez, 421 F.3d at 340-41. Our review of precedent, both our own and that of the Supreme Court, makes clear that this is insufficient to give rise to reasonable suspicion.

Spending an hour interviewing the informant was sufficient for the officer to establish reliability. O'Connor v. City of Philadelphia, 233 Fed. Appx. 161 (3d Cir. 2007)* (unpublished).

Disputed facts on exigency for warrantless entry precluded summary judgment. The same standard that precludes summary judgment on the facts may preclude application of qualified immunity, and here it does. Woods v. Valentino, 511 F. Supp. 2d 263 (M.D. Fla. 2007).*

Reasonable suspicion existed based on the similarity with the occurrence at hand and another one. That justified the longer detention and request for consent. United States v. Thompson, 2007 U.S. Dist. LEXIS 35074 (E.D. Mo. May 14, 2007)*:

Here the officers had reasonable suspicion based on the conduct of Defendant and the other suspects at the hotel and the marked similarity between this incident and the incident that had occurred the previous month, including that the Uplander [the vehicle] had been rented by the same individual who had rented the Pontiac G6 and the fact that bulky items appeared to be concealed in the Uplander in the same manner as before. Defendant's statement regarding the purpose of his current travels appeared to be inconsistent with the surveillance conducted by the officers, providing further basis to expand the scope of the stop. Consequently, even if the officers had not, in the interim, determined that there was a large quantity of marijuana in the Uplander, they would have been justified in expanding the scope of the stop to request consent to search. ....

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by John Wesley Hall
Criminal Defense Lawyer and
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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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"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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