Archives for: June 2011, 14

06/14/11

Permalink 06:52:17 am, by fourth, 148 words, 2874 views   English (US)
Categories: General

D.Conn.: Buying a vehicle but putting in another's name to complicate possible forfeiture is a waiver of a REP in the vehicle

Buying a vehicle but putting it in somebody else’s name to prevent or complicate its forfeiture shows a lack of standing in the vehicle. United States v. Duong, 2011 U.S. Dist. LEXIS 62117 (D. Conn. June 10, 2011).

The record supports that defendant’s girlfriend had apparent authority to consent and did. She observed the search and never objected. United States v. Moylan, 418 Fed. Appx. 568 (8th Cir. 2011) (unpublished).*

Defendant’s traffic stop was valid, and his account of his travel plans made no sense, so that was reasonable suspicion that he was carrying drugs. United States v. Nunez, 2011 U.S. Dist. LEXIS 61726 (D. Utah June 9, 2011).*

After a dog alerted to defendant’s vehicle, Gant did not apply because it was no longer a search incident. United States v. Stafford, 2011 U.S. Dist. LEXIS 61660 (E.D. N.C. June 7, 2011),* R&R 2011 U.S. Dist. LEXIS 67536 (E.D. N.C. April 22, 2011).*

Permalink 06:29:13 am, by fourth, 226 words, 3423 views   English (US)
Categories: General

N.D.W.Va.: Unproductive protective sweep for weapon is not justification for a search for it

After a protective sweep looking for a rifle came up empty, officers could not just go back into the house to search it for the gun. United States v. Laudermilt, 2011 U.S. Dist. LEXIS 61661 (N.D. W.Va. June 10, 2011), adopting R&R, 2011 U.S. Dist. LEXIS 61682 (N.D. W.Va. May 31, 2011):

This Court agrees with the magistrate judge's finding that the defendant's recent possession of a rifle, his threatening demeanor, and the fact that his younger half-brother was still inside are circumstances that justified the initial entry into the home to locate any unaccounted for individuals and to ensure the safety of the officers. However, these circumstances did not permit the officers to seize the firearm after the residence had been secured and the protective sweep had ended. The key inquiry — the determination of when the protective sweep ended — requires a detailed review of the facts.

DWI is not a minor offense, and a warrantless entry into the home may be justified by exigent circumstances of dissipation of alcohol. State v. Nance, 2011 NMCA 48, 149 N.M. 644, 253 P.3d 934 (App. 2011), Writ of certiorari denied State v. Nance, 2011 N.M. LEXIS 176 (N.M., Apr. 14, 2011).

The defendant’s consent to search a gift bag that the officer had picked up and he believed by its weight held a gun was reasonable and valid. Brooks v. Commonwealth, 2011 Va. LEXIS 132 (June 9, 2011).*

Permalink 05:50:26 am, by fourth, 298 words, 2856 views   English (US)
Categories: General

S.D.N.Y.: Long protective weapons search not supplanted by Gant

Defendant’s stop for an illegal U-turn was valid. The officers’ prior information that defendant usually possessed a gun was justification for the protective weapons search. Long protective weapons searches are still valid under Gant. United States v. Torres, 2011 U.S. Dist. LEXIS 61330 (S.D. N.Y. June 6, 2011).*

“We find that the story given by Defendant that he and Smith were looking for work in the oilfield, but they simply rode down the interstate without stopping anywhere, turning around in Lake Charles to return, is by itself suspicious. This, coupled with his passenger’s refusal to commit to where they had been, while basically saying, wherever the Defendant said we have been, compounded that suspicious behavior.” Calling out the drug dog was not unreasonable. State v. Kinchen, 71 So. 3d 344 (La. App. 3d Cir. 2011).*

Mere presence of a known prostitute in defendant’s car is not justification for questioning his relationship to her. Otherwise, no known prostitute could avoid being stopped. State v. Olson, 2011 NMCA 56, 150 N.M. 348, 258 P.3d 1140 (2011), Certiorari Granted, 265 P.3d 719 (N.M., 2011):

These very limited circumstances are insufficient to meet the standard of reasonable and articulable suspicion that Defendant had knowingly hired or offered to hire his passenger to engage in a sexual act. Were we to hold otherwise, police officers would have carte blanche based on suspicion of solicitation of a prostitute to stop any vehicle late at night whenever he saw a driver and a known prostitute in the vehicle, to require the driver to exit the vehicle, and to question the driver and the passenger regarding their relationship. That conduct, no different than the conduct in the present case, is tantamount to a seizure of a driver based on the mere presence of a passenger known to have committed a past criminal act.

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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

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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."
—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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