Archives for: June 2007, 26


Permalink 07:06:35 am, by fourth, 523 words, 1511 views   English (US)
Categories: General

Utah stresses development of state constitutional issues

Utah holds that a state constitutional challenge, that it stresses that it would have welcomed, was waived by defense counsel's failure to develop the issue at trial and on appeal. State v. Worwood, 2007 UT 47, 164 P.3d 397, 581 Utah Adv. Rep. 8 (2007):

[*P14] We would have welcomed an analysis under article I, section 14 of the Utah Constitution; however, we find Worwood's state constitutional claim to be procedurally barred and inadequately briefed. We have repeatedly instructed counsel on the consequences of failing to properly preserve and develop a state constitutional law claim. Still, this instruction bears repeating, given the frequency with which these claims are inadequately briefed before this court.

[*P15] When interpreting state constitutional provisions that are similar or identical to those in the federal constitution, we encourage a primacy approach. Under the primacy model, "'a state court looks first to state constitutional law, develops independent doctrine and precedent, and decides federal questions only when state law is not dispositive.'"

[*P16] In developing an independent body of state search and seizure law, we have held that article I, section 14 of the Utah Constitution often provides greater protections to Utah citizens than the Fourth Amendment, despite nearly identical language. In order to further develop state constitutional law, however, claims must be properly presented to this court. In criminal cases, "'specific preservation of claims of error must be made a part of the trial court record'" before the issue can be heard on appeal. The issue must be "'raised to a level of consciousness'" that allows the trial court an adequate opportunity to address it. It follows, then, that perfunctorily mentioning an issue, without more, does not preserve it for appeal. Although inapplicable in this case, a court may consider an unpreserved issue when plain error is apparent or in an exceptional circumstance. Furthermore, in part on the basis of the principle that preservation requires the lower court to be cognizant of a discreet issue, we have repeatedly refrained from engaging in state constitutional law analysis unless "an argument for different analyses under the state and federal constitutions is briefed." (footnotes omitted)

Inevitable discovery supported admission of evidence found during police entry while a search warrant was being obtained. Officers saw a "bound, motionless body" through a motel room window, and they sought a search warrant, but entered before the warrant issued. Teal v. State, 282 Ga. 319, 647 S.E.2d 15 (2007)*:

In the case before us, the information summarized above contained in the affidavit in support of the application for the search warrant for the motel room had been gathered prior to the illegal entry of the GBI crime scene investigator into the room. We conclude that the State established that the evidence in question would have been discovered by lawful means, and the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct, since the investigation that took place prior to the police error or illegal conduct resulted in information that served as the basis for issuance of a search warrant. Accordingly, we conclude the trial court did not err when it admitted the evidence.

Permalink 06:29:32 am, by fourth, 266 words, 452 views   English (US)
Categories: General

SCOTUS decides that government employees acting within area of their discretion are immune from Bivens actions

The United States Supreme Court decided yesterday a malicious prosecution/RICO case with a Fourth and Fifth Amendment implication: Wilkie v. Robbins. The Court held 7-2 (Opinion by Souter, concurring opinion by Thomas, Ginsburg concurring in part and dissenting in part) that actions by federal employees acting within their duties are not subject to suit under Bivens or RICO. The case is interesting for civil practitioners dealing with potential immunity from Bivens actions, but it does not have broad enough Fourth Amendment implications to discuss at length. Instead, consider this quote from Willamette Law Online:

Robbins’ High Island Ranch is private property intermingled with parcels belonging to private owners and both the state and federal governments. When Robbins bought the Ranch the easement previously enjoyed by the government had not been recorded. Negotiations with Robbins to reestablish the easement broke down and he refused to re-grant it. This conflict led to numerous trespass and permit-revocation actions cited in this suit. Robbins brought suit both under the RICO Act and the Fourth and Fifth Amendments as applied in the Bivens case. The United States Court of Appeals for the Tenth Circuit affirmed the United States District Court for the District of Wyoming’s dismissal of the charges and the United States Supreme Court granted certiorari. The Court held that aggressive practices from Bureau of Land Management employees were within their job descriptions for the most part and allowing a Constitutional tort claim against those employees under Bivens would do more harm than good. The proper remedy to overzealous government employees is legislative not judicial. [Summarized by Melissa Parker]

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by John Wesley Hall
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Little Rock, Arkansas
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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

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)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  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)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (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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