Archives for: August 2010, 21


Permalink 10:06:34 am, by fourth, 310 words, 619 views   English (US)
Categories: General

E.D. Mich.: The pleading requirements for a Fourth Amendment violation in a Bivens or § 1983 claim

The pleading requirements for a Fourth Amendment violation in a Bivens or § 1983 claim: Yopp v. United States DOJ DEA, 2010 U.S. Dist. LEXIS 85354 (E.D. Mich. August 19, 2010):

Plaintiffs claim that the search warrant executed at the Yopp residence was not based on probable cause, and that the search warrant affidavit, which supported issuance of the warrant and remains under seal, contained knowingly false statements. (Compl. ¶¶ 6, 9, 10.) Putting aside for a moment the unrebutted testimony of Agent Jeneary that all statements contained in the warrant affidavit were truthful, the Complaint fails on its face to satisfy the pleading standards established in Iqbal and Twombly that are necessary to state a Fourth Amendment claim. The Complaint gives no indication of the substance of the alleged false statements and Plaintiffs’ response to Defendants’ motion does nothing to enhance the factual content on the issue of the claimed lack of probable cause. In their response, Plaintiffs merely quote the legal principles governing claims of qualified immunity and “contend that they allege [in their Complaint] sufficient facts to give notice of the allegations and potential claims.” (Pls.’s Resp. 3.) Plaintiffs’ response does not even mention probable cause or the allegedly false statements. Plaintiffs’ Complaint merely states the legal conclusion that Defendants “lacked probable cause” and gave “false statements” in support of the warrant affidavit. Such “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, supra 129 S.Ct. at 1949. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1948. Plaintiffs’ allegations do not “nudge” their claims across the line from possibility to plausibility. Plaintiffs’ Complaint fails to state a claim based upon insufficiency of the warrant or lack of probable cause to issue the warrant.

Permalink 10:01:16 am, by fourth, 233 words, 352 views   English (US)
Categories: General

M.D.Fla.: Approaching by the driveway does not violate curtilage

Officers approaching defendant’s house from the street up the driveway that led to a smell of fresh marijuana did not violate curtilage. “Even assuming the area of the driveway where the Agents detected the smell of cannabis was within the curtilage of the Banana Residence, the Agents still did not violate the Defendants’ Fourth Amendment rights. It is well established that ‘the Fourth Amendment is not “implicated by entry upon private land to knock on a citizen’s door for legitimate police purposes unconnected with the search of the premises.”’” United States v. Neth, 2010 U.S. Dist. LEXIS 83985 (M.D. Fla. March 30, 2010).*

A U.S. Forest Service Law Enforcement Officer was patrolling the El Dorado National Forest and nearly had an accident with the defendant. When they stopped on the snow covered road, she noticed that he looked like he was stoned. After getting his ID (no license) she came back and asked about marijuana, which he admitted he had. The stop and question was valid. United States v. Mitchell, 2010 U.S. Dist. LEXIS 84662 (E.D. Cal. July 16, 2010).*

Defendant filed a 2255 against defense counsel for, inter alia, not filing a motion to suppress. He did not show that he would not have pled guilty but for counsel’s not filing a motion to suppress which would have been denied anyway. Payton v. United States, 2010 U.S. Dist. LEXIS 83920 (E.D. Tex. June 30, 2010).*

Permalink 12:45:07 am, by fourth, 473 words, 782 views   English (US)
Categories: General

Cal.4th: By letting a probationer ride in the car, the owner did not become subject to a probation search

By permitting a parolee/probationer to ride in his car, the defendant did not reduce his expectation of privacy such that his car could be searched under the parole-probation search exception. To reduce a citizen's expectation of privacy for associating with parolee or probationers would ultimately be harmful to society. People v. Schmitz, 187 Cal. App. 4th 722 (4th Dist. 2010):

