Archives for: September 2011, 19

09/19/11

Permalink 04:48:41 pm, by fourth, 120 words, 3049 views   English (US)
Categories: General

"Fla. state legislator introduces repeal of mandatory drug tests for welfare recipients"

Fla. state legislator introduces repeal of mandatory drug tests for welfare recipients by Ashley Lopez in the Florida Independent:

State Sen. Arthenia Joyner, D-Tampa, has filed legislation repealing a new law requiring all welfare applicants to first pass a drug test.

Joyner filed Senate Bill 284 shortly after a lawsuit was filed by a Navy veteran who refused to waive his Fourth Amendment rights and submit to a drug test before receiving temporary assistance benefits he was otherwise qualified for. The American Civil Liberties is representing 35-year-old Orlando resident Luis Lebron — who is also a full-time student and single father.

Gov. Rick Scott, a proponent of the law, has said that the law was passed for “for the benefit of children.”

Permalink 12:29:14 pm, by fourth, 320 words, 2968 views   English (US)
Categories: General

VT adopts independent appellate review of consent following Ornelas

VT adopts independent appellate review of consent following Ornelas. State v. Weisler, 2011 VT 96, 190 Vt. 344, 35 A.3d 970 (2011):

[*P26] At the same time, as the Supreme Court stressed in Ornelas, the “multi-faceted” nature of the voluntariness inquiry underscores the need for a body of binding case-law applying the consent-standard in a variety of individual cases, thereby providing “content ... through application” and guidance to the police and the trial courts. 517 U.S. at 697; see also Miller, 474 U.S. at 114 (citing the imperative for independent review where “the relevant legal principle can be given meaning only through its application to the particular circumstances of a case”). Finally, we recognize that the voluntariness-of-consent issue implicates a “complex of values,” Miller, 474 U.S. at 116 (quotation omitted); it requires a balancing of the need for effective law enforcement against the imperative to restrain unfair police tactics and maintain individual dignity—a declaration of constitutional norms and values that demands statewide force and application. These are functions that only a reviewing court with broad jurisdiction and authority can perform. Accordingly, we hold that a trial court's decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently by this Court on appeal.

. . .

[*P34] Ultimately, it is not the purported distinctions from Ornelas, Thompson, and Miller that appear to drive the dissent but rather a fundamental disagreement with their holdings, a disagreement grounded on a suspicion that de novo review somehow represents a “negative assessment of the quality of fact-finding by trial courts with respect to federal constitutional questions.” Post, ¶ 76. This inference is unfounded and can not be reached by anything stated or implied in the majority opinion. Like the U.S. Supreme Court, we continue to accord substantial deference to the trial court's findings of historical fact. Nothing in our opinion can or should be construed to undermine this fundamental principle of appellate review.

Permalink 05:38:47 am, by fourth, 213 words, 3059 views   English (US)
Categories: General

W.D.Ark.: Defendant consented to entry and search of a gun cabinet, not knowing she'd violated law in buying the guns

Defendant consented to an entry for ICE officers to look for her illegal alien husband. They saw ammunition and asked about guns, and she showed them the guns in a gun cabinet owned by her husband she had access to. She was arrested for admitting to buying guns for him and aiding his possession which she said she did not know was against the law[; thereby implying voluntariness because she didn’t think she did anything wrong]. United States v. Valencia, 2011 U.S. Dist. LEXIS 104766 (W.D. Ark. August 22, 2011).*

Defendant’s stop was justified by following too close, which the officer suspected was a tandem drug run. Once the car was stopped, reasonable suspicion developed from extreme nervousness, a rented car, the appearance of stuff in the car indicating “hard travel” that they were driving long distances without stopping, inconsistent stories, and signs of tampering with the cowl as a place to hide drugs. Then there came consent. Motion to suppress denied. United States v. Bryant, 2011 U.S. Dist. LEXIS 104507 (N.D. Tex. September 9, 2011).*

Defense counsel was not ineffective for not forecasting Gant which came later, but that is moot anyway because of Davis v. United States finding pre-Gant searches valid. Jeter v. United States, 2011 U.S. Dist. LEXIS 104943 (D. S.C. September 15, 2011).*

Permalink 05:30:40 am, by fourth, 266 words, 2904 views   English (US)
Categories: General

S.D.W.Va.: Defendant was taken down after flight on seeing the police; this was just a Terry stop

Defendant got off a Greyhound bus and was somehow noticed by drug interdiction police who started to walk up to him and show a badge to talk to him. He fled and was taken down after an “extended chase.” This was just a Terry stop. United States v. Wallace, 811 F. Supp. 2d 1265 (S.D. W.Va. 2011):

Following the extended chase, Det. Carper and Lt. Napier forced defendant to the ground. At this precise point, defendant was unquestionably seized within the contemplation of the Fourth Amendment. Compare United States v. Drayton, 536 U.S. 194, 201 (2002) (“If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.”); Brown, 401 F.3d at 594 (noting “[A] seizure 'requires either physical force ... or, where that is absent, submission to the assertion of authority.'”) (citation omitted).

The court does not deem the stop, at least at this point, to have constituted an arrest. It is best treated as a Terry stop. The question thus arises whether a Terry stop was justified under the circumstances. The Supreme Court has articulated factors to be weighed in considering the totality of the circumstances that might support the reasonable suspicion necessary to justify a Terry stop. These factors include: (1) whether a high crime area is involved, Adams v. Williams, 407 U.S. 143, 147 (1972), (2) whether an individual exhibits evasive behavior, United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975), and (3) whether there is unprovoked flight, Illinois v. Wardlow, 528 U.S. 119, 124-25 (2000) (“Headlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”).

Permalink 05:06:54 am, by fourth, 164 words, 2947 views   English (US)
Categories: General

MA: State has to prove other judges not reasonably close to use telephonic or fax warrant

The judge signing the search warrant was in New Jersey at the time. State law requires that all reasonable efforts to contact a nearby judge be exhausted before turning to telephone or fax warrants. On remand, the state will have to show that all reasonable efforts were exhausted. If so, defendant will not have suffered prejudice. Commonwealth v. Nelson, 460 Mass. 564, 953 N.E.2d 164 (2011).*

Defendant’s Alford plea got him sentencing considerations in a child pornography case, and that included him waiving his motion to suppress. He knew what he was doing, and the denial of the motion to withdraw the plea is affirmed, and his client. State v. Stocking, 131 Conn. App. 81, 26 A.3d 117 (2011).*

Officer’s mistake of law as to where temporary paper tag should be located in the back window did not justify extending the stop. Once it could be read, the driver should have been allowed to go on his way. United States v. Estrada-Ayala, 2011 U.S. Dist. LEXIS 104411 (D. Kan. September 14, 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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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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