Archives for: June 2007, 08

06/08/07

Permalink 05:19:24 pm, by fourth, 869 words, 693 views   English (US)
Categories: General

Defendant is obligated to point out in his motion the search and seizure violation he claims

Burden was not shifted to the defendant to prove that the search was illegal; it was merely required to show what his basis for claiming the search was. State v. Stanley, 2007 Ohio 2786, 2007 Ohio App. LEXIS 2538 (10th Dist. June 7, 2007):

[*P24] "[T]he state has the burden of going forward with evidence to show probable cause once the defendant has demonstrated a warrantless search or seizure and has raised lack of probable cause as a ground for attacking the legality of the search or seizure." Xenia v. Wallace (1988), 37 Ohio St.3d 216, 218, 524 N.E.2d 889. However, "the prosecutor cannot be expected to anticipate the specific legal and factual grounds upon which the defendant challenges the legality of a warrantless search." Id. at 218. The court in Wallace found that Crim.R. 47 "requires that the prosecution be given notice of the specific legal and factual grounds upon which the validity of the search and seizure is challenged." Id. at 219. The court further noted that the rule is not solely for the benefit of the prosecution, but also serves to permit the trial court to prepare for a hearing. "[T]he court must know the grounds of the challenge in order to rule on evidentiary issues at the hearing and properly dispose of the merits." Id. Therefore, the court placed the burden upon the defendant in a criminal case to "make clear the grounds upon which he [or she] challenges the submission of evidence pursuant to a warrantless search." Id. Consequently, the "[f]ailure on the part of the defendant to adequately raise the basis of his challenge constitutes a waiver of that issue on appeal." Id.

[*P25] In his motion to suppress, defendant did not challenge the accuracy or reliability of the drug-detection dog that sniffed the vehicle. Accordingly, we find that defendant's arguments regarding the accuracy and reliability of the dog are waived for purposes of appeal. See State v. Bennett, Cuyahoga App. No. 86962, 2006 Ohio 4274 (finding that the defendant, who did not challenge the reliability of the dog or whether it alerted, waived these arguments for purposes of appeal).

[*P26] For the above reasons, we overrule defendant's first assignment of error.

Defendant being a passenger in a vehicle owned and driven by a relative does not grant the defendant standing. Benitez v. State, 2007 Ark. App. LEXIS 414 (May 30, 2007).*

Officer observed defendant put something in his pants when pulled over. A patdown for weapons produced nothing, so the officer went after what she suspected would be drugs. Motion to suppress granted. People v. Dobson, 2007 NY Slip Op 4846, 2007 N.Y. App. Div. LEXIS 6971 (2d Dept. June 5, 2007).*

Defendant was a passenger in a taxicab stopped for a traffic offense, and the officer developed reasonable suspicion as to the passenger, which justified the detention. State v. Fry, 2007 Ohio 2734, 2007 Ohio App. LEXIS 2532 (9th Dist. June 6, 2007).*

Defendants' stop lacked any basis in probable cause or reasonable suspicion, so the motion to suppress was properly granted. Even though the car was going slower than the other cars on the road, it was not "impeding" traffic. State v. Hannah, 2007 Tenn. Crim. App. LEXIS 441 (June 6, 2007):

Viewing the totality of the circumstances, Officer Shaw did not have a reasonable suspicion, supported by specific and articulable facts, to believe the defendants had committed a crime or were about to commit a crime when he initiated the traffic stop. Prior to stopping the defendants' vehicle, the officer did not observe any traffic violations, such as running a stop sign or red light, or weaving across lanes into oncoming traffic. Neither did he witness any equipment failures, such as a non-working headlight or taillight. Nor was there any evidence that the vehicle lacked tags or had expired tags. Officer Shaw did not testify that it was his belief that the individuals in the car were perpetrating a crime or had just committed a crime.

Hot pursuit for fleeing from an obstructing an officer misdemeanor does not justify a warrantless entry in hot pursuit. State v. Sanders, 2007 WI App 174, 304 Wis. 2d 159, 737 N.W.2d 44 (2007):

P22 On appeal, the state relied upon the hot pursuit doctrine to justify the warrantless entry. Id., P12. We held that the entry violated the Fourth Amendment. See id., P17. We explained that in United States v. Santana, 427 U.S. 38, 43, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), the United States Supreme Court held that a suspect could not defeat an arrest that has been set in motion in a public place by escaping to a private place. We then interpreted Welsh as limiting Santana to the hot pursuit of fleeing felons. Mikkelson, 2002 WI App 152, 256 Wis. 2d 132, P17, 647 N.W.2d 421. Because the police pursued Mikkelson for obstructing an officer, a misdemeanor, we determined they were not permitted to enter the residence without a warrant. Id.

P23 We have a strikingly similar fact pattern in this case. As in Mikkelson, we have an uncooperative defendant who engaged in what officers believed was suspicious behavior. We have a defendant who, like Mikkelson, disregarded a police order to stop and proceeded into a residence. Finally, as in Mikkelson, the officers pursued Sanders for obstructing an officer, a misdemeanor offense. Applying Mikkelson and its construction of the post-Welsh exigent circumstances factors, we hold that the officers illegally entered Sanders' residence.

