Archives for: August 2011, 18

08/18/11

Permalink 09:58:22 am, by fourth, 298 words, 4191 views   English (US)
Categories: General

ND: Defendant's pockets are not “containers” subject to search under the automobile exception

When a dog alerts on a car, and the defendant is in the car, the defendant’s pockets are not “containers” subject to search under the automobile exception because of the heightened privacy interest in one’s person. State v. Gefroh, 2011 ND 153, 801 N.W.2d 429 (2011):

[*P13] We hold the automobile exception did not justify the warrantless search of Gefroh’s person. The dog-sniff of the vehicle established probable cause the vehicle contained a controlled substance, but the pockets of the clothes Gefroh was wearing were not “containers.” The State also argued that Gefroh, as the driver of the vehicle, was part of the contents of the vehicle. The State offers no support for its arguments that would render Gefroh a container or contents of the vehicle, rather than a person entitled to “heightened protection” against searches of his person. The district court correctly decided the automobile exception justified the search of the vehicle, but not Gefroh’s person. The district court correctly ordered the cocaine evidence suppressed.

Defendant has no standing on the face of his motion: He was a passenger and his consent was not required. United States v. Lopez, 2011 U.S. Dist. LEXIS 91349 (S.D. N.Y. August 16, 2011).*

Officers are not required to schedule a search at a time when defendant is not home or excuse him while they search. United States v. Fautz, 812 F. Supp. 2d 570 (D. N.J. 2011).*

While Eighth Circuit case law suggests that one driving a rental car with the permission of the renter might have standing, in this case he wouldn’t. The car was overdue, and the rental car company was trying to get it back and told the renter she was no longer authorized to have it. United States v. Lumpkins, 2011 U.S. Dist. LEXIS 91357 (W.D. Mo. July 6, 2011).*

Permalink 09:31:36 am, by fourth, 168 words, 4109 views   English (US)
Categories: General

CA9: Just being an alleged child molester, without more, does not justify a SW for computers for child pornography

The search warrant for plaintiff’s computer for child pornography based solely on allegations of child molestation was without probable cause where there was not even a suggestion a computer was used by plaintiff. However, because of a circuit split of authority, qualified immunity applies. Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).*

Defendant was stopped and struggled with officers dropping packages of heroin. He was able to lunge for the heroin and swallow it. The search of his car was valid under the automobile exception. State v. Winfrey, 302 Conn. 195, 24 A.3d 1218 (2011).*

Claimant’s action for return of property filed ten years after seizure was barred is an equitable action under (now) Rule 41(g) when the government said it didn’t have the property. Van Jackson v. United States, 427 Fed. Appx. 524 (7th Cir. 2011) (unpublished).*

Just raising a Franks issue gets you no hearing; a substantial preliminary showing is required, and here there wasn’t one. United States v. Clark, 2011 U.S. Dist. LEXIS 90776 (D. S.D. August 15, 2011).*

Permalink 05:55:03 am, by fourth, 350 words, 4212 views   English (US)
Categories: General

CA7: Fourth Amendment applies to arrestee's medical needs

While the Fourth Amendment applies to an arrestee’s medical needs at the time of arrest, here the officers had qualified immunity for denying baby aspirin to a suspect who had a heart attack when they battered in his door. They also had no notice at the time of the raid that the plaintiff was a potential heart attack victim. Florek v. Mundelein, 649 F.3d 594 (7th Cir. 2011):

The Fourth Amendment to the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ....” U.S. Const. amend. IV. We have held that an officer violates the prohibition on unreasonable seizures when, in the course of making an otherwise lawful arrest, he does not respond reasonably to an arrestee’s medical needs. Sides v. City of Champaign, 496 F.3d 820, 828 (7th Cir. 2007) (citing Graham v. Connor, 490 U.S. 386, 394-95, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989), and holding that the Fourth Amendment’s ban on unreasonable seizures applies to claims of unreasonable inattention to medical needs at the time of arrest). Not every constitutional violation will furnish a plaintiff with a basis for recovery, however. Qualified immunity will shield an officer from money damages unless a plaintiff establishes that the officer violated a right that was clearly established. Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009). And because “[l]evel of generality is destiny” in law, see Thomas More Law Center v. Obama, __ F.3d ___, 2011 U.S. App. LEXIS 13265, 2011 WL 2556039, at *27 (6th Cir. June 29, 2011) (Sutton, J., concurring), it bears emphasizing that courts should not decide that a right is clearly established at a high level of abstraction: we look to “whether the violative nature of particular conduct is clearly established.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084, 179 L. Ed. 2d 1149 (2011) (emphasis added).

[Sounds a bit like the taser cases where the police taser an older person who has a heart attack. Aren't they on notice that the age of the target might be a health problem when the batter down a door in a surprise “dynamic” entry?]

Permalink 05:47:24 am, by fourth, 80 words, 4189 views   English (US)
Categories: General

Former Sheriff pleads to Fourth Amendment violation for forced stripping of female arrestees

OzarksFirst.com: Former Missouri Sheriff Admits to Exploiting Women:

The now-former sheriff of Worth County, Missouri could find himself spending time behind bars after pleading guilty to federal charges he used his position to exploit women.

The Justice Department said today Neal Wayne "Bear" Groom has admitted to having violated the Fourth Amendment rule against unreasonable seizures when he coerced eight women to expose parts of their bodies to him.

[I couldn't find the press release on the DoJ website.]

FourthAmendment.com

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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)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
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  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."
—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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