Archives for: June 2007, 15

06/15/07

Permalink 08:09:42 am, by fourth, 432 words, 605 views   English (US)
Categories: General

Consent of driver to search car did not extend to a passenger's purse

Consent of driver to search car did not extend to a passenger's purse. Smith v. Smith, 2007 Iowa App. LEXIS 730 (June 13, 2007):

We conclude under the specific facts and circumstances here that it was not reasonable for Officer Bovy to believe the consent given by Montgomery to search the vehicle authorized a search of the purse. The purse was found by Bovy sitting on the front passenger seat where Smith, the only female in the vehicle, had been sitting immediately before he asked her to exit the vehicle. Thus, all of the facts available to Bovy at the time of the search supported a conclusion that Smith had placed the purse on the seat as she got out of the vehicle and it belonged to her, not Montgomery. We agree with the district court that "it should have been clear to the officer that the purse belonged to the passenger and not the driver." Accordingly, we conclude it was unreasonable for Bovy to believe the purse belonged to anyone other than Smith or that anyone other than she had actual or apparent authority to consent to a search of the purse.

Patdown revealed a hard object which defendant volunteered was a knife, and the officer was justified in reaching into his pocket for it. "The fact that the object was in fact a marijuana pipe does not change the result. The district court erred in granting the motion to suppress." State v. Shine, 2007 Iowa App. LEXIS 711 (June 13, 2007).*

Defendant failed to show that the officer's affidavit was made recklessly. Parsing the words in the affidavit did not show recklessness in the choice of words. Omission of reference to a pathway from the marijuana grow operation added nothing to defendant's challenge. State v. Blow, 2007 Iowa App. LEXIS 747 (June 13, 2007).*

Telling the defendant that the officer need to talk to him outside was a stop because no reasonable person would feel able to just ignore it and walk away. State v. Roark, 229 S.W.3d 216 (Mo. App. 2007):

In response to Barklage's request that Roark return to the parking lot, Roark asked for an explanation. Barklage declined that request, saying that he would explain outside. At this point in the encounter, a reasonable person in Roark's position would not have felt free to disregard Barklage and "go about his business." Bostick, 501 U.S. at 434. We therefore determine that by the time that Roark and Barklage arrived outside, a Fourth Amendment stop had occurred and turn to the question of what articulable facts support the State's assertion that Barklage had a reasonable suspicion that Roark was involved in criminal activity.

Permalink 08:00:08 am, by fourth, 330 words, 388 views   English (US)
Categories: General

California holds that an anonymous tip does not need to be corroborated before a knock and talk

"We hold the Fourth Amendment does not require police to corroborate an anonymous tip before seeking consent to enter and search a residence. Even if acting on an anonymous, uncorroborated tip, police may knock on the door of a residence, speak with the occupant, and request permission to enter and search." People v. Rivera, 41 Cal. 4th 304, 59 Cal. Rptr. 3d 473, 159 P.3d 60 (2007).

Defendant parolee moved in with his girlfriend without telling his parole officer. The parole officer confirmed defendant lived there, so he conducted a parole search, which was valid. State v. Cruz, 144 Idaho 906, 174 P.3d 876 (2007):

We hold that Cruz was entitled to no greater Fourth Amendment protections as a house guest in his girlfriend's apartment than he would have received in his own home. See Taylor, 482 F.3d at 318. Because a search supported by a reasonable suspicion of possible parole violations would have been upheld had it occurred at Cruz's own residence, Cruz cannot obtain suppression of the items seized in his girlfriend's apartment. In sum, Cruz's Fourth Amendment rights were not violated because the government's substantial interest in supervising parolees outweighs Cruz's significantly diminished expectation of privacy in his girlfriend's apartment.

Officer had reasonable suspicion based on numerous factors for detaining the defendant. United States v. Bivins, 2007 U.S. Dist. LEXIS 42695 (M.D. Ala. June 11, 2007)*:

Here, however, Trooper Burch had much more than a mere hunch. He knew that Bivens had lied to him about his criminal history for drug offenses, and he knew that Bivens was not listed on the vehicle's rental agreement for reasons which Burch knew were not valid. n3 These indicators in addition to the other indicators fully establish the necessary articulable and reasonable suspicion necessary to support Burch's continued questioning of Bivens after the reason for the stop was concluded.

