Archives for: October 2011, 28


Permalink 07:39:06 am, by fourth, 169 words, 2933 views   English (US)
Categories: General

D.Kan.: Two police officers on parole search at request of PO did not make it unreasonable

Defendant’s parole officer brought along two police officers for a home visit and search on suspicion he was communicating with minors on his phone and computer, and this was reasonable. “The court finds that the seizure of defendant's cell phone was valid under the special needs exception because Detectives Wright and Bostick were participating under the direction of Officer Radcliffe. The mere fact that defendant handed the phone to Detective Wright as opposed to Officer Radcliffe is a distinction without any Constitutional significance.” United States v. McClelland, 2011 U.S. Dist. LEXIS 123954 (D. Kan. October 26, 2011).*

Defendant did not object to the USMJ’s findings, so it is waived. On the merits, he would lose because there was reasonable suspicion anyway as to his car. United States v. Beasley, 447 Fed. Appx. 32 (11th Cir. 2011).*

There was reasonable suspicion to stop defendant’s car because it matched the description of a vehicle involved in a robbery and was near it. United States v. Hicks, 2011 U.S. Dist. LEXIS 124255 (E.D. Pa. October 27, 2011).*

Permalink 07:24:40 am, by fourth, 321 words, 3066 views   English (US)
Categories: General

CA6: Defendant attempted to walk away twice and officer wouldn't relent; he was stopped without RS

Defendant attempted to walk away from the officer twice, and the officer stopped him twice without reasonable suspicion. A reasonable person would not feel free to leave after that, and the motion to suppress should have been granted. United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011):

A reasonable person in Beauchamp's position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beauchamp by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer. Two features of the encounter compel this finding. First, a reasonable person in Beauchamp's position would perceive the separate interactions with Officer Dees and then Officer Fain as connected and an indication that the officers were targeting him. There certainly could be situations in which a reasonable person would not perceive police interactions as connected; perhaps if there was a longer period of time between interactions or if they occurred in different locations. In this case, however, Beauchamp encountered Officer Dees and walked away, and then two streets over and presumably only a few minutes later, given the short distance, Officer Fain drove up to Beauchamp. Even though Officer Dees did not say anything to Beauchamp, a reasonable person would not dismiss the initial encounter with Officer Dees as merely coincidental when a second officer, almost immediately thereafter, sped up his patrol car, parked by Beauchamp, and exited his car to initiate contact.

While some of the defendant’s actions appeared innocent, on the totality it added up to reasonable suspicion. United States v. Jackson, 2011 U.S. Dist. LEXIS 123069 (E.D. Mo. September 27, 2011), adopted 2011 U.S. Dist. LEXIS 122998 (E.D. Mo. October 25, 2011).*

Defendant was arrested on reasonable suspicion and taken to jail for a strip search. Because the arrest lacked probable cause, the motion to suppress is granted. Commonwealth v. Griffin, 79 Mass.App.Ct. 124, 2011 Mass. App. LEXIS 1334 (March 22, 2011).*

Permalink 05:16:44 am, by fourth, 153 words, 3062 views   English (US)
Categories: General "Cell Phone Data and Expectations of Privacy" Cell Phone Data and Expectations of Privacy by Peter A. Crusco New York Law Journal:

One can hear the din of cellular telephones everywhere: movie theaters, libraries, and restaurants, to name a few places. While cell phones keep us connected to those who are important in our lives, the technology also has the potential of exposing our movements to others. Cellular telephone transmissions record the general locations of the users through transmissions via cell towers. Over the last 50 years, Fourth Amendment doctrine has continued to evolve to keep pace with technology, endeavoring to protect the privacy and security of every individual against arbitrary intrusions by government agents. More recently, there have been significant though conflicting judicial interpretations concerning government access to cellular telephone records (cell site location information or CSLI), which data has been essential in many criminal investigations. This article will address these cases and the legal issues they present.

Permalink 12:12:30 am, by fourth, 182 words, 2965 views   English (US)
Categories: General

D.Minn.: Defendant's lack of connection to the car searched denied him standing

“Here, it is undisputed that the Defendant did not own the vehicle searched, was not near the vehicle while it was searched, and did not have keys to the vehicle. Therefore, the Defendant did not have a reasonable expectation of privacy in Daniel Rodriguez's vehicle allowing him to challenge the constitutionality of the search.” United States v. Rodriguez, 2011 U.S. Dist. LEXIS 122966 (D. Minn. October 6, 2011), adopted 2011 U.S. Dist. LEXIS 123027 (D. Minn. October 24, 2011).*

Defendant’s consent on the side of the road was voluntary. It was not withdrawn during the lengthy search. [Fiction alert: People generally do not know that they can withdraw consent to a search after it starts. This is a meaningless factor.] United States v. Beltran-Marino, 2011 U.S. Dist. LEXIS 123552 (D. Neb. October 5, 2011).*

A city ordinance on housing inspections that requires the renter to attempt to get consent from the tenant does not violate the Fourth Amendment. There is no penalty for failure to do so. Rental Housing Owners Assn. of So. Alameda County, Inc. v. City of Hayward, 200 Cal. App. 4th 81, 133 Cal. Rptr. 3d 155 (1st Dist. 2011), published October 25, 2011.*

Permalink 12:02:32 am, by fourth, 225 words, 2890 views   English (US)
Categories: General

Volokh: "My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case"

Volokh Conspiracy: My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. In this post, I want to explore whether the act of installing the device should count a Fourth Amendment search or seizure. My bottom-line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

Also posted on ScotusBlog.

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by John Wesley Hall
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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:
  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)
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  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."

"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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