Archives for: November 2007, 29

11/29/07

Permalink 10:39:43 pm, by fourth, 486 words, 526 views   English (US)
Categories: General

Defendant had no expectation of privacy in a gun hidden on the roof of a garage

Defendant who hid a gun on the roof of a garage had no expectation of privacy there. United States v. Pankey, 2007 U.S. Dist. LEXIS 86785 (D. Minn. October 25, 2007)*:

The critical threshold question is whether the Defendant had a legitimate expectation of privacy on the roof of the garage where Wilson found the weapon, which would allow him to assert a Fourth Amendment claim. The Defendant acknowledges that he does not have a possessory or ownership interest in the garage. However, he argues that he had constructive control of the garage, based on the fact that he resided in a building which was located on the street immediately below the garage, and that he was present on October 26, 2006, at the Seventh Street residence rented by Dickerson, which was immediately adjacent to the garage, and that constructive control gave him a reasonable expectation of privacy on the roof of the garage.

At the Hearing, Wilson testified that he had spoken with Johnson, who owns both the garage, and the building immediately below the garage, where the Defendant was renting an apartment at the time that the search took place. According to Wilson's uncontradicted testimony, Johnson reserved the garage for his own personal use, and had not given the Defendant, or any other tenant, permission to use the garage, or its roof. See, United States v. Wiley, 847 F.3d 480, 481 (8th Cir. 1988) (defendant lacked standing when he had no legitimate access to premises without the presence of the owner and had no personal belongings stored there). The Defendant does not claim that he had a key to the garage, or had previously stored belongings there, either with or without Johnson's permission, and did not have the ability to exclude others from accessing the garage. Likewise, the Defendant did not pay any rent to use the garage, or claim that any portion of the rent that he paid to Johnson, for his apartment, was so allocated. See, United States v. Juchem, 2001 WL 34152082 at *4 (N.D. Iowa, April 23, 2001)(no expectation of privacy in garage when defendant had key and permission of owner to enter, but did not pay rent or have permission to exclude others).

Moreover, the Defendant cannot claim that he had a legitimate expectation of privacy in the roof of the garage, based on his presence in the Seventh Avenue residence. Johnson told Wilson that he had not given anyone, including Dickenson, permission to access the garage. Even if Dickenson had the ability to give the Defendant permission to access the garage, she also told Wilson that she had not granted the Defendant permission to store any items, either in or on the garage, or inside her residence.

Defendants prevailed in a civil action for serving a search warrant on the wrong premises. Defendants then sought attorneys fees for a frivolous action, which the district court denied. Tovar v. City of Fresno, 2007 U.S. Dist. LEXIS 86847 (E.D. Cal. November 9, 2007).*

Permalink 02:53:27 pm, by fourth, 875 words, 510 views   English (US)
Categories: General

Medical marijuana patient entitled to return of unlawfully seized cannabis

The California Third District Court of Appeals held that the police cannot keep marijuana seized off a bona fide medical marijuana patient who was charged and the charges later dismissed because he was, in fact, a patient. The state's argument for federal preemption over marijuana prosecution was rejected [not to mention that it was highly disingenuous] as was the argument that returning the medical marijuana would violate public policy [which borders on the fantastic, considering California's Compassionate Use Act]. This is a really interesting case. The opinion is 41 pages long, and here are only three of them. City of Garden Grove v. Superior Court of Orange County, 157 Cal. App. 4th 355, 68 Cal. Rptr. 3d 656 (3d Dist. 2007):

Like the City itself, amici also fear the Garden Grove police would be violating federal law by returning Kha’s marijuana to him. However, instead of relying on aiding and abetting principles, amici go a step further than the City and argue the police would be in direct violation of federal law were they to comply with the trial court’s order. They point out that distribution of a controlled substance is generally prohibited under 21 U.S.C. § 841(a)(1), but that section does not apply to persons who regularly handle controlled substances in the course of their professional duties. For example, in United States v. Feingold (9th Cir. 2006) 454 F.3d 1001, 1008, the court held that 21 U.S.C. § 841(a)(1) could only be applied to a doctor if, in distributing a controlled substance, he intended “to act as a pusher rather than a medical pofessional.” (Relying on United States v. Moore (1975) 423 U.S. 122.)

