Archives for: August 2010, 24


Permalink 02:37:06 pm, by fourth, 107 words, 833 views   English (US)
Categories: General

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.

Permalink 07:14:19 am, by fourth, 157 words, 399 views   English (US)
Categories: General

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).*

Permalink 06:50:33 am, by fourth, 196 words, 378 views   English (US)
Categories: General

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).*

Permalink 06:33:39 am, by fourth, 263 words, 505 views   English (US)
Categories: General

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 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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    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
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  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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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