Archives for: January 2010, 22


Permalink 10:46:02 am, by fourth, 97 words, 412 views   English (US)
Categories: General

Fourth Amendment news

Request for counsel during traffic stop leads to finding body in trunk

On Did Man’s Attorney Request Create Reason to Search Car? (Mom’s Body Was in Trunk), about a case in Missouri where the defendant when stopped immediately asked for a lawyer, so the cop searched the trunk.

Safety move to put cameras in locomotives results in privacy suit in CA

In NYT today: Panel Recommends Surveillance in Locomotives.

Kerr seeks cert in McCane

Orin Kerr filed a cert petition in the Gant good faith case of McCane because of a circuit split.

Permalink 08:05:26 am, by fourth, 282 words, 618 views   English (US)
Categories: General

CA7 won't follow majority in Comprehensive Drug Testing

In a child pornography case, the Seventh Circuit finds that a search warrant for evidence of video voyeurism sought in defendant's house did not limit the government from using its software package to look for all picture and video files on defendant's computer. Child pornography was found, too. If the court has to take a position at all, which the defense invited, it sides with the dissent in United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009) (en banc) (posted here) on the computer search issue. United States v. Mann, 592 F.3d 779 (7th Cir. 2010). (Also noted here.)

The government showed before the District Court, and on appeal, that the officers’ reliance on the search warrant was in good faith under Leon, and the search should not be suppressed, considering “the substantial societal costs” of suppression. While the government did not cross-appeal on the District Court’s finding of no probable cause, the Seventh Circuit virtually held that there was probable cause anyway. At any rate, reliance on the search warrant was reasonable and in good faith under Leon, so the search is not suppressed. United States v. Mitten, 592 F.3d 767 (7th Cir. 2010).*

"[A]nti-government rhetoric" language in the particularity description in a search warrant for the home and a hotel room of alleged tax protectors was vague and should be stricken from the search warrant. Many other records were legitimately seized because their evidentiary value was immediately apparent to the IRS agents executing the search warrant. Only five files, documents, binders, and books were suppressed. United States v. Dirr, 2009 U.S. Dist. LEXIS 123549 (E.D. Tenn. August 28, 2009)*, adopted United States v. Dirr, 2010 U.S. Dist. LEXIS 4309 (E.D. Tenn. January 20, 2010).*

Permalink 06:59:49 am, by fourth, 365 words, 302 views   English (US)
Categories: General

W.D.La.: Govt showed no more than a hunch for continuing stop; consent suppressed

Defendant was stopped for having trim around the license plate that covered the state of issuance. The officer asked her questions, and she “enthusiastically” agreed to let him keep asking. The suspicion, however, never ripened into something articulable, and the USMJ recommended suppression. United States v. Martin, 679 F. Supp. 2d 723 (W.D. La. 2009)*:

Perhaps of even greater importance is Linton's failure to explain a link between Martin's purportedly suspicious behavior and any specific criminal activity. Jenson, 462 F.3d at 405; Thibodeaux, supra. Linton testified that based upon all of the facts that he identified, he believed that Martin was up to no good and that "something [was] wrong." Linton later reiterated that he had determined that "something was wrong" and that he was going to search her vehicle. Linton, however, did not articulate how Martin's behavior and the remaining circumstances indicate that she was engaged in illegal drug activity or some other specific criminal activity. See Jenson, supra; see also Santiago, supra (search was unreasonable even though officer thought that the car might contain drugs, because any suspicion of drug trafficking was dispelled once the licenses cleared). Accordingly, Linton's suspicions comprised no more than a hunch, albeit a very good one. Jenson, supra; Thibodeaux, supra. Hunches, however, do not suffice.

Tossing a cigarette from a car justified its stop for littering, and a drug dog arrived within two minutes, which did not unreasonably extend the stop. United States v. Roach, 2010 U.S. Dist. LEXIS 3769 (D. S.C. January 15, 2010).*

Rolling stop justified traffic stop, and defendant was found to have consented to a search of his car. United States v. Cousin, 2009 U.S. Dist. LEXIS 123457 (E.D. Tenn. November 18, 2009)*; United States v. Coachman, 2010 U.S. Dist. LEXIS 4113 (W.D. Pa. January 20, 2010).*

In that same case, an equal protection claim is not subject to suppression. United States v. Cousin, 2009 U.S. Dist. LEXIS 123481 (E.D. Tenn. November 23, 2009):

Because the exclusionary rule is not an appropriate remedy for an Equal Protection violation by police pursuant to United States v. Nichols, 512 F.3d 789 (6th Cir. 2007), it is RECOMMENDED that defendant's motion to suppress and defendant's request for additional discovery and an evidentiary hearing on his Equal Protection claim be DENIED.

Permalink 06:13:19 am, by fourth, 360 words, 810 views   English (US)
Categories: General

E.D.Pa.: Tacky language in a motion to suppress gets a rebuke from the judge

Defense counsel's unjustified language deriding the police in a motion to suppress gets a rebuke from the judge. This was a question of fact on whether the officers should be believed in whether it was a valid consent search, and the court believes the officers. United States v. Perez, 2010 U.S. Dist. LEXIS 3462 (E.D. Pa. January 15, 2010):

Relying on unjustified innuendo and the stylistic devices of aporia and rhetorical questioningN1 rather than evidence or logic, counsel for Defendant Juan Perez seeks to suppress the critical physical evidence gathered for use against Mr. Perez in this prosecution for violation of 21 U.S.C. § 841(a)(1),(b)(1)(D) Possession with Intent to Distribute Marijuana; 18 U.S.C. § 924(c)(1) Possession of a Firearm in Furtherance of a Drug Trafficking Offense; and 18 U.S.C. § 922(g)(1) Convicted Felon in Possession of a Firearm.

n. 1: In the Memorandum In Support of Motion To Suppress Physical Evidence there are at least 13 instances where gratuitous rhetorical questions are posed, apparently as a way to challenge or deride the opposing position. In other instances, the technique of aporia (i.e., expressing doubt--often feigned--by which the speaker appears uncertain as to what he should think, say or do) was employed. While the atypical pattern may provide some respite from conventional briefing, the Court finds both rhetorical devices--especially when so generously used without the benefits of any subtlety--ultimately distracting from the legal points Mr. Perez apparently hoped to make. By concentrating only on the issues raised (instead of on the overly argumentative manner by which they were addressed), the Court could understand full well Mr. Perez's positions. The language style employed did not--and could not--improve the chances of success of those positions. Furthermore, the defense position is certainly not aided by the startling, unwarranted and unveiled inflammatory suggestion that the police officers in this case comported themselves with "striking similarity" to a notorious police officer who pled guilty to charges of lying under oath. See defense Memorandum In Support at p.1.

I've said it before: This is just unprofessional to stoop to this and the argument's credibility is lost. Worse yet: It hurts the client.

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

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2013-14 Term:
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  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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