Archives for: February 2008, 09


Permalink 10:54:09 am, by fourth, 667 words, 2970 views   English (US)
Categories: General

Portable backscatter technology (ZBV) and drug detection

We have all heard of backscatter technology, technically known as Z Backscatter, first used at ports and border crossings for essentially x-raying trucks and railroad cars looking for dirty bombs, human cargo, or contraband. But, the manufacturer's website shows it used for packages and suitcases, "personnel inspection," and at airport entry points.

Now, instead of a fixed device that something must be run by, the backscatter device can come to you in a van, known as ZBV. The manufacturer even touts its product for drug detection:

A breakthrough in X-ray detection technology, AS&E's Z Backscatter Van (ZBV) is a low-cost, extremely maneuverable screening system built into a commercially available delivery van. The ZBV allows for immediate deployment in response to security threats, and its high throughput capability facilitates rapid inspections. The system's unique "drive-by" capability allows one or two operators to conduct X-ray imaging of suspect vehicles and objects while the ZBV drives past.

. . .

The Z Backscatter Van is used in port and border security, force protection, urban surveillance, and other critical security applications. The system is maneuverable, mobile and affordable. Simply put, the ZBV is faster, more effective, and less expensive than any mobile X-ray screening solution in the marketplace today.

The ZBV Reveals Contraband and Threats Undetected by Other Systems:

. Car and truck bombs
. Explosives, plastic weapons, and other organic threats
. Radioactive threats, including nuclear devices and dirty bombs
. Illegal drugs
. Stowaways, such as illegal immigrants and terrorists
. Trade fraud items, such as alcohol, tobacco, and other legal goods smuggled to evade duties

* In Stationary Scan Mode, ZBV operators may elect to scan the occupants of the subject vehicle. For this application, AS&E offers a Personnel Scanning option that may better enable the customer to meet any applicable country-specific regulatory requirements. For more information, please call (978) 262–8832.

At another place on the company's website, drug detection is listed first:

AS&E's Cargo and Vehicle inspection systems are engineered to provide security personnel with an effective means of detection without disrupting the flow of commerce.

AS&E uses the most advanced proprietary technologies in the industry to deliver X-ray inspection systems that can detect a multitude of threats and contraband, including:

. Illegal Drugs
. Illegal Immigrants
. Plastic Weapons and Explosives, including car and truck bombs
. Radioactive Threats, including nuclear devices and dirty bombs
. Smuggled goods, such as alcohol, tobacco products, and other legal goods smuggled to evade duties (trade fraud)
. Weapons or other inorganic threats, including metal weapons and shielding to conceal radioactive materials

These systems can inspect cars, vans, and trucks, as well as palletized cargo, and air and sea cargo containers. We offer our systems in a variety of configurations to give customers maximum flexibility, safety, and utility when implementing security solutions.

The cost means that the drug dog will never be replaced. Drug dogs are far easier to use and move around.

Questions immediately arise, and we have to know that law enforcement is already thinking about this: How fast and close must the subject vehicle be moving by (as in a train or tractor trailer) such that the technology must improve to the point that a ZBV van could be parked on a highway or a truck weigh station to scan everything going by? (Trucks creep by at a highway weigh station, so this is already possible, but vehicles likely drive by too fast on a highway to meaningfully register. But what about the future? What about a computer reading the image rather than a person? [This isn't TSA, you know.])

What about parking in a driveway (a place with a reduced expectation of privacy, but not from this) and scanning a house? How far away is that technology? It would not be useful for small quantities of drugs, but it would for large quantities, or grow operations or meth labs.

If Kyllo applies to thermal images, this is far more intrusive if it ever goes that far. Just look at the human images on the company's website.

Permalink 10:28:51 am, by fourth, 213 words, 530 views   English (US)
Categories: General

Freezing premises pending arrival of search warrant was valid

Freezing the premises and a protective sweep pending arrival of a search warrant were valid. Officers found a staircase hidden in a closet, and they went up the stairs and found an open window and things that suggested a gun might have been tossed out the window. Evidence was found outside, and a clip was found in the gutter when the search warrant was executed. United States v. Nguyen, 2008 U.S. Dist. LEXIS 8759 (D. Mass. February 7, 2008).*

N.D. Iowa spends a few paragraphs on probable cause for the place to be searched, and finds that it exists. Turning then to whether the good faith exception applies, the court extensively discusses that and concluded that it would apply, too. United States v. Cote, 2008 U.S. Dist. LEXIS 8860 (N.D. Iowa February 6, 2008). (Comment: Sometimes an elaborate discussion of probable cause is pointless because the question is "fair probability," which this court found. Also, the court should be credited with resolving the PC question first before going to the good faith exception.)

