Archives for: June 2011, 18


Permalink 09:27:49 am, by fourth, 309 words, 2954 views   English (US)
Categories: General

E.D. Tenn.: No REP shown in building being demolished; EPA inspection was valid

Defendants were tearing a building down, and local environmental officers went in and discovered that defendants were in violation of federal EPA law in not doing proper asbestos abatement before demolition. The defendants did not manifest a reasonable expectation of privacy in the building being torn down because of no fences, no signs, no nothing. Alternatively, the building was a “open field” subject to anybody coming in. The entry was reasonable. United States v. Fillers, 2011 U.S. Dist. LEXIS 63311 (E.D. Tenn. June 14, 2011):

Defendants also contend they had a manifest and legitimate expectation of privacy arising from Chattanooga City Ordinance § 4-16, which requires APCB agents to obtain a warrant before conducting a search. This argument, however, “is no less than a suggestion that concepts of privacy under the laws of each State are to determine the reach of the Fourth Amendment,” a suggestion the Supreme Court has flatly rejected. California v. Greenwood, 486 U.S. 35, 43 (1988); see also United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994) (“[T]he appropriate inquiry for a federal court considering a motion to suppress evidence seized by state police officers is whether the arrest, search, or seizure violated the Fourth Amendment. The fact that the arrest, search, or seizure may have violated state law is irrelevant ....”).

Ultimately, regardless of any subjective expectation buried within Defendants' hearts, no expectation of privacy was made manifest, that is, made apparent to any reasonable outside observer. Defendants knowingly exposed the Watkins Street Property and its contents to public view and intrusion. Accordingly, the Magistrate Judge properly concluded the lot was not a subject of Fourth Amendment protection, thus the intrusion thereupon and search by Schultz and Jones did not violate Defendants’ Fourth Amendment rights. See Katz v. United States, 389 U.S. at 351.

USMJ's R&R: United States v. Watkins St. Project, 2010 U.S. Dist. LEXIS 143271 (E.D. Tenn. October 28, 2010).

Permalink 09:15:37 am, by fourth, 200 words, 2909 views   English (US)
Categories: General

M.D.Fla.: Failure to show connection to hotel room was a lack of standing

Defendant was not the renter of the hotel room searched, and he showed no connection to the property at all, so he had no standing to challenge the police entry and search. United States v. Golphin, 2011 U.S. Dist. LEXIS 63517 (M.D. Fla. June 15, 2011).*

The court accepts the officer’s testimony that defendant was speeding and that justified the stop. (The rest is uncontested by the defendant.) United States v. Figueroa-Cruz, 2011 U.S. Dist. LEXIS 62455 (D. Kan. June 9, 2011).*

Defense counsel did not file a motion to suppress, but it would have been waived by the plea agreement, and it is apparent that the defendant needed to plead guilty to “help himself out.” Beaudion v. United States, 2011 U.S. Dist. LEXIS 63574 (C.D. Ill. June 16, 2011).*

Defendant’s alleged dissatisfaction with his attorney’s performance in the motion to suppress was expressly waived by his plea agreement. United States v. Brookshire, 2011 U.S. Dist. LEXIS 63749 (N.D. Ind. June 15, 2011).*

Defendant’s vague request for the court to review defense counsel’s performance without saying what it was that he failed to do or show prejudice does not show ineffective assistance. Lengen v. United States, 2011 U.S. Dist. LEXIS 63658 (N.D. Ohio June 15, 2011).*

Permalink 09:00:00 am, by fourth, 569 words, 3755 views   English (US)
Categories: General

C.D.Cal.: Conclusory affidavit for MDMA suppressed

In a rare judicial conclusion, and a reaffirmation of the risk of a “judge as rubber stamp,” a state search warrant in a multi-hundred thousand pill MDMA search was found based on mere conclusions of the officer and was suppressed for a failure to show probable cause. United States v. Underwood, 2011 U.S. Dist. LEXIS 63531 (C.D. Cal. June 16, 2011). I've raised this a few times myself, because police officers often just put conclusions in their affidavits. The conclusions here:

(1) “Underwood is a courier for a multi- hundred thousand pill MDMA drug trafficking organization”;

(2) “On April 14, 2010, Drug Enforcement Administration (“DEA”) Special Agents and Beverly Hills Police Department (“BHPD”) Detectives observed Underwood deliver two wooden crates to known co-conspirators Jimmy Luong (“Luong”) and Tony Barrera (“Barrera”). Based on other seizures in this investigation, I believe the crates contained approximately 260,000 pills of MDMA”;

(3) Agent Johnson’s descriptions of “fronting” in paragraph 2 of the state affidavit; and

(4) that marijuana was observed in plain view upon a protective sweep of Underwood’s home.

