Archives for: June 2011, 17


Permalink 12:49:33 pm, by fourth, 286 words, 3015 views   English (US)
Categories: General

FL3: Officer entering fenced yard when electronic gate opened was a violation of the curtilage

Officers suspected defendant of a hydroponic grow operation, and they set up surveillance. The house was surrounded by a tall fence and an electronically operated gate. When defendant left the property and opened the gate, an officer’s slipping in before the gate closed was a violation of the Fourth Amendment. Fernandez v. State, 63 So. 3d 881 (Fla. App. 3d DCA 2011):

The state argues, however, that Sergeant Falcon was free to enter the premises when the gate opened. That argument is not persuasive because the momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. Certainly, a policeman may enter the curtilage surrounding a home in the same way as a salesman or visitor could. Potts, 654 So. 2d at 599 (citing State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981)). But those are not the facts here. No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors. This was not an opening to invite the public into the area. Here, there was effectively a trespass onto the property.

This case is also distinguishable from the “knock and talk” cases. Here, as in United States v. Quintana, 594 F. Supp. 2d 1291 (M.D. Fla. 2009), this exception will not apply because Sergeant Falcon did not enter the property as a public person would have, through an opening created for that purpose. Nothing in this record would support a finding that the officers “approached the residence ‘just [as] any private citizen [could].’” Quintana, 594 F. Supp. 2d at 1302 (citing United States v. Taylor, 458 F. 3d 1201, 1204 (11th Cir. 2006)). ...

Permalink 10:50:02 am, by fourth, 14 words, 2892 views   English (US)
Categories: General

Today is the 40th Anniversary of the War on Drugs

Permalink 10:42:37 am, by fourth, 283 words, 2848 views   English (US)
Categories: General

N.D.Ind.: No REP in informant recording conversation with defendant on curtilage

No one has an objectively reasonable expectation of privacy in a conversation with an informant who was parked in a driveway talking to the defendant and recording him. United States v. Scott, 2011 U.S. Dist. LEXIS 62401 (N.D. Ind. June 10, 2011)*:

The recording of the conversation between the Defendant and Reynolds in the driveway of the Defendant’s Heritage Drive residence on August 19, 2009, was not obtained pursuant to a warrant or the Defendant's consent. The Defendant and the Government have stipulated that the Defendant would testify that he had a subjective expectation of privacy in his conversation with Reynolds in the driveway of his Heritage Drive residence on August 19, 2009, that Reynolds was not told of the recording device in the informant’s vehicle, and that the Defendant would testify that he did not know of the recording device in the informant’s vehicle. Consequently, the key question is whether the Defendant had an objectively reasonable expectation of privacy in his oral communication with Reynolds on August 19, 2009. The Court finds that he did not.

The officer here allegedly stopped and engaged the defendant in conversation and got confusing answers. She asked for his ID, and then asked for a warrant check. A warrant came up, but she was going to let him go until he became belligerent. Then she arrested him. The warrant’s existence was an intervening circumstance. State v. Hummons, 227 Ariz. 78, 253 P.3d 275 (2011).*

Officer responding to an attempted suicide call did not act unreasonably nor violate the Fourth Amendment and thus had qualified immunity in entering a door and staying there to ascertain the mental state of the person, particularly after she blew up on him. Roberts v. Spielman, 643 F.3d 889 (11th Cir. 2011).*

Permalink 10:29:11 am, by fourth, 908 words, 3503 views   English (US)
Categories: General

SCOTUS approves Gant good faith exception, and gutting exclusionary rule?

