Archives for: May 2009, 17

05/17/09

Permalink 10:14:34 am, by fourth, 503 words, 744 views   English (US)
Categories: General

ID: Hot pursuit justified entry into home of a DUI suspect who refused to stop on command

Entry into defendant's home in "hot pursuit" was valid where officer attempted to stop DUI suspect right after a domestic disturbance call. She got out of her car and walked to her house, ignoring the officer's order to stop. She got in the door with the officer right behind her. State v. Finnicum, 206 P.3d 501 (Ida. App. April 2, 2009):

Given these circumstances, Deputies McFarland and Vrevich acted lawfully when they followed Finnicum into the house because they were completing a justified arrest that had been set in motion in a public place. This conclusion is dictated by the United States Supreme Court's decision in Santana. There, police possessing probable cause to arrest Santana for a drug offense went to her house, where she was standing in the doorway. As the officers approached, they shouted, "Police" and displayed their identification, whereupon Santana retreated into the vestibule of her home. The officers followed her through the open door and caught her in the vestibule. Addressing the question of "whether her act of retreating into her house could thwart an otherwise proper arrest," the Supreme Court held that it could not. The Court concluded that "a suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place." Santana, 427 U.S. at 43.

Here, Deputy McFarland had progressed further toward effectuating an arrest--by ordering Finnicum to stay by her vehicle--than had the officers in Santana who had merely yelled "Police" and showed their identification. Finnicum's arrest was set in motion in a public place, and she may not gain refuge through her subsequent refusal to obey a lawful police order. Therefore, the deputies' entry of Finnicum's home to complete the arrest did not violate the Fourth Amendment.

Officer's hunch was insufficient basis for a patdown. His observation of defendant loitering in front of a store known to be the site of drug distribution and drug-related arrests was not, by itself, sufficient to warrant a pat down. While defendant appeared nervous, the record did not show that defendant concealed or attempted to conceal his hands from the officer. There were no other relevant facts to suggest that defendant was involved in the distribution of drugs, such as hand-to-hand transaction, contact with others, or maintenance of a stash. Thompson v. Commonwealth, 54 Va. App. 1, 675 S.E.2d 832 (2009).*

Exigent circumstances did not justify the entry into defendant's premises because officers waited an hour before deciding to enter, thereby showing that there was no exigency. There was also no probable cause shown in the affidavit for the search warrant. The motion to suppress was properly granted. State v. Mills, 2009 Tenn. Crim. App. LEXIS 337 (May 11, 2009).*

Search incident of defendant's person was valid in Kansas on arrest for driving without insurance. Officer has discretion to cite or arrest. State v. Cox, 41 Kan. App. 2d 833, 206 P.3d 54 (2009).* (Note that this case was decided the day before Gant, but SI of a person being arrested is different from SI of his car.)

Permalink 09:39:48 am, by fourth, 187 words, 476 views   English (US)
Categories: General

MA: Frisk can continue past finding a weapon

Search incident was proper, and a box cutter was found. The officer was not required to stop the search incident just on finding the box cutter and other hard objects. Commonwealth v. Dessources, 74 Mass. App. Ct. 232 (May 8, 2009).*

Officer's conclusion that defendant was the man wanted in a robbery call was unreasonable. The man wanted was described as white and the defendant was a light skinned Hispanic. There were no facts otherwise that linked the defendant to a possible robbery or that he was armed. The stop and frisk was not justified, and the trial court's suppression order was properly granted. Commonwealth v. Martinez, 74 Mass. App. Ct. 240 (May 11, 2009).*

Telling the defendant to get out of his van was a seizure because he could not have believed he could refuse. It was reasonable, however, because the officer believed the defendant was under the influence. Defendant consented to search of van. State v. Murray, 2009 Ohio 2130, 2009 Ohio App. LEXIS 1828 (8th Dist. May 7, 2009).*

Inventory search of defendant's vehicle was proper, and his urging application of a statute that might require a 24 hour wait was rejected. Commonwealth v. Burton, 2009 PA Super 87, 973 A.2d 428 (2009).*

Permalink 08:58:45 am, by fourth, 358 words, 563 views   English (US)
Categories: General

OH8: Eviction notice does not make an apartment dweller a trespasser; entry without SW invalid

Defendant apartment dweller who had been served with an eviction notice was still in lawful possession when the police entered without a warrant. Therefore, the entry was invalid because he was not a trespasser at that time. State v. Dennis, 2009 Ohio 2173, 182 Ohio App. 3d 674, 914 N.E.2d 1071 (2d Dist. 2009):

[*P26] We therefore turn to whether Dennis retained a reasonable expectation of privacy in Apartment F when the officers entered without a warrant on August 17, 2007. Dennis claims that the evidence was insufficient to establish that he was a trespasser -- and, consequently, that he no longer had a reasonable expectation of privacy -- because he was still in "lawful possession" of the apartment since there was no evidence that the proper legal procedures for eviction had been completed under R.C. Chapter 1923.

