Archives for: May 2010, 16
05/16/10
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?
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)
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).*
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
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Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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,
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Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
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Bailey
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Florida
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19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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