SCOTUS approves Gant good faith exception where officers followed Belton, and were not culpable in any way. Davis v. United States, 2011 U.S. LEXIS 4560 (June 16, 2011) (7-2). The syllabus:

While conducting a routine vehicle stop, police arrested petitioner Willie Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, the police searched the vehicle and found Davis’s revolver. Davis was then indicted on charges of being a felon in possession of a firearm. In a suppression motion, Davis acknowledged that the search of the vehicle complied with existing Eleventh Circuit precedent interpreting New York v. Belton, 453 U.S. 454, but Davis raised a Fourth Amendment challenge to preserve the issue on appeal. The District Court denied the motion, and Davis was convicted. While his appeal was pending, this Court announced, in Arizona v. Gant, 556 U.S. ___, ___, a new rule governing automobile searches incident to arrests of recent occupants. The Eleventh Circuit held, under Gant, that the vehicle search at issue violated Davis’s Fourth Amendment rights, but the court declined to suppress the revolver and affirmed Davis’s conviction.

Held: Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Pp. 6-20.

(a) The exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, e.g., Herring v. United States, 555 U.S. 135, 141, and its operation is limited to situations in which this purpose is “thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Under a line of cases beginning with United States v. Leon, 468 U.S. 897, the result of this cost-benefit analysis turns on the “flagrancy of the police misconduct” at issue. Id., at 909, 911. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs. Herring, supra, at 144. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrent value of suppression is diminished, and exclusion cannot “pay its way.” See Leon, supra, at 909, 919, 908, n. 6; Herring, supra, at 137. Pp. 6-9.

(b) Although the search in this case turned out to be unconstitutional under Gant, Davis concedes that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. Under this Court’s exclusionary-rule precedents, the acknowledged absence of police culpability dooms Davis’s claim. Pp. 9-11.

(c) The Court is not persuaded by arguments that other considerations should prevent the good-faith exception from applying in this case. Pp. 11-19.

(1) The argument that the availability of the exclusionary rule to enforce new Fourth Amendment precedent is a retroactivity issue, not a good-faith issue, is unpersuasive. This argument erroneously conflates retroactivity with remedy. Because Davis’s conviction had not become final when Gant was announced, Gant applies retroactively in this case, and Davis may invoke its newly announced rule as a basis for seeking relief. See Griffith v. Kentucky, 479 U.S. 314, 326, 328. But retroactive application of a new rule does not determine the question of what remedy the defendant should obtain. See Powell v. Nevada, 511 U.S. 79, 83, 84. The remedy of exclusion does not automatically follow from a Fourth Amendment violation, see Arizona v. Evans, 514 U.S. 1, 13, and applies only where its “purpose is effectively advanced,” Illinois v. Krull, 480 U.S. 340, 347. The application of the good-faith exception here neither contravenes Griffith nor denies retroactive effect to Gant. Pp. 12-16.

(2) Nor is the Court persuaded by the argument that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law by discouraging criminal defendants from attacking precedent. Facilitating the overruling of precedent has never been a relevant consideration in this Court’s exclusionary-rule cases. In any event, applying the good-faith exception in this context will not prevent this Court’s review of Fourth Amendment precedents. If precedent from a federal court of appeals or state court of last resort upholds a particular type of search or seizure, defendants in jurisdictions where the question remains open will still have an undiminished incentive to litigate the issue, and this Court can grant certiorari in one of those cases. Davis’s claim that this Court’s Fourth Amendment precedents will be effectively insulated from challenge is overstated. In many cases, defendants will test this Court’s Fourth Amendment precedents by arguing that they are distinguishable. And at most, this argument might suggest that, in a future case, the Court could allow a petitioner who secures a decision overruling one of this Court’s precedents to obtain suppression of evidence in that one case. Pp. 16-19.

See In sharp tones, Court curbs the exclusionary rule:

The Supreme Court on Thursday took direct aim at the exclusionary rule, with a 7-2 majority saying that evidence collected during a police search can be used against a defendant, even if the search is of a type that is later found unconstitutional.

New justices Elena Kagan and Sonia Sotomayor joined in the majority's hostile approach toward the exclusionary rule, leading a dissenter to wonder if the rule — already weakened by recent decisions — might be on life support.

"If the Court means what it says, what will happen to the exclusionary rule?" asked Justice Stephen Breyer in a dissent joined by Justice Ruth Bader Ginsburg.

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by John Wesley Hall
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Little Rock, Arkansas
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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)

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  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)

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"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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