Archives for: May 2008, 02

05/02/08

Permalink 03:57:27 pm, by fourth, 407 words, 451 views   English (US)
Categories: General

CA6: Officer lacked reasonable suspicion for stop, and trial court's finding of fact was clearly erroneous

Officer lacked reasonable suspicion for stop, and trial court's finding of fact was clearly erroneous. The fact he left a drug house and had handed something to another alone was not reasonable suspicion. United States v. Blair, 524 F.3d 740 (6th Cir. 2008):

a. Terry Stop Based on Time, Area, and Known Drug House

The question remains whether the late hour and high-crime area justify a Terry stop. We hold they do not. That a given locale is well known for criminal activity will not by itself justify a Terry stop, although it may be taken into account with other factors. Martin, 289 F.3d at 397 (citing Wardlow, 528 U.S. at 123). The only other factor to consider here is that the stop occurred at night. A late hour can contribute to reasonable suspicion; however, our cases so holding typically involve a much later hour than that involved here. See United States v. Caruthers, 458 F.3d 459, 467 (6th Cir. 2006) (discussing a stop that took place at 1:20 a.m.); United States v. Bailey, 302 F.3d 652, 659 (6th Cir. 2002) (addressing a stop that took place at 1:00 a.m.). Blair was stopped at approximately 10:30 p.m., an hour not late enough to arouse suspicion of criminal activity. Accordingly, Officer Holmes did not have reasonable suspicion to suspect Blair of criminal activity simply because he was driving in a bad neighborhood at 10:30 at night.

b. Terry Stop Based on Hand-to-Hand Transaction

The district court also found that Officer Holmes had reasonable suspicion that Blair was involved in drug activity based on “some evidence that Officer Holmes knew of the hand-to-hand transaction prior to the traffic stop.” This Court finds the district court’s conclusion of fact on this issue clearly erroneous.

Officers Munday and Holmes offered contradictory testimony regarding when Officer Holmes learned of the hand-to-hand transaction. Officer Munday testified that as soon as he saw
the transaction, he informed Officer Holmes. Officer Holmes, on the other hand, testified that he did not hear of the hand-to-hand transaction until after the stop occurred. Although Officer Holmes suggested that he and Officer Munday were communicating before the stop, Officer Holmes was unequivocal regarding when he learned of the hand-to-hand transaction: after the stop. Therefore, even viewing the evidence in the light most favorable to the government, this Court finds that Officer Holmes did not know of the hand-to-hand transaction prior to the traffic stop. Consequently, the transaction could not provide reasonable suspicion for Officer Holmes to stop Blair.

Permalink 03:44:37 pm, by fourth, 502 words, 1289 views   English (US)
Categories: General

TN: Informant hearsay failed Aguilar/Spinelli because of lack of corroboration

Uncorroborated details left affidavit based on informant hearsay wanting, and probable cause was lacking. State v. Whittington, 2008 Tenn. Crim. App. LEXIS 320 (April 29, 2008)*:

In the instant case, the informant was a member of the criminal milieu. Therefore, in order for the information to be credible, the factors of Aguilar-Spinelli must be satisfied. The "basis of knowledge" prong is satisfied by the informant's representation that he was present at 56 Mount Pinson Road and saw large bags of marijuana at the residence. This information is listed in the search warrant affidavit; however, there is no information as to the credibility of the informant contained in the search warrant.

. . .

Identification of the presence of the three vehicles located at a house where three people reside is a "non-suspect" event. While an outstanding summons for the violation of the bad check law indicates at least probable cause of a misdemeanor theft related offense, it has little, if any, corroborative value as to corroborating the possession of marijuana. It is also "non-suspect" behavior for it to be established that a person has been in jail for an unspecified offense.

That leaves two facts uncovered by independent police investigation and submitted to establish that the informant's information in this particular case is reliable. First, one resident was arrested in 2001 for a narcotics offense, and, secondly, another resident was arrested in 2002 and again in 2004 for the sale and delivery of cocaine. This knowledge alone does not constitute probable cause. If there had been other factors corroborated by the police outside of the "non-suspect" behavior, the discovery of the prior arrests could have provided a basis for probable cause in addition to the other factors. See State v. Hennings, 975 S.W.2d 290, 295 (Tenn. 1998). In this instant case, however, that did not occur. While everything the informant told the police was found to be true, it was information that anyone could have obtained and did not pertain to any criminal activity. The only specific information provided by the informant and corroborated by the police was presence of the cars in the driveway and the residents of the home. This is all non-suspect activity and is, therefore, insufficient to negate the deficiency in the search warrant. Because there is no information given in the search warrant as to the credibility of the informant and because of the lack of police corroboration to establish the reliability of the informant's information of criminal activity, the search warrant did not meet the standards of Aguilar/Spinelli. Accordingly, the judgment of the circuit court is reversed and the indictment against Defendant is dismissed.

