Archives for: August 2010, 09

08/09/10

Permalink 09:48:31 am, by fourth, 531 words, 1043 views   English (US)
Categories: General

CA6: Police destruction of plaintiff's garage was a "meaningful interference," and a trial question remains on reasonablenss

Plaintiffs' claim against defendants for executing a search warrant unreasonably survived summary judgment on qualified immunity. Officers got a search warrant for plaintiff’s property to search for a person missing since 1997. They drilled holes in plaintiff’s concrete garage floor, and a cadaver dog allegedly alerted. They emptied the garage and started digging. They piled dirt on plaintiff’s belongings considering it “junk.” Their digging down 15' undermined the structure, and they supported it on their own. They found nothing and left, and they felt unobliged to do anything to restore the condition of the property. Ground water from rain created a pond in plaintiff’s garage. This was a “meaningful interference” with plaintiffs' property and fact questions remain on whether it was reasonable [and it certainly seems from the opinion that it was not], and this right was clearly established at the time. Spangler v. Wenninger, 388 Fed. Appx. 507 (6th Cir. 2010) (unpublished):

. . . The destruction of property is a “meaningful interference” with personal property and constitutes a seizure within the meaning of the Fourth Amendment. Jacobsen, 466 U.S. at 124-25. The manner in which the seizure is conducted is reviewed for “reasonableness, and in a § 1983 action the District Court must determine not whether the destruction was ‘reasonably necessary to effectively execute the search warrant’ but whether the plaintiff has raised factual issues to be submitted to a jury on this point.” Hill v. McIntyre, 884 F.2d 271, 278 (6th Cir. 1989) (quoting Tarpley v. Greene, 684 F.2d 1, 9 (D.C. Cir. 1982)).

Photographs of the property following the search show that the property was left in complete disarray with piles of dirt placed all over Plaintiffs’ vehicles and property. While Defendants claim that they had no choice but to pile dirt on Plaintiffs’ personal property, there was evidence that there were other areas of the property where the dirt or personal property could have been placed. Defendants could have sought to expand the search warrant to allow for the placement of the extracted dirt in these other areas, but they did not. They have failed to identify any exigent circumstances that explain their failure to do so although Plaintiffs’ two-acre property could have easily accommodated this. Wenninger was at the site on several occasions, operating a Bobcat and piling dirt on Plaintiffs’ property. The officers were aware that doing this would damage Plaintiffs’ property. Additionally, Defendants failed to fill the hole that they dug during the search, leaving a hole that was up to fifteen feet deep in the garage that became filled with water. Defendants fail to explain why they did not fill the hole, and merely argue that they believed that they were not required to do so. However, Wenninger testified that the officers were aware that the hole could become filled with water upon conclusion of the search. The totality of the circumstances did not warrant the knowing destruction of Plaintiffs’ personal property by unnecessarily piling dirt on it, and failing to fill the large hole that remained in the garage. Viewing the evidence in the light most favorable to the nonmoving parties in this case, Plaintiffs, we find that genuine issues of material fact remain concerning the reasonableness of Defendants’ conduct here.

Permalink 07:35:02 am, by fourth, 300 words, 426 views   English (US)
Categories: General

TX6: State failed to show community caretaking function stop was valid

The state could not show that the defendant’s stop under the community caretaking doctrine was valid. The trial court’s finding is reversed. Travis v. State, 322 S.W.3d 747 (Tex. App.––Texarkana 2010):

Since “the purpose of the community caretaking exception is to allow an officer to “seize” and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight.” Id. In this case, this factor undeniably weighs against admission since Poole testified Travis did not appear to be in distress. See id. at 277-78. Although there is record evidence that Travis was driving on a county road suggesting isolation, he may have been close to an intersection. It is the State's burden to demonstrate the reasonableness of the stop. State v. Dixon, 151 S.W.3d 271, 273 (Tex. App.--Texarkana 2004), aff'd, 206 S.W.3d 587 (Tex. Crim. App. 2006). We find this factor to be neutral. See Corbin, 85 S.W.3d at 278. Poole testified Travis was alone, indicating that he did not have access to assistance. However, because Travis was not distressed, there is not much weight to this factor. In regard to the fourth factor, Poole testified he had no reason to believe Travis was a danger to himself or others. Nevertheless, Poole stopped Travis “to check his current state, his welfare, to make sure he is okay.” While the trial court was free to consider Poole's subjective concern, we find Poole's belief that Travis required aid objectively unreasonable. Therefore, the narrow community caretaker exception did not justify Poole's stop. Thus, Travis' Fourth Amendment rights were violated.

