Archives for: January 2009, 28


Permalink 01:21:58 pm, by fourth, 846 words, 652 views   English (US)
Categories: General

CA9: Manager of corporation had no standing to challenge search of corporate records; affdavit by reference does not need to be attached if it is present

Managerial authority is not enough in a corporation (except for a small one) to have standing to challenge a search of the corporate records. If the affidavit is present at the time of the search, it does not need to be attached to the search warrant for reference to it to be valid. United States v. SDI Future Health, Inc., 553 F.3d 1246 (9th Cir. 2009):

It thus appears that an employee of a corporation, whether worker or manager, does not, simply by virtue of his status as such, acquire Fourth Amendment standing with respect to company premises. Similarly, and notwithstanding the reference to "an independent ... proprietary interest" in Cella, to be merely a shareholder of a corporation, without more, is also not enough. As always, a reasonable expectation of privacy does not arise ex officio, but must be established with respect to the person in question.

. . .

The district court relied on three facts in concluding that Kaplan and Brunk had Fourth Amendment standing: their ownership of SDI, their management of SDI from offices in the building searched, and the security measures SDI took to secure its business records. Our review of relevant precedent indicates that these facts are too broad and generalized to support the district court's conclusion. The security measures that SDI took to ensure the privacy of its business records are relevant only to the standing of the corporation itself, not of its officers. As for Kaplan and Brunk, their ownership and management do not necessarily show a legitimate expectation of privacy. See Hill, 374 F.2d at 873; Cella, 568 F.2d at 1283. Because neither claims to enjoy "exclusive use" of the places searched--that is, the entire SDI office--they each must show a personal connection, along the lines we have drawn out of Anderson, to justify an expectation of privacy.

As to the reference to the affidavit issue:

With respect to the second prong, there appears to be no question that Special Agent Raftery and the search team had copies of the affidavit in their possession when they executed the warrant. Although it is unclear whether each member of the team had his own copy as he conducted the search, the magistrate accepted Special Agent Raftery's representation that "the affidavit was available during the search for reference by any member of the Government's search team." By making the affidavit available, the search team ensured that it "accompanied the warrant" to satisfy the requirements of incorporation. Nothing more is necessary for the affidavit to ensure "that the discretion of the officers executing the warrant is limited." Towne, 997 F.2d at 548 (internal quotation marks omitted).fn10

10 We have long since dispelled any lingering confusion in our case law that the affidavit must be physically affixed to the search warrant. Towne, 997 F.2d at 544-48. We have also clarified that "[t]he documents that are in fact relied upon to serve [the functions of a search warrant] simply are the 'search warrant' for purposes of constitutional analysis." Id. at 548 (addressing the accompaniment requirement). It is true that the magistrate judge questioned how much the search team actually relied on the affidavit to limit its search. As we discuss below, this was in the context of the good faith exception, where the procedural posture in the district court was different. In addition, we have never required actual reliance on an affidavit to meet the second prong for incorporation into a warrant.

SDI argues that the failure of the search team to give a copy of the affidavit to the defendants--which the government concedes--means that the affidavit did not "accompany" the warrant for purposes of this inquiry. Certainly some of our precedents have held that the "purpose of the accompanying affidavit ... is both to limit the officer's discretion and to inform the person subject to the search what items the officers executing the warrant can seize." United States v. McGrew, 122 F.3d 847, 850 (9th Cir. 1997) (internal citation and quotation marks omitted and emphasis removed); see also Towne, 997 F.2d at 548. Eliminating any doubt on this score, we held, in United States v. Grubbs, that "our prior cases unambiguously require officers to present any curative document ... to the persons whose property is to be subjected to the search." 377 F.3d 1072, 1078-79 (9th Cir. 2004), rev'd by United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006).

However, the Supreme Court overruled our decision. Grubbs, 547 U.S. at 98-99. The Court explained that "[t]he Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the deliberate, impartial judgment of a judicial officer between the citizen and the police, and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages." Id. at 99 (internal quotation and punctuation marks and citation omitted). Because the Supreme Court has rejected our previous position, SDI's argument that the Fourth Amendment required the search team to provide all defendants a copy of the affidavit fails. We therefore conclude that the warrant did incorporate the affidavit.

Permalink 12:57:16 pm, by fourth, 115 words, 312 views   English (US)
Categories: General

OR: Telling defendant he was free not to consent during illegal stop made consent valid

Search warrant for evidence of forgery permitted a search of defendant's closet which revealed drugs. State v. Hawkins, 225 Ore. App. 355, 201 P.3d 239 (2009).*

Consent to search for weapons did not include consent to open a tinfoil packet in his pocket because it could not possibly contain a weapon. State v. Quale, 225 Ore. App. 470, 202 P.3d 187 (2009).*

While defendant's stop was illegal, the fact that defendant was told that he did not have to consent to a search and the officer told him he was not telling him that he could not put his hands in his pocket in the cold mitigated it all, and it made the ensuing consent valid. State v. Hinds, 2009 Ore. App. LEXIS 56 (January 28, 2009).*

Permalink 09:45:27 am, by fourth, 283 words, 365 views   English (US)
Categories: General

E.D. Cal.: Defendant's statements in a bankruptcy proceeding showed no REP in premises

Defendant's statements in a bankruptcy proceeding where he disavowed any interest in a Las Vegas house showed he had no reasonable expectation of privacy in the house. His post hoc rationalizations were not believed. Going to the merits of reasonable expectation of privacy, he loses there, too. United States v. Burke, 2009 U.S. Dist. LEXIS 4762 (E.D. Va. January 23, 2009):

Prior to the search, at the time of the search, and months after the search, defendant expressly denied living at the residence and having any ownership interest in the residence or in the boxes stored in the garage and the house. His explicit statements and conduct relinquished any expectation of privacy in the place searched and the property seized. His contradictory and self-serving testimony made years after the search during the course of the criminal prosecution is not credible. As such, the court could deny defendant's motion to suppress on this basis alone. See Decoud, 456 F.3d at 1007; United States v. Sangineto-Miranda, 859 F.2d 1501, 1510 (6th Cir. 1990) (denying defendant's motion to suppress because his conduct demonstrates that he did not have a subjective expectation of privacy in the place searched).

Vehicle validly seized by the police was still subject to the automobile exception where there was probable cause. A security sweep of the premises that was strictly limited was valid, too. United States v. Weeks, 2009 U.S. Dist. LEXIS 5841 (D.Del. January 26, 2009).*

Officers had probable cause for something after the PC for drugs evaporated. They had probable cause to believe he was driving on a suspended driver's license, and they learned of the federal investigation. They could continue on the suspended license. Their subjective intent was irrelevant. United States v. Turner, 553 F.3d 1337 (10th Cir. 2009).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2009 to date:

2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  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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