Archives for: May 2007, 31


Permalink 11:52:26 pm, by fourth, 311 words, 1609 views   English (US)
Categories: General

NY Co. Ct. suppresses blood test based on physican-patient privilege

The District Court of Nassau Co. N.Y. holds that the police had probable cause for a search warrant for blood results after a motor vehicle accident, but suppresses the evidence based on the physican-patient privilege because it was drawn for medical purposes. People v. Muscarnera, 2007 NY Slip Op 27224, 16 Misc. 3d 622 (Nassau Co. 2007).*

Maryland holds that a police officer who had the only set of some files at his house and not at work where they belonged could be ordered to produce them under threat of disciplinary action without violating the Fourth Amendment. FOP Montgomery County Lodge 35 v. Manger, 175 Md. App. 476, 929 A.2d 958 (2007):

The files at issue belong to the MCPD and, thus, it was reasonable for them to demand appellant to produce the files. Thus, the action was justified at its inception. Had the files been located at the district station, the MCPD would have simply taken the files from the cabinet. The circumstances resulting from the accommodation of MCPD in permitting maintenance of files off site precluded the public employer, MCPD, from simply and as acknowledged by all parties, rightfully, taking the files. Reasonableness of the seizure, as considered under the circumstances, dictated that the MCPD demand appellant to produce the files immediately. Appellant's invitation to the officers to enter his residence, simply for the purpose of carrying the boxes out, did not involve an unreasonable seizure as proscribed by the Fourth Amendment.

Sua sponte appellate determination of standing, based on defendant's testimony, when the issue was not litigated below, was inappropriate because of the lack of a full record. "While the appeals court was not precluded from conducting a sua sponte inquiry into Moody's standing, we conclude the panel should have limited its review to the record at the suppression hearing, which was lacking facts necessary to make a fully informed determination." Moody v. People, 159 P.3d 611 (Colo. 2007).*

Permalink 11:40:47 pm, by fourth, 506 words, 841 views   English (US)
Categories: General

Identity not subject to suppression; search for wallet and ID was valid

Defendant's identity was not subject to suppression. He had no ID on him, and, after his arrest, the officer looked through defendant's vehicle for his wallet and ID, and this was a reasonable search. United States v. Osborne, 2007 U.S. Dist. LEXIS 38558 (E.D. Tenn. May 25, 2007).*

The fact a federal law enforcement officer provided information for the search warrant was not enough to make the state search warrant and state officers' search "federal in character" to invoke Rule 41. Defendant argued that the state nighttime search rule was violated, but federal courts do not apply state law. "Mr. Armendariz is more insistent than coherent in urging the application of state law." United States v. Armendariz, 2007 U.S. Dist. LEXIS 38503 (D. Utah May 25, 2007):

To the extent that Mr. Armendariz alleges only that a federal officer provided the information that formed the basis of the probable cause determination, he has not shown the search to have been federal in character. See Bookout, 810 F.2d at 968 (search state in character when executed by state officers where warrant based on information conveyed by federal officer). If, on the other hand, Mr. Armendariz contends that federal officers took part in the execution of the warrant, the question is a closer one. While the parties' conflicting accounts of the search do not permit a conclusion regarding the participation of federal officers in the execution of the search, there is no need to take evidence on the matter because, even if the Court were to assume, arguendo, that the search was federal in character, there has been no violation of the requirement in Rule 41 that nighttime searches be supported by good cause and expressly authorized by the issuing magistrate.

Search warrant issued after a wiretap was not imparticular, even though the list of things to be seized was extensive and identified things by references to the N.Y. Penal Code. United States v. Session, 2007 U.S. Dist. LEXIS 38477 (W.D. N.Y. May 24, 2007):

A simple reading of the search warrant makes clear that it identified two categories of evidence to be seized from 67 Quentin Road: evidence relating to the trafficking of cocaine and evidence relating to the possession of illegal firearms. Indeed, the warrant specifically identified the particular New York State narcotics and weapons offenses as to which it authorized the search and seizure of evidence. Although the list of items enumerated was relatively extensive, all items appear reasonably related to the offenses upon which the search warrant was based. Accordingly, I find that the warrant was sufficiently particular to identify for the searching officers the evidence of specific criminal activity for which they were authorized to search, see, e.g., United States v. Washington, 48 F.3d 73, 78 (2d Cir.) (upholding warrant describing "specific categories of drug-related evidence sought"), cert. denied, 515 U.S. 1151, 115 S. Ct. 2596, 132 L. Ed. 2d 843 (1995); United States v. George, 975 F.2d at 76 (collecting cases upholding warrants authorizing searches for evidence of "specific illegal activity"), and I therefore recommend that Session's motion to suppress evidence from his residence on that basis be denied.

