Archives for: September 2007, 21


Permalink 10:48:07 am, by fourth, 520 words, 747 views   English (US)
Categories: General

Magistrate need not determine defendant inside under Payton; officers do

An independent finding of probable cause by a magistrate that defendant is in the house is not required. Payton only requires that the officers have reason to believe that the defendant is inside. Brown v. United States, 932 A.2d 521 (D.C. App. 2007):

Appellant argues that even if Payton is applicable by extension, the Payton warrant exception requires an independent magistrate to determine that appellant is in the dwelling to be entered. See Steagald, 451 U.S. at 214 n.7 ("[T]he magistrate, rather than the police officer, must make the decision that probable cause exists to believe that the person or object to be seized is within a particular place."). Because an independent magistrate did not determine that there was probable cause to believe that appellant was in Ms. Powell's home, appellant argues, his Fourth Amendment rights were violated.

We find this argument unpersuasive. Payton mandates that officers have a "reason to believe the suspect is within." 445 U.S. at 603. As the United States Court of Appeals for the Fifth Circuit has observed, while

Probable cause . . . must always be determined by a magistrate unless exigent circumstances excuse a warrant. . . . Reasonable belief embodies the same standards of reasonableness but allows the officer, who has already been to the magistrate to secure an arrest warrant, to determine that the suspect is probably within certain premises without an additional trip to the magistrate.

United States v. Woods, 560 F.2d 660, 665 (5th Cir. 1977) (internal citation and quotation omitted). See also United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997). We agree with the United States Court of Appeals for the Sixth Circuit and other courts that a "reasonable belief standard, and not probable cause, is sufficient to allow officers to enter a residence to enforce an arrest warrant ...." Pruitt, 458 F.3d at 482. See also Valdez v. McPheters, 172 F.3d 1220, 1226 (10th Cir. 1999) (identifying several factors that could indicate that a defendant was on the specified premises); Route, 104 F.3d at 62 n.3 (collecting cases adopting the "reasonable belief" standard from the Second, Third, Eighth, Tenth, and Eleventh Circuits); United States v. Magluta, 44 F.3d 1530, 1534-35 (11th Cir. 1995) (quoting Woods, 560 F.2d at 665); United States v. Terry, 702 F.2d 299, 319 (2d Cir. 1983) (detailing the evidence officers used to conclude there was a "reasonable basis for believing" appellant was in the apartment).

In this case, two undercover police officers actually saw appellant in Powell's apartment and stood only about five feet away from him. Investigator Parker knew appellant from previous police contact. On his way from the apartment, Parker even addressed appellant by name and appellant responded. When he returned to his vehicle, Parker radioed the arrest team and mentioned appellant by name. This was sufficient evidence to provide the investigators and arrest team with a reasonable belief that appellant was in Powell's apartment.

Defendant's stop by a park ranger was not unreasonable because the ranger was unaware of which person in the car was involved in an altercation. There is no requirement for the reasonable suspicion standard that it be based on personal knowledge. Knowledge from another law enforcement officer suffices. United States v. Cuesta, 2007 U.S. Dist. LEXIS 69293 (E.D. Cal. September 13, 2007).*

Permalink 07:53:02 am, by fourth, 447 words, 831 views   English (US)
Categories: General

Parallel FBI investigation that would have led to a federal search warrant was independent source

Police adequately corroborated informant by reviewing chat logs to determine that there might be evidence on defendant's computer. Therefore, the warrant was issued with probable cause. In addition, the independent source doctrine would apply because the FBI was conducting its own investigation, and it would have obtained a search warrant, too. United States v. Shuler, 2007 U.S. Dist. LEXIS 69114 (N.D. Iowa September 17, 2007):

By the time Special Agent Kitsmiller contacted Cedar Rapids law enforcement in May 2007, they had already obtained and executed the March 16, 2007, state court Search Warrant. Special Agent Kitsmiller testified at the instant Hearing that if the computers and related materials had not previously been seized by the Cedar Rapids Police Department, then he would have sought a search warrant based on the information gathered on the Bettendorf complaint. Bettendorf authorities had been provided copies of the child pornography which originated at Defendants' home, and the Court believes that there would have been probable cause to support a search warrant based on the Bettendorf information.

In summary, the Court concludes that even if the state court Search Warrant obtained by the Cedar Rapids Police Department was not supported by probable cause, the computers and related materials would have been obtained by the FBI pursuant to its independent investigation of a separate complaint. That is, the actions by the FBI in seeking a search warrant based on the Bettendorf information would be independent of any information obtained by the state court Search Warrant. Since probable cause existed for a second search warrant, independent of the information obtained in the first search warrant, the independent source doctrine applies.