The holding:

Detective Kaiser’s affidavit baldly asserts that he learned from Agent Johnson that Underwood was a courier for a multi-hundred thousand pill MDMA drug trafficking organization. The facts supporting the basis of Agent Johnson’s conclusion are not disclosed in the affidavit. In an analogous situation, probable cause is lacking when an informant’s conclusory allegations, but not the factual bases for the informant’s knowledge, are offered to support probable cause. See, e.g., Aguilar v. Texas, 378 U.S. 108, 114 (1964) (“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were ... [o]therwise the inferences from the facts which lead to the complaint will be drawn not by a neutral and detached magistrate ... but instead ... by an unidentified informant.”) (internal citations and quotations omitted).

Although the parties do not discuss this issue, the Court acknowledges that other law enforcement agents’ observations are assumed reliable, unlike informants' observations, which must be supported by the affiant’s basis for concluding the statements are reliable. See Ventresca, 380 U.S. at 111 (‘Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number.”); United States v. Lapsins, 570 F.3d 758, 764 (6th Cir. 2009) (“[I]n general, another law enforcement officer is a reliable source and consequently no special showing of reliability need be made as a part of the probable cause determination.”) (quoting LaFave § 3.5(a)) (internal quotation marks and corrections omitted). However, though observations of other police officers may be relied upon, the affiant may not simply state the bare-boned conclusions of other officers as a basis for probable cause. It is clear that if Agent Johnson, not Detective Kaiser, had made the statement "Underwood is a courier for a drug trafficking organization" in an affidavit, the statement would be conclusory. The conclusory nature of this statement is not improved because Detective Kaiser relied upon the conclusions of Agent Johnson. If an affiant could simply circumvent the requirement to include a factual basis supporting probable cause by relying on the bald conclusions of another law enforcement officer, the detached and neutral magistrate required to approve the search may as well be replaced by a rubber stamp.

Permalink 08:40:54 am, by fourth, 371 words, 3004 views   English (US)
Categories: General

D.Neb.: Motor home subject to a protective sweep

A motor home is not entitled to greater Fourth Amendment protections. Instead, a motor home poses greater risks and is subject to a protective sweep in proper cases. Here, defendant’s consent justified a protective sweep and then his admission he had marijuana gave probable cause to search the vehicle. United States v. Coleman, 2011 U.S. Dist. LEXIS 62950 (D. Neb. May 20, 2011):

Likewise in [United States v. Robinson, 455 F.3d 832, 834 (8th Cir. 2006)], a de minimis intrusion beyond the scope of the traffic stop was allowed. In Robinson, the defendant was pulled over for failing to stop at a stop sign. After issuing the warning for the traffic violation, the police officer asked Robinson about an object the officer believed he saw Robinson take from his pocket and hide between the seats. Robinson argued that once the warning was issued the stop should have concluded and any further detention was an impermissible seizure. The court disagreed, noting that even if the law enforcement officer did not have reasonable suspicion to prolong the traffic stop, the brief questioning did not constitute a Fourth Amendment violation. 455 F.3d at 834. “Even if a suspicionless seizure occurred during the period from the conclusion of the traffic stop until the officers unquestionably had probable cause, it was a de minimis intrusion that did not constitute an unreasonable seizure with the meaning of the Fourth Amendment.” Id.

. . .

Moreover, even assuming as defendant argues, that the scope of a roadside search should be narrowed when the vehicle is a mobile home, unlike an automobile a mobile home can hide others who may pose a risk of harm to the officer. Officers may take “additional steps as are ‘reasonably necessary to protect their personal safety and maintain the status quo during the course of a stop.’” United States v. Thomas, 249 F.3d 725, 729 (8th Cir. 2001) (internal citations removed). Since Trooper Bauer did not know if anyone else was in the defendant’s vehicle, he was entitled to perform a protective sweep of the motor home and search areas where another individual may be hiding – including under the bed. See Thomas, 249 F.3d at 729 (upholding a protective sweep of a van when the officer could not see into a van from the outside).

Permalink 08:07:09 am, by fourth, 66 words, 2948 views   English (US)
Categories: General

Volokh: New Jersey Supreme Court Will Hear Fourth Amendment Case Involving Supposed “Administrative Search” of a Family’s Back Yard

On Volokh Conspiracy: New Jersey Supreme Court Will Hear Fourth Amendment Case Involving Supposed “Administrative Search” of a Family’s Back Yard after SCOTUS denied cert in March. The case is New Jersey Dep’t of Envtl. Protection v. Robert and Michelle Huber (065540) (link only good for a few days). As Volokh notes, SCOTUS cert denials mean nothing, except this one had three dissenters showing interest.

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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

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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)
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  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
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  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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