Permalink 07:57:26 am, by fourth, 386 words, 522 views   English (US)
Categories: General

Doing a drug deal in front of the house and running into the house justifies hot pursuit

Defendant did a drug deal outside his trailer, and he saw the police and ran inside, with the police in hot pursuit. The police entry was justified. United States v. Echevarria, 2007 U.S. App. LEXIS 13087 (11th Cir. June 6, 2007)* (unpublished):

Additionally, Echevarria instigated the hot pursuit justifying Philippe's warrantless entry, rather than Philippe and Detective Dorcely having created the exigent circumstances, because he first became aware of police presence and his impending arrest while he was outside of his trailer, and subsequently decided to walk quickly into his trailer. The fact Echevarria decided to flee into his trailer after having conducted a drug transaction and then observing the police, only made it more likely he would have destroyed the drugs or fled the area, which, in turn, made it more reasonable for Philippe to fear the destruction or removal of the evidence before a warrant could be secured. See United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991). Accordingly, Echevarria's argument the police created the exigent circumstances is meritless. n1 We conclude Philippe's entry into Echevarria's trailer to arrest him was valid, and the drugs and gun that were found were admissible. See United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999) (stating, in reviewing a motion to suppress, that factual findings should be reviewed for clear error and the application of the law to the facts should be reviewed de novo.").

Five controlled buys gave the police plenty of time to get a search warrant, so they could not rely on exigent circumstances to justify their entry after a knock and talk. They also claimed that local magistrates preferred arrests on probable cause rather than bothering them with warrant requests, and that was rejected, too. United States v. Khut, 490 F. Supp. 2d 35 (D. Mass. 2007).

A person near the detainee could be detained, too, when there is reasonable suspicion as to the companion. United States v. Kinzalow, 236 Fed. Appx. 414 (10th Cir. 2007)* (unpublished):

In the instant case, the evidence in the record, viewed in the light most favorable to the government, leads us to conclude that Mr. Kinzalow was seated in an area immediately adjoining Miron Moaning when he was arrested. Thus, pursuant to Buie and Maddox, Mr. Kinzalow could be detained for officer safety purposes regardless of whether the officers possessed a reasonable suspicion that he posed a danger.

Permalink 07:22:09 am, by fourth, 459 words, 396 views   English (US)
Categories: General

Ohio stretches to apply Hudson to a failure to announce where it did not have to

The officers came to execute a search warrant and they entered and grabbed the defendant who showed up at the door with a hammer in his hand. Because he had no prior history of violence and they really did not know what the hammer meant, the entry without announcement was a violation of defendant's statutory and constitutional rights. However, the court applies Hudson to sustain the search. State v. Gilbert, 2007 Ohio 2717, 2007 Ohio App. LEXIS 2520 (4th Dist. May 30, 2007).*

Comment: This court never addresses the "useless gesture" exception to knock and announce: The defendant saw the officers when he came to the door. Therefore, if the defendant knew who they were, then the useless gesture exception clearly applies, so why did they have to announce? This is just a shameless excuse to apply Hudson where the facts do not justify it. Ohio defense lawyers should be concerned with this court's rush to jump on the Hudson bandwagon where the facts clearly do not justify it.

Pennsylvania adopts the federal plain view standard for its state constitutional standard, and then holds that the facts here justified a plain view of a pill bottle in a car stopped for a traffic offense. Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007).

A valid traffic stop justifies checking the passengers for the officer's own safety, and that produced a shotgun. The finding of the gun was reasonable. State v. Canezaro, 957 So. 2d 136 (La. 2007).*

Encountering the defendant at home, the officer could smell burning marijuana "emanating from the partially open door." A warrantless entry was justified. Hardy v. Broward County Sheriff's Office, 238 Fed. Appx. 435 (11th Cir. 2007)* (unpublished):

The Deputies therefore had probable cause to believe that someone inside the apartment had been smoking cannabis and that this cannabis could be found somewhere inside the apartment. Moreover, had the Deputies delayed entering the apartment, they risked the "loss, destruction, removal, or concealment of evidence" of this suspected crime, thereby creating exigent circumstances. See id. Thus, even had the cocaine-filled, plastic bags not been "in plain view" from outside the partially open door of the apartment (that is, even had the ceramic bowl been covered with a lid as Hannah alleged), the Deputies had probable cause to believe that cannabis could be found somewhere inside the apartment (including inside the ceramic bowl), and there was a risk that Hannah would remove or destroy this cannabis (or the possible vestiges thereof). This combination of probable cause and exigent circumstances justified the Deputies' warrantless search of Hannah's apartment, and therefore, the cocaine found inside the ceramic bowl was properly seized. That the Deputies did not find any cannabis is of no moment, especially where following Hannah's arrest, he admitted that he had smoked cannabis inside the apartment just before the Deputies arrived.

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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)

"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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