By analogy, it would stand to reason that the only way a police officer could be found in violation of 21 U.S.C. § 841(a)(1) for distributing a controlled substance is if he or she intended to act as a drug peddler rather than a law enforcement official. In this case, it is quite obvious the police do not want to give Kha his marijuana back at all, let alone have him use it for illicit purposes. They are acting under the compulsion of a lawful court order. Therefore, we cannot see how anyone could regard compliance with this order a violation of 21 U.S.C. § 841(a)(1).

Assuming someone could, it seems to us clear the police would be entitled to immunity under 21 U.S.C. § 885(d). As discussed above, that statute provides immunity to law enforcement personnel who are responsible for handling controlled substances as part of their official duties. (See ante, pp. 10-12.) From a legal standpoint, that should alleviate any fears the Garden Grove police have about returning Kha’s marijuana to him. As a practical matter, moreover, it seems exceedingly unlikely that federal prosecutors would ever attempt to haul a local constable into federal court for complying with a state judicial order calling for the return of a qualified patient’s medical marijuana. We are not aware of a single instance in which this has ever occurred. We are confident, had there been such a phenomenon, it would have been brought to our attention.

Amici for the City also claim that ordering the return of Kha’s marijuana is ill advised as a matter of public policy because local police are held to a high moral standard, they often cooperate with federal drug enforcement efforts, and they are generally charged with enforcing and administering “the law of the land,” which includes federal law. We appreciate these considerations and understand police officers at all levels of government have an interest in the interdiction of illegal drugs. But it must be remembered it is not the job of the local police to enforce the federal drug laws as such. For reasons we have explained, state courts can only reach conduct subject to federal law if such conduct also transcends state law, which in this case it does not. To the contrary, Kha’s conduct is actually sanctioned and made “noncriminal” under the CUA. (People v. Mower, supra, 28 Cal.4th at p. 471.)

That may cause a dilemma for local narcotics officers in some instances, but it strikes us as being an entirely manageable consequence of our federalist form of government. By complying with the trial court’s order, the Garden Grove police will actually be facilitating a primary principle of federalism, which is to allow the states to innovate in areas bearing on the health and well-being of their citizens. Indeed, “[o]ur federalist system, properly understood, allows California and a growing number of States [that have authorized the use of medical marijuana] to decide for themselves how to safeguard the health and welfare of their citizens.” (Gonzales v. Raich, supra, 545 U.S. at p. 74 (dis. opn. of Thomas, J.).) The CUA and MMP are a clear manifestation of that decision-making process.

By returning Kha’s marijuana to him, the Garden Grove police would not just be upholding the principles of federalism embodied in the United States Constitution, however. They would also be fulfilling their more traditional duty to administer the laws of this state. In that sense, the trial court’s order comports with an officer’s dual obligation to support and defend both the California Constitution and the Constitution of the United States. (See Cal. Const. art. XX, § 3.)

Permalink 11:12:50 am, by fourth, 439 words, 596 views   English (US)
Categories: General

Installing GPS at Customs was reasonable, and activity after that was all with reasonable suspicion

Defendant was a well known target as a money or drug courier crossing the border regularly through Champlain, N.Y., and he was flagged in the Customs computer. When he crossed the border this time, he was sent to secondary inspection, and he was brought inside for questioning. While he was inside, a GPS with a cellphone transmitter was planted on the car. He was allowed to go on his way, and they watched and tracked his moves and noticed that he had lied about his travel plans, and they developed reasonable suspicion for a stop. He was ultimately arrested for bulk cash smuggling for lying about having more than $10,000 in cash when he entered the country. United States v. Coulombe, 2007 U.S. Dist. LEXIS 86756 (N.D. N.Y. November 26, 2007):

A person has no reasonable expectation of privacy insofar as the exterior of his car is concerned. See United States v. McIver, 186 F.3d 1119, 1126 (9th Cir. 1999) (citing New York v. Class, 475 U.S. 106, 114 (1986); United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993). There is no Fourth Amendment violation when the installation of a tracking device on a vehicle's undercarriage does not damage the vehicle or invade its interior, when the vehicle operator does not lose dominion or control, and when there is no other Fourth Amendment invasion during the installation. See McIver, 186 F.3d at 1126-27. Charles did not damage the vehicle, he did not invade the interior, and Coulombe did not lose dominion and control. Because the vehicle's undercarriage was lawfully accessed during the secondary border inspection, there was no other unlawful invasion that violated the Fourth Amendment. See Tudoran, 476 F. Supp. 2d at 210-13. Therefore, the installation of the device and its post-installation operation were constitutionally permissible.

