Archives for: June 2011, 12


Permalink 11:40:06 am, by fourth, 130 words, 2939 views   English (US)
Categories: General

CA5: Defendant's perjury at suppression hearing justified enhanced sentence under U.S.S.G. § 3C1.1

District court’s finding of perjury at suppression hearing supports its obstruction of justice sentencing enhancement under U.S.S.G. § 3C1.1. United States v. Garcia-Covarrubias, 427 Fed. Appx. 373 (5th Cir. 2011) (unpublished).

Defendant’s 2255 challenging his search was waived by his plea agreement, and there was no IAC in the plea. United States v. Lopez, 2011 U.S. Dist. LEXIS 61022 (E.D. Ky. March 16, 2011).*

Traffic stop led to officer seeing marijuana in plain view with a flashlight in a bowl on the console. United States v. Hafford, 2011 U.S. Dist. LEXIS 61276 (M.D. La. June 7, 2011).*

Storage unit operators who locked defendant out of storage unit were not acting with the state actors when they did it, so they couldn’t be sued under § 1983. Moral v. Grant County, 424 Fed. Appx. 803 (10th Cir. 2011) (unpublished).*

Permalink 10:16:19 am, by fourth, 518 words, 3601 views   English (US)
Categories: General

M.D.Fla.: Entry into a screened-in lanai was protected by the Fourth Amendment

Entry into a screened-in lanai with a swimming pool that was not visible from the street was curtilage and required announcement. United States v. Hill, 795 F. Supp. 2d 1304 (M.D. Fla. 2011) (USMJ R&R):

In the instant case, the screened enclosure included a swimming pool and lanai, and had two closed doors. The screen was attached to the house and part of the lanai was under roof which was also part of the house. The screened enclosure had furniture and a swimming pool which was for use by the residents of the home. The screened enclosure was in the back of the house and there was no testimony that it could be seen by people passing by the house. The screened enclosure was either a part of the house or included in the curtilage of the house, and the Defendant has a reasonable expectation of privacy in this area. Therefore, the Fourth Amendment protections extended to the lanai and the screened enclosure.

. . .

In the instant case, the Government provided no testimony, evidence or argument that the officers approached the front door of the residence to attempt to “knock and talk.” An officer may enter private land to “knock and announce” as a private citizen would, but in this case, the private citizen would go to the front door. Further, the Government failed to provide any evidence as to where the officers did knock at the residence. The only testimony was from Deputy Waid who stated that the K-9 officers knocked on a door of the residence, but he failed to indicate which door or if, perhaps, the door was located on the lanai and in the screened enclosure. The Government failed to meet its burden of showing that the officers took reasonable steps to contact the Defendant. The Government has failed to meet its burden of showing the lawfulness of the warrantless entry into the screened enclosure by the officers.

Adopted by USDJ: United States v. Hill, 795 F. Supp. 2d 1304 (M.D. Fla. June 8, 2011):

The screened-in lanai area in the back of the house was either a part of the house itself or included in the curtilage of the house, and in either case was within the protections provided by the Fourth Amendment. Despite these protections, however, a law enforcement officer in carrying out his or her duties is free to go where the public would be expected to go without violating the Fourth Amendment. Coffin v. Brandau, ___ F.3d ___, 2011 U.S. App. LEXIS 11353, 2011 WL 2162997 (11th Cir. June 3, 2011)(citations omitted). This includes knocking on the front door, Kentucky v. King, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d 865 (2011), and in some circumstances a back door. (See Report and Recommendation, Doc. #40, p. 18)(citing cases). Nothing in this case indicates that the public would be expected to go to the lanai at the rear of the house. Therefore, since none of the exigent circumstances recognized by the Supreme Court, King, 131 S. Ct. at 1856-57, were present, the officer’s initial entry into the lanai was unlawful. The Court adopts this portion of the Report and Recommendation and overrules the government’s objection.

Permalink 09:39:58 am, by fourth, 78 words, 2906 views   English (US)
Categories: General

WY: Vernonia on drug testing students followed under state constitution

School district’s drug and alcohol testing of those in extracurricular activities did not violate the state constitution, following Vernonia under the Fourth Amendment. Hageman v. Goshen County School Dist. No. 1, 2011 WY 91, 256 P.3d 487 (2011).*

The stop of defendant’s vehicle was with reasonable suspicion of drug activity, so the pretext argument fails. State v. Alderete, 2011 NMCA 55, 149 N.M. 799, 255 P.3d 377 (2011).*

Defendant’s driving gave reasonable suspicion for a stop. State v. Watson, 354 S.W.3d 324 (Tenn. Crim. App. 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Most recent SCOTUS cases:
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)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  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
  Privacy Foundation
  Electronic Privacy Information Center
  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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