Archives for: July 2007, 30


Permalink 07:05:05 pm, by fourth, 360 words, 547 views   English (US)
Categories: General

"Linda Friedman Ramirez, ed., Cultural Issues in Criminal Defense"

A book that criminal defense lawyers representing non-citizens or those with a strong cultural upbringing different than the American majority must have in their library is Linda Friedman Ramirez, ed., Cultural Issues in Criminal Defense (2d ed. 2007). Chapter 7 is "Cultural Issues in Fourth Amendment Motions to Suppress," and the section headings (without subheadings) are as follows:

§ 7.1 Extraterritorial Law Enforcement Activities
§ 7.2 Fourth Amendment Protections for Citizens and Aliens
§ 7.3 Fourth Amendment Protections at the Border and Its Equivalents
§ 7.4 Checkpoint Stops and Searches
§ 7.5 Culture and Consent to Search

§ 7.5 was the most interesting to me because I read cases nearly every week about a non-English speaking defendant being questioned on the side of the road:

Cultural background and lack of familiarity with the American legal system are also important in determining whether consent to search is valid. The Tenth Circuit, however, rejected the claim of a defendant who asserted that his consent was not voluntary due to his "background and attitude toward police, derived from his experiences in his native Mexico." The Court concluded that "an intangible characteristic such as attitude toward authority is inherently unverifiable and unquantifiable." [quoting United States v. Zapata, 997 F.2d 751, 759 (10th Cir. 1993)].

I had a suppression hearing today, with a relatively new AUSA and former career law clerk to a U.S. District Judge, and the same refrain kept coming up: Can you tell us about the consent? What was the defendant's attitude? How did he answer your questions? Was he compliant? Did he object to the search? My question is: Did he know he could consent to the search once it started? In my limited experience with Mexicans in the U.S. and hearing about Mexican roadblocks for drugs set up without any constitutional safeguards (not to mention police bribery), they fear the police and do not dare question what the police are doing. Therefore, it has to be brought up and it is relevant to the totality of the circumstances, and Zapata is just wrong. Sure, the Tenth Circuit can brush it off 14 years ago, but what about now if somebody makes a decent record on the issue? I think this issue is still open to litigation.

Permalink 06:32:20 am, by fourth, 263 words, 3509 views   English (US)
Categories: General

"MethCheck" tracks pseudoephedrine purchases and finds its way into traffic stops and potentially knock-and-talks and affidavits for search warrants

MethCheck is software for pharmacies that simplifies logging their pseudoephedrine sales. As states with meth lab problems require logs of pseudoephedrine sales, now the cashier can swipe the magnetic strip on the buyer's driver's license, and it collects the data on the buyer and the product purchased on the company's website and e-mails local police about large purchases or a pattern of purchases.

MethCheck LE allows on-demand, real-time access to pharmacy logs from across the country via a website accessible from any PC with internet connectivity. Additionally, MethCheck provides automated tools that give law enforcement the ability to monitor suspicious buying patterns and to “watch” specific individuals who exceed the legal limits imposed by state law.

This was on NPR's Morning Edition a week ago today: U.S. Tracks Suspicious Sudafed Purchases. A law enforcement website has this article: Cops Using 'Methcheck'; Rights Activists Whine.

In one story which has appeared more than once, officers showed up at a CVS Pharmacy right after the sale was completed, but missed the buyer. All that shows is that they are right on it, but that does not mean they will catch the buyer at the store.

More importantly, what it means for us, however, is that if the officers have matched a vehicle with the buyer through DMV records, is that enough for a traffic stop on reasonable suspicion? Based on the cases of "Wal-Mart reasonable suspicion" and the stops in Wal-Mart parking lots based on over possession of pseudoephedrine, I think so, as long as the information really does show a pattern of "smurfing."

Permalink 05:56:22 am, by fourth, 410 words, 750 views   English (US)
Categories: General

$1 verdict in search case affirmed on appeal was a mere technical win, so attorneys fees were denied

Plaintiff in § 1983 search case got it to the jury as to one defendant of ten solely on a protective sweep claim. He asked the jury for $100,000 but the jury awarded $1 which was affirmed on appeal. Attorneys fees were denied. Greer v. Yavapai County, 2007 U.S. Dist. LEXIS 54439 (D. Ariz. July 26, 2007):

A technical violation by Deputy Morgan of a complex constitutional right while under the fear of "a man with a gun," which a jury determined entitled Plaintiff to nominal damages, falls short of significant benefits to Plaintiff or society in general. Plaintiff has failed to outline any specific nonmonetary benefits that were achieved, but instead erroneously rests on the general assertion that a significant public policy interest was served in the award of nominal damages in this litigation.

"Where the only reasonable fee is no fee, an award of fees would be unjust; conversely where a fee award would be unjust, the reasonable fee is no fee at all." Farrar, 506 U.S. at 118. (O'Connor, J., concurring). Upon an analysis of the extent of relief, public purpose served, and significance of the legal issues, the Court concludes that Plaintiff received a purely technical victory when he was awarded a nominal damages award that resulted in no significant nonmonetary benefits to him or society.

Stop of defendant on a bicycle for violation of a local licensing ordinance was justified, and officers could see a knife in his back pocket, and that justified a frisk. United States v. Gomez-Isaguirres, 2007 U.S. Dist. LEXIS 54471 (D. Kan. July 26, 2007):

[W]e believe the case law supports a finding that the officers were justified in conducting a pat-down search of defendant after they saw what looked like a knife in defendant's back pocket. A knife like the one possessed by defendant is a dangerous weapon whether or not it is illegal under Kansas law. The knife in this case was particularly threatening because it could be opened in a split second. Such a knife observed during a Terry stop justifies an officer taking reasonable protective measures. Those measures include patting down a detainee to determine whether that person has other weapons. The fact that the stop occurred in a high crime area known for drugs, gang activity and violence adds to the reasonableness of the protective action taken by the officers. On the basis of the facts of this case and the above-described case law, the court shall reject defendant's argument that the pat-down search was illegal.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  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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