The government showed that the search of defendant’s room was with consent, so his fruit of the poisonous tree argument fails with it. United States v. Quintero, 2010 U.S. Dist. LEXIS 79350 (D. Ariz. July 12, 2010).*

Permalink 07:25:25 am, by fourth, 401 words, 619 views   English (US)
Categories: General

CA11: Pillow case with dye pack stains showed its "outward appearance" so no reasonable expectation of privacy

Defendant had an expectation of privacy in the pillow case he carried from a bank robbery, but it was not an expectation that society was prepared to recognize as reasonable considering it was stained from the dye pack such that its "outward appearance" belied its contents. United States v. Epps, 613 F.3d 1093 (11th Cir. 2010):

In this case, considering the totality of the circumstances, the fact that the pillowcase contained dye packs and possibly other items associated with the bank robbery could “be inferred from [its] outward appearance.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13; see also United States v. Williams, 41 F.3d 192, 197 (4th Cir. 1994) (“[T]he circumstances under which an officer finds the container may add to the apparent nature of its contents.”). Deputy Kent saw Mr. Epps with a white bag in his hand, running away from a blue Cavalier parked at an angle with its driver's door open. The deputy knew that a blue Cavalier had been carjacked, and he believed that the carjacking was related to a bank robbery that had taken place in the same area just minutes before. After being directed to stop, the fleeing individual pointed a gun at the deputy. Upon closer inspection, the white bag was found to be a pillowcase with pink stains on it. Tellers frequently give bank robbers dye packs, which are designed to explode after the robbery and permanently mark the bills with ink. See United States v. King, 842 F.2d 311, 312 (11th Cir. 1988) (“Although [Officer] Morton was not aware of the ... robbery, he knew that bank tellers frequently insert red dye bombs in packages during bank robberies.”); United States v. Gidley, 527 F.2d 1345, 1348 & n.1 (5th Cir. 1976) (discussing detective's awareness that “dye stained money often is a result of the explosion of a dye bomb planted during a bank robbery,” and finding it “unlikely” that “the other officers were unaware of the significance of stained money”).

Because the pillowcase's contents could be inferred from its outwardly visible stains and the circumstances under which the police obtained it, the pillowcase was one of those containers that “by [its] very nature cannot support any reasonable expectation of privacy.” Sanders, 442 U.S. at 764 n.13, 99 S. Ct. at 2593 n.13. The pillowcase therefore fell outside the protective ambit of the Fourth Amendment, and the police did not violate Mr. Epps's constitutional rights when they opened the pillowcase without first obtaining a warrant.

Permalink 12:33:07 am, by fourth, 257 words, 552 views   English (US)
Categories: General

CA3: CI claiming to have seen CP on defendant's computer was not so unbelievable police could not act on it

A CI used defendant’s computer to illegally download music from it, and he saw child pornography. He was not so incredible that the officers could not act on what he said. A search warrant properly issued on this independent information. United States v. Barefoot, 2010 U.S. App. LEXIS 16388 (3d Cir. August 5, 2010) (unpublished)*:

When detectives interviewed Beley and searched Barefoot's apartment prior to the warrantless search, they were following up on Lukotich's tip, which they would not have done had they believed Lukotich's tip lacked credibility. Additionally, by telling police that he had violated Barefoot's privacy to download music, Lukotich incriminated himself, which bolsters his credibility. Detectives had enough information from Lukotich's tip and their interview with Beley linking Barefoot to the apartment to have been prompted to apply for a warrant. The court may presume law enforcement officers will act reasonably, absent evidence to the contrary. See United States v. Sicilano, 578 F.3d 61, 69 (1st Cir. 2009). Therefore, the District Court did not err in holding that there was an independent source for the evidence.