Even assuming the first prong of a Franks violation, including the omitted information still showed probable cause. United States v. Laliberte, 2007 U.S. Dist. LEXIS 87023 (D. Kan. November 19, 2007):

In this case, even assuming defendant could meet the first part of his Franks burden, the court would nevertheless conclude that the affidavit otherwise provided probable cause for the search. In determining this issue, the court sets aside the allegation that property records showed Robert Charles Laliberte as the owner of the 6th Street residence, and it treats the omission relating to Robert's Arizona license and Arizona correspondence as though it had been included in the affidavit. See Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996) (in determining whether affidavit still shows probable cause, false statements are set aside, while omitted information is treated as if it had been included in the affidavit). Even so, the affidavit showed probable cause to search the 6th Street residence.

Permalink 10:55:54 am, by fourth, 635 words, 610 views   English (US)
Categories: General

Automobile search could include looking in air conditioning vent because informant told them contraband would be there

On a stop and arrest with probable cause for odor of marijuana, officer had informant information that contraband would be hidden in the dashboard. This justified the officer looking into the air conditioning vent with a flashlight. Then, a hidden compartment in the dash was found with a gun hidden there. The entire search was justified under the automobile exception. United States v. Luna-Ilarraza, 2007 U.S. Dist. LEXIS 86955 (D. P.R. November 27, 2007):

However, Officer Berrios' additional reason for looking into the air conditioning vent, that a confidential informant had stated that there was a compartment in the dashboard which contained contraband, combined with her own knowledge and under the totality of the circumstances, also supplied probable cause for the search. The confidential informant described the vehicle in make and color, gave its licence plate number and location, and specified that there was marijuana in the trunk and contraband in the dashboard area. Having stopped the car described by the informant after spotting it at the identified location, verified that the licence plate matched the one given by the informant and discovered marijuana in the trunk, just as the informant had asserted, those portions of the information were corroborated as accurate. "In testing the sufficiency of probable cause for an officer's action even without a warrant, we have held that he may rely upon information received through an informant, rather than upon his direct observations, so long as the informant's statement is reasonably corroborated by other matters within the officer's knowledge." Jones v. U.S., 362 U.S. 257, 269 (1960) (overruled on other grounds by U.S. v. Salvucci, 448 U.S. 83 (1980)). Even if the officers did not know the identity of the informant, under the totality of the circumstances, including the corroboration of virtually every aspect of the tip, it was reasonable for them to believe that contraband was being housed within the air conditioning vents and gauge cluster in the passenger area of the vehicle. See U.S. v. Sandoval-Espana, 459 F.Supp.2d 121 (D.R.I. 2006). In sum, the totality of the circumstances of this case establish the probable cause necessary to sustain the warrantless search of both the trunk and the gauge cluster of defendant's car under the automobile exception.

Lastly, the fact that the weapon was within a compartment does not invalidate the search. It has been clearly established by the Supreme Court that the privacy interest in closed containers within a car yields to the broad scope of an automobile search. California v. Acevedo, 500 U.S. 565, 574 (1991). "[T]he law recognizes that a vehicle search under this exception may encompass all areas of the vehicle in which the suspected contraband is likely to be found." U.S. v. Staula, 80 F.3d 596, 602 (1st Cir. 1996) (citing United States v. Maguire, 918 F.2d 254, 260 (1st Cir.1990), cert. denied, 499 U.S. 950 (1991)).

"An officer's observation of a vehicle straying out of its lane multiple times over a short distance creates reasonable suspicion that the driver violated [the state statute] so long as the strays could not be explained by adverse physical conditions such as the state of the road, the weather, or the conduct of law enforcement." United States v. Egan, 256 Fed. Appx. 191 (10th Cir. 2007)* (unpublished).

Even a bad seizure of cash can still lead to a forfeiture if the government can find untainted evidence to prove it. United States v. $172,760.00 in United States Funds, 2007 U.S. Dist. LEXIS 86974 (M.D. Ga. November 27, 2007):

Evidence obtained in the course of a search that violates the Fourth Amendment is inadmissible in a civil forfeiture proceeding. One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 702 (1965). However, it is well-established that an illegally seized asset can still be the subject of a civil forfeiture proceeding if the Government can meet its burden of proof with untainted evidence. See, e.g., United States v. Monkey, 725 F.2d 1007, 1012 (5th Cir. 1984); ....

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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  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)
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  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
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  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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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."
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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