E.D. N.Y. views a Stone defense to a § 2254 as whether there was "an unconscionable breakdown in the process," and it found there was not because defendant got his suppression hearing. Hornedo v. Artus, 2008 U.S. Dist. LEXIS 8780 (E.D. N.Y. February 5, 2008).*

Permalink 10:14:46 am, by fourth, 396 words, 352 views   English (US)
Categories: General

Do your suppression argument in full at the trial court, or you default

A lesson on getting your argument right: Inventory search issue was not fully explored at the suppression hearing, and the defendant made it clear to the trial court that the real issue was the length of detention after stop under a noise ordinance led to the officer finding the driver without a valid license. [This is an example of make the full argument to the trial court and don't change your argument on appeal. In some states, the quoted paragraph would not appear because the court would rest on default without elaboration.] State v. McComb, 2008 Ohio 425, 2008 Ohio App. LEXIS 382 (2d Dist. February 1, 2008):

[*P60] Bell testified that the inventory search was performed because the car was going to be towed. Bell's testimony concerning the nature of the inventory search performed was brief, and it is not altogether clear whether he was describing the nature of an inventory search in general, as prescribed by the regulations and policies of the Dayton Police Department, or whether he was describing the particular nature of the inventory search he performed in this case. Any deficiencies in this regard are understandable in view of the fact that the State was led to believe that the challenge to the search and seizure of the evidence went to the propriety of the initial stop, exclusively.

Stop was justified by obscured temporary tag, and what followed was all reasonable, including the slight delay. United States v. Daniels, 265 Fed. Appx. 219 (5th Cir. 2008)* (unpublished):

Appellants argue that the arrest was unreasonably extended by an arbitrarily delayed initiation of the computer check and Officer Esqueda's pre-computer check questioning, that Officer Esqueda should not have run the computer check on the passenger's license, and that the traffic stop should have concluded when Officer Esqueda declared an intention to issue a warning citation. All these arguments are foreclosed by Brigham and Shabazz, which hold that an officer may run computer checks on the driver and passengers of a car, and that there is no unlawful detention prior to completion of those computer checks. Here, Officer Esqueda initiated the computer check a short number of minutes after stopping Appellants. Because an officer need not immediately initiate a computer check on a car's driver and its occupants, and because the questioning and consent to search occurred before the computer check was complete, Officer Esqueda did not unlawfully extend the detention of Appellants.

Permalink 09:45:49 am, by fourth, 857 words, 783 views   English (US)
Categories: General

Ubiquity of school resource officers requires remand for determination of what this one's function was: cop or school official?

The ubiquity of school resources officers led the Tennessee Supreme Court to remand a case for a determination of just what the officer's role was at this school: school official or cop? [In school search cases in general, this case might prove to be significant because it asks the right questions.] R.D.S. v. State, 245 S.W.3d 356 (Tenn. 2008):

Increasingly, SROs and other law enforcement officers are becoming more involved in searches on school premises. The majority of jurisdictions which have faced the issue of what standard to apply to SROs or law enforcement officers assigned to schools have applied the reasonable suspicion standard. See, e.g., People v. Dilworth, 169 Ill. 2d 195, 661 N.E.2d 310, 317, 214 Ill. Dec. 456 (Ill. 1996) (holding that reasonable suspicion applies to liaison officer searching on own initiative); Commonwealth v. J.B., 719 A.2d 1058, 1062 (Pa. Super. Ct. 1998) (holding that searches of public school students conducted by school police officers are subject to reasonable suspicion standard); Russell v. State, 74 S.W.3d 887, 891 (Tex. App. 2002) (applying reasonableness standard to officer assigned to school); In re Angelia D.B., 211 Wis. 2d 140, 564 N.W.2d 682, 690 (Wis. 1997) (holding that the reasonable grounds standard applied to search conducted by officer at request of and in conjunction with school officials). But see A.J.M. v. State, 617 So. 2d 1137, 1138 (Fla. Dist. Ct. App. 1993) (holding that a school resource officer employed by sheriff's office must have probable cause to search); Patman v. State, 244 Ga. App. 833, 537 S.E.2d 118, 120 (Ga. Ct. App. 2000) (holding that a police officer working special duty at a high school must have probable cause).

