Archives for: October 2008, 16
10/16/08
WA: Warning of right to refuse consent does not apply to a shed near home
The state right to warnings before a consent entry of a home does not apply to a shed near the home. State v. Overholt, 147 Wn. App. 92, 193 P.3d 1100 (2008).*
Sixth Amendment right of confrontation does not apply at suppression hearings. State v. Rivera, 2008 NMSC 56, 144 N.M. 836, 192 P.3d 1213 (2008).*
While the issue was close, the court finds reasonable suspicion from an informant's tip because it showed first hand knowledge without an apparent motive to lie. United States v. William, 2008 U.S. Dist. LEXIS 81295 (D. V.I. October 10, 2008).*
Skinner does not apply to governmental actors; suit against DUI test of engineer without probable cause can proceed
Railroad employees' union stated a claim for relief for a DUI test of locomotive engineers without probable cause to believe they are under the influence. Skinner does not apply to governmental actors. United Transp. Union v. Perdue, 2008 U.S. Dist. LEXIS 80991 (S.D. W.Va. September 30, 2008):
Furthermore, the facts presented in the instant complaint describe a situation that falls outside the purview of Skinner. In Skinner, the railroad was searching its own employee to determine the cause of an accident; here, local law enforcement performed the search. While Skinner stands for the proposition that administrative searches in the wake of railroad accidents may be performed without probable cause, there is little to suggest that Skinner extended to local law enforcement. The Court in Skinner stated, "The FRA has prescribed toxicological tests, not to assist in the prosecution of employees, but rather to prevent accidents." Skinner, 489 U.S. at 615. Therefore, this Court finds that Skinner does not apply to local law enforcement.
Nothing in the instant complaint suggests that the police had anything approaching probable cause. In the absence of probable cause, and assuming that the facts alleged in the complaint are true, the application of the breathalyzer to Chapman is a sufficient factual allegation to support a § 1983 claim.
Defendant did not challenge testimony that an inventory policy existed, so it was valid
Defendant did not challenge the officer's [self-serving] assertion that a standardized inventory policy existed. Under Bertine, less intrusive measures were not required, so the officer did not just have to let the vehicle go with somebody else. United States v. Sandifer, 2008 U.S. Dist. LEXIS 80668 (S.D. Miss. August 11, 2008).*
Information from an unnamed state DOJ employee that defendant violated his probation did not satisfy the reasonable suspicion standard. It did not show that he had personal information of illegal activity. Sierra v. State, 958 A.2d 825 (Del. 2008).*
State showed that the DUI roadblock in this case satisfied the high state standard. The approval that was challenged as merely being a rubberstamp approval by superiors was still an approval. State v. Nevels, 2008 Tenn. Crim. App. LEXIS 811 (September 3, 2008).*
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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Online since Feb. 24, 2003
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Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
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here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
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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." “Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
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it is to oppress; the piranha can be as deadly as the shark.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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,
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Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
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Bailey
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Florida
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19) (ScotusBlog)
Florida
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2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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