Archives for: November 2007, 24

11/24/07

Permalink 09:19:29 am, by fourth, 254 words, 536 views   English (US)
Categories: General

GA: Defense waived argument that no search warrant actually issued by not specifying the issue in the motion to suppress

The motion to suppress did not adequately put the state on notice that the defendant was arguing that no search warrant actually issued. The officer presented an affidavit for a search warrant to the magistrate, but no search warrant. Based on the affidavit alone, the officers conducted the search. The issue first arose during the suppression hearing, and the state made an impromptu argument that the affidavit should suffice, but that did not cure the defense failure to put the state on notice. Young v. State, 282 Ga. 735, 653 S.E.2d 725 (2007):

Again, the question is whether Young's motion to suppress sufficiently put the State on notice that the very existence of a search warrant was being challenged, i.e., that the document that Young himself referred to as the warrant was not in fact a warrant, and that this legal issue would be resolved at the motion to suppress hearing. And it is plain that the State was not on such notice. Examination of the transcript of the suppression hearing compels the conclusion that the State's argument to the trial court was nothing more than an impromptu attempt to respond to Young's unexpected challenge to the lack of an actual search warrant.

. . .

The Court of Appeals did not err in finding waiver under the circumstances of this case.

2255 petitioner could not show that his counsel was ineffective for not arguing inapplicability of the good faith exception under Leon because it would have failed. Seckman v. United States, 2007 U.S. Dist. LEXIS 85798 (E.D. Okla. November 19, 2007).*

Permalink 09:01:44 am, by fourth, 430 words, 493 views   English (US)
Categories: General

IN: "Catchall" provision in the warrant made it overbroad

A drug search warrant had a "catchall" provision that made it constitutionally overbroad. Only marijuana was mentioned, and meth was found.

"instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied).

The evidence sought to be suppressed was all within the coverage of the "catchall" provision, and the state failed to show that it was otherwise in "plain view." Levenduski v. State, 876 N.E.2d 798 (Ind. App. 2007):

In the case before us, by contrast, all the methamphetamine-related evidence Levenduski sought to suppress was obtained pursuant to the illegal "catchall" provision in the warrant and should accordingly have been suppressed. The warrant authorized police to enter Levenduski's house and search for marijuana, hashish, "instruments used to manufacture, introduce into the body or deal marijuana," (App. at 28) (emphasis supplied), money records, notes, documents, or videotapes "relating to the use, dealing, or manufacture of marijuana," (id.) (emphasis supplied), instruments used in growing or processing marijuana, paraphernalia "and any other item of contraband which are [sic] evidence of a crime." (Id.) (emphasis supplied). As to the evidence unrelated to marijuana or hashish, the warrant was invalid to the extent it "[left] the executing officer with discretion," Warren, 760 N.E.2d at 610, and the trial court should have granted Levenduski's motion to suppress that evidence.

The State acknowledges the language in the warrant purporting to authorize a search for and seizure of "any other item of contraband which are [sic] evidence of a crime" is "perhaps a bit too general in its description of the items permitted to be searched for by the warrant." (Br. of the Appellee at 19.) But it asserts the discovery and seizure of the methamphetamine was reasonable because the "methamphetamine evidence" was discovered "primarily in plain view." (Id. at 19-20.) It was not.

. . .

The State has not demonstrated the evidence obtained pursuant to the illegal "catch-all" provision of the search warrant was found in plain view. It therefore should have been suppressed. See Chandler v. State, 816 N.E.2d 464, 468 (Ind. Ct. App. 2004):

Nor is there evidence the marijuana was in plain view. Officer James Walsh testified some marijuana 'was found in the middle bedroom' and 'in the living room.' There was no direct testimony this marijuana was in plain view; as the State bears that burden of proof, we will not presume it was.

(Internal citations and footnote omitted).

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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).

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Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

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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."
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“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)

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