These courts have considered such facts as whether the law enforcement officer was in uniform, had an office on the school's campus, and how long each day the officer remained at the school. See T.S. v. State, 863 N.E.2d 362, 369 (Ind. App. 2007); In re William V., 111 Cal. App. 4th 1464, 4 Cal.Rptr. 3d 695, 697 (Cal. Ct. App. 2003). The Indiana Supreme Court in Dilworth relied in part upon a school handbook that delineated the duties of the school liaison officer. 661 N.E.2d at 320. Additionally, the Florida District Court of Appeals cited a Florida statute outlining the duties of law enforcement officers assigned to the schools. See State v. N.G.B., 806 So. 2d 567, 568 (Fla. Dist. Ct. App. 2002) (citing Fla. Stat. § 1006.12 (2001) replaced by Fla. Stat. § 1006.12 (2003)). Another important consideration is whether the law enforcement officer is employed by the school system or an independent law enforcement agency. See T.S., 863 N.E.2d at 369 (noting that the school liaison officer was employed by the Indianapolis Public School Police); State v. D.S., 685 So. 2d 41, 43 (Fla. Dist. Ct. App. 1996) (noting that the law enforcement officer conducting the challenged search was employed by the local school system and not by an independent municipal or county law enforcement agency).

In contrast, where law enforcement officers, not associated with the school system, initiate a search, or where school officials act at the behest of law enforcement agencies, the probable cause standard is generally applied. See, e.g., F.P. v. State, 528 So. 2d 1253, 1254 (Fla. Dist. Ct. App. 1988) (holding that the "school official exception" to the probable cause requirement does not apply when search is carried out at direction of police); State v. Tywayne H., 1997 NMCA 15, 123 N.M. 42, 933 P.2d 251, 254 (N.M. Ct. App. 1997) (holding that probable cause was required when a search was conducted completely at the discretion of the police officers); In re Thomas B.D., 326 S.C. 614, 486 S.E.2d 498, 499-500 (S.C. Ct. App. 1997) (holding that probable cause was required when police conducted a search in furtherance of law enforcement objective, rather than on behalf of school).

School officials and law enforcement officers play fundamentally different roles in our society. A school official's basic task is to educate students in a safe environment, whereas a law enforcement officer's primary duty is to detect and deter crime. Law enforcement officers must generally satisfy the higher probable cause standard in order to conduct a search, because they stand in an adversarial role to citizens and the punishment for violating a criminal statute is more severe than the consequences of violating a school regulation.

In turning to the case at bar, Deputy Lambert initiated and conducted a search of R.D.S.'s truck on the grounds of Page High School. Mr. Brown accompanied Deputy Lambert to R.D.S.'s truck and was present during the search, but did not participate. After balancing the competing interests between R.D.S.'s legitimate expectations of privacy and the State's need for effectively investigating breaches of public order, we hold that the reasonable suspicion standard is the appropriate standard to apply to searches conducted by a law enforcement officer assigned to a school on a regular basis and assigned duties at the school beyond those of an ordinary law enforcement officer such that he or she may be considered a school official as well as a law enforcement officer, whether labeled an "SRO" or not. However, if a law enforcement officer not associated with the school system searches a student in a school setting, that officer should be held to the probable cause standard.

Permalink 09:08:24 am, by fourth, 242 words, 278 views   English (US)
Categories: General

IL parolees are in the same position as CA's in Samson; anonymous tip supported search

Illinois holds that its parolees are in the same position as California's in Samson. Here, police received an anonymous unsupported tip that appellant was in possession, so they conducted a search. Trial court suppressed, but the court of appeals reversed (People v. Wilson, 364 Ill. App. 3d 762, 301 Ill. Dec. 743, 847 N.E.2d 753 (1st Dist. 2006). The Illinois Supreme Court reversed and affirmed the trial court. People v. Wilson, 228 Ill. 2d 35 (2008).

Pulling a gun on the defendant is a detention subject to constitutional safeguards. "Defendant was detained when Agent Ballou drew his gun, asked him whether he was carrying any weapons, and caused him to submit to the officers' display of authority." State v. Gutierrez, 2008 NMCA 15, 143 N.M. 522, 177 P.3d 1096 (2007), certiorari granted, 176 P.3d 1130 (N.M. 2008). The court added that nervousness and stepping back might support reasonable suspicion [but, pray tell, who would not be nervous with a .40 S&W pointed at their chest?], but here it did not:

[*21] Viewing all of the foregoing facts and circumstances collectively and in the light most favorable to the State, see State v. Graham, 2005 NMSC 4, P 13, 137 N.M. 197, 109 P.3d 285, Defendant displayed nothing more than a nervous and possibly furtive demeanor before he was detained. We conclude that his actions were not enough to create reasonable suspicion to detain him, particularly in light of Agent Edmondson's acknowledgment that he had no objective reason to believe that Defendant was either engaged in criminal activity or concealing a firearm.

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