Archives for: August 2011, 15
08/15/11
ID: Protective sweep of building behind the trailer to be search was justified
Officers had a search warrant for a mobile home. When they arrived they found the defendant outside and two men coming out of a rock building behind the trailer. The search warrant was for the premises, and the protective sweep of the rock building was justified under Buie. State v. Rojas-Tapia, 151 Idaho 479, 259 P.3d 625 (2011).*
Defendant rented a hotel room for a couple that had no means to rent the room themselves. As occupants, they had apparent authority to consent to a search of the room. State v. Bell, 2011 Iowa App. LEXIS 813 (August 10, 2011).*
Two officers approached a group in a high crime area and they scattered. One officer followed defendant who furtively reached for his waist as the officer approached. Handcuffing him was reasonable during the patdown for officer safety. The pill bottle in defendant’s pocket was discovered by plain feel. State v. Marshall, 70 So. 3d 1106 (La. App. 2d Cir. 2011).*
D.N.J.: "Pretextual search warrant" argument rejected
Court rejects pretextual search warrant argument that probable cause for crime A does not permit seizure of evidence of crime B found during execution of the warrant that police hope or suspect they will also find. United States v. Fautz, 2011 U.S. Dist. LEXIS 89133 (D. N.J. August 11, 2011).
In an investigative stop after an apparent car switch, the defendants were patted down and their cell phones removed from their possession. That was not unreasonable. United States v. Lopez, 441 Fed. Appx. 910 (3d Cir. 2011) (unpublished).*
The officer had to know that one defendant did not have apparent authority to consent to the search of another defendant’s wallet that was pulled out and laid on the console while showing his DL to the officer. A gym bag in the back seat, however, was a different matter. United States v. Rodriguez, 2011 U.S. Dist. LEXIS 89043 (S.D. Ala. August 10, 2011).*
CA6: In an export violation case, the SW was broad as it needed to be, but not overbroad, considering the extent of the investigation
The search warrant in an export violation case was not overbroad considering what was under investigation. The defendant was accused of unlawfully shipping telecommunications equipment to Iraq in violation of an embargo through intermediaries in different countries. At the time of the search, the government did not know the breadth of the conspiracy. Limiting the search to email subject lines might have caused the investigators to miss important evidence. The warrant was not an “all records” search, and it was tailored to look for evidence of the crime at hand. Some emails in evidence had blank subject lines, and the government was entitled to try to figure out who else was involved by the senders and recipients. United States v. Hanna, 661 F.3d 271 (6th Cir. 2011).*
Mail was addressed to the defendants from the Pinellas County jail disguised as legal mail, and the defendants were under investigation in a white collar fraud case. Search warrants were obtained for the mail after an FBI agent acting as a “taint team” determined that they were not legal mail. Mary Morgan had no standing to contest a search of mail addressed to John Morgan. United States v. Morgan, 2011 U.S. Dist. LEXIS 88876 (M.D. Fla. August 10, 2011).*
In his 2255, defendant argued that his counsel did not “properly” argue the suppression motion that was filed and litigated and appealed. He doesn’t say how, so no claim is presented. United States v. Perez-Jacome, 2011 U.S. Dist. LEXIS 89617 (D. Kan. August 11, 2011).*
The officer showed the defendant a printed phrase book of Spanish in Law Enforcement which was a request for consent, and the court finds that sufficient for consent. Once granted, consent extends the stop. United States v. Lamela-Cardenas, 2011 U.S. Dist. LEXIS 89003 (S.D. Ala. August 10, 2011).*
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
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www.LawofCriminalDefense.com
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2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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
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safer if the Constitution is strictly enforced." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
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—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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