Archives for: June 2011, 26


Permalink 08:11:19 am, by fourth, 204 words, 3011 views   English (US)
Categories: General

D.N.J.: After consent was given, door was locked and curtains drawn; that was exigency because officers had reason to believe drugs inside

Defendant consented to a search but then locked the door. The officers had reason to believe that he had drug evidence inside. Then he closed the curtain. At that point, the officers could conclude that he was destroying evidence and exigent circumstances arose. United States v. Almonte, 2011 U.S. Dist. LEXIS 67237 (D. N.J. June 23, 2011).*

Defendant was stopped for a lane change violation, and the passenger fled from the car, and he matched the description of a wanted bank robber. That gave reasonable suspicion to detain the driver a while. United States v. Hastings, 2011 U.S. Dist. LEXIS 66792 (D. Minn. May 23, 2011).*

Child pornography here was found in a private search and turned over to the police through a lawyer. There was no evidence that the private searcher was an agent of the police. United States v. Jeremias, 2011 U.S. Dist. LEXIS 66794 (W.D. N.C. April 28, 2011).*

Defendant’s wife had apparent authority to consent to a search of their house. United States v. Dooley, 2011 U.S. Dist. LEXIS 67186 (N.D. Fla. January 24, 2011).*

Thirteen policemen arrived with arrest warrants, and the person who answered the door had apparent authority to consent to a protective sweep. United States v. Barnes, 807 F. Supp. 2d 1154 (N.D. Ga. 2010).*

Permalink 07:47:13 am, by fourth, 510 words, 2907 views   English (US)
Categories: General

WI: Objecting defendant not actually in the doorway not subject to Randolph

In a rule almost impossible to apply, the Wisconsin Supreme Court concludes that the target of a search sitting in his car out front is not close enough to the house for his refusal to consent to be binding on his co-tenant from whom the police got consent. The defendant was not “present” for his objection to be valid under Randolph, which must be construed narrowly. State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858 (2011):

[*P24] We next turn to whether he was “invited to take part in the threshold colloquy,” a point disputed by the parties. St. Martin argues that he was invited to take part because the officer came to him and asked for his consent. The State argues that the “threshold colloquy” referenced by the Court in Randolph cannot be rightly construed to include a colloquy that occurs outside the home.

. . .

[*P27] We agree with those courts that the Randolph Court incorporated an express requirement of physical presence in its shared-dwelling consent rule. An approach that reads the phrase “threshold colloquy” metaphorically would not be consistent with either the “physically present” requirement or the “fine line” framework set forth by the United States Supreme Court. Such an approach cannot be reconciled with the clear statement of the Court that minor factual differences will be dispositive. The Seventh Circuit’s analysis in Henderson noted that the Randolph concurrence by Justice Breyer stressed the fact-intensive nature of the analysis in this type of case. See Henderson, 536 F.3d at 781 (citing Randolph, 547 U.S. at 127 (Breyer, J., concurring)). In cases where the United States Supreme Court has drawn what it acknowledges are fine lines, the facts matter, and slight factual differences may take the analysis in far different directions. The argument that a slight variation in the facts would require an opposite result is therefore not persuasive. Slight differences in facts do actually often make a difference. We therefore agree with the State that under the justified formalism of the rules set forth by the United States Supreme Court, St. Martin was “nearby” and “not invited to take part in the threshold colloquy,” and that he therefore does not fall within the rule stated in Randolph such that the search should have been barred and the evidence gained from it suppressed.


[*P48] In making the determination that St. Martin was not physically present, the majority sidesteps Randolph's holding. Instead, it handpicks the language from Randolph where the Court was applying its rule to the particular facts of the case.

[*P49] Under the majority's analysis, it is unclear how close a nonconsenting occupant must be to the front door to be considered “physically present.” The majority notes that St. Martin “did not expressly object to [the officers’] entry as he stood at the door,” majority op., ¶22, and that when St. Martin did object, he was “not at the door and objecting.” Id., ¶23. Neither the court of appeals nor the State advances such a restrictive rule. Both acknowledge that the test is whether the defendant is “physically present.” See supra, ¶36.

Permalink 07:34:15 am, by fourth, 127 words, 2966 views   English (US)
Categories: General

CA11: Arrest outside officer's territorial jurisdiction is not a Fourth Amendment violation

Plaintiff’s claim that the defendant police officer arrested him outside the city limits was not a Fourth Amendment claim. The excessive force claim’s failure was supported by the evidence. Everett v. Marianna Police Dep't, 2011 U.S. App. LEXIS 12668 (11th Cir. June 20, 2011) (unpublished).*

The Pennsylvania search warrant affidavit incorporated a New Jersey search warrant by reference and showed probable cause. United States v. Lackner, 2011 U.S. Dist. LEXIS 66416 (D. Conn. June 21, 2011).*

A controlled buy from a house is probable cause to search the house. It also provides probable cause to stop the defendant later when he leaves the house to a prearranged drug buy. United States v. Briggs, 431 Fed. Appx. 389 (6th Cir. 2011).*

Defendant’s conclusory Franks claim fails. United States v. Cha, 431 Fed. Appx. 790 (11th Cir. 2011).*

Permalink 07:23:13 am, by fourth, 200 words, 2833 views   English (US)
Categories: General

E.D.Tenn.: Defendant's disavowal of connection to the premises when asked for consent denied him standing

Defendant’s disavowal of living there as the reason why he couldn’t consent to an entry showed he had no standing. United States v. Howard, 2011 U.S. Dist. LEXIS 67162 (E.D. Tenn. June 21, 2011), R&R 2011 U.S. Dist. LEXIS 69300 (E.D. Tenn. April 7, 2011).

The stop was valid, and defendant consented. United States v. Orozco, 2011 U.S. Dist. LEXIS 66574 (E.D. Mo. March 30, 2011).*

The government’s claim of exigent circumstances to enter to protect a 16 year old girl from allegedly being molested by defendant was misplaced because she was old enough to consent and apparently was. “While the situation about which Littlefield read in the CAD Report was creepy, it was not scary. Unless the Court is prepared to say that consensual sex by a woman who can give consent places the woman in imminent danger of physical harm, the Court cannot say that there is an exigent circumstances when the age gap is so great.” United States v. Christy, 785 F. Supp. 2d 1004 (D. N.M. 2011).*

Police conducted a knock-and-talk after following footprints in the dew covered grass to defendant’s house. He consented to an entry. United States v. Clay, 2011 U.S. Dist. LEXIS 65657 (E.D. Tenn. April 11, 2011).*

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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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2013-14 Term:
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  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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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  ACLU on privacy
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  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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