The four corners of the affidavit for the search warrant showed probable cause for issuance of the warrant. Commonwealth v. Otterson, 2008 PA Super 85, 947 A.2d 1239 (2008).*

Officer had reasonable suspicion that defendant's vehicle was the one driving the wrong way on an interstate highway when he found a vehicle parked on a lot with flashers on that matched the description of the vehicle in the radio call. State v. Hanning, 2008 Tenn. Crim. App. LEXIS 319 (April 29, 2008).*

Permalink 02:26:05 pm, by fourth, 225 words, 335 views   English (US)
Categories: General

Implied consent is valid, and the need for advice as to consequences serves a purpose beyond consent

Implied consent is valid. The need for advice as to consequences serves a purpose beyond consent. State v. Dewitt, 145 Idaho 709, 184 P.3d 215 (App. 2008):

Informing a suspect about the consequences of refusing an evidentiary test is not intended to be an opportunity for a defendant to withdraw his consent; rather, it is an administrative tool designed to increase the likelihood that the suspect will peaceably submit to testing that he has no legal right to refuse. Even if the officer did not notify the defendant of the consequences of the refusal as required by I.C. § 18-8002(3), the results of the evidentiary test are admissible in a criminal prosecution. State v. Harmon, 131 Idaho 80, 85, 952 P.2d 402, 407 (Ct. App. 1998).

Plaintiff knew or should have known he had been subjected to a search by a date certain, so his civil case was barred by the statute of limitations. Santiago v. Davis, 2008 U.S. Dist. LEXIS 34965 (E.D. Pa. April 25, 2008).*

The officer's observation of items changing hands, late at night, at a specific intersection he knew had high levels of drug-related activity, and the precipitous departure of one of the parties to the transaction when he saw the officer, was sufficient to justify the vehicle stop that led to defendant's arrest and the discovery of the cocaine on her person. The search incident was valid. State v. Fornof, 218 Ariz. 74, 179 P.3d 954 (2008).*

Permalink 02:08:21 pm, by fourth, 303 words, 555 views   English (US)
Categories: General

Strip searches of inmates moved within a jail are not unreasonable, without regard to the gravity of the crime

Strip searches of inmates moving from one part of the jail to another without regard to what the inmate is in for do not violate the Fourth Amendment. Jackson v. Herrington, 2008 U.S. Dist. LEXIS 34677 (W.D. Ky. April 28, 2008):

Finally, in Sutton v. Hopkins County, this Court held that a detention center's policy of strip-searching all transferred detainees was constitutional because it was reasonable under the circumstances. 2007 U.S. Dist. LEXIS 3150. Specifically, the Court observed:

A detainee who has been incarcerated in another facility has potentially been exposed to contraband, especially if the facility has lenient procedures with respect to court appearances, contact visits, medical programs, and work programs. Additionally, just as in Richerson, detainees that are transported from one facility to another are transported through areas to which the public may have access. Therefore, these contacts outside of the jail provide opportunities for transferees, even those charged with non-violent, non-drug related offenses, to obtain contraband before they enter the…[j]ail.

Sutton, 2007 U.S. Dist. LEXIS 3150 at *15. The Court further noted that "[i]n the case of a transferred detainee, [a] detention facility is unaware of the security practices of the other facility and has absolutely no control over the transporting officer who supervised the detainee during transport." 2007 U.S. Dist. LEXIS 3150 at *16.

The Court finds no meaningful distinction between the HCDC policy at issue here and the policies upheld by the Sixth Circuit in Watsy and by this Court in Sutton. The objective circumstances surrounding the transfer of every inmate from one detention facility to another give HCDC officials the reasonable suspicion necessary to conduct intake strip-searches on inmates transferred into HCDC. HCDC's legitimate security interests outweigh the privacy rights of these inmates. Thus, the Court holds that the Defendants are entitled to summary judgment on the Plaintiff's Fourth Amendment claim.

FourthAmendment.com

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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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www.johnwesleyhall.com

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2013-14 Term:
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  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."
—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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