Court analyzes in detail the facts of consent and compares the credibility of the witnesses, finding the officers more credible for several reasons. United States v. Burns, 2007 U.S. Dist. LEXIS 42618 (D. Ore. June 11, 2007).*

Permalink 07:29:20 am, by fourth, 629 words, 450 views   English (US)
Categories: General

Evidentiary hearings not required as a matter of course in warrantless search challenges; cryptic motion denied

The defendant filed a two page motion to suppress and memorandum in support that relied on the presumption of unreasonableness of a warrantless search, but that did not compel that there be a hearing. The cryptic motion did not justify a hearing, and the motion to suppress was denied. United States v. Thompson, 2007 U.S. Dist. LEXIS 42917 (N.D. Ill. June 12, 2007):

The tacit premise of Mr. Thompson's motion is that an evidentiary hearing is required whenever a warrantless search is conducted. No case supports that proposition. Where a court has before it all the material facts, and they are not disputed, a hearing is not necessary. United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991). An evidentiary hearing is only required when the defendant alleges specific, definite, detailed, and non-conjectural facts, which, if proven, would justify the relief sought. United States v. Woods, 995 F.2d 713, 715 (7th Cir. 1993); United States v. Randale, 966 F.2d 1209, 1212 (7th Cir. 1992).

These fundamental principles were recently reaffirmed by the Seventh Circuit:

"Evidentiary hearings are not required as a matter of course; a district court need conduct a hearing only when the allegations and moving papers are sufficiently definite, specific, non-conjectural and detailed enough to conclude that a substantial claim is presented and that there are disputed issues of material facts which will affect the outcome of the motion. United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004); see also Juarez, 454 F.3d at 720; United States v. Martin, 422 F.3d 597, 602-03 (7th Cir. 2005), cert. denied, 74 U.S.L.W. 3424 (Jan. 23, 2006) (No. 05-8234). We have emphasized the necessity of materiality in any factual disputes that are presented to the district court as a predicate for an evidentiary hearing. Villegas, 388 F.3d at 324; Juarez, 454 F.3d at 720; United States v. Berkowitz, 927 F.2d 1376, 1385 (7th Cir. 1991).

"Mr. McGaughy's briefing and argument on the motion to suppress do not identify any specific 'material factual dispute' requiring resolution through an evidentiary hearing. In the district court, Mr. McGaughy did claim the information from Doe was up to two weeks old and therefore stale, and, on reply, added his claims that personal bias motivated the complaining officer in seeking the warrant. Mr. McGaughy did not make any serious effort to articulate what facts had to be adduced at an evidentiary hearing to inform the court's analysis; furthermore, Mr. McGaughy did not articulate in what manner the district court's ultimate determination of probable cause would have been different if his version of the facts were accepted. See Juarez, 454 F.3d at 720."

United States v. McGaughy, __ F.3d ___, 2007 WL 1374758, *3-4 (7th Cir. 2007). See also Bradley v. United States, 2007 WL 956901 at *2 (7th Cir. 2007)("before an evidentiary hearing will be granted, the appellant must provide a detailed and specific affidavit").

The USMJ's credibility determinations show that the search was justified. There was nothing inherently incredible or implausible about the testimony for an appeals court to reverse. United States v. Biggs, 491 F.3d 616 (7th Cir. 2007).*

Defendant was being arrested on an unrelated warrant, and he gave the keys to the officer before being taken in. The vehicle was inventoried before towing. The search was not challenged in the District Court, and, on plain error review, the search was valid on the policy. United States v. Carlton, 237 Fed. Appx. 530 (11th Cir. 2007)* (unpublished).

Warrant did not discuss weapons, but the warrant was valid, and weapons in plain view could be seized. United States v. Jarvis, 237 Fed. Appx. 636 (2d Cir. 2007)* (unpublished).

The standard of review for a consensual encounter is not different than a traffic stop. United States v. Torres, 237 Fed. Appx. 337 (10th Cir. 2007)* (unpublished).

Defendant's disclaiming ownership of a car in an apartment complex denied him standing to challenge the search of the vehicle, even though the keys were found on him. United States v. Russell, 2007 U.S. Dist. LEXIS 42744 (W.D. Mich. June 13, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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2010-11 Term:
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  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
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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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