Archives for: September 2011, 28

09/28/11

Permalink 10:49:25 am, by fourth, 395 words, 2893 views   English (US)
Categories: General

OR: Officer's actions toward defendant passenger would have indicated she was not free to leave at time of consent

On remand from State v. Singer, 349 Ore. 663, 249 P.3d 1281 (2011), the court concludes the defendant would not know she was free to leave and was thus detained when the officer directed her out of the car rather than the driver. [A passenger also has to communicate to the driver that he or she wants to leave, but societal understandings require that they stand by while the officer does whatever he is going to do.] State v. Singer, 245 Ore. App. 568, 262 P.3d 1172 (2011)*:

We conclude that Kirkpatrick's conduct toward defendant would lead a reasonable person in defendant's position to believe that she was the subject of a criminal investigation and, hence, that Kirkpatrick had seized defendant for purposes of Article I, section 9, before he requested consent to search her and her purse. Although the record does not establish that defendant knew that Kirkpatrick had requested her name and date of birth in order to run a warrant check on her, Kirkpatrick's actions after completing the check would reasonably lead defendant to believe that she was the subject of an investigation. Rather than returning from the warrant check to speak with the driver, whose unlawful turn had led to the stop, Kirkpatrick went to the passenger side of the stopped car and asked defendant to get out of the car, which she did. Kirkpatrick then told her that he knew that she was on probation for a drug offense and asked her to remove her sunglasses, which she also did. Those actions by Kirkpatrick constituted a show of authority that would lead a reasonable person in defendant's position to believe that Kirkpatrick had significantly restricted her freedom of movement. Therefore, under the test articulated in Ashbaugh, Kirkpatrick had seized defendant for purposes of Article I, section 9, before he asked her for consent to search her and her purse.

Where only one person testified to consent, the officer, how can the appellate court question the district court’s finding of voluntariness? United States v. Lopez, 445 Fed. Appx. 190 (11th Cir. 2011).*

No special showing of reliability of information from another officer is required; just knowledge. United States v. Johnson, 2011 U.S. Dist. LEXIS 107617 (N.D. Ill. September 20, 2011).*

The video raised sufficient question of the lawfulness of defendant’s detention that he was entitled to a jury instruction on that under Texas law. Hamal v. State, 352 S.W.3d 835 (Tex. App.—Ft. Worth 2011).*

Permalink 10:38:24 am, by fourth, 412 words, 3105 views   English (US)
Categories: General

S.D.N.Y.: While there was no probable cause of nexus to defendant's house, the good faith exception still saves this search

Defendant sold drugs over a mile from his home, and there was no evidence that there was a connection to his house, other than an officer’s expert opinion that drug dealers commonly keep their drugs in their house. Without more, there was no probable cause for issuance of the warrant. Nevertheless, the search warrant would not be suppressed under Leon’s good faith exception because of a split in authority that this was not enough. United States v. Kortright, 2011 U.S. Dist. LEXIS 107386 (S.D. N.Y. September 13, 2011):

The Court holds that (1) stale information (one year old) that Defendant dealt drugs on a handful of occasions, combined with (2) an expert opinion that drug dealers typically keep drugs in their homes, is not enough to establish probable cause to search the Apartment.

. . .

Although the court in Moran found the “good faith” exception unavailing, this Court recognizes that there is an “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” United States v. Guzman, 97 cr. 786, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3 (S.D.N.Y. Feb. 13, 1998) (Scheindlin, J.); 1998 U.S. Dist. LEXIS 1538, [WL] at *4 (“[T]here exists no clear rule in this circuit governing the exclusive reliance on law enforcement agents’ expert opinions in determining probable cause.”). Because of this disagreement, a reasonably well-trained officer may not necessarily have known that this search was illegal. Leon, 468 U.S. at 923 n.23.

. . .

In sum, these decisions reveal “existing disagreement among [courts] on the sufficiency of the opinions of law enforcement agents in establishing probable cause.” Guzman, 1998 U.S. Dist. LEXIS 1538, 1998 WL 61850, at *3. The Court thus declines to suppress the seized evidence because, under the current state of the law, a reasonably well trained officer would not have known that the search was illegal. Leon, 468 U.S. at 922 n.23. Here, the magistrate judge, whose duty it was to interpret the law, issued the search warrant, and it was reasonable for the officers to rely on that determination. See Gomez, 652 F. Supp. at 464. Accordingly, Defendant's motion to suppress evidence seized from the Apartment is denied.

So, what about the next case? Does this mean that the next case in the Southern District of New York with similar facts will not be suppressed? This case should now be notice to the NYPD that the search lacked probable cause. Is this like the “one dog bite” rule? What about other police departments? At what point is the rule universally accepted?

Permalink 10:09:29 am, by fourth, 301 words, 2939 views   English (US)
Categories: General

Cal.6th: Search incident of cell phone is reasonable in a drug case because that's how drug users and dealers connect, and that means evidence might be found there

Search incident of a vehicle for being under the influence is proper in California for evidence of what the defendant is under the influence of. That produced drug evidence, and that justified a search incident of defendant’s cell phone because drug users and dealers connect through cell phone text messages and calls. People v. Nottoli, 199 Cal. App. 4th 531, 130 Cal. Rptr. 3d 884 (6th Dist. September 26, 2011):

We reject respondents’ assertion that there must be specific, articulable facts “indicating that the cell phone held relevant evidence of the offenses for which Reid Nottoli was arrested.” Respondents cannot point to any language in Gant imposing such a requirement. Under Gant, a vehicular search incident to arrest is justified “when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.” (Gant, supra, 129 S.Ct. at p. 1714, italics added.) It does not require any degree of probability that evidence bearing on that offense will be found in a particular container that is searched.

. . .

Moreover, even if Gant were construed to require a factual predicate for searching each object found in a vehicle searched incident to arrest, a proposition we reject, it was reasonable for Deputy Ryan to believe, based on the objective circumstances and his training and experience, that evidence relevant to Reid’s offense of arrest for being under the influence might be found on Reid’s cellular phone. The deputy testified that, in his experience, drug users and sellers use cell phones as their “main communication” and cell phones can contain text messages related to acquiring and offering drugs. Further, as suggested by the People, text messages saved in Reid’s cell phone might have identified the controlled substance or contained his admissions “as to what he had done that night.” This would be corroborative evidence.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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2011-12 Term:
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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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