Archives for: October 2011, 09


Permalink 12:28:14 pm, by fourth, 128 words, 2890 views   English (US)
Categories: General

LA3: “Defendant consented to the search at his residence by calling 911, reporting the crime, and seeking assistance.”

“Defendant consented to the search at his residence by calling 911, reporting the crime, and seeking assistance.” State v. Arvie, 73 So. 3d 516 (La. App. 3d Cir. 2011).*

“In this case, we adhere to prior decisions of this court and decide that the ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution, does not permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupied at the time that the police encounter it in connection with a crime.” State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011).*

The defendant shopping center operator had no reasonable expectation of privacy in its parking garages where there was a dumping of industrial waste. State v. Millard Mall Servs., 352 S.W.3d 251 (Tex. App.—Houston (14th Dist.) 2011).*

Permalink 12:07:23 pm, by fourth, 277 words, 3172 views   English (US)
Categories: General

ID & LA4: Officer's opening car door was a seizure

Opening defendant’s car door to talk to him constituted a seizure because the defendant objectively would not feel free to terminate the encounter and leave. The motion to suppress was properly granted. State v. Liechty, 152 Idaho 163, 267 P.3d 1278 (App. 2011):

We first note that the instant case is unlike other cases where a driver rolls down his or her car window in response to an officer's approach. In such cases, the encounter is consensual in nature because the level of coercion between the officer and the citizen is minimal. See Zubizareta, 122 Idaho at 827-28, 839 P.2d at 1241-42; Osborne, 121 Idaho at 524, 826 P.2d at 485. At that time, the driver has the option to decline to open the window to speak to the officer. However, when an officer approaches a vehicle and initiates questioning of a driver by opening the vehicle's door without consent, instead of asking to speak to the person through the vehicle's window, the level of coercion between the officer and the citizen is enhanced.

We also note that, in determining whether a seizure occurred, the district court found, similar to Fry, the officer here placed himself in a position relative to the car that prevented Liechty from driving away. As explained above, this finding was supported by substantial evidence, and whether the officer took action to block a vehicle's exit route is an appropriate circumstance to take into account when determining whether a seizure occurred. ...

The officer had reasonable suspicion for a stop, but his opening defendant’s car door and seeing heroin was an illegal search. There was no safety justification offered for opening the door. State v. Cure, 84 So. 3d 592 (4th Cir. 2011).

Permalink 11:05:03 am, by fourth, 286 words, 2959 views   English (US)
Categories: General

D.Nev.: Police impoundment here was clearly pretextual for a "general rummaging"

A constable came to defendant’s house with a writ of execution to remove him from the premises, and he smelled marijuana. He observed defendant packing in a hurry and saw a lot of cash in the house. He called the local police, and they saw some expensive stuff in his SUV allegedly illegally parked in front of the house. The police decision to impound his car was clearly pretextual, because impoundment was done to search, not to protect the property inside. A gun found in the car was suppressed. United States v. Scott, 2011 U.S. Dist. LEXIS 115356 (D. Nev. August 23, 2011)*:

Because of these discrepancies regarding what exactly constitutes NLVPD policy, the Court's task of determining whether the officers involved complied with that policy when conducting the inventory search becomes somewhat perplexing. In any case, the Court need not attempt to divine the exact nature of NLVPD's impound and inventory search policies because the Court finds that the inventory search was a ruse for general rummaging in order to discover incriminating evidence, rather than a search conducted to protect Scott's property or to protect NLVPD from liability.

An Arby’s store clerk called 911 to report that a man who matched the description of somebody who robbed the place once before was in the store pacing around the counter, and there was a person in a car waiting outside. This was reasonable suspicion when the police arrived. United States v. Ussery, 2011 U.S. Dist. LEXIS 115184 (W.D. N.C. September 9, 2011)* [Indeed, it sounds a lot like Terry.]

Defendant participated in the decision to waive a particular Fourth Amendment argument, and his defense counsel was not ineffective. United States v. Young, 2011 U.S. Dist. LEXIS 115336 (D. Alaska September 4, 2011).*

Permalink 10:45:30 am, by fourth, 220 words, 2964 views   English (US)
Categories: General

D.Neb.: No IAC because, “Simply put, the suppression argument was a clear loser.”

The Federal Defender was not ineffective for not appealing defendant suppression hearing. “Simply put, the suppression argument was a clear loser.” United States v. Forrest, 2011 U.S. Dist. LEXIS 115227 (D. Neb. October 5, 2011):

Moreover, defense counsel like Vanderslice do not have a constitutional duty to raise on appeal every nonfrivolous issue requested by the defendant. See, e.g., Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) (“Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible ....”) Because the suppression argument was weaker than the critically important sentencing issue, Vanderslice cannot be faulted for failing to raise it even though Vanderslice prudently preserved the search issue in the plea agreement. Vanderslice did what all good appellate advocates do; that is, he focused on what was most likely to attract careful appellate attention.

Defense counsel was not ineffective in handling defendant’s suppression motion. It was appealed on the merits, and arguing it a different way would not have helped him. United States v. Chester, 2011 U.S. Dist. LEXIS 114740 (D. Nev. October 4, 2011).*

Defendant was not just a mere bystander like in Ybarra; there was specific information about others involved in the crime, and the defendant matched the description. United States v. McCauley, 659 F.3d 645 (7th Cir. 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

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2009 to date:

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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    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)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."

"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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