Archives for: May 2010, 16

05/16/10

Permalink 03:42:51 pm, by fourth, 182 words, 464 views   English (US)
Categories: General

CA6: Circuit law prior to Safford was settled, so no qualified immunity

The 2008 Sixth Circuit opinion was GVR’d in light of Safford Unified School Dist. #1 v. Redding. On remand, the court finds Sixth Circuit law was settled at the time of the student strip search, and there was no qualified immunity. Knisley v. Pike County Joint Vocational School, 604 F.3d 977, 2010 FED App. 0137P (6th Cir. 2010):

However, this Circuit's law on student strip searches was clearly established as early as 2005, when we published our opinion in Beard. We read Redding to affirm our constitutional holding in Beard. Thus, because Beard remains good constitutional law and because that law was clearly established at the time of the strip search in this case, Redding does not require a result contrary to that reached in Knisley I. Cf. Foster v. Raspberry, 652 F. Supp. 2d 1342, 1352 (M.D. Ga. 2009). Our Circuit's clearly established case law on this issue put the school and its employees on notice that this search was unconstitutional, so defendants are not entitled to qualified immunity protection.

So, a SCOTUS case in point is not required--what is the case law in the circuit on the issue?

Permalink 10:16:16 am, by fourth, 131 words, 511 views   English (US)
Categories: General

Fourth Amendment news--More on iPhone4 search

CNET News: Apple spurred police in iPhone probe:

REDWOOD CITY, Calif.--Apple pressed local police to investigate the loss of a next-generation iPhone a day after Gizmodo published photographs, telling investigators that the prototype was so valuable, a price could not be placed on it, according to court documents made public Friday.

In response to arguments made by CNET and other media organizations, a San Mateo judge unsealed documents (PDF) that provide a glimpse into an April 20 meeting between law enforcement and Apple lawyers and executives. They also highlight a madcap dash for evidence that evening that led a police detective to a gas station, a church, and a bush in Redwood City where a thumb drive and a 1GB Lexar Media compact flash card were allegedly hidden. (link in original)

Permalink 10:13:17 am, by fourth, 220 words, 445 views   English (US)
Categories: General

D.Neb.: Defendant must do something to show withdrawal of consent

Defendant did not sufficiently strive to withdraw the consent to search his vehicle. United States v. Gutierrez, 2008 U.S. Dist. LEXIS 113454 (D. Neb. May 6, 2008)*:

There is no evidence the defendant attempted to attract the attention of Deputy Maddux. Although, the defendant said, “no” and “sir,” the defendant did not raise his voice, attempt to exit the vehicle, roll down a window, honk the horn, or make any other gesture to gain attention. The defendant was under some obligation to make his intent to withdraw consent known to Deputy Maddux. See id. Failure of the defendant to do so does not render Deputy Maddux's conduct unconstitutional.

When the defendant tried to get out of the police car, the officer grabbed for his arm, so defendant knew that he was not free to leave. At the time, the officer did not have articulable reasonable suspicion. United States v. Moss, 2008 U.S. Dist. LEXIS 113459 (D. Neb. June 10, 2008).*

Defendant was stopped for window overtint, and he gave a false name to the police officer. The stop thus continued with probable cause. United States v. Barrera-Gonzalez, 2008 U.S. Dist. LEXIS 113453 (D. Neb. May 21, 2008).*

The affidavit for search warrant showed probable cause based on the totality of the facts and the officer’s experience. United States v. Capps, 2008 U.S. Dist. LEXIS 113476 (S.D. Ga. May 14, 2008).*

Permalink 09:09:42 am, by fourth, 122 words, 358 views   English (US)
Categories: General

D.Neb.: By the time consent was withdrawn, PC existed

By the time claimant withdrew his consent, the officer had probable cause to believe evidence of likely crime was in the vehicle, and that independently supported the search. United States v. $57,610.00 in United States Currency, 2010 U.S. Dist. LEXIS 47116 (D. Neb. May 13, 2010).*

Defendant’s claim that he was arrested without the officer’s identifying himself was unsupported by the record, even if it would have provided a ground for relief. State v. Dewitt, 2010 Iowa App. LEXIS 375 (May 12, 2010).*

“[T]he defendant had neither an actual, subjective expectation of privacy nor an objective expectation of privacy in the recorded conversations” from the jail. He argued for a reduced, but reasonable, expectation of privacy, but failed. State v. Hill, 333 S.W.3d 106 (Tenn. Crim. App. 2010).*

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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."
—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)


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