Archives for: June 2007, 20


Permalink 07:07:37 am, by fourth, 604 words, 655 views   English (US)
Categories: General

Extraterritorial state law enforcement activities are not unconstitutional

State law enforcement officers' extrajurisdictional activites in participating in a search did not constitute a Fourth Amendment violation. A state law violation does not equate with a Fourth Amendment violation. United States v. Nure, 2007 U.S. Dist. LEXIS 43974 (E.D. Mo. June 18, 2007).

In Washington State, it does not violate the state constitution either. State v. Barron, 139 Wn. App. 266, 160 P.3d 1077 (2007).

Pro se arrestee sued under § 1983 for immediate release on state charges, which the district court found barred by Younger absention. Green v. Kingsport Police Dept., 2007 U.S. Dist. LEXIS 43925 (E.D. Tenn. June 15, 2007):

Under the doctrine established by Younger v. Harris, 401 U.S. 37 (1971), federal courts must abstain from entertaining lawsuits by an individual seeking to enjoin a criminal prosecution against him in state court where those proceedings implicate important state interests and the plaintiff has an adequate opportunity to raise his challenges in that forum. See O'Shea v. Littleton, 414 U.S. 488, 499-504 (1974). All of the factors supporting abstention are present here. Therefore, the Court must abstain from interfering in plaintiff's state criminal proceedings by issuing rulings as to whether the warrantless entry into the plaintiff's room, seizure of his property, and subsequent arrest violated his constitutional rights.

Defendant was on probation, and he had to make his computer available to his PO. The PO with "consent" looked at the computer and found "inappropriate if not illegal" images, so he went to the police for further guidance. The PO came back with the police and defendant further consented to a search of the computer. The search of the computer was not by consent. State v. White, 2007 R.I. Super. LEXIS 82 (June 7, 2007):

This entry was without the express permission of the defendant. White and two others were ordered to sit in the television viewing area "as a safety precaution" and one of the four troopers was assigned to watch the three civilians. White was not allowed to accompany the State Police to his back bedroom or observe what the officers did with respect to his computer. A man of limited intelligence and education, who is unable to take care of his ordinary everyday affairs without constant help, was now surrounded by six law enforcement officers in his home. He was not allowed to move from his living room area and was described by the man who knows him best as nervous, tense and "actually scared."

Trooper Borek was obviously not trained in the area of investigating child pornography offenses. He had one of the other troopers call their supervisor for instructions. The troopers on the scene were instructed to seize the computer if they could get "consent." Apparently no serious consideration was given to collecting the facts known about the defendant and the computer's contents in support of a search warrant application. No consent form was offered to the defendant to memorialize his informed decision to consent to a seizure of his computer.

Moreover, when asked by Trooper Borek if he would consent to the seizure of his computer, Borek told White that if he did not consent to the removal of his computer, the police would just get a warrant and stay in White's trailer until they obtained it.

Considering the totality of the pertinent facts and circumstances, this Court cannot conclude that the state has proved by a preponderance of the evidence that the verbal consent by White was freely and voluntarily given. [Although the standard may be clear and convincing, the preponderance standard was not satisfied.]

Defense counsel would not be ineffective for not pursuing a motion to suppress that could not win. King v. Runnels, 2007 U.S. Dist. LEXIS 43884 (E.D. Cal. June 18, 2007).*

Permalink 06:29:03 am, by fourth, 1110 words, 681 views   English (US)
Categories: General

Impoundment policy with unwritten rules unreasonable

D.C. Cir. holds that impoundment of vehicle in accord with unwritten addition to "standard policy" but contrary to the written policy was unreasonable. United States v. Proctor, 376 U.S. App. D.C. 512, 489 F.3d 1348 (2007):

We believe that if a standard impoundment procedure exists, a police officer's failure to adhere thereto is unreasonable and violates the Fourth Amendment. Cf. United States v. Maple, 358 U.S. App. D.C. 260, 348 F.3d 260, 263-64 (D.C. Cir. 2003) (search of vehicle relocated by police after traffic arrest unreasonable because contrary to [policy] GO 602.1). GO 602.1 provides that a vehicle "classified as prisoner's property shall be disposed of in any lawful manner in which the person arrested directs." GO 602.1, AA at 42 (emphasis added). Thus, before impounding the vehicle, an officer should provide the arrestee with the opportunity to arrange for its removal. See Hill v. United States, 512 A.2d 269, 274 n.10 (D.C. 1986) ("As 'prisoner's property' [under GO 602.1] ... a vehicle cannot be impounded without first giving the prisoner an opportunity to make other lawful arrangements for its disposition."); Arrington v. United States, 382 A.2d 14, 18 (D.C. 1978) ("[P]olice are authorized to impound a motor vehicle as prisoner property [under GO 602.1] only where the prisoner consents thereto or is incapable of making other arrangements for its disposition."). Proctor, however, was afforded no such opportunity. On the contrary, Shegan testified that the officers were required to impound Proctor's vehicle because no one was present to remove it, see Tr. 11/23/04 at 24, Proctor was not the owner and they "weren't going to wait" for the owner to remove it, id. at 38; see also id. ("I don't believe I had a choice."). Accordingly, the officers' impoundment (seizure) decision violated GO 602.1.