In this case, there was no evidence that Schmitz, merely by allowing a parolee to ride as a passenger in his car, ceded to that parolee any authority over the car at all, let alone the authority to permit inspections of the vehicle's interior “in his own right.” Indeed, there was no evidence Schmitz knew his passenger was a parolee. Had Schmitz left the vehicle in the parolee's possession, or allowed him to drive it, that would be different. (See People v. Ledesma (2006) 39 Cal.4th 641, 703 [47 Cal. Rptr. 3d 326, 140 P.3d 657] [“Cases from a number of jurisdictions have recognized that a guest who has the run of the house in the occupant's absence has the apparent authority to give consent to enter an area where a visitor normally would be received.” (Italics added.)]; United States v. Morales (1988) 861 F.2d 396, 399 [“Under the Matlock test, a driver of a vehicle has the authority to consent to a search of that vehicle. As the driver, he is the person having immediate possession of and control over the vehicle.”].) But Schmitz did neither. Instead, he simply allowed the parolee to visit the car temporarily as a passenger. Under those circumstances, the passenger/parolee himself would have had gained no expectation of privacy in the vehicle—and thus had no basis himself to either consent or object to its search (Rakas v. Illinois (1978) 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 [holding that mere passengers, who claimed neither a possessory nor any property interest in the vehicle searched, or in the items seized from it, could not object to the search or seizure])—while Schmitz gave up none of his own expectation of privacy, nor of his authority to prevent the officer's search of the vehicle.

Schmitz clearly had a reasonable expectation of privacy in his glove box, his console, his door pockets, his own seat, the back seat—indeed every part of his car except the front passenger seat where the parolee was sitting. The parolee, by contrast, had no expectation of privacy anywhere in the car and no standing to contest his own search. Nothing Schmitz did could reasonably have been viewed as ceding authority over his back seat to the parolee. The parolee had no right to open packages, eat food, or even read magazines he found in the back seat. He could only obtain authority over the chip bag at issue here by claiming ownership, which—given his lack of search and seizure rights—would have been bootless.

Permalink 12:26:01 am, by fourth, 281 words, 389 views   English (US)
Categories: General

E.D.Cal.: By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search

By entering a National Wildlife Refuge, a hunter does not impliedly consent to a search. United States v. Azevedo, 2010 U.S. Dist. LEXIS 84591 (E.D. Cal. July 21, 2010):

Resolution of this motion therefore turns on whether by his entry onto the National Wildlife Refuge to hunt, Azevedo thereby gave his implied consent to a search for purposes of enforcing all applicable laws and regulations. The government argues that hunting in general is a heavily regulated activity and that all hunters are aware of compliance checks. The government also argues that various provisions of Title 50 C.F.R., state law, brochures, training booklets, and the "Harvest Record" permit issued to those hunting at the Colusa National Wildlife Refuge advise hunters of what they may and may not do (including that they may not possess controlled substances) and that they may be subject to ejection if they violate those provisions. Thus, the government concludes, just like an airline passenger who elects to fly thereby subjects himself to search upon entering the security checkpoint outside the gate area, defendant AZEVEDO had two options: enter the refuge and subject himself to possible search or not hunt. The government's argument misses the mark and is unpersuasive.

Where it is clear that the stop was justified, the standing question is moot. United States v. Houston, 2010 U.S. Dist. LEXIS 84438 (W.D. Tex. August 16, 2010).*

There was probable cause for issuance of four search warrants where the probable cause for the arrest was included in the affidavit for the warrants. The CI was corroborated and had a history with the officers. United States v. Ortega, 2010 U.S. Dist. LEXIS 84715 (D. Minn. May 25, 2010), adopted 2010 U.S. Dist. LEXIS 84706 (D. Minn. August 16, 2010).*

Permalink 12:18:24 am, by fourth, 340 words, 581 views   English (US)
Categories: General

CA10: Pulling a gun when perceiving a threat is reasonable

Officer's pointing a gun at an arrestee was not unreasonable. Handcuffing another who was cooperative with the police was unreasonable. Lundstrom v. Romero, 616 F.3d 1108 (10th Cir. 2010)*:

As an initial matter, the use of a gun does not in and of itself make an encounter an unlawful seizure. See United States v. Copening, 506 F.3d 1241, 1248 (10th Cir. 2007). "[T]he use of guns in connection with a stop is permissible where the police reasonably believe the weapons are necessary for their protection." United States v. Neff, 300 F.3d 1217, 1220 (10th Cir. 2002) (internal quotation marks omitted). "[T]he pointing of firearms should[, however,] be predicated on at least a perceived risk of injury or danger to the officers or others, based upon what the officers know at that time." Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (ellipsis and internal quotation marks omitted). In determining whether the use of weapons was reasonable, we look to the totality of the circumstances as viewed from the perspective of a reasonable officer on the scene. See Holland, 268 F.3d at 1188.

