Archives for: August 2010, 24
08/24/10
Cleveland trash police
From the "too much time on their hands" category:
Cleveland will soon use high-tech trash containers with RFID chips to see if you are recycling. See High-tech carts will tell on Cleveland residents who don't recycle ... and they face $100 fine. The city will monitor your trash habits from the collection vehicle.
Ratted out by your trash container ... If you don't put the recycling bin out regularly, the trash police will seize your trash, search it for recyclables, and prosecute if you aren't recycling. Containers bought with stimulus money, no less. And, in some cities, police and teachers are being laid off, but, in Cleveland, they are hiring.
D.S.D.: While search would be invalid under Gant, gov't prevails on alternate theory of inventory
The search of defendant’s car was invalid under Gant, but the gun would have been inevitably discovered through a valid inventory which the government asserted as an alternative justification. United States v. Garreau, 735 F. Supp. 2d 1155 (D. S.D. 2010), R&R 2010 U.S. Dist. LEXIS 85597 (D. S.D. 2010).*
Officer’s approach to a parked car and tapping on the window was not a seizure. Richter v. N.D. DOT, 2010 ND 150, 786 N.W.2d 716 (2010).*
Officer’s observation of person getting into car with a beer bottle from a convenience store and opening it was reasonable suspicion for a stop. The driver’s license was suspended. State v. Sound Sleeper, 2010 SD 71, 787 N.W.2d 787 (2010).*
Pennsylvania law differs from California law, so Samson does not apply to this parole search. Nevertheless, defendant was driving unauthorized cars, and that justified a search of defendant’s home, too. United States v. Benjamin, 2010 U.S. Dist. LEXIS 85960 (E.D. Pa. July 26, 2010).*
OH2: Frisk of defendant put in police car for officer's convenience was unjustified
The defendant was encountered in a high crime area, and the officer put her in the police car for “mere convenience,” and patted her down. She was not given the opportunity to identify herself, so no violation of the law occurred. Suppression order affirmed. State v. Habel, 2010 Ohio 3907, 190 Ohio App. 3d 393, 942 N.E.2d 389 (2d Dist. 2010).*
The officer saw defendant in a high crime area jaywalking (a non-arrestable offense), and he stopped him. The officer frisked him because he kept his hands in his pocket [it was cold] finding heroin. The frisk was lawful. State v. Lovins, 2010 Ohio 3916, 2010 Ohio App. LEXIS 3319 (2d Dist. August 20, 2010).*
Officers responding to an armed burglary call encountered the defendant in the place with a door open, with body armor at his feet. The search of defendant’s person was justified. State v. Tucker, 2010 Ohio 3920, 2010 Ohio App. LEXIS 3318 (2d Dist. August 20, 2010).*
An officer responded to a silent alarm at a child development center in the night and encountered the defendant walking way from the building with a duffle bag. The silent alarm is not treated like a CI. A frisk was justified. State v. Brandon, 2010 Ohio 3901, 2010 Ohio App. LEXIS 3303 (2d Dist. August 20, 2010).*
ND: State statute created no REP in bank records against a mere subpoena
Defendant was charged with worker’s compensation fraud after bank records were subpoenaed to the administrative hearing. State statute did not create a reasonable expectation of privacy from a subpoena instead of a search warrant issued by a neutral and detached magistrate. State v. Hammer, 2010 ND 152, 787 N.W.2d 716 (2010).
In a traffic stop, defendant had both hands out the window as the officer approached, and there was a gun on the dashboard. The officer did not have to consider the situation safe and could frisk the car for more weapons. State v. King, 206 N.C. App. 585, 696 S.E.2d 913 (2010).*
Defendant was stopped on a citizen informant’s tip, and they are sufficient in themselves to create reasonable suspicion. Hadley v. State, 2010 Fla. App. LEXIS 12184 (Fla. 3DCA August 18, 2010).*
The issue of the duration of the stop making it unreasonable was not litigated in the trial court, so it was waived. State v. Hudson, 206 N.C. App. 482, 696 S.E.2d 577 (2010).*
Officers had repeated drug complaints at defendant’s apartment, and they came to do a knock and talk. The person answering the door let the officer in, but it was quickly determined that she was only a visitor. Before he could ask for consent, the officer heard others, so he walked further in to see who he was dealing with, described as a protective sweep, and he saw drug paraphernalia at defendant’s feet, which were propped up on a table. The officer’s search of defendant was justified, and it produced a Dilaudid tablet. State v. Kinsell, 2010 Ohio 3854, 2010 Ohio App. LEXIS 3254 (9th Dist. August 18, 2010).*
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
www.johnwesleyhall.com
www.LawofCriminalDefense.com
@JohnWesleyHall
Online since Feb. 24, 2003
~~~~~~~~~~~~~~~~~~~~~~~~~~
Fourth Amendment cases,
citations, and links
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Most recent SCOTUS cases:
2013-14 Term:
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,
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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
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)
Research Links:
Supreme Court:
SCOTUSBlog
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Docket
Solicitor General's
site
SCOTUSreport
Briefs
online (but no amicus briefs)
Curiae (Yale
Law)
Oyez
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"On the Docket"–Medill
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Monitor: Law.com
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Com't'ry: Law.com
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(criminal law/ 4th Amd) $
Findlaw.com
Findlaw.com (4th
Amd)
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F.R.Crim.P.
41
www.fd.org
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
Computer Search Manual (2009) (pdf)
Electronic
Communications Privacy Act (2012)
Overview
of the Electronic Communications Privacy Act (2012)
Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
—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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