Plaintiff’s Bivens claim against IRS agents who searched his house for a tax violation seizing $19,000 which is what his wife said. At a bank, the counting machine only recorded $17,000, and that is what they obtained a cashier’s check for. He sued for theft of $2,000. The court held that the law was not clearly established that the alleged theft of $2,000 after a lawful seizure with a warrant violated the Fourth Amendment. Springer v. Albin, 2010 U.S. App. LEXIS 16324 (10th Cir. August 5, 2010) (unpublished).*

Permalink 12:16:14 am, by fourth, 290 words, 343 views   English (US)
Categories: General

CA6: Defendant was unlawfully seized essentially "hop[ing] that something might turn up" and it did and was suppressed

Singling defendant out in a group of four or five, two officers approached him and accused him of a crime. This was a seizure because a reasonable person would not feel free to disengage from it. Applying the Brown attenuation factors, defendant’s statement is suppressed. United States v. Williams, 615 F.3d 657, 2010 FED App. 0234P (6th Cir. 2010):

Finally, although Vass's misconduct was not flagrant, his purpose weighs against attenuation. The Supreme Court has explained that the purposefulness factor is met when the unlawful action is investigatory, that is, when officers unlawfully seize a defendant "in the hope that something might turn up." Brown, 422 U.S. at 605; Shaw, 464 F.3d at 630-31. The purpose of stopping Williams was to seek evidence against him, and toward that end Vass immediately asked several questions related to criminal activity other than trespassing. ... Indeed, the warrant and firearm evidence came out only because Vass asked about it. ...

P17 The totality of the circumstances, analyzed through the Brown factors, makes clear that there was no attenuation of the connection between Vass's unconstitutional seizure of Williams and the incriminating evidence. Rather, this case calls for a straightforward application of the exclusionary rule and the related fruit-of-the-poisonous-tree doctrine. Because the incriminating evidence was "come at by exploitation of th[e] illegality" of the seizure, not "by means sufficiently distinguishable to be purged of the primary taint," Wong Sun, 371 U.S. at 488, the district court correctly suppressed it.

Defendant was illegally arrested in his own home, and the situation was found coercive of his consent, also involving his “young son.” Suppression granted. United States v. Stokely, 733 F. Supp. 2d 868 (E.D. Tenn. June 17, 2010) (R&R), 2010 U.S. Dist. LEXIS 79303 (E.D. Tenn. August 5, 2010), Nunc Pro Tunc to July 16, 2010.

Permalink 12:05:42 am, by fourth, 252 words, 319 views   English (US)
Categories: General

CA3: Gov't waived a justification for the search and exclusionary rule by not arguing it below

The government waived the argument presented on appeal by not first presenting the issue to the District Court. Also, citing a case for one proposition does not include any other argument that might flow from it. United States v. Dupree, 617 F.3d 724 (3d Cir. 2010):

As the Government recognized at oral argument, simply citing a case in the District Court is not sufficient to raise all arguments that might flow from it. See Nee, 261 F.3d at 86. To preserve the argument that it now makes on appeal, the Government had to do more than broadly reference Hodari D. Instead, it had to give the District Court the opportunity to consider the argument it now makes, i.e., whether the policies underlying the exclusionary rule demonstrate that it should apply where, as here, an illegally seized defendant breaks free and discards evidence while fleeing. Because it did not do so, the Government failed to preserve its argument for appeal.

. . .

In this appeal, the Government proffers two alternative bases for reversing the District Court's suppression of Dupree's firearm. The Government's principal argument reflects a thoughtful consideration of the Supreme Court's more recent exclusionary rule jurisprudence. We undoubtedly will have occasion to consider that argument in the future, but not in a case, such as this one, where it was never presented to the District Court. For the reasons stated herein and in Judge Fisher's concurring opinion, we will affirm the District Court's orders granting Dupree's motion to suppress and denying the Government's motion for reconsideration.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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www.johnwesleyhall.com

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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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