Archives for: July 2007, 14


Permalink 08:18:41 am, by fourth, 495 words, 836 views   English (US)
Categories: General

9th Cir.: UPS's sorting hub at Louisville KY is "functional equivalent of the border" when international package first arrived there

The Ninth Circuit held in United States v. Abbouchi, 05-50962 (9th Cir. July 13, 2007), that UPS's Louisville KY sorting hub is the "functional equivalent of the border" when a package arrived there from outside of the country:

We have recognized that comparison of absolute time and spatial differences alone is not enough to distinguish between a search at the border’s functional equivalent and an extended border search. Rather, we also look to whether the search, as was true of Abbouchi’s package, occurred at the last practicable opportunity before its passage over the international border. Thus, in Almeida-Sanchez, the Supreme Court noted that “a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City” would be at the functional equivalent of the border. See 413 U.S. at 273. Similarly, in Duncan, we held it would be “unreasonable” to require federal agents to wait until a suspect boards his airplane to conduct a search. See 693 F.2d at 977. Rather, it was enough that the defendant had checked his luggage, obtained his boarding pass, passed through security, and embarked on the ramp to his flight because these acts “manifest[ed] a definite commitment to leave the United States,” and the search occurred “in reasonable temporal and spatial proximity to the departure.” See id.

Stipulated facts before the court support reasonable suspicion for the initial stop of the defendant. United States v. Smith, 2007 U.S. Dist. LEXIS 50485 (N.D. Ohio July 12, 2007).*

Comment: This is a correct holding, despite the list serv stuff I've seen about it.

Court found exigent circumstances [not discussing that they potentially were of their own making] for a warrantless entry to prevent destruction of oxycontin when they learned that the defendant figured out most were counterfeit. Defendant officers' motion for summary judgment granted. Lowe v. Henson, 2007 U.S. Dist. LEXIS 50563 (E.D. Tenn. July 11, 2007):

The agents were concerned that once Lowe, Jr. used the counterfeit pills, he would realize the police are on his trail and destroy the evidence, see United States v. Santana, 427 U.S. 38, 43 (1976), or that, after receiving the 200 doses of oxycontin, he would quickly "flip" the drugs for cash in order to make the next purchase from Agent Joyner. The case before the Court is not a situation where the agents could have impounded an area, such as a locker, until a warrant was obtained, see People v. Vogel, 58 Ill. App. 3d 910 (3rd Cir. 1978), or where the occupants could be observed so that evidence would not be destroyed. See Toles v. Friedman, 238 F.3d 424 (6th Cir. 2000) (Table). The plaintiffs were in possession of evidence that could be destroyed easily. Agents had to act promptly to effect an arrest and preserve the evidence.

2255 for IAC for defense counsel failing to file a motion to suppress fails where the defendant cannot show in his pleadings that the underlying claim was meritorious. Kadlec v. United States, 2007 U.S. Dist. LEXIS 50564 (E.D. Wis. July 11, 2007).*

Permalink 07:56:57 am, by fourth, 588 words, 596 views   English (US)
Categories: General

Particularity: When the description given is the best the police can do under the circumstances, the warrant is not imprecise

Defendant had been harassing his 81 year old neighbor, and various acts of vandalism had occurred which the police linked to defendant. Oil and a powder laced with said were found on her property. A search warrant was obtained by the police for what defendant would have been putting on the property, and that led to an intense search of the property into drawers and closets. An illegal fiream and silencer were found. Defendant moved to suppress over the imparticular description of "any oil" and it was granted. The government countered that the description "any chemical" was sufficient. The impossibility of a better description by the police made the description used sufficient. United States v. Klebig, 228 Fed. Appx. 613 (7th Cir. 2007)* (unpublished):

In this case, the officers did not know exactly what chemicals Klebig had used to sabotage his neighbor's house. Some of the chemicals were liquid--for instance, the chemicals sprayed over the fence on the house--while others were powder, like the white powder found on the lawn mower. The magistrate judge, in its recommendation adopted by the district court, believed that "caustic chemicals" was a more apt description. Without that limitation, the judge concluded that the "any chemicals" category would justify the seizure of "the sodium chloride in the salt shaker" and the "acetylsalicylic acid (aspirin) in the medicine cabinet." However, contrary to the magistrate judge's analysis, a reasonable officer would not read the "any chemicals" category as justifying the seizure of anything that could be expressed with a chemical name. Nor does it seem that the adjective "caustic" would add much to the meaning of the warrant, given the unique circumstances of this case, namely that many household chemicals, if misused, could inflict damage to lawns or paint. Since a detailed particularity was impossible in this case, the generic language "any chemicals" was therefore sufficient for purposes of the Fourth Amendment.

Question during traffic stop "Do you have any weapons or other illegal items in your vehicle?" was, as to weapons, legitimate, if not "advisable." The question about "illegal items" did not prolong the stop. Defendant's answer "Not that I know of" was curious enough to justify further questions. United States v. Valenzuela, 494 F.3d 886 (10th Cir. 2007):

Detective Baxter's second question, "may I search," also did not violate Defendant's Fourth Amendment rights. Again, the key inquiry is whether Defendant's detention was reasonable. Patterson, 472 F.3d at 776. Detective Baxter asked for consent to search the vehicle as a follow-up question to his original question regarding the presence of weapons or other illegal items in the vehicle. Because Defendant answered the first question with the equivocal response of "not that I know of," and because the possible presence of weapons in the vehicle posed an immediate danger, Detective Baxter reasonably asked whether he could search the vehicle. Indeed, Defendant's equivocal response to Detective Baxter's first question engenders the notion that weapons may be in the vehicle but Defendant does not necessarily know of any.

Accord: United States v. Hernandez-Torres, 234 Fed. Appx. 752 (9th Cir. 2007)* (unpublished):

We reject Hernandez-Torres's argument that Trooper Moonin unlawfully prolonged the stop and broadened the scope of questioning by asking him whether he was carrying contraband. Even if we assume that the stop was not a consensual encounter after Trooper Moonin returned Hernandez-Torres's paperwork and told him he was free to leave, see United States v. Chavez-Valenzuela, 268 F.3d 719, 724-25 (9th Cir. 2001), amended by 279 F.3d 1062 (9th Cir. 2002), we conclude that reasonable suspicion supported the decision to prolong the stop and broaden the scope of questioning.

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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."

"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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