Archives for: August 2011, 29


Permalink 07:14:27 am, by fourth, 193 words, 2999 views   English (US)
Categories: General

CA7: “Close question” on a civil Fourth Amendment violation usually means qualified immunity

Finding this a “close question” on a Fourth Amendment violation for child protective services taking a child, the defendants are entitled to qualified immunity. The plaintiff in a § 1983 Fourth Amendment case bears the burden of showing that the right is clearly established. Hernandez v. Foster, 657 F.3d 463 (7th Cir. 2011):

The plaintiffs bear the burden of proving that the constitutional right was clearly established. Estate of Escobedo v. Bender, 600 F.3d 770, 779 (7th Cir.), cert. denied sub nom. Martin v. Hanic, 131 S. Ct. 463 (2010). A right is clearly established "when, at the time of the challenged conduct, '[t]he contours of [a] right [are] sufficiently clear' that every 'reasonable official would have understood that what he is doing violates that right.'" al-Kidd, 131 S. Ct. at 2083 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The plaintiffs need not identify "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Id.; see also Estate of Escobedo, 600 F.3d at 780 (stating that a party can demonstrate a right was clearly established by identifying "a closely analogous case" or presenting evidence that the defendant's conduct was "patently violative of the constitutional right").

Permalink 12:30:20 am, by fourth, 124 words, 2976 views   English (US)
Categories: General

N.D.W.Va.: USMJ who issues SW not required to recuse from rest of case

The USMJ who issues a search warrant is not obligated to recuse from deciding anything else. The target’s motion here only complains about the rest of the process, and the motion is essentially frivolous. In re Hoover’s Residence, 2010 U.S. Dist. LEXIS 143626 (N.D. W.Va. October 28, 2010).*

Even if defense counsel had filed a motion to suppress ammunition as a result of an illegal search, defendant would have still been convicted of being a felon in possession of a firearm, and it had no effect on the outcome. United States v. Rendon-Martinez, 437 Fed. Appx. 685 (10th Cir. 2011).*

Under the four corners of the affidavit, there was PC for issuance of the search warrant. State v. Long, 2011 Ohio 4293, 2011 Ohio App. LEXIS 3552 (2d Dist. August 26, 2011).*

Permalink 12:20:57 am, by fourth, 471 words, 2941 views   English (US)
Categories: General

CA7: Taxidermy a regulated industry in Illinois

Taxidermy qualifies for regulated industry inspections under New York v. Burger. United Taxidermists Ass’n v. Ill. Dep’t of Natural Res., 436 Fed. Appx. 692 (7th Cir. 2011):

On appeal the Association reasserts its narrow argument that inspections under the Code do not meet the first Burger prong because there is no substantial government interest in tagging animals. Although this circuit has not explored the Burger test extensively, our prior interpretations have construed the first step as asking whether a substantial interest drives the entire regulatory scheme, not a particular part of it. ... Thus, the relevant inquiry here is whether a substantial government interest informs the taxidermy industry as a whole. Although there is not much circuit court precedent addressing that requirement, we conclude that the state’s process is adequate and appropriate. Illinois owns and has title to all wild birds and mammals, and the state enacted the Code “to protect and regulate the hunting and capture of certain species.” 520 ILCS 5/2.1; see People v. Taylor, 561 N.E.2d 667, 672 (Ill. 1990). Section 3.21 in particular “ensure[s] that protected animals are taken in compliance with the other provisions of the Code.” Taylor, 561 N.E.2d at 672. Accordingly, the need to protect wildlife demonstrates that Illinois has a substantial interest in regulating the taxidermy industry. ...

The Association does not dispute that the Code satisfies the second prong of Burger, whether the warrantless nature of the search is necessary to further the regulatory scheme. And any challenge to that prong would be meritless because abundant case law extols the necessity of surprise in these searches. Burger, 482 U.S. at 710; ...

