The trial court started the suppression hearing without defense counsel present because he was in another court in another county. He arrived shortly after it started where the officer had only gotten into background information. Nevertheless, the court finds this was a denial of counsel. People v Strothers, 2011 NY Slip Op 06200 (App. Div. 1st Dept. August 11, 2011):
The right to counsel for an accused person is constitutionally guaranteed at trial and at other critical proceedings such as a pretrial suppression hearing (see People v Carracedo, 214 AD2d 404 ). The deprivation of counsel has been described as absolute and harmful per se (see People v Margan, 157 AD2d 64, 65-66 ). Because of the sanctity of the right to counsel, we need not engage in an analysis as to what transpired in the case during counsel's absence and whether the evidence received, or matters discussed with the court, were material to the defense. " The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial'" (id. at 66, quoting Glasser v United States, 315 US 60, 76 ). Thus, we reject the People's argument that the deprivation here can be overlooked because defendant was unrepresented for only a small portion of the cumulative testimony and that the portion counsel missed covered only background and general information.
The fact that the right to counsel is absolute also renders baseless several of the other arguments advanced by the People. For instance, it is of no moment that counsel, once he did arrive for the hearing, did not preserve the objection that it began without him. Where counsel is not present when the deprivation occurs and so cannot lodge an objection, the issue can be raised for the first time on appeal (Margan at 70). The People offer no support for their position that the presence of codefendants' counsel, whose clients' interests they allege were aligned with defendant's, was an adequate substitute. Evidence that defendant expressly agreed to the representation and waived any conflict, as would be required, is completely absent from this record (cf. People v Torres, 224 AD2d 269, 270 , lv denied 88 NY2d 943 ).
We also reject the People's contention that the deprivation of counsel here was harmless. The Court of Appeals has held that, where a defendant is deprived of counsel at a suppression hearing, the error cannot be deemed harmless even if one can conclude that the outcome of the hearing would have been the same had counsel been present (see People v Wardlaw, 6 NY3d 556, 559 ). ...
On LegalMatch blog: Legislatures Grapple With New Police Technologies by Sonya Ziajaon:
My colleague wrote last month about the need for clear guidelines for using “new police technologies,” including GPS tracking darts and x-ray vans. He is not alone. Federal and state legislatures have been taking up this issue, even while courts are in the process of defining the limits of citizens’ Fourth Amendment right to privacy.
As Mr. Rivera noted, tracking devices have been very useful tools for law enforcement. At the same time the tools are invasive and used surreptitiously, raising significant privacy concerns. Still, no one is seriously considering banning any of these devices. The question legislatures are grappling with is whether or not law enforcement should be required to seek a warrant before employing invasive tracking technologies.
Defendant came to the ER with a GSW to the lower calf and ankle, claiming that he’d been shot by an unknown assailant from some distance. Detectives were called as required by state law for all GSWs, and he noticed soot around the entrance wound hole in the clothing. The hospital personnel cut off the pant leg to treat the defendant and bagged it and turned it over to the officer. The seizure was a result of a plain view. Defendant conceded he had no reasonable expectation of privacy in his clothing on showing up at an ER with a GSW. Commonwealth v. Fortuna, 80 Mass. App. Ct. 45, 951 N.E.2d 687 (2011), Review denied 460 Mass. 1114, 954 N.E.2d 539 (2011).
Defendant was cited by the city for overgrown vegetation and trash in the yard, and he appealed. He had no Fourth Amendment expectation of privacy in what the city inspector could see from the street. City of Independence v. Cady, 349 S.W.3d 419 (Mo. App. 2011).*
Two serial informants, both independently corroborated, was probable cause. United States v. Holmes, 2011 U.S. Dist. LEXIS 87527 (W.D. La. Aug. 3, 2011), R&R 2011 U.S. Dist. LEXIS 87512 (W.D. La. July 14, 2011).*
The recording of a telephonic search warrant request clearly showed that the issuing magistrate did not act as a rubber stamp. In fact, the officer sought a warrant for urine as well, and the judge denied it. “Having considered the recording of the warrant application process and other related evidence, this Court is unable to find that Judge Emery abandoned his judicial role in any way, such as by failing to act in a neutral and detached manner, acting as a mere rubber stamp, engaging in the ‘competitive enterprise of ferreting out crime,’ see Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948), or blindly approving the telephonic warrant.” United States v. Valandra, 2011 U.S. Dist. LEXIS 87004 (D. S.D. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 87242 (D. S.D. June 9, 2011).
Defendant essentially consented to officers following him into his home to get clothes after he was arrested, but it was permissible under Washington v. Chrisman. United States v. Crisosto-Vera, 2011 U.S. Dist. LEXIS 87610 (D. Ariz. August 5, 2011), R&R 2011 U.S. Dist. LEXIS 87815 (D. Ariz., June 10, 2011).*
Defendants were stopped for a lane change without a turn signal, and the resulting stop took 21 minutes, nine of which was spent waiting for a criminal history check. In the meantime, the driver and the passenger had wildly inconsistent stories about their travel plans. That plus their extreme nervousness and driving a rental car was reasonable suspicion. United States v. Kitchell, 653 F.3d 1206 (10th Cir. 2011), cert. denied 2011 U.S. LEXIS 7234 (U.S., Oct. 11, 2011).*
It is not a violation of any law, and appellant cites nothing in support, to not state in the search warrant what the police intend to do with blood taken in a DWI blood draw. State v. Webre, 347 S.W.3d 381 (Tex. App.—Austin 2011).*
Defendant has not shown that trial counsel’s failure to file a motion to suppress would have altered the outcome, so no prejudice shown. State v. Layne, 2011 Ohio 3763, 2011 Ohio App. LEXIS 3193 (12th Dist. August 1, 2011).*
Defendant committed two traffic violations and was pulled over. The officer believed he made a furtive gesture by leaning when stopped, so he ordered defendant out of the car at gunpoint. After handcuffing defendant, he searched the car, and it was without reasonable suspicion for a weapon or probable cause for evidence. The officer could not even articulate the basis for handcuffing. State v. Hamilton, 2011 Ohio 3835; 2011 Ohio App. LEXIS 3226 (8th Dist. August 4, 2011).*
Defendant’s apparent hand-to-hand drug transaction was justification for his stop. State v. Harris, 2011 Tenn. Crim. App. LEXIS 599 (August 2, 2011).*
NPR: New Police Scanner Raises 'Facial Profiling' Concerns by Tovia Smith:
Beginning this fall, police officers across the nation will have a new weapon holstered onto their belts: A small attachment that weighs about 12 ounces turns an ordinary iPhone into a state-of-the-art biometric scanner.
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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
—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
—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."
"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)