Archives for: October 2008, 18


Permalink 07:42:28 am, by fourth, 71 words, 486 views   English (US)
Categories: General

Younger absention bars § 1983 claim over search filed while state criminal case pending

Younger absention applies to a § 1983 case filed while plaintiff's criminal case is pending. Skidmore v. Henley, 2008 U.S. Dist. LEXIS 82180 (E.D. Ky. October 15, 2008).*

Officer saw a man on the street leaning against a car run from him as he approached. He knocked on the door of the house ran into. The trial court's findings of consent were supported by the evidence. State v. Woolridge, 996 So. 2d 618 (La. App. 5th Cir. 2008).*

Permalink 07:21:00 am, by fourth, 312 words, 517 views   English (US)
Categories: General

CO: Language barrier to consent being not voluntary is defendant's burden

The encounter with defendant was consensual, and it led to a patdown with the officer asking if he had anything on him, and he admitted to cocaine. Police were called to a gun store because a man with a warrant was trying to buy a gun, so they came to check him out. Defendant's claim of language being a barrier was something that he had to prove and did not. People v. Marujo, 192 P.3d 1003 (Colo. 2008)*:

This court has enumerated a list of factors that may demonstrate that "a reasonable, innocent person would not feel free to decline the officers' requests or otherwise terminate the encounter." Jackson, 39 P.3d at 1184. The factors include but are not limited to:

(1) whether there is a display of authority or control over the defendant by activating the siren or any patrol car overhead lights;
(2) the number of officers present;
(3) whether the officer approaches in a non-threatening manner;
(4) whether the officer displays a weapon;
(5) whether the officer requests or demands information;
(6) whether the officer's tone of voice is conversational or whether it indicates that compliance with the request for information might be compelled;
(7) whether the officer physically touches the person of the citizen;
(8) whether an officer's show of authority or exercise of control over an individual impedes that individual's ability to terminate the encounter;
(9) the duration of the encounter; and
(10) whether the officer retains the citizen's identification or travel documents.

Id. For a police-citizen encounter to rise to the level of a seizure, the obligation to comply must be greater than the obligation an innocent citizen would normally feel to cooperate with the police. Johnson, 865 P.2d at 842-43.

Ripping out plaintiff's penis piercing during a second unnecessary strip search made jailers liable for his injury. The second strip search was unreasonable and excessive force was applied. Alvarez v. Iniguez, 2008 U.S. Dist. LEXIS 82113 (C.D. Cal. September 5, 2008).*

Permalink 07:18:30 am, by fourth, 271 words, 743 views   English (US)
Categories: General

Ordinary things are burglar tools in the hands of a burglar

Common sense dictates that ordinary objects, innocent in themselves, are tools of burglars. Direct proof of crime not needed, and probable cause can be inferred. United States v. Brooks, 2008 U.S. Dist. LEXIS 82067 (E.D. Pa. October 15, 2008):

Defense counsel emphasizes that the items taken or seen during the arrest that did not actually represent unambiguously illegal conduct (even if Mr. Brooks's driving was illegal). However, it was not necessary that all the facts recounted in the probable cause affidavit constitute direct proof of a crime; it can be sufficient for purposes of finding probable cause to infer probable cause by "considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide [evidence]." Jones, 994 F.2d at 1056 .... Likewise, common sense permits the acknowledgment that a limitless list of everyday "harmless" objects can, in the wrong circumstances, become handy "tools of the trade" of a criminal. Indeed, it is hard to imagine a nighttime burglar who would try to break into a dark house without some means of creating limited but focused light (to wit, a small flashlight) and some means to poke, pry, or unfasten (to wit, a screwdriver and/or knife) and to do so without his hands slipping or leaving prints (to wit, with gloves). That these tools are often used for good works does not mean they cannot be, or were not, used for the commission of a crime. The Court concludes that, looking at the "four corners" of Det. Harris's affidavit, the issuance of the search warrant in this case meets the Gates test.

Permalink 07:01:17 am, by fourth, 283 words, 523 views   English (US)
Categories: General

CA6: Nexus can be based on inference

"[C]ontinuing and related illegal firearm activity" showed nexus to the defendant's house. It was a logical inference, not a direct fact. United States v. Williams, 544 F.3d 683, 2008 FED App. 0378P (6th Cir. 2008):

While Williams correctly asserts that the warrant affidavit never tied the .25 and .45 caliber handguns to the Tarnow Street residence, he overlooks the Government's logical, and indeed legally correct, assertion that "it is reasonable to suppose that some criminals store evidence of their crimes in their homes, even though no criminal activity or contraband is observed there." Here, the warrant application demonstrated "continuing and related illegal firearm activity," from which the issuing judge could infer that evidence pertaining to the handguns would be found in Williams's residence.

A magistrate may infer a nexus between a suspect and his residence, depending upon "the type of crime being investigated, the nature of things to be seized, the extent of an opportunity to conceal the evidence elsewhere and the normal inferences that may be drawn as to likely hiding places." United States v. Savoca, 761 F.2d 292, 298 (6th Cir. 1985); see United States v. Hodge, 246 F.3d 301, 305-06 (3d Cir. 2001) (noting that a court "is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense," and holding that it was reasonable to infer that a suspected drug dealer would keep evidence of his crime at his residence (citation omitted)); United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985) (holding that it was a reasonable inference that a bank robber would keep stolen currency in his residence despite the passage of more than two months between the time of the robbery and the search).

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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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