Archives for: November 2007, 16

11/16/07

Permalink 09:12:44 am, by fourth, 249 words, 506 views   English (US)
Categories: General

Meth cook was exigent circumstance when the kids started coming home

A snitch was inside the defendant's house and reported to the police when he came out that the defendant had a pill soak going on. The snitch was a meth cook himself. The house was under surveillance while a search warrant was being prepared. The defendant was outside, preparing to leave. Then, the children of the home were seen coming home, and the officers decided to seize the house to prevent the children from going inside. The seizure was valid as based on exigent circumstances. United States v. Gray, 2007 U.S. Dist. LEXIS 83946 (D. Utah November 13, 2007).*

Defendant had been arrested inside and taken outside and put in a patrol car. The search of the living room at that point was hardly incident to his arrest. The state's alternative argument that defendant abandoned the bag that was left inside on his arrest was also unavailing, he retained an expectation of privacy in it, and the occupant's consent to search that bag was ineffective. State v. McCarthy, 288 Ga. App. 426, 654 S.E.2d 239 (2007).*

Defendant was stopped because his headlights were off at 2:30 a.m., and that was justification for the stop. State v. Boyd, 2007 Wisc. App. LEXIS 982 (November 14, 2007)* (probably will be unpublished, but the opinion does not say; decided by one appellate judge).

Officer had an uncorroborated anonymous tip of smoking of marijuana at a bar, and he showed up there and the occupants reacted by running when they saw him, and that made corroboration. State v. Moore, 2007 Wisc. App. LEXIS 989 (November 14, 2007).*

Permalink 06:50:06 am, by fourth, 325 words, 417 views   English (US)
Categories: General

Officers with an arrest warrant do not need to wait for the defendant to come out

Officers with an arrest warrant do not have to wait for the defendant to come out of the house to arrest him--they can go in to his residence, particularly if there are security concerns. United States v. Williams, 2007 U.S. App. LEXIS 26462 (2d Cir. November 15, 2007) (unpublished):

To the extent Williams asserts that federal agents should never have entered his residence because they could easily have executed the warrant for his arrest on the street, the law is well established that "an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within." United States v. Lovelock, 170 F.3d 339, 343 (2d Cir. 1999) (quoting Payton v. New York, 445 U.S. 573, 603, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)). The record evidence established the necessary reasonable belief of Williams's presence in his residence, and further identified valid security reasons for effecting the arrest inside the premises.

Officers had probable cause to believe defendant was inside, so they could enter with a warrant to arrest him. State v. Drown, 2007 ME 142, 937 A.2d 157 (2007).*

The government failed to prove that there were exigent circumstances for a warrantless entry and protective sweep. Officers responded to a disturbance call with a report of a gun, but the person who made the call denied ever stating that there was a gun involved. Also, the defendant left the area when instructed, and then the officers had no cause to search his separate premises. Motion to suppress granted. United States v. McKinney, 2007 U.S. Dist. LEXIS 84196 (N.D. Miss. November 14, 2007).

A TVA law enforcement officer exists under federal law, 16 U.S.C. § 831r, so a § 1983 action cannot be maintained against him; it must be under Bivens, and it cannot be brought in his official capacity. Merely "unnecessarily tackling" plaintiff was not unreasonable force. Hendricks v. Governor's Taskforce for Marijuana Eradication, 2007 U.S. Dist. LEXIS 84171 (E.D. Tenn. November 14, 2007).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
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."
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"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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