Archives for: September 2011, 05
09/05/11
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).*
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).*
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
Little Rock, Arkansas
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2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
Research Links:
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F.R.Crim.P.
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www.fd.org
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Electronic
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Federal
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Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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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