Archives for: June 2007, 03


Permalink 09:11:56 pm, by fourth, 695 words, 641 views   English (US)
Categories: General

Reasonable suspicion not required to refer a car at the border to a secondary inspection point

Sending a car at a border crossing to a secondary inspection area did not require reasonable suspicion. Here, the officer noticed the carpet of the car had been tampered with, and that was reason enough. United States v. Morales, 489 F. Supp. 2d 1250 (D. N.M. 2007):

Border patrol agents have virtually unlimited discretion to refer cars to the secondary inspection area and may do so in the absence of individualized suspicion. Id. (internal quotations omitted). This is "because the public has a substantial interest in protecting the integrity of our national borders, and the intrusion upon one's right to privacy and personal security by a routine border inspection is minimal ...." United States v. Rascon-Ortiz, 994 F.2d 749, 752 (10th Cir. 1993). Agents' "virtually unlimited discretion" is, however, limited in one important respect--the overall detention cannot exceed a routine checkpoint stop if probable cause, consent, or reasonable suspicion does not exist. Rascon-Ortiz, 994 F.2d at 753. Such a limit is necessitated by the Fourth Amendment's key principle of reasonableness and the Supreme Court's analysis in Martinez-Fuerte. But "[w]hether the routine checkpoint stop is conducted at primary, secondary, or both is irrelevant to Fourth Amendment concerns."

Id. Instead, the true focus is the reasonable suspicion that must exist when a detention is prolonged beyond the scope of a routine checkpoint stop. Id. As the Tenth Circuit has stated,

"[o]bviously, if a secondary inspection area is such that it causes the detention to exceed a routine checkpoint stop because it is overly intrusive or lengthy, the secondary inspection becomes relevant in a Fourth Amendment analysis; however, the relevancy would still be based upon the reasonableness of the detention as determined by balancing Fourth Amendment interests, and not merely because the detention occurred at secondary."

Id. n.8 (emphasis added). Or, as the Fifth Circuit has phrased it, "[t]he constitutionality of a seizure at a checkpoint stop depends on its duration, not its location." United States v. Machuca-Barrera, 261 F.3d 425, 435 n.35 (5th Cir. 2001).

The government failed in its burden to show consent to search because the situation involved coercion. The search, however, was alternatively valid under the automobile exception because there was probable cause. United States v. Cabrera, 2007 U.S. Dist. LEXIS 39656 (M.D. Pa. May 31, 2007).*

Plaintiff's decedent was suicidal and potentially homicidal, and police officers entered to arrest him and ended up shooting him. There was cause to enter, and the use of force was reasonable under the circumstances. [This opinion was 100 pages long.] Estate of Bennett v. Wainwright, 2007 U.S. Dist. LEXIS 39631 (D. Me. May 30, 2007).*

Agreeing to get one's ID is a "thin reed" on which the government can support an entry by the police to follow the person to get it. However, the totality of the circumstances showed consent. As the officers kept walking with her, they could smell raw marijuana. They asked if they could sit down, and she agreed, and scales and paraphernalia were laying around. United States v. Nelson, 489 F. Supp. 2d 309 (S.D. N.Y. 2007):

The facts also do not support any purported claims of coercion. Madden testified that she was "nervous" and "frightened" when she signed the consent-to-search form. (Tr. 142). While such an emotional state is understandable given the events occurring in Madden's home at the time, it does not rise to coercion and does not place the consent provided by way of her signature into question. See United States v. Watson, 423 U.S. 411, 424 (1976) (finding consent to search voluntarily offered despite formal arrest); see also United States v. Marin, 669 F.2d 73, 82 (2d Cir. 1982) (same); Garcia, 56 F.3d at 423 (finding that the presence of three law enforcement officers does not lend significant support to a claim of coercion). Madden does not claim that she was threatened, physically restrained, or otherwise forced to sign the document; hence, her consent cannot be challenged on the basis of coercion. See United States v. Lavan, 10 F. Supp. 2d 377, 384 (S.D. N.Y. 1998) (listing show of force, use of handcuffs, previous refusal to consent, and threat of more expansive search warrant as factors in determining the voluntariness of consent).

Finally, the Court finds that the timeline [of the consent and the search] put forth by Madden is not credible.

Permalink 08:30:20 pm, by fourth, 574 words, 626 views   English (US)
Categories: General

18 U.S.C. § 3731 giving government ability to appeal an order of suppression does not give the defendant the power to cross-appeal another suppression issue

When government appeals grant of a suppression motion as to one issue (a statement) under 18 U.S.C. § 3731, the defendant cannot cross-appeal under that statute another issue he lost on (denial of suppression of a search). The defendant must wait for the conclusion of the case. The district court's order of suppression was clearly erroneous on the causation question for the statement. United States v. Marasco, 487 F.3d 543 (8th Cir. 2007):

Harms cannot satisfy her burden of establishing the causal nexus between the illegal search of her purse and her statements. At best, Harms shows that it is remotely possible that she made her statements after the search of her "stuff" began. The record indicates that Simones informed Harms that methamphetamine and items used to manufacture methamphetamine were in the motel room, and then Harms made incriminating statements. Harms argues that these referenced items were discovered during the search of her purse, but there is nothing in the record to indicate that the referenced items came from the search of Harms's "stuff." These items could have been those observed in plain view (the pipes and scale), those legally seized from Marasco incident to his arrest (the bags of methamphetamine), those discovered during the search of the room, or those found in Harms's "stuff." Harms's scenario is the least likely to have occurred because although the record is unclear on when the search of the room began, the record indicates that most of the search occurred while Simones was questioning Harms.

Because the record lacks support for Harms's contention that Simones confronted her with evidence obtained during the illegal search of her purse before she made the incriminating statements, the District Court's finding that Harms's statements were "given immediately after the search" is clearly erroneous.

Magistrate's interlineations on affidavit showed, not that the magistrate was not neutral and detached, but that he was fulfilling his judicial role by questioning the factual scenario. Also, the continuous nature of the allegations was sufficient to overcome defendant's claim of staleness of information. United States v. Uhrich, 228 Fed. Appx. 248 (4th Cir. 2007)* (unpublished):

Simply stated, Johnston's bare allegation that the interlineations demonstrate that the Magistrate Judge lacked objectivity, without more, is an insufficient basis for us to find that the search warrant was invalid. In fact, and as posited by the government, we are of the firm belief that the interlineations in the affidavit establish not that the Magistrate Judge ceased being "neutral and detached" but instead that the Magistrate Judge carefully considered the affidavit before deciding whether to issue the search warrant.

Defendant clearly consented by his words, and failure to object during the search as to a scope issue is also a showing of consent. United States v. Thaqui, 2007 U.S. Dist. LEXIS 39669 (E.D. Mo. May 31, 2007):

When asked if they were carrying any illegal contraband, Defendant said, "If you want to search the vehicle go ahead. The quicker you search, the quicker we can go." Defendant clearly consented to the search. The consent included the hole near the rear driver's side wheel-well. None of the occupants objected at the time when Detective Pratt looked in the hole and saw something wrapped in cellophane that did not look natural. Nor did the occupants voice any objection upon further inspection with the screwdriver. Based on the totality of the evidence, the Court finds that the officers had the legal right to search the vehicle, including the search of the hole.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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)
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  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)

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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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