Archives for: August 2011, 03


Permalink 08:40:54 am, by fourth, 245 words, 2977 views   English (US)
Categories: General

CA9: Leaving computer with someone to use while off to prison for a few years was apparent authority to consent

Defendant went to prison and left his computer with his girlfriend. When they lived together, his child pornography folders were password protected. Before he left, he removed the password protection. The computer crashed and she got a friend to work on it. He was on federal probation for a drug crime, and he asked the girlfriend whether he could give it to his probation officer as his own CYA. She agreed. She had apparent authority to consent to a search of the computer. He gave her control over the computer while he was imprisoned. The District Court also credited defendant's early admission that she was a co-owner. United States v. Stanley, 653 F.3d 946 (9th Cir. 2011).

In an investigation of a murder case with a shot suspect, the affidavit for the search warrant showed a fair probability that evidence would be found in defendant’s house because of the connection of the vehicle fleeing the scene being found at the house. United States v. Holloway, 2011 U.S. Dist. LEXIS 84397 (D. Kan. August 1, 2011).*

The CI’s tip defendant was manufacturing meth was corroborated by records of his purchases of ingredients, his prior convictions, and corroboration of other somewhat minor details. United States v. Wyatt, 2011 U.S. Dist. LEXIS 84204 (W.D. Ky. July 29, 2011).*

The vehicle stop was with probable cause of a traffic infraction, so reasonable suspicion of drug activity does not have to be decided. United States v. Belcher, 2011 U.S. Dist. LEXIS 83769 (E.D. Ky. June 13, 2011).*

Permalink 08:33:33 am, by fourth, 213 words, 3005 views   English (US)
Categories: General

CA3: No prosecutorial immunity for failure to tell court of change in circumstances for detention of material witness

Prosecutorial immunity does not protect a prosecutor who ordered the arrest of a material witness and then failed to tell the court ordering detention of material changes in circumstances affecting the need for detention. Schneyder v. Smith, 653 F.3d 313 (3d Cir. 2011)*:

The Fourth Amendment guarantees the right of the people to be secure against unreasonable searches and seizures. This case is about a seizure and presents questions of whether and how the Constitution’s guarantee applies in the case of a material witness who was jailed for weeks on end, even though the date of the trial in which she was to testify had been pushed back several months. We hold that the Fourth Amendment applies to such a detention, and that it requires a prosecutor responsible for such a detention to inform the judge who ordered the witness’s incarceration of any substantial change in the underlying circumstances. We also conclude that the prosecutor in this case had “fair warning” of the constitutional right she is accused of violating, and that she is therefore not shielded from liability by the doctrine of qualified immunity. Finally, we reaffirm our earlier holding that absolute prosecutorial immunity does not apply. We will therefore affirm the District Court’s order denying summary judgment to the defendant.

Permalink 08:25:36 am, by fourth, 453 words, 2807 views   English (US)
Categories: General

KS: SW for house did not permit searches of four purses of visitors without inquiring

In executing a search warrant on a house, the officer encountered four females with their purses. Since they were not the targets of the search, the officer was obliged to inquire into who owned which rather than just search them. State v. Jackson, 46 Kan. App. 2d 199 (2011):

In applying the notice test under the facts of this appeal, we reject the notion that Officer Phillips did not have notice that the purses belonged to the guests and not Davenport. Phillips admitted that he knew the purses could have belonged to the female guests; thus, he had constructive notice of “containers” not subject to the reach of the search warrant. His expressed reasoning for the search was that one or all of the purses could have belonged to the target of the warrant, Davenport, and that in order to determine ownership, he was forced to open the purses.

But Officer Phillips made no inquiry about the purses’ ownership. He did not ask any of the women present in the house if they had brought a purse or which one it was. Phillips could have simply gone into the living room and asked three questions of each guest: Did you bring a purse with you today? Is that the only purse you brought? Can you describe your purse? The true owner of the purse is most likely to have enough knowledge of the purse to describe it, while the others will probably not recall enough about the purse to describe it. Further, if Jackson had been questioned and had denied the purple purse with an orange handle was hers, she would no longer have had a subjective expectation of privacy in the purse. Moreover, if there was doubt of ownership after questioning Jackson, the officers could have applied for a supplemental search warrant or requested that a drug dog be brought to the premises. In short, the notion that the police would have been stymied and without appropriate avenues of investigation is not accurate.

. . .

In the final analysis, we are required to balance the privacy rights of an individual under the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights against the legitimate need of law enforcement to conduct a proper search under the mandate of a search warrant. We hold the State did not meet its burden to demonstrate the search of Jackson’s purse was lawful and, to paraphrase Tonroy, the State offered nothing to rebut the reasonable assumption that three or four purses lying on a kitchen floor during a social gathering attended by three or four women were owned by the guests rather than by the female occupant of the residence. See 32 Kan. App. 2d at 925.

Permalink 07:08:00 am, by fourth, 365 words, 4241 views   English (US)
Categories: General

ME: Stopping motorist to ask about somebody else speeding violated the Fourth Amendment

Stopping a motorist for information about a third party speeding was an unconstitutional seizure because the purpose of the stop was not sufficiently serious to justify the infringement of the motorist's rights. State v. LaPlante, 2011 ME 85, 26 A.3d 337 (2011):

[¶1] In this appeal, we consider the constitutionality of a state trooper’s stop of a vehicle for the sole purpose of seeking information from the operator concerning another vehicle that the trooper observed speeding. ... We conclude that a law enforcement officer’s investigation of a third party’s civil speeding offense cannot, standing alone, justify the stop and seizure of a motorist, and we vacate the judgment.

. . .

[¶11] As noted above, the investigation of serious crimes has been deemed sufficiently important to outweigh certain interferences with the liberty interests of stopped motorists. ...

[¶12] In contrast, the investigation of noncriminal offenses is generally not a sufficiently grave public concern to outweigh the interference with a motorist’s liberty interest that occurs when the motorist is stopped without any reasonable articulable suspicion.

. . .

[¶16] The Fourth Amendment protects the individual’s reasonable desire for privacy, which arises from “the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Every traffic stop involves some degree of interference with that liberty interest because the motorist, whether law-abiding or not, loses the freedom to travel without interruption. The resulting intrusion on a person’s individual autonomy is not insubstantial. In his testimony, the trooper agreed that once he initiated his stop of LaPlante’s motorcycle by activating the blue lights of his cruiser, LaPlante was “obligated to pull over,” was “not free to leave,” and was “seized for [all] effective purposes.” See Brewer, 1999 ME 58, ¶ 12, 727 A.2d at 355 (discussing when an officer’s interaction with a citizen constitutes a seizure). Furthermore, if law enforcement officers routinely stopped motorists to inquire about third-party speeding offenses, the aggregate damage to individual liberty would be great.

[¶17] In addition, none of the elements that have been found to lessen the severity of the interference with the liberty interest when a motorist is stopped in the absence of reasonable articulable suspicion are present here. ...

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
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  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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"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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