The officers' impoundment decision led to an inventory search that also violated GO 602.1. As noted earlier, Shegan testified that due to a lack of impoundment space at MPD facilities, MPD's "new procedure" necessitated that a ROC crane tow Proctor's vehicle to a private impoundment lot rather than to an MPD facility. Id. at 24-25, 52-53. According to Shegan, the officers were thus required to search "[t]he entire vehicle" before it was towed, id. at 26, "[t]o reduce liability on the police department and to preserve any property that the owner of the vehicle or the occupants of the vehicle may have," id. at 25. GO 602.1, however, expressly prohibits an inventory search of a vehicle not taken to an MPD impoundment lot. GO 602.1, AA at 43 ("If a vehicle classified as prisoner's property is disposed of so that it is not taken to a police facility, it shall not be inventoried in any way.").

Consensual stop escalated into a detention without reasonable suspicion, and defendant was just going along. United States v. Washington, 490 F.3d 765 (9th Cir. 2007):

Recent relations between police and the African-American community in Portland are also pertinent to our analysis: According to testimony at the suppression hearing, in the one and a half years before Shaw initiated contact with Washington, there were two well-publicized incidents where white Portland police officers, during traffic stops, shot, and in one instance killed, African-American Portland citizens. As a result of these incidents, the Portland Police Bureau published and distributed several pamphlets advising the public how to respond to a police stop. Washington testified that he knew of and discussed with a friend one of the pamphlets, n3 which contained advice to citizens such as "follow the officer's directions" when stopped, and "if ordered, comply with the procedures for a search." Additionally, in a message from the Chief of Portland's Police Department, the pamphlet listed common reasons police will stop a person, such as a person "committed a crime," or "is about to commit a crime."

. . .

Washington's voluntary consent to the search of his person, however, does not preclude the possibility that officer Shaw improperly seized Washington as events unfolded. See Mendoza-Cepeda, 250 F.3d at 628 (recognizing that a consensual encounter may become a seizure); United States v. Ayarza, 874 F.2d 647, 650 (9th Cir. 1989) (stating that a consensual encounter "may evolve into a situation where the individual's ability to leave dissipates"). If Shaw and Pahlke's actions exceeded the scope of Washington's consent to the search of his person, such that a reasonable person in Washington's situation would not have felt free to depart if he so chose, then Shaw and Pahlke seized Washington. See Terry v. Ohio, 392 U.S. 1, 18, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (recognizing that "a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope"); United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1506 (9th Cir. 1988) (reasoning that even if the suspect voluntarily consented to a search of his bag, the law enforcement officers could have "seized [him] for purposes of the fourth amendment at a later point").

We have identified several non-exhaustive situations where an officer's actions escalate a consensual encounter into a seizure: "when a law enforcement officer, through coercion, physical force, or a show of authority, in some way restricts the liberty of a person," Washington, 387 F.3d at 1068 (internal quotation marks omitted), or "if there is a threatening presence of several officers, a display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendoza-Cepeda, 250 F.3d at 628 (internal quotation marks omitted) (alteration omitted). In Orhorhaghe, we identified several factors to consider in determining if a person was seized, any one of which, if present, could constitute a seizure: (1) the number of officers; (2) whether weapons were displayed; (3) whether the encounter occurred in a public or non-public setting; (4) whether the officer's tone or manner was authoritative, so as to imply that compliance would be compelled; and (5) whether the officers informed the person of his right to terminate the encounter. Orhorhaghe, 38 F.3d at 494-96.

Applying these factors, we conclude that under the total circumstances present in Washington's case, Shaw and Pahlke's encounter with Washington escalated into a seizure.

Hudson forecloses inquiry into a knock-and-announce violation. The defendant argued, and the district court found, that the brevity of time between the knock and entry was so short as to constitute a no-knock warrant. United States v. Ankeny, 490 F.3d 744 (9th Cir. 2007):

Turning first to the alleged knock-and-announce violation, see Wilson v. Arkansas, 514 U.S. 927, 930, 115 S. Ct. 1914, 131 L. Ed. 2d 976 (1995) ("[The] common-law knock and announce principle forms a part of the reasonableness inquiry under the Fourth Amendment."), we hold that suppression is foreclosed by the Supreme Court's decision in Hudson v. Michigan, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).

The federal DNA collection statute does not violate the Fourth Amendment. Banks v. United States, 490 F.3d 1178 (10th Cir. 2007).*

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by John Wesley Hall
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  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)
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  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)

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  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)
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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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