Even a top cop concedes a right to video arrests--but the street tells a different story bY Jan Ransom in the Philadelphia Daily News

TAMERA MEDLEY begged the police officer to stop slamming her head - over and over - into the hood of a police cruiser.

Thinking they were helping, passers-by Shakir Riley and Melissa Hurling both turned their cellphone video cameras toward the melee that had erupted on Jefferson Street in Wynnefield, they said.

But then the cops turned on them.

Riley had started to walk away when at least five baton-wielding cops followed him, he said, and they beat him, poured a soda on his face and stomped on his phone, destroying the video he had just taken.

Meanwhile, two officers approached Hurling, urged her to leave and, after exchanging a few words, slammed her against a police cruiser, Hurling said. They pulled her by her hair before tossing her into the back of a cop car, she said.

Although it's legal to record Philadelphia police performing official duties in public, all three were charged with disorderly conduct and related offenses, and officers destroyed Hurling and Riley's cellphones, erasing any record of Medley's violent arrest, the pair said.

Charges against Hurling and Riley were dismissed, but Medley was found guilty last month of disorderly conduct, resisting arrest, harassment and related offenses. She was fined $500 but has filed an appeal.

American Prospect: Extreme Measures: Since September 11, the Fourth Amendment has been eroded in ways we do not even know. The scary part is that it's going to take years to undo the damage:

The abuse of the Constitution that followed September 11, 2001, was neither surprising nor inevitable. It was not a surprise, because it wasn’t the first time in American history—but the sixth, by my count—that fundamental rights had been violated during spasms of fear over national security. It was not inevitable, because prominent voices might have called the country back to its principles. There is no telling whether such appeals would have stood against the tide, but one man’s words did make a difference in the emergency command center at FBI headquarters on Pennsylvania Avenue several hours after the attacks.

The voice belonged to James Ziglar, then commissioner of the Immigration and Naturalization Service, who thinks of himself as a Goldwater Republican. “I’m quite a Bill of Rights kind of guy,” he says. At the FBI that day, he gathered with other senior officials for what he describes as a discussion about doing “some big sweeps” in “any community where there was a large concentration of Arabs, to basically do a door-to-door.”

Ziglar objected: “I was the only guy in the room who raised his hand and said, ‘Wait a minute. We’ve got something called the Fourth Amendment here. We don’t do sweeps in this country. We had a revolution over warrantless searches.’”

NYTimes Editorial: The Truth Behind Stop-and-Frisk:

Judge Shira Scheindlin of Federal District Court in New York made the right call when she refused to dismiss a lawsuit against the New York City Police Department, which alleged that officers use race as a basis for stopping and frisking citizens, rather than reasonable suspicion. The trial will provide an important opportunity to evaluate this increasingly troubling program, which resulted in 600,000 people being stopped on the streets last year alone.

Pursuit of a minor into a home for an alleged traffic offense was not justified by hot pursuit because there was no exigency, and any reasonable officer could have understood the constitutional implications. Mascorro v. Billings, 656 F.3d 1198 (10th Cir. 2011).

The plain view and automobile exception applied to the search of defendant’s car. United States v. Brown, 653 F.3d 656 (8th Cir. 2011).*

Defendant’s car was searched four times, and the automobile exception applied to all of them because it was always potentially “mobile.” United States v. Medina-Gonzalez, 437 Fed. Appx. 714 (10th Cir. 2011).*

Defendant and two others were sitting on a bank “engaged in the act of fishing.” Two conservation officers approached, and defendant put something in a bag he had with him. The officers asked for their fishing licenses, which they had. Then the officer asked to search the bag while still holding the fishing license, but it was not by consent. Under the circumstances, defendant would not have felt free to have not complied. State v. Alter, 953 N.E.2d 1182 (Ind. App. 2011)*:

Based upon our review of the record, the circumstances presented lead us to agree with the trial court that a reasonable person in Alter’s position would not feel free to leave or resist Officer Neargardner’s directives. See Calmes, 894 N.E.2d at 205 (concluding that a reasonable person in the defendant’s position would not feel free simply to terminate the encounter and walk away); see also Finger v. State, 799 N.E.2d 528, 533 (Ind. 2003) (noting that “a reasonable person in [the defendant’s] position would not feel free to leave after [the officer] retained his identification” and holding that the defendant was “detained for purposes of the Fourth Amendment” where a police officer asked for and received the driver’s license of the defendant and did not return the license or say that he was free to leave while the officer continued to converse with the defendant). Alter was detained for purposes of the Fourth Amendment.

[Note: This is the same rule that applies to driver's licenses.]

