Archives for: August 2011, 27


Permalink 12:24:11 pm, by fourth, 384 words, 2867 views   English (US)
Categories: General

WI: Four day search under warrant with two entries of the house was reasonable under the SW

The four day search of defendant’s property was reasonable under the “one warrant one search” rule, even though it included a second entry into defendant’s house on the property. He had a junk yard with over 3,000 cars on it, and all had to be searched. State v. Avery, 2011 WI App 124, 337 Wis. 2d 351, 804 N.W.2d 216 (2011):

P25 Based on our review of the circumstances existing at the time of the November 8 search, we are satisfied that it was a continuation of the ongoing search which commenced on Saturday, November 5. As in Squillacote, the number and type of items identified in the search warrant necessitated an extensive and exhaustive search. See Squillacote, 221 F.3d at 557. The lateness of the hour, the weather conditions, and the extensive and intensive nature of the search make it apparent that the search of Avery’s trailer could not have been completed on November 5. See id. Further, the continuous presence of law enforcement at the Avery salvage yard and their continuous control over Avery’s trailer from the time of the first search to the time of the sixth search belies any argument that the search of Avery’s trailer was fully executed at an earlier time.

P26 We therefore turn to the second inquiry—whether the decision to conduct another entry into Avery’s trailer to continue the search was reasonable under the circumstances. See Keszthelyi, 308 F.3d at 569. For the same reasons cited above, we are satisfied that the decision was not only reasonable but necessary, particularly given the evolving information and the accumulation of evidence during the ongoing search. Probable cause had not dissipated during the course of the earlier searches, but rather continued to mount as additional evidence was identified. See id. at 572 (continued probable cause is “critical to establishing the reasonableness of the second search”).

P27 We uphold the trial court’s ruling that “the multiple entries were part of a proper single execution of the November 5, 2005 warrant.” To require the government to obtain a new search warrant for the continued search under the circumstances of this case would be an unjustified burden. See Squillacote, 221 F.3d at 558. We turn next to the trial court’s alternative basis for denying Avery’s motion to suppress, namely that “the evidence would have been inevitably discovered.”

Permalink 11:54:12 am, by fourth, 210 words, 2889 views   English (US)
Categories: General

D.Conn.: Govt's failure to prove inventory policy was fatal to search

There was no testimony at the suppression hearing about the policy permitting an inventory search, and the government filed to show that there was a policy. The search was not by consent because the officer told the defendant he was going to do the inventory, and defendant had no choice. United States v. Milligan, 2011 U.S. Dist. LEXIS 94344 (D. Conn. May 4, 2011).*

Defendants landed a private plane at an unmanned airport, and police encountered them to talk. The officer called in their IDs to Homeland Security and they came back clean. The officer asked for consent and it was denied. The defendants seemed to act nervous, so they flew on to Nashville and registered the plane and spent the night. In Nashville, a drug dog alerted on the plane, and it was searched. Testimony about the first encounter and the refusal to consent was not barred by the exclusionary rule. [But, not a word about the constitutional right to refuse a consent search and not have it used at trial.] United States v. Clariot, 655 F.3d 550, 2011 FED App. 0238P (6th Cir. 2011).*

The district court’s credibility determination on consent is not clearly erroneous. United States v. Maldonado-Gonzalez, 444 Fed. Appx. 632 (4th Cir. 2011),* cert. denied 132 S. Ct. 466, 181 L. Ed. 2d 304 (U.S., Oct. 17, 2011).