Permalink 08:00:55 am, by fourth, 644 words, 2687 views   English (US)
Categories: General

Child porn presumptively retained so there is no "brightline rule" on staleness and it is hardly an issue

The N.D. Ohio holds that child porn is presumptively retained by the holder, so a search warrant for child porn is seldom found stale. Brothers v. County of Summit, 2007 U.S. Dist. LEXIS 38468 (N.D. Ohio May 25, 2007):

With regard to allegations of child pornography, the courts have found probable cause was not stale because it is presumed that such material is securely retained by the suspect. See United States v. Summage, 481 F.3d 1075, 2007 WL 1052456 *3 (8th Cir. 2007); U.S. v. Koelling, 992 F.2d at 823 (pedofile presumed to maintain pornography collection); United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (information that was six months old was not stale); U.S. v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997) (information that was 10 months old was not stale). Since there is no "bright line" standard for measuring staleness and case law has permitted use of evidence as old as 10 months old in child pornography prosecutions, then plaintiffs have not demonstrated a constitutional violation.

Plaintiff survives summary judgment on warrantless search based on her alleged consent which, remarkably, she videotaped and it showed her consenting under threat of arrest. Myers v. Halbleib, 2007 U.S. Dist. LEXIS 38577 (D. Neb. May 25, 2007):

This is an unusual case. Fifteen minutes after Myers permitted the officers to enter her home, and after the officers had several times attempted to obtain Myers' consent to search the home, Myers made a video recording of her interaction with Defendants and that video recording is in evidence before the court. The video reflects that when Myers asked "[A]re you tellin' me ... that if I don't let you guys search my house I'm gonna be arrested," Halbleib replied "[a]bsolutely, yes." (DVD Tr. 4:16-24 (emphasis added).) Later, Myers gave permission for Baker to search her home. Obviously, the voluntariness of this consent is at issue. "[W]hether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth, 412 U.S. at 227. Consent may not be coerced by implied threat or covert force, id. at 228, and certainly not by direct threats or force.

Myers contends that her consent was involuntary because she understood Officer Halbleib to have threatened her with arrest if she refused consent to search, she was physically intimidated when Officer DeSanti tried to handcuff her, and because the officers continued to request consent to search despite her repeated refusals. n3 (Filing 40 at 13.) Defendants assert that although Halbleib said "absolutely, yes" when Myers asked if she would be arrested if she refused consent, Halbleib threatened arrest not because Myers refused consent to search but because Myers' refusal to answer questions obstructed the investigation into the search for the missing girl. (Filing 55 at 5, 19.) Thus the ultimate question of fact--voluntariness of consent--is in dispute. In addition, there is a dispute as to a key underlying fact: whether DeSanti or Halbleib touched Myers in an attempt to handcuff her and whether she was handcuffed. (Myers Dep. 66:4-5 (DeSanti grabbed her and tried to put her in handcuffs); DeSanti Dep. 35:8-20 (DeSanti got his handcuffs out, but none of the officers "put their hands on Ms. Myers").) Because there is clearly a factual dispute as to the voluntariness of consent, I cannot grant summary judgment on this issue.

Pushing the plaintiff down to a bed from which she stood up did not qualify as excessive force. Gonzalez v. Cameron County, 2007 U.S. Dist. LEXIS 38598 (S.D. Tex. May 29, 2007).*

Court refuses to reconsider its refusal to assume "anamolous jurisdiction" over property taken in a seizure. The complaining party has not shown that it will be irreparably harmed, and it still has remedies for recovery of the property. In re Seizure of Various Bus. & Personal Prop., 2007 U.S. Dist. LEXIS 38553 (E.D. Wash. May 29, 2007).*

(A lot today; more later.)

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  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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"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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