Regarding the third prong, the Association first asserts that the Code’s scope is too broad because it does not define the “taxidermy records” subject to inspection, and thus provides insufficient notice to taxidermists that the tags attached to animals are subject to search. The Association concedes that “taxidermy records” include the written records kept by taxidermists, but contends that the term cannot possibly include the tags attached to the animals. The Association notes the Code’s requirement that taxidermists keep “records” for at least two years or however long the taxidermist possesses the animal or its parts, 520 ILCS 5/3.21(d), and points out the absurdity of any obligation to keep a tagged specimen after a taxidermist no longer has the specimen in his shop.

An examination of section 3.21(d) in the context of the entire Code, however, refutes the Association’s narrow argument. ... Moreover, removing the tagging requirement from the breadth of inspections also would frustrate the purpose of the Code: regulating the capture and possession of wildlife. See United States v. McDonald, 453 F.3d 958, 960 (7th Cir. 2006); In re Hardin, 932 N.E.2d 1016, 1020 (Ill. 2010). Allowing inspectors to search the tags enables them to verify the accuracy of a taxidermist’s written records and ensure compliance with the Code.

Permalink 12:14:35 am, by fourth, 366 words, 2922 views   English (US)
Categories: General

MT: Defendant's abrupt pulling off road in desolate area justified officer stopping to see if she needed assistance

The officer was coming up on defendant’s vehicle moving much slower, and she abruptly pulled off the road 200 yards in front of him. He turned on his emergency lights and stopped to see if she had a flat or engine trouble. When he talked to her, she said everything was fine, but she smelled of intoxicants. One thing led to another and she was arrested for DUI. The “stop” was a community caretaking inquiry, and reasonable suspicion developed from that. Even if there was a possible mixed motive, all the objective facts support the community caretaking stop. State v. Spaulding, 2011 MT 204, 361 Mont. 445, 259 P.3d 793 (2011)*:

It is true that the community caretaker doctrine cannot be used as a pretext for an illegal search and seizure. Lovegren, ¶ 23. For this reason, we require that a welfare check be based on objective, specific, and articulable facts from which an officer would suspect that a citizen is in need of help or is in peril, Lovegren, ¶ 25, and that the stop actually involve a welfare check, see e.g. Graham, ¶¶ 30-31 (the officer's admitted purpose was not to conduct a welfare check, but rather to “move [the defendant] along”); State v. Reiner, 2003 MT 243, ¶¶ 21-22, 317 Mont. 304, 77 P.3d 210 (the officer did not stop out of concern for the defendant being in peril or in need of assistance, but rather to commence an investigation based on a report of a possibly intoxicated driver); Seaman, ¶ 30 (the officer's initial questions reflected his concern for the defendant's well-being); cf. State v. Nelson, 2004 MT 13, ¶ 9, 319 Mont. 250, 84 P.3d 25 (even if the officer suspected that the defendant's license was suspended, the primary purpose of her stop was to determine whether any possible occupants of the vehicle needed assistance).

[*P25] In the present case, there were objective, specific, and articulable facts from which an officer would suspect that a citizen was in peril or in need of help. The vehicle pulled over abruptly, while Croft was still 200 yards away. In Croft's experience, this indicated that the driver might have a flat tire or car troubles. They were on a back road in a desolate area, out “in the middle of nowhere,” and the road was “not a very well-travelled road.”

Permalink 12:02:32 am, by fourth, 136 words, 2870 views   English (US)
Categories: General

MA: State constitution not argued, but, since case is remanded, defendant can do it then

Kentucky v. King was decided while defendant’s case was pending, but he only argued the Fourth Amendment, not the state constitution. He loses his issue of police created exigency, but he gets a remand for other reasons, so he can raise the state constitution on remand. Commonwealth v. Gentle, 80 Mass. App. Ct. 243, 952 N.E.2d 426 (2011).*

The state’s testimony that defendant’s DNA was obtained by search warrant was not an inference that the defendant did not consent where two other suspects did consent. Even if it were potential error, it was harmless here. State v. Hill, 801 N.W.2d 646 (Minn. 2011).*

Defense counsel was not ineffective for not moving to suppress a recorded conversation in the back of a police cruiser since it would have been baseless. Jarnigan v. State, 2011 Tenn. Crim. App. LEXIS 662 (August 24, 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)
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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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