Archives for: September 2011, 05

09/05/11

Permalink 07:31:07 am, by fourth, 194 words, 2939 views   English (US)
Categories: General

GA: Defendant had standing in a motel room he was staying in, although he didn't rent it

Although the defendant was not renting a motel room, he was staying there, and had his clothes and stuff there; therefore, he had standing. He was unlawfully detained when he consented, and that vitiated consent. State v. Woods, 311 Ga. App. 577, 716 S.E.2d 622 (2011)* [Ga.Ct.App. cases are only on LexisOne, but this case doesn't show].

Consent to “look in” or “inspect” the interior of a car is consent to search under the case law. United States v. Guerrero, 806 F. Supp. 2d 992 (S.D. Tex. 2011).*

The written inventory policy of the North Las Vegas PD was not introduced, but it was testified to orally, and there was no serious cross-examination about it. Therefore, the court finds that the policy was established. Moreover, when the defendant got out of the vehicle that was being impounded, he asked to take two computers, which he was permitted to do, but the officer also saw a credit card encoding device and far too many gift cards for a normal person to have, and that was probable cause to believe that credit card theft was in the offing. United States v. Berhe, 2011 U.S. Dist. LEXIS 98360 (D. Nev. June 10, 2011).*

Permalink 07:13:46 am, by fourth, 240 words, 2927 views   English (US)
Categories: General

E.D.Cal.: No standing in business search outside of personal office

Defendant’s failure to show that anything was seized from his personal office separates this business search from Mancusi v. DeForte and SDI Future Health, so his motion to reconsider is denied. United States v. Salyer, 814 F. Supp. 2d 984 (E.D. Cal. 2011).*

After defendant asked for three appointed attorneys to be excused from his case because of inability to get along with the lawyers, he was warned that he wasn’t getting a fourth lawyer, and he’d have to go pro se or retain counsel if it happened again. Just before the suppression hearing, the third lawyer made a motion to be relieved because he had irreconcilable differences with defendant. The court granted the motion but ordered the lawyer to remain as standby counsel for the suppression motion. Defendant was not unconstitutionally denied his right to counsel at the suppression hearing. Long v. United States, 2011 U.S. Dist. LEXIS 98348 (E.D. Tenn. August 31, 2011).

The Pennsylvania State Trooper was described here as a narcotics intelligence officer who stopped a speeding rented SUV because he felt there was something up. While the factors the officer relied on for his suspicions were normal activity, other factors learned during the valid stop supported reasonable suspicion: Five car rentals in the previous four months, four border crossings from Mexico that year (per EPIC), he wasn’t an authorized driver on the car. United States v. Anderson, 2011 U.S. Dist. LEXIS 98233 (E.D. Pa. August 30, 2011).*

Permalink 06:45:35 am, by fourth, 171 words, 2951 views   English (US)
Categories: General

W.D.Tex.: Officers' conflicting testimony about consent after knock-and-talk entry was a failure of proof

The government did not carry its burden of proof of consent where the officers who gained entry by a knock-and-talk could not agree over when consent was given and what its scope was. United States v. Payton, 2011 U.S. Dist. LEXIS 98058 (W.D. Tex. June 8, 2011).*

The officers lacked any reasonable suspicion to detain the defendant, and the motion to suppress is granted. The defendant made the motion to suppress after the jury was empaneled, and the trial judge considered and granted it. Then a mistrial had to be declared, which the court finds manifest necessity for because of its late timing. United States v. Kirkley, 2011 U.S. Dist. LEXIS 98668 (D. Kan. September 1, 2011).*

Defendant was arrested fleeing from a building based on a radio call from another officer that a man fitting his description was heading for the door. Based on the collective knowledge doctrine, the arresting officers had probable cause, not just reasonable suspicion, and the search incident was valid. United States v. Fletcher, 2011 U.S. Dist. LEXIS 98163 (D. Minn. August 15, 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

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2013-14 Term:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  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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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
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    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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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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