An official's refusal to return property lawfully seized does not make a reasonable seizure unreasonable. Certified v. Stetler, 2007 U.S. Dist. LEXIS 69255 (N.D. Ill. September 14, 2007):

Moreover, the Seventh Circuit has rejected the idea that a state actor's refusal to return once lawfully obtained property can amount to an unreasonable seizure (i.e, that the refusal can transform the seizure from reasonable to unreasonable). See Lee v. City of Chicago, 330 F.3d 456, 466 (7th Cir. 2003) ("Soldal's 'meaningful interference with a possessory interest' definition is limited to an individual's interest in retaining his property"; "once an individual has been meaningfully dispossessed, the seizure of property is complete, and once justified by probable cause, that seizure is reasonable."). Thus, the fact that Director Creedon failed to return the Rio--in fact, turned it over to Pugi--does not give rise to a constitutional violation. In fact, given the police report, the defendants were under no obligation to investigate Mr. Kramer's claim that Certified, not Pugi, was lawfully entitled to possession of the Rio. See Reynolds, 488 F.3d at 766; Pasiewicz, 270 F.3d at 524.

Permalink 07:21:52 am, by fourth, 285 words, 1233 views   English (US)
Categories: General

"Attentativeness" during search is not proof of constructive possession

The fact the defendant was "attentive" during the search of his car was not proof that he was in constructive possession of a gun found in the car. United States v. Bethly, 511 F. Supp. 2d 426 (D. Del. 2007):

The government relies heavily on Bethly's conduct during the search of his car, noting that he was very attentive and was watching the officers very closely. The government does not specifically argue, but seems to imply that this behavior constitutes suspicious conduct. As previously mentioned, suspicious conduct is a proper factor to consider in the constructive possession calculus. See Bellinger, 461 F. Supp. 2d at 347; Iafelice, 978 F.2d at 97. This court, however, is not willing to make the leap the government urges. That is, the court is reluctant to find that a person's attentiveness to a search of his or her vehicle alone is necessarily the behavior of someone who has hidden contraband in the vehicle, and is concerned about its discovery. This court hopes that a person would take an interest in a search of his vehicle by police. In fact, this Judge would be very attentive and watch police officers very closely if they were conducting a search of his own vehicle, and he would expect the same of his fellow citizens. The court, therefore, gives little weight to the government's argument regarding Bethly's conduct during the search of his vehicle.

Officer was on notice that the person he was seeking consent from was without apparent authority. Therefore, the purported consent is invalid. United States v. Washington, 2007 U.S. Dist. LEXIS 69303 (S.D. Ohio September 19, 2007).*

Estranged wife did have apparent authority to consent to a search. United States v. Stone, 2007 U.S. Dist. LEXIS 69210 (D. Conn. September 18, 2007).*

Permalink 06:54:05 am, by fourth, 410 words, 1032 views   English (US)
Categories: General

Accidental shooting was a seizure; officer thought he pulled Taser

Accidentally shooting a man fleeing from an arrest when the officer thought he pulled out a Taser is unquestionably a stop with force "intentionally applied" under Brendlin. The case was remanded for further discovery on the officer's training on the use of handguns and Tasers for qualified immunity purposes. Henry v. Purnell, 501 F.3d 374 (4th Cir. 2007):

Having identified the relevant facts, we now turn to the question of whether these facts establish that Purnell seized Henry within the meaning of the Fourth Amendment. "A person is seized by the police and thus entitled to challenge the government's action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through means intentionally applied." Brendlin v. California, ___ U.S. ___, 127 S. Ct. 2400, 2405 (2007) (citations and internal punctuation omitted) (emphasis in original). Purnell unquestionably terminated Henry's freedom of movement by means of physical force when he shot him; however, he contends that because he intended to shoot Henry with the Taser, rather than the Glock, he did not terminate Henry's freedom of movement "through means intentionally applied." The district court rejected this argument, as do we.

. . .

We are not presented with a case where police stopped someone by mere happenstance, such as the passerby who is pinned when a police car slips its brake, or by the unintended consequences of an attempted seizure, such as the fleeing suspect who crashes his vehicle. Instead, the undisputed evidence in the record establishes that Purnell's specific intent was to stop Henry from fleeing by means of firing a weapon, and Henry was in fact stopped by the very instrumentality (i.e., the Glock) that Purnell set in motion. We recognize that Purnell did not intend to use the Glock, but we are also mindful of the Brower Court's admonition that we should not draw too fine a line in determining whether the means that terminate a person's freedom of movement is the very means that an officer intended. If, as the Court noted, a seizure would occur when a person is stopped by the accidental discharge of a gun that an officer meant to use only as a club, then we believe that a seizure surely occurred here where Purnell intended to stop Henry by firing a weapon at him and succeeded in doing so. Accordingly, we affirm the portion of the district court's order finding that Purnell seized Henry. See 428 F. Supp. 2d at 395-96.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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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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