Archives for: June 2007, 23

06/23/07

Permalink 03:41:39 pm, by fourth, 474 words, 444 views   English (US)
Categories: General

Officer yelling "gun" and ordering people to freeze is when stop occurred; dissent finds stop potentially racially motivated

District Court erred in concluding that there was reasonable suspicion at an earlier time that the Court of Appeals finds, but it is not reversible error. Officer shouting "Gun" and drawing weapon effected a stop because no reasonable person would believe he was free to go. United States v. Goddard, 377 U.S. App. D.C. 66, 491 F.3d 457 (2007):

We disagree with the district court that the stop happened "as soon as the police officers drove up to the gas station." ... Moreover, the fact that the car halted in the gas station's entrance way does not suggest that a reasonable, innocent pedestrian would have felt unfree to leave.

Nor did the stop occur when the police exited their car and began to approach Goddard and the other three men. Admittedly, some of the circumstances are suggestive of a stop, including that four officers were present--all with guns and handcuffs showing and wearing identifiable MPD jackets and badges--and that the officers "jumped out" of the car. Tr. of June 21, 2004 Hr'g at 58. But the presence of multiple officers does not automatically mean that a stop has occurred.

Based on the record before us, the stop occurred when one of the officers yelled "gun" and told Walker to return to the group. We have no doubt that a reasonable person would feel unfree to leave upon hearing officers seven or eight feet away yell "gun"--a statement sure to arouse the concern of all officers and civilians in the immediate area--and order one of his companions to return. See Wood, 981 F.2d at 540 (finding stop where officer ordered defendant to stop); United States v. Alarcon-Gonzalez, 73 F.3d 289, 292 (10th Cir. 1996) (finding seizure where officer ordered defendant's coworker to "freeze" when individuals "were only five feet apart and ... obviously working together").

Dissenting, Judge Janice Rogers Brown wrote: "As a result, what we are now tempted to enforce is not Terry but the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion."

Reasonable suspicion was present, primarily from the occupants of the car not having their stories straight as to where they were going. United States v. Orta, 228 Fed. Appx. 633 (8th Cir. 2007) (per curiam)*:

Within the first twelve minutes of the stop, the trooper observed (1) the vehicle's California license plate, (2) a single key on the key ring in the ignition, (3) three cell phones on the center console, (4) Orta's Washington driver's license, (5) an insurance card presented by one of Orta's passengers which did not list the stopped vehicle, and (6) inconsistent statements between Orta and a passenger about the length of their intended stay in St. Paul as well as their inability to provide specific information about their trip destination.

Search incident that occurred before arrest was valid where there was probable cause. United States v. Dotson, 246 Fed. Appx. 897, 2007 FED App. 0411N (6th Cir. 2007)* (unpublished).

Permalink 07:32:09 am, by fourth, 549 words, 832 views   English (US)
Categories: General

A gun purchaser has no reasonable expectation of privacy in the records of the gun dealer selling the gun

There is no reasonable expectation of privacy in the records of gun dealers of one's prior purchases. The gunsellers have no reasonable expectation of privacy, so it follows that the buyer does not either. Besides, the record is held by a third person. Harrison v. City of Chicago, 2007 U.S. Dist. LEXIS 45117 (N.D. Ill. June 19, 2007):

Here, the issue is whether a police recruit has a reasonable expectation of privacy in records a gun seller is required to keep with respect to the police recruit's prior gun purchases. This Court concludes that the answer is no. The Supreme Court has explained that the gun sellers themselves have no reasonable expectation of privacy in their business such that a search warrant is not required to search their premises or records. United States v. Biswell, 406 U.S. 311, 315 (1972) ("close scrutiny of [firearms] traffic is undeniably of central importance to federal efforts to prevent violent crime and to assist the States in regulating the firearms traffic within their borders."). The Seventh Circuit has described why firearm purchasers have no reasonable expectation of privacy with respect to their firearm purchases. City of Chi. v. U.S. Dep't of Treasury, 287 F.3d 628, 637 (7th Cir. 2002) ("the purchase of a firearm is not a private transaction. The Gun Control Act requires that a transaction for the sale of a firearm be recorded and every dealer is required to make business records available to investigation. Again, every purchaser of a firearm is on notice that their name and address must be reported to state and local authorities and AFT. As a result, there can be no expectation of privacy in the requested names and addresses.") (internal citations omitted), judg't vacated on other grounds, 537 U.S. 1229. The Court concludes that a gun purchaser has no reasonable expectation of privacy in the fact of the gun purchase or in the record of such purchase. Because Harrison had no reasonable expectation of privacy with respect to the records of his prior gun purchases, he cannot prevail on his § 1983 claim against Leracz.

