Archives for: June 2011, 20

06/20/11

Permalink 06:36:33 am, by fourth, 190 words, 2993 views   English (US)
Categories: General

W.D.N.C.: Lawyer's state law objection to subpoena to appear at federal suppression hearing was denied

A[n apparent] family lawyer was ordered to appear at a federal court suppression hearing, and his state law objections as to privilege to his testifying were overruled. United States v. Jeremias, 2011 U.S. Dist. LEXIS 63989 (W.D. N.C. June 15, 2011).*

Based on all the evidence, the stop of defendant, a black male running down the street, was justified because there was substantial evidence to believe he was involved in a robbery that police quickly converged on. United States v. Harris, 2011 U.S. Dist. LEXIS 64171 (D. Minn. April 8, 2011).*

A search warrant issued after a flyover of a marijuana grow that did not specify open fields on the property was not invalid. And, if it was in open fields on the property, it could be searched anyway. United States v. Burge, 2011 U.S. Dist. LEXIS 63802 (C.D. Ill. June 16, 2011).*

“Any challenge to this court’s denial of the suppression motion would have proved futile; the failure to further pursue the argument did not prejudice Petitioner. Counsel’s decision not to raise a meritless claim does not constitute ineffective assistance.” Angulo-Hernandez v. United States, 2011 U.S. Dist. LEXIS 64133 (D. P.R. June 16, 2011).*

Permalink 06:29:41 am, by fourth, 347 words, 3463 views   English (US)
Categories: General

E.D.Va.: SW that mentioned no persons did not permit a search of persons found on the premises

The search warrant for property failed to include persons in the description of the place to be searched, and the warrant thus did not permit a search of defendant’s person. The good faith exception did not save it because the search warrant was facially deficient for a search of the person. United States v. Gregg, 833 F. Supp. 2d 535 (E.D. Va. 2011), Magistrate's recommendation at United States v. Gregg, 2011 U.S. Dist. LEXIS 87129 (E.D. Va., July 20, 2011):

On the basis of Groh, the Court concludes the August 31 warrant did not provide Mills a basis for searching Gregg’s person. In order for the warrant to permit Mills to search Gregg, she needed “written assurance that the Magistrate actually found probable cause” to search Gregg. Id. at 560. The warrant provided no such assurance. The warrant contained neither language empowering Mills to search Gregg nor any reference to another document demonstrating the magistrate’s belief that there was probable cause to search Gregg. On its face, then, the warrant and the supporting affidavit are in conflict, because it appears the magistrate rejected the language in the affidavit permitting officers to search persons inside the home. Without a reference to that language, the warrant lacked any indication that the magistrate found probable cause to search any persons inside the home.

. . .

Furthermore, to the extent Leon sheds light on these facts, it expressly weakens the government’s argument. Among the circumstances under which the Supreme Court noted that the good faith exception would not apply is when a warrant is “so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Id. at 924. See United States v. Hyppolite, 65 F.3d 1151, 1156 (4th Cir. 1995). That language describes the situation leading up to the execution of the August 31 warrant. As the Court has explained, the warrant omitted any reference to persons inside the home, making it unreasonable for an officer to conclude from the warrant that there was probable cause to search anyone inside.

Permalink 06:14:35 am, by fourth, 451 words, 2853 views   English (US)
Categories: General

CA6: Stop without RS was not validated by finding an outstanding arrest warrant

Similar to Echols, posted just below, defendant was stopped without reasonable suspicion, the court noting that it had dealt with a similar case before with the same officer, and an outstanding warrant was found. The existence of the warrant did not validate the unreasonable seizure because, holding otherwise, would create perverse incentives on the police to stop and question for warrants with no cause at all. United States v. Gross, 662 F.3d 393 (6th Cir. 2011):

To hold otherwise would create a rule that potentially allows for a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a “police hunch” that the residents may: 1) have outstanding warrants; or 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion or probable cause, the very crux of our Fourth Amendment jurisprudence. Terry, 392 U.S. at 27-29; Williams, 2010 WL 3061336 at *9, n.6 (“Allowing information obtained from a suspect about an outstanding warrant to purge the taint of an unconstitutional search or seizure would have deleterious effects. It would encourage officers to seize individuals without reasonable suspicion-not merely engage them in consensual encounters-and ask them about outstanding warrants.”).

