Archives for: June 2011, 14
06/14/11
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 Appx. 568 (8th Cir. 2011) (unpublished).*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).*
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).*
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
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Little Rock, Arkansas
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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
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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
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exposes to the public, even in his own home or office, is not a subject of Fourth
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Maryland v. King, granted Nov. 9, argued Feb. 26
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Missouri
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Bailey
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Florida
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19) (ScotusBlog)
Florida
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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)
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—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
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—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
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—Katz
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—United
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—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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