Archives for: September 2011, 06

09/06/11

Permalink 12:37:17 am, by fourth, 360 words, 3045 views   English (US)
Categories: General

E.D.N.Y.: Stop literally on a “hunch” was without reasonable suspicion

NYPD stopped a gold Crown Victoria with NJ license plates with two passengers in back and none in the front literally on a “hunch” of being an unlicensed livery vehicle. When defendant got out, his chest bumped against the officer’s arm, and the officer told him he wanted to check him for weapons. Defendant refused to stop and was tackled. He had a 9mm and he was a convicted felon. The stop was without reasonable suspicion. United States v. Bristol, 819 F. Supp. 2d 135 (E.D. N.Y. 2011).*

The defendants had no reasonable expectation of privacy in the foyer to the house where it is expected that people would enter to be able to knock on the door. Once in the foyer, the officer could smell burning marijuana. (He came there after a controlled buy and a vehicle search turned up methamphetamine.) United States v. Renteria-Lopez, 2011 U.S. Dist. LEXIS 99106 (D.Kan. September 2, 2011)*:

The fact that Bannister was lawfully in the foyer is significant. Before entering that area, Bannister likely lacked probable cause to search the residence, as he did not have any idea what Renteria's relationship was to the property, and he had no basis, other than Renteria's mere presence, to believe that the house, which had not had surveillance on it, contained contraband. However, once he was in the foyer, Bannister, an eighteen-year veteran of the force and a member of the WPD's narcotic unit, was able to smell the burning of marijuana and hear a lot of commotion and the sound of an aerosol can being sprayed inside the residence. These observations, which Bannister could legally make, coupled with the fact that officers had observed Renteria meet with Garcia immediately before narcotics were discovered in Gutierrez's vehicle, provided Bannister with probable cause to believe that evidence of illegal activity was present in the home. Additionally, these facts, in conjunction with the fact that no one responded to his knock, reasonably led Bannister to believe that exigent circumstances existed, i.e., that there were individuals harbored inside the home that were capable of injuring him and his officers and/or destroying incriminating evidence if action was not taken.

Permalink 12:27:58 am, by fourth, 256 words, 2849 views   English (US)
Categories: General

CA6: After defendant's arrest on outstanding warrants, his car was lawfully impounded because it could not be left on side of city street

Defendant was stopped for no seatbelt and a cracked windshield, and the officer ran his DL finding two child support warrants. The impoundment was valid because the vehicle would have to have been left on the street, constituting a road hazard. Also, the claim it wasn’t stated properly in the police reports was raised on appeal but not raised before the District Judge in review of the USMJ’s R&R, so it is waived. United States v. Lilly, 438 Fed. Appx. 439 (6th Cir. 2011).*

Defendant’s clothing was properly seized incident to his arrest. He was found unconscious in the same apartment where there was a body in the bathtub, and he was covered with blood. A presumptively reliable citizen informant said that defendant said that he’d killed the victim. That was probable cause. State v. Minton, 2011 Tenn. Crim. App. LEXIS 688 (September 1, 2011).*

Plaintiffs were anti-abortion advocates who were arrested for trespass, but the charges were dismissed. The officers were entitled to qualified immunity from suit; they thought the plaintiffs were trespassing at the time of arrest, but it proved to be legally wrong. Skovgard v. Pedro, 448 Fed. Appx. 538 (6th Cir. 2011) (unpublished).*

The officer entered the plaintiffs’ house with exigent circumstances; after seeing methamphetamine paraphernalia, he said he was detaining everybody while a search warrant was obtained. A minor entered a separate residence in the premises, and he went there, too. There was a factual dispute denying qualified immunity as to the later entry. Modrell v. Hayden, 2011 U.S. App. LEXIS 18355 (6th Cir. August 30, 2011) (unpublished).*

Permalink 12:12:47 am, by fourth, 288 words, 2869 views   English (US)
Categories: General

CA7: An unidentifiable hard object found in a pat down may be removed

A patdown finding a hard object permits removal to insure that it is not a weapon where a feel could not tell. United States v. Richardson, 2011 U.S. App. LEXIS 18323 (7th Cir. September 2, 2011):

Richardson does not dispute that Deputy Smythe lawfully initiated a stop and pat-down of Richardson’s person. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Rather, he claims Deputy Smythe’s pat-down became an impermissible exploratory search when Deputy Smythe removed the cocaine base from Richardson’s right pants pocket and inspected it. Richardson’s argument misapplies Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed. 2d 334 (1993). Richardson focuses on Dickerson’s pronouncement that an officer cannot go beyond a protective pat-down to manipulate an object concealed in a pocket unless “the incriminating character of the object [is] immediately apparent.” 508 U.S. at 379. But that restriction does not apply until the officer concludes that the object at issue is not a weapon. Dickerson, 508 U.S. at 378; see United States v. Muhammad, 604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because officer was uncertain whether object was a weapon). Deputy Smythe testified that, after the protective patdown, he “wasn’t sure what [the object] was. It was just an unfamiliar lump, [a] hard lump.” Based on this testimony, the district court found Deputy Smythe was unsure whether the hard object in Richardson’s pocket was a weapon. That finding was not clearly erroneous. See United States v. Swann, 149 F.3d 271, 275 (4th Cir. 1998) (deferring to district court’s finding that the officer had not determined whether the object was a weapon when testimony was “entirely ambiguous” as to whether the officer “suspected or did not suspect a weapon”).

Permalink 12:04:29 am, by fourth, 232 words, 3013 views   English (US)
Categories: General

ID: Knock-and-talk on boat led to valid consent

An employee of a marina called the police to tell them that a boat had docked several times in the past week and people were coming and going like they were buying drugs from the boat. An officer went to the marina to conduct a knock-and-talk of the boat, and the officer obtained consent. When defendant opened the door of the boat, the officer could smell methamphetamine. State v. Linenberger, 151 Idaho 680, 263 P.3d 145 (2011)* [the case does not even mention that, comparing the cases of the smell of marijuana from a car, and the mobility of a boat, the automobile exception would have justified the search].

Defendant was involved in an accident, and the trial was over whether he was the driver and was intoxicated. When he was in the ER, blood was drawn for diagnosis, and the blood was admitted in evidence at the trial. The taking of the blood by the hospital was a private search, and the Fourth Amendment was not implicated. Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 952 N.E.2d 969 (2011).*

The officer testified he stopped the defendant’s car because he couldn’t read the license plate because of snow and driving in the center of a road with snow on it and high snow banks and no marked centerline. Neither was a justification for the stop. City of Lakewood v. Shelton, 2011 Ohio 4408, 2011 Ohio App. LEXIS 3677 (8th Cir. September 1, 2011).*

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

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  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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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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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