Archives for: June 2011, 10

06/10/11

Permalink 01:11:46 pm, by fourth, 82 words, 2310 views   English (US)
Categories: General

SWAT team executes a "warrant" for Dept. Education for defaulted student loan on address where target no longer even lived

News10.com: Dept of Education breaks down Stockton man's door:

STOCKTON - A man and his children are dragged out of their home when the Department of Education served a search warrant for someone who didn't live there anymore.

They used a SWAT team to arrest somebody who didn't even live there anymore for a defaulted student loan. See story here.

The Fifth, Fourth, and Eleventh Circuits have held that using SWAT teams on administrative warrants is unreasonable under the Fourth Amendment.

Permalink 09:00:16 am, by fourth, 250 words, 1672 views   English (US)
Categories: General

CO implied consent statute permits restraining defendant in accident for a blood test

Colorado’s implied consent law permits a blood draw without the need for asking for consent if the officer has probable cause. Here, the defendant was in a rollover accident and fled, and that permitted him to be restrained for purposes of the test. People v. Smith, 254 P.3d 1158 (Colo. 2011):

Section 42-4-1301.1(1) and (2)(a)(I) require anyone driving a motor vehicle in Colorado to consent to testing of the alcoholic content of his or her breath or blood if a police officer has probable cause to believe that the driver has committed an alcohol-related driving violation. See generally Null, 233 P.3d at 678-82 (describing in detail the operation of the express consent statute). Under section 42-4-1301.1(3), a driver may ordinarily refuse to cooperate with testing, but, by doing so, risks having his license revoked under section 42-2-126, C.R.S. (2010).

Section 42-4-1301.1(3), however, allows a police officer to physically restrain a driver who refuses to comply with testing and proceed with the testing if the officer has probable cause to believe that the driver has committed one of a limited subset of crimes, including vehicular assault under section 18-3-205(1)(b). ...

The combined result of sections 42-4-1301.1(3) and 18-3-205 is that a police officer may perform blood tests on a driver without his or her consent if the officer has probable cause to believe the driver has committed vehicular assault under the influence of alcohol or drugs, subject to the constitutional limitations of Schmerber.

Permalink 08:45:40 am, by fourth, 237 words, 3044 views   English (US)
Categories: General

D.Guam: Border x-ray search warrant was based on RS

Search warrant for an x-ray border search is “nonroutine” and it was issued with reasonable suspicion of smuggling. United States v. Paulino, 2011 U.S. Dist. LEXIS 60182 (D. Guam June 6, 2011):

Although neither a warrant nor probable cause is required to conduct a border x-ray search, in the Ninth Circuit, there is a strong preference that customs officers obtain a warrant prior to conducting such an intrusive search. See United States v. Ek, 676 F.2d 379, 382 (9th Cir. 1981) (citing United States v. Cameron, 538 F.2d 254, 258-59 (9th Cir. 1976)). Accordingly, an affidavit supporting a border x-ray search need only establish a reasonable suspicion of body cavity smuggling to be upheld; probable cause is not required. See id. at 383 (finding that a magistrate need only find a clear indication of body cavity smuggling to support a border x-ray warrant); see also Camacho, 368 F.3d at 1186 n.1 (citing Montoya de Hernandez, 473 U.S. at 540-41) (recognizing the Supreme Court's disapproval of the clear indication standard and adopting the reasonable suspicion standard for nonroutine border searches).

Probable cause to search a house for a gun existed where defendant ran into the house with a gun and came back out without it. United States v. Bennett, 2011 U.S. Dist. LEXIS 60285 (N.D. Ind. June 6, 2011).*

The search of defendant’s vehicle was with probable cause and it was mobile, so the automobile exception applied. United States v. Castellanos, 2011 U.S. App. LEXIS 11439 (11th Cir. June 6, 2011) (unpublished).*

Permalink 08:13:31 am, by fourth, 110 words, 2891 views   English (US)
Categories: General

CA9: No immunity for special prosecutor and sheriff for newspaper executives' raid for lack of PC

Special prosecutor and Sheriff Arpaio did not have immunity under the allegations of the complaint for a late night raid and arrests of an alternative newspaper’s executives allegedly without probable cause. The complaint alleged sufficient facts to proceed under the First and Fourth Amendment. Lacy v. Maricopa County, 09-15703 (9th Cir. June 9, 2011).* See Courthouse News Service.

The CI was new but corroborated, and defendant’s arrest was with probable cause. United States v. Exum, 2011 U.S. Dist. LEXIS 60240 (E.D. Mo. April 28, 2011).*

Wait of 30 minutes for drug dog on a stop with reasonable suspicion was not unreasonable. United States v. Garibay, 2011 U.S. Dist. LEXIS 60264 (S.D. Cal. May 27, 2011).*

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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
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

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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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  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)

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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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