Furthermore, holding that the discovery of a warrant after an illegal stop is always a taint-removing intervening circumstance so long as the purpose of the stop is not because the officer believes the suspect has an outstanding warrant would create perverse incentives. We do not wish to create a system of post-hoc rationalization through which the Fourth Amendment’s prohibition against illegal searches and seizures can be nullified. Accordingly, while the discovery of the outstanding arrest warrant in this instance may be a factor in the attenuation analysis, it does not establish attenuation. In this case, Williams had no particularized and objective basis for suspecting Gross of criminal activity at the time of the stop, and no reasonable grounds to suspect that there might be an outstanding warrant arose during the duration of the seizure. Gross answered Williams’s questions, provided identification information, and did nothing to arouse particular suspicions. Nevertheless, Williams continued to detain him in order to run a warrant check. There was no rationale for this action.

Permalink 06:04:21 am, by fourth, 463 words, 2936 views   English (US)
Categories: General

TX: Mature teenager [13] had apparent authority for at least an entry

A mature teenager [13] had apparent authority to consent to an entry into the house, but not likely a search. On the facts of this case, this teenager had apparent authority for the entry. Limon v. State, 340 S.W.3d 753 (Tex. Crim. App. 2011) (dissent), revg Limon v. State, 314 S.W.3d 694 (Tex. App.--Corpus Christi 2010) (posted here):

Similarly, we need not consider a per se rule that children may, or may not, give consent to entry. Under given circumstances, and taking into account “widely shared social expectations” and “commonly held understanding,” it may be reasonable or unreasonable to believe that a child has authority to consent to a particular intrusion. As the Supreme Court stated in Randolph, “‘a child of eight might well be considered to have the power to consent to the police crossing the threshold into that part of the house where any caller, such as a pollster or salesman, might well be admitted,’ but no one would reasonably expect such a child to be in a position to authorize anyone to rummage through his parents’ bedroom.” Based on the Supreme Court’s example in Randolph, the Fourth Amendment does not prohibit a minor child from consenting to entry when the record shows the officer’s belief in the child’s authority to consent is reasonable under the facts known to the officer.

Under the circumstances of the present case, we find five key facts supporting the reasonableness of Perez’s belief. First, A.S. opened the door by himself in response to Perez’s knock. The trial court could have believed that his act suggests a greater level of authority to permit entry than, for example, if he had answered “What do you want?” from behind the door, or if he had answered the door with an adult in view behind him. Second, viewing the evidence in the light most favorable to its ruling, the trial court reasonably could have inferred from Perez’s testimony that A.S. appeared to be at least a teenager of significant maturity, if not a young adult.

Third, A.S. consented to mere entry through the front door, as opposed to entry or search of less public areas of the house. The trial court could have believed that it was reasonable to rely on a teenager’s authority to consent to such a limited scope of entry, while it would not have been reasonable to rely on his authority to consent to a more intrusive search.

Fourth, the officer’s announced purpose was to conduct an emergency public-safety function. We think it an even more widely shared social expectation that a teenager would have authority to permit entry for an emergency public-safety function than, for example, entry for a salesperson to make a sales pitch.

Permalink 05:44:58 am, by fourth, 192 words, 3044 views   English (US)
Categories: General

TN: Outstanding warrant does not validate an arrest without probable cause

Defendant’s arrest was without probable cause. It isn’t valid just because there is a warrant for his arrest. Otherwise, anybody could be arrested. State v. Echols, 2011 Tenn. Crim. App. LEXIS 442 (June 14, 2011):

The trial court found that the appellant's having an outstanding warrant justified the arrest even though the officers did not know about the warrant. However, if that were true, then a police officer could arrest anyone without probable cause, check the person's background for an outstanding warrant, and then use the outstanding warrant as justification for the warrantless arrest. We note that the police officers in this case did not even have enough information to check for an outstanding warrant until after they arrested the appellant and learned his last name was Brabson. Therefore, the evidence preponderates against the trial court's findings, and we conclude that the police officers did not have probable cause to arrest him for killing the victim.

A radio call of a drive-by with shots coming from a black Lexus with three Asian males justified a stop here of a black Honda with with Asian males. State v. Parker, 71 So. 3d 483 (La. App. 5th Cir. 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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  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)
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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)

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)
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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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