Archives for: September 2008, 12

09/12/08

Permalink 09:40:58 am, by fourth, 87 words, 325 views   English (US)
Categories: General

OH12: Officer walking up to an illegally parked car is not a stop

Officer walking up to an illegally parked car is not a stop. State v. Good, 2008 Ohio 4502, 2008 Ohio App. LEXIS 3831 (12th Dist. September 8, 2008).*

Officer received a tip in-person about a man with a gun, and the officer approached a group the man was in, and they disbursed. The defendant had a bulge and walked with a limp like he had a gun. The tip was detailed and corroborated by action, but the observation was what justified the stop. State v. Vaughn, 2008 Ohio 4585, 2008 Ohio App. LEXIS 3868 (8th Dist. September 11, 2008).*

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Permalink 09:14:22 am, by fourth, 609 words, 457 views   English (US)
Categories: General

D.Mass.: Communal living can create an expectation of privacy

The facts of a communal living arrangement may be that of a home sufficient to give a person standing in a common area. The court has to look to the realities of the living arrangement. United States v. Werra, 2008 U.S. Dist. LEXIS 68790 (D. Minn. September 11, 2008):

The parties have not identified, and I have not found, any reported decisions that have, with sustained reasoning, expressly examined the distinction between traditional family homes and multi-unit apartment buildings. Determining whether a person has a reasonable expectation of privacy in an area or an item is, of course, a fact-specific inquiry. Before turning to the details of 63 Menlo Street, however, it may be useful to identify several illustrative factors for analyzing whether a residence is more akin to a traditional home or a multi-unit apartment building.

The most important factor is whether or not the building contains recognizably separate living units. Distinct, complete living spaces indicate that the dwelling is more like an apartment building because each tenant's functional home is not shared by others in the building. While each tenant would have a reasonable expectation of privacy in his or her personal living space within that kind of building, that expectation would not extend to common areas shared with other tenants. By contrast, if the building did not contain compartmentalized living spaces, the residents would effectively be living together in a single, shared unit. This might occur, for example, where all tenants shared essential parts of the living space, such as bathrooms and kitchens. In that circumstance, each tenant would presumably have a reasonable expectation of privacy throughout the entire interior of the building.

A related factor is the legal right of a resident to exclude others from certain parts of the building. See United States v. Anderson, 154 F.3d 1225, 1232 n.3 (10th Cir. 1998), cert. denied, 526 U.S. 1159 (1999) ("The right to exclude others is an important consideration in determining whether an individual has [a reasonable expectation of privacy]."). The presence or absence of locks may be a factor in making this determination, because it could be a manifestation of a resident's belief that he had the right to exclude others from a particular part of a building. However, the presence or absence of locks is not a dispositive factor. It is, for example, conceivable that an apartment building could contain five distinct units and no locks, because the tenants of each unit were friends or the building was located in a safe area. In that situation each tenant would still presumably have the legal right to exclude others from the unit he or she personally occupied.

The number of people living in a building can also be relevant in categorizing the building. For example, if 30 people lived in a large building, then it most likely would be characterized as a multi-unit apartment building. But if three people lived in the same building, it could be either a multi-unit apartment building or a home, depending on how the space was divided and what rights each individual had with respect to that space.

I also note that the formal legal relationship among the residents of a building is not necessarily determinative in classifying the residence as either a traditional home or a multi-unit apartment building. For example, if two people living together as a couple each had access to all spaces in the dwelling, then it would be considered a traditional home, whether or not they were legally married. See, e.g., United States v. Paradis, 351 F.3d at 27 (holding that the apartment of defendant's girlfriend was his "home" for purposes of the Fourth Amendment).

Here, the defendant did not satisfy the court's requirements.

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"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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."
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—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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