. . .

On these facts, when Officer Romero briefly pointed her gun at Lundstrom, she effectuated a reasonable seizure since she had a reasonable concern about her safety. See United States v. Perdue, 8 F.3d 1455, 1462-63 & n. 5 (10th Cir. 1993) (holding that effectuating an investigative detention by pointing guns at an individual was reasonable where the officers had reason to fear for their safety and noting officers need not be absolutely certain the individual is armed because the issue is whether reasonably prudent persons in the circumstances would be warranted in the belief that their safety is at risk). The encounter was limited in time and scope; Romero lowered her gun as soon as she saw Lundstrom's hands.

A swearing match between a citizen and an officer over the use of excessive force by using a take down move and slamming him to the floor seriously injuring him was enough to deny summary judgment. The law was well settled at the time. Shannon v. Koehler, 616 F.3d 855 (8th Cir. 2010).*

Permalink 12:08:54 am, by fourth, 277 words, 331 views   English (US)
Categories: General

CA3: Officers executing SW in high crime area could exclude occupants solely for safety of the officers

The Allentown SWAT team executed a search warrant in a homicide case at a bar in a high crime area known for weapons possession and drug dealing. The defendant was a security guard at the bar who was kept outside away from the bar, and he admitted having a gun, but he was a felon. This was valid, solely on safety of the officers. (The warrant was to collect videotapes, no less.) United States v. Allen, 618 F.3d 404 (3d Cir. 2010):

The only law enforcement interest relevant to our case, and indeed the only part of the Summers Court's reasoning that is applicable to the facts here, is minimizing the risk of harm to the officers. Indeed, the District Court relied solely on this interest in denying Allen's motion to suppress. We conclude that it was correct to do so because, per Rettele, in certain situations safety concerns alone may authorize a brief detention of the occupants of an establishment during execution of a search warrant, and the distinction between a search for contraband and a search for evidence is largely immaterial.

There is no evidence that ICE violated the immigrant’s rights in a warrantless arrest. “In any event, warrantless arrests of suspected illegal aliens are permissible in some situations, see 8 C.F.R. § 287.3 (2010), and there is no evidence that the government violated procedures associated with such an arrest in a way prejudicial to the petitioner in this case. See Martinez-Camargo, 282 F.3d at 492 (‘[T]he Supreme Court has held that where an administrative regulatory violation does not adversely affect a petitioner's substantive rights an exclusionary remedy is not available.’).” Gutierrez-Berdin v. Holder, 618 F.3d 647 (7th Cir. 2010).*

Permalink 12:01:40 am, by fourth, 175 words, 533 views   English (US)
Categories: General

AL: 17-year-old could give third party consent to search parents home

In a case of first impression, a 17-year-old in control of the house while her parents were away had sufficient control over the premises to consent to a search of the premises, surveying many cases. Allen v. State, 44 So. 3d 525 (Ala. Crim. App. 2009), Released, Released for Publication August 2, 2010, Rehearing denied, 2009 Ala. Crim. App. LEXIS 206 (Ala. Crim. App., June 5, 2009). Lexis overview:

[A] minor child could provide valid third-party consent to a police request to search the house of the minor child's parents when no parent was present when the Atkins test was met. The court found that the test was satisfied: 1) the 17-year old daughter lived there; 2) she had the right of access to the house and the right to invite others there--although the computer in her parents' bedroom was password-protected, they entered the password so that she could access the Internet while they were away; 3) it was reasonable for the officers to conclude that she had sufficient control over the house to consent; and 4) she exercised sufficient discretion to freely consent to the warrantless search.

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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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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."

"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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