Permalink 11:12:38 am, by fourth, 231 words, 3018 views   English (US)
Categories: General

S.D.N.Y.: Non-U.S. citizen outside U.S. caught on wiretap can't claim Fourth Amendment

Defendant on a wiretap who was outside the United States and was not a U.S. citizen had no Fourth Amendment claim under Verdugo-Urquidez. United States v. Coke, 2011 U.S. Dist. LEXIS 94012 (S.D. N.Y. August 22, 2011):

As an initial matter, Coke concedes that he is not protected by the Fourth Amendment and therefore, recognizes that he cannot seek to suppress the wire interceptions of his telephone calls on that basis. (Def. Court Ord. Mem. of Law at 2, Tr. at 18.) The Supreme Court held in United States v. Verdugo-Urquidez, 494 U.S. 259, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990), that where a defendant is not a United States citizen, and has no substantial, voluntary attachment to the United States, and the search at issue occurs abroad, "the Fourth Amendment has no application." In Verdugo-Urquidez, the Court concluded through a textual reading of the Fourth Amendment that the "purpose of the Fourth Amendment was to protect the people of the United States against arbitrary action by their own Government; [and that] it was never suggested that the provision was intended to restrain the actions of the Federal Government against aliens outside of U.S. territory." Id. at 266. Because there is no evidence that Coke had any "substantial, voluntary attachment" to the United States, both the Defense and Prosecution agree that the Fourth Amendment cannot be a basis for suppression of the seized wiretap evidence.

Permalink 12:54:03 am, by fourth, 305 words, 2854 views   English (US)
Categories: General

MA: Consent to take DNA was conditioned on its return if no match; since there wasn't, plaintiff stated a claim

Plaintiff voluntarily gave his DNA to be checked against a possible crime under the promise that it would be returned if there was no match. There wasn’t, but the DA and crime lab refused to return it. He had limited his consent, and he had an invasion of privacy suit for retention of the DNA. Amato v. District Attorney for the Cape and Islands District, 80 Mass. App. Ct. 230, 952 N.E.2d 400 (2011):

DNA information is highly sensitive. Citizens have a reasonable expectation of privacy in such information. See Landry v. Attorney Gen., 429 Mass. 336, 354 n.20, 709 N.E.2d 1085 (1999), cert. denied, 528 U.S. 1073, 120 S. Ct. 785, 145 L. Ed. 2d 663 (2000) (upholding State convicted offender database created by G. L. c. 22E as constitutional; however, "the indefinite storage of the entire DNA sample ... creates some concern that the samples could be misused at some point in the future to search for and disclose private genetic information" [emphasis added]).20 See also Horsemen's Benevolent & Protective Assn. v. State Racing Commn., 403 Mass. at 700 (discussing sensitive information discoverable through urinalysis); Commonwealth v. Cabral, 69 Mass. App. Ct. at 72, and cases cited. Amato has pleaded that the defendants continue to hold this highly sensitive information beyond the scope of the limited consent he gave at the time he provided the sample. Contrast O'Connor v. Police Commr. of Boston, 408 Mass. 324, 329-331, 557 N.E.2d 1146 (1990). Amato has also pleaded that the defendants' retention of up to 200 DNA profiles constitutes a shadow DNA database, with its constituent records available for disclosure by comparison in other criminal investigations.

The allegations that the defendants have retained Amato's highly sensitive DNA records without his consent and made them available for nonconsensual use in other criminal investigations are sufficient to constitute an unreasonable, substantial, and serious interference with Amato's privacy. These allegations therefore suffice to state a G. L. c. 214, § 1B, claim.

Permalink 12:33:33 am, by fourth, 174 words, 3050 views   English (US)
Categories: General

CA1: Arrest of a citizen for recording police in public on a cell phone violated clearly established First and Fourth Amendment rights

Arrest of a citizen for recording police in public on a cell phone violated clearly established First and Fourth Amendment rights, so no qualified immunity. Glik v. Cunniffee, 10-1764 (1st Cir. August 26, 2011):

Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common. The charges against Glik, which included violation of Massachusetts's wiretap statute and two other state-law offenses, were subsequently judged baseless and were dismissed. Glik then brought this suit under 42 U.S.C. § 1983, claiming that his arrest for filming the officers constituted a violation of his rights under the First and Fourth Amendments.

In this interlocutory appeal, the defendant police officers challenge an order of the district court denying them qualified immunity on Glik's constitutional claims. We conclude, based on the facts alleged, that Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause. We therefore affirm.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)
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2010-11 Term:
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  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)

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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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