The District Court erred in concluding there was no probable cause, but the search warrant for blood was saved by the good faith exception. Instead, there was probable cause for the search warrant. State v. Walker, 2011 UT 53, 690 Utah Adv. Rep. 27, 267 P.3d 210 (2011).*

Officers received an “anonymous” tip by e-mail of drugs being sold out of defendant’s house, so officers went there for a knock-and-talk. His wife consented. No level of suspicion is required for a knock-and-talk. United States v. Johnson, 2011 U.S. Dist. LEXIS 97577 (W.D. Tenn. August 30, 2011), R&R 2011 U.S. Dist. LEXIS 97576 (W.D. Tenn. July 21, 2011):

[I]t is well-established that “[a]n officer may initiate a knock and talk without any objective level of suspicion.” Pritchard v. Hamilton Twp. Bd. of Trs., No. 09-4594, 424 Fed. Appx. 492 (6th Cir. May 25, 2011) (citing United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)). Any resulting discussion with a suspect does not implicate the Fourth Amendment. Thomas, 430 F.3d at 277 (citing cases).

Petitioner’s overbreadth of search warrant claim in a § 2255 would not have been reversed on appeal even if it had been raised. Baker v. United States, 2011 U.S. Dist. LEXIS 97493 (E.D. Va. August 29, 2011).*

Defendant’s wife found child pornography on their computer and she signed a consent to search the house for the computer. That included consent to seize it. Consent was not limited after she talked to defendant before the police came in the house. United States v. Powers, 432 Fed. Appx. 16 (2d Cir. 2011) (unpublished).*

Defendant in his § 2255 failed to show that defense counsel was ineffective for not arguing that he had a reasonable expectation of privacy in a hospital room. He cited no controlling case law. The law is unsettled on that at best, and no case from the Eighth Circuit is in point. Defense counsel is [essentially] not charged with being ineffective for not arguing that the law should be changed. New v. United States, 652 F.3d 949 (8th Cir. 2011):

This court has held that an attorney's failure to anticipate changes in the law does not constitute constitutionally ineffective assistance. Parker v. Bowersox, 188 F.3d 923, 929 (8th Cir. 1999). Then in Fields v. United States, 201 F.3d 1025 (8th Cir. 2000), this court reached the same conclusion about unsettled issues. We denied relief to a § 2255 movant who argued that his attorney's failure to object to the district court's jury instructions deprived him of effective assistance of counsel. See id. at 1026. We noted that neither the Eighth Circuit nor the Supreme Court had decided whether the jury instructions at issue were adequate, and that two other courts of appeals had addressed the issue and come to contrary conclusions. We then said the following:

Given this split of authority at the time Fields was tried, and the complete lack of Eighth Circuit or Supreme Court authority on the subject, it must be said that counsel's performance fell within the wide range of professionally competent assistance. ... If counsel's failure to anticipate a change in the law will not establish that counsel performed below professional standards, then counsel's failure to anticipate a rule of law that has yet to be articulated by the governing courts surely cannot render counsel's performance professionally unreasonable. Moreover, Fields has not directed our attention to Supreme Court or Eighth Circuit precedent (and our research has located none) that can be said to clearly portend the law ... as Fields would have us state it.

Police responded to a 911 call and found a body outside. A cursory sweep of the interior was permissible, but a second entry was invalid. Also, defendant’s mobile home, hooked up to utilities, was not readily mobile, so the automobile exception did not apply. The trial court’s failure to suppress, however, was harmless considering that the product of the search was barely referenced at trial and the other evidence was overwhelming. Tollefson v. State, 352 S.W.3d 816 (Tex. App.—San Antonio 2011):

Tollefson argues because Barbara's body was found outside his trailer, rather than inside as in Johnson, officers did not have consent to enter his trailer. Tollefson's argument is persuasive. After the initial protective sweep of the trailer, it was unnecessary for law enforcement officials to re-enter the trailer to investigate the shooting or remove Barbara's body. In comparison, the defendant in Johnson was still at the scene as officers continued to investigate and was, therefore, "in a position to revoke her consent had she wished to do so." Johnson, 226 S.W.3d at 445. Officers took Tollefson to the Wilson County jail before Chief Deputy Deagen searched the trailer, so Tollefson was not in a position to deny consent.

We hold the emergency exception to the warrant requirement does not apply because after the initial protective sweep of Tollefson's trailer, wherein the officers did not seize the evidence in question, officers did not have Tollefson's implied consent to search his trailer. At the time of the second search, Tollefson had been removed from the scene and Barbara's body was outside the trailer.