Officer's reasonable suspicion defendant was transporting drugs equals reasonable suspicion he was armed. ("Courts have recognized that it is objectively reasonable to believe that a person involved in drug trafficking is armed and dangerous.") A patdown was permissible. Benavides v. State, 2007 Tex. App. LEXIS 4802 (Tex. App. — East land June 21, 2007).*

Claim that defendant officer kicked in plaintiff's door without a warrant to arrest plaintiff for DUI stated a claim, and the officer was denied qualified immunity. Cilman v. Reeves, 2007 U.S. Dist. LEXIS 45165 (E.D. Va. June 20, 2007).*

Plaintiff was convicted in state court based on the search of his property, and it was affirmed on appeal. He sued over the search, and the defendants did not raise collateral estoppel. The court held that collateral estoppel can be raised by the court on its own motion, so the defendant's waiver did not matter. He was collaterally estopped by the state court judgment. Best v. Portland Police Dep't, 2007 U.S. Dist. LEXIS 44791 (N.D. Ind. June 19, 2007).*

Traffic stop led to officer smelling marijuana when the driver opened the window. The occupants gave conflicting accounts. The marijuana justified the search, and the stories from the occupants justified seizure of the vehicle. United States v. 2004 Silver Chevrolet Minivan, 2007 U.S. Dist. LEXIS 44866 (D. Neb. June 19, 2007).*

Permalink 07:03:21 am, by fourth, 928 words, 528 views   English (US)
Categories: General

Changing computer technology and privacy does not yet require a more sensitive approach; by taking one's computer in for repairs, one assumes the risk of a private search

Best Buy in Shreveport was installing a new hard drive in the defendant's computer, and they did a simple diagnostic check not requested by the defendant to verify that the computer was operating correctly, because it had operations issues. The repairman used his own flashdrive to check the computer's function, and then the computer opened the default "My Pictures" folder, and he found child porn. The police were called. The search was a purely private search. The advances in computer technology and privacy concerns do not yet require the courts to revisit the expectation of privacy issues. State v. Horton, 962 So. 2d 459 (La. App. 2d Cir. 2007):

We recognize that State v. Hutchinson, supra, was decided in 1977 and State v. Coleman, supra, was decided in 1985, some thirty and twenty-two years ago respectively-long before the technological revolution in electronic communications, computers and the internet in the last ten years. These new technologies have raised privacy issues in all aspects of our cultural life which will perhaps one day require this court or the supreme court to revisit the private search question. However, the facts of this case do not warrant a re-examination of our previous decision in State v. Coleman, supra, because the discovery of the illicit images on Horton's computer was clearly by accident, and the evidence adduced does not establish that Horton had a subjective expectation of privacy, nor did he demonstrate that his expectation is one that society is prepared to recognize as reasonable and legitimate. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed.2d 576 (1967). Horton brought his computer to Best Buy to have a hard drive installed and the computer physically cleaned. Surely it is not a far reach for a customer to expect that the computer technician might perform a cursory inspection of the computer's operation, particularly if the computer appeared to be having some problems. In a sense, the discovery of the images by the technician in this case is more analogous to a "plain view" discovery of evidence of a crime.

Even if we assumed that the Best Buy employee's opening of the "My Pictures" file was unauthorized, and that Horton had a privacy interest in the images contained in the folder, we cannot conclude that Horton thereby meets the "reasonable expectation of privacy test" standards. Horton did not exercise dominion or control over the computer images in the "My Pictures" folder because he had voluntarily relinquished control of the computer to the repair store and failed to secure the images in the folder. The images were located in the default file, which meant that it opened automatically when the "My Pictures" folder was opened. In other words, displaying the images required no conscious thought and action or intention of the technician to enter the file.

(Comment: This case was not the proper vehicle to raise the issue of whether there is now a greater expectation of privacy in a computer, if the defendant did. One would suspect that it was raised by the defendant, but we cannot be sure. At any rate, this case was simple on the facts: The default opening folder was "My Pictures." I know that the general populace does not read search and seizure cases to see how the law has developed in this regard, or on the reasonable expectation of privacy in general, but the defendant had to know that somebody might see what was on his computer in the shop, particularly when "My Pictures" comes right up when the computer is turned on. I would also assume that anyone would know that the computer would have to be tested to make sure that the new hard drive would be read when the computer was turned on. This was not some sophisticated invasion of privacy by the computer geeks; it was simple and necessary to do their jobs. One cannot reasonably disagree with the outcome. If the law on reasonable expectation of privacy in a computer is going to change, it is going to require far better facts than these.)

Police officers pulled over a car, and the passenger fled. The police found out who he was and where he was staying and went to his motel room and entered without a warrant. Inside, they found drugs. The pursuit was not in hot pursuit, and the entry was not with exigent circumstances. Even probable cause was lacking because flight alone is not enough. [To compound the problems, the parties stipulated to police reports as the evidence of the arrest, and it was full of factual holes that the appellate court could not resolve since the state carried the burden of proof.] State v. Smith, 960 So. 2d 369 (La. App. 2d Cir. 2007). (Comment: The state should not have stipulated to using the reports in this case, but the opinion makes it fairly clear that the best case scenario for the state on the gaps in the proof was still a losing proposition.)

Defendant was stopped in Montana for DUI on a cross country trip in an Avis rental car. The plans for the short trip raised suspicions of drug trafficking in the officer. The officer called Avis who considered the rental agreement terminated by the arrest. Avis directed that the car be held until they could retrieve it, and defendant's personal belongings were removed. Removal was lawful, and it led to finding a roach. The officer got a search warrant for the closed containers and found the cash. Defendant's unusual travel plans were probable cause for issuance of the search warrant. State v. $129,970.00, 2007 MT 148, 337 Mont. 475, 161 P.3d 816 (2007).*

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by John Wesley Hall
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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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