[*P27] "[C]oncepts of state property law are relevant, but not necessarily dispositive, for deciding the question whether there was a legitimate privacy interest for [F]ourth [A]mendment purposes." United States v. Sledge (C.A.9, 1981), 650 F.2d 1075, 1082.

[*P28] "*** [I]t is unnecessary and ill-advised to import into the law surrounding the constitutional right to be free from unreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolving the body of private property law which, more than almost any other branch of law, has been shaped by distinctions whose validity is largely historical." Jones v. United States (1960), 362 U.S. 257, 266, 80 S.Ct. 725, 4 L.Ed.2d 697, overruled on other grounds by United States v. Salvucci (1980), 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619. See, also, Georgia v. Randolph (2006), 547 U.S. 103, 110, 126 S.Ct. 1515, 164 L.Ed.2d 208 (stating that "Fourth Amendment rights are not limited by the law of property.").

[*P29] At the same time, "[a]lthough property [law] concepts are not necessarily determinative of Fourth Amendment rights, they are nonetheless helpful in assessing which expectations society is prepared to recognize as legitimate. In particular, a tenant's expectation of privacy ceases to be 'objectively justifiable' when his occupancy ceases to be lawful, as determined by the terms of his lease and the provisions of his state's landlord-tenant law." (Internal citations omitted.) United States v. Ross (C.A.6, 2002), 43 Fed.Appx. 751.

Permalink 08:47:52 am, by fourth, 361 words, 525 views   English (US)
Categories: General

NJ: Second entry under same warrant was proper because police were on the trail of a subject of the SW; NJ adopts "reasonable continuation" doctrine

Under the "reasonable continuation" doctrine, a single search warrant could provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they were unable to locate an item of evidence specified in the warrant during their initial entry. In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions had to be satisfied: first, the subsequent entry had to be a continuation of the original search, rather than a new and separate search; and second, the decision to conduct a second entry to continue the search had to be reasonable under the totality of the circumstances. Both conditions were satisfied. State v. Finesmith, 406 N.J. Super. 510, 968 A.2d 715 (2009):

Our courts have not previously had occasion to consider whether a single search warrant may provide authorization for the executing officers to make more than one entry into the premises identified in the warrant if they are unable to locate an item of evidence specified in the warrant during their initial entry. However, the federal courts have adopted what is commonly referred to as the "reasonable continuation doctrine" under which police may in some circumstances temporarily suspend a search authorized by a warrant and re-enter the premises at a later time to continue the search. See, e.g., United States v. Keszthelyi, 308 F.3d 557, 568-69 (6th Cir. 2002); United States v. Squillacote, 221 F.3d 542, 557-58 (4th Cir. 2000), cert. denied, 532 U.S. 971, 121 S. Ct. 1601, 149 L. Ed. 2d 468 (2001); United States v. Gerber, 994 F.2d 1556, 1558-61 (11th Cir. 1993); United States v. Kaplan, 895 F.2d 618, 623 (9th Cir. 1990); State v. Carter, 854 F.2d 1102, 1107 (8th Cir. 1988); United States v. Bowling, 351 F.2d 236, 241 (6th Cir. 1965); United States v. Joseph, 278 F.2d 504, 505 (3rd Cir. 1960).

In order for a re-entry into premises to be considered a reasonable continuation of the search authorized by the warrant, two conditions must be satisfied: first, "the subsequent entry must ... be a continuation of the original search, rather than a new and separate search," and second, "the decision to conduct a second entry to continue the search must be reasonable under the totality of the circumstances." Keszthelyi, supra, 308 F.3d at 569.

FourthAmendment.com

Notes on Use

May 2009
Sun Mon Tue Wed Thu Fri Sat
<< < Current > >>
          1 2
3 4 5 6 7 8 9
10 11 12 13 14 15 16
17 18 19 20 21 22 23
24 25 26 27 28 29 30
31            

Search

by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  FDsys: Many district courts
  FDsys: Many federal courts
  FDsys: Other
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:
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)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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)


Misc

XML Feeds

What is RSS?

Who's Online?

  • spisyfoes Email
  • nakreinia Email
  • pyncnachind Email
  • slepleentaiff Email
  • boypepelelync Email
  • abileachali Email
  • jolosizezef Email
  • cyperewly Email
  • carpinteyrowpz Email
  • hildevavalm Email
  • michaelyfh Email
  • excexycheetry Email
  • chaphsiperype Email
  • jineunreali Email
  • iteptinenna Email
  • emunlinuifofs Email
  • repflielt Email
  • Guest Users: 145

powered by
b2evolution