Archives for: October 2011, 31

10/31/11

Permalink 07:45:51 am, by fourth, 265 words, 3178 views   English (US)
Categories: General

NY2: Leafing through a notebook was improper as an inventory, and it was not plain view

Defendant’s car was impounded, and the officer searched the car to “leaf through notebooks located in the back seat [and this] was an unjustified unconstitutional search.” “Further, the plain view doctrine does not apply, because the incriminating character of the notebooks was not immediately apparent.” People v Perez, 2011 NY Slip Op 7659, 88 A.D.3d 1016, 931 N.Y.S.2d 411 (2d Dept. 2011).*

Defendant had a reasonable expectation of privacy in his backyard and back steps, even though the yard was not fenced or posted with a no trespassing sign, because the property was in a secluded area, there were no neighbors within several hundred yards, and the yard was not visible from the road, driveway, or other properties. The warrantless entry into the curtilage was not justified because officers did not have probable cause to believe the instrumentality of a crime or evidence of a crime would be discovered, and even if there was probable cause, there were not exigent circumstances such that obtaining a warrant was impracticable. Finally, defendant's consent to a search after the illegal entry into the curtilage was not valid because the taint was not sufficiently attenuated: the consent was given within minutes of the entry; the entry resulted in an officer observing marijuana; defendant did not volunteer his consent; and the officer did not tell defendant he could decline the request. Cooksey v. State, 350 S.W.3d 177 (Tex. App.—San Antonio 2011).

On a GVR in light of Davis, the court follows Davis and holds that a pre-Gant search is governed by good faith. Valesquez v. Commonwealth, 362 S.W.3d 346 (Ky. App. 2011).*

Permalink 07:39:18 am, by fourth, 496 words, 3400 views   English (US)
Categories: General

Cal.2d: DNA left on a PBT mouthpiece was "abandoned"

Defendant was stopped for a suspected DUI and he was given a portable breath test. Police kept the mouthpiece and tested his saliva for DNA. As far as the defendant was concerned, the DNA was abandoned. His DNA linked him to burglaries. People v. Thomas, 200 Cal. App. 4th 338, 132 Cal. Rptr. 3d 714 (2d Dist. 2011):

The question is whether a defendant may assert a privacy interest in a DNA sample that the police surreptitiously obtain from a publicly discarded item or material. In Gallego, supra, 190 Cal.App.4th 388, a cigarette butt tossed by a murder suspect onto a sidewalk was collected and tested for DNA. The court concluded that the test did not constitute a search because the defendant could claim no privacy interest in the cigarette butt he had abandoned in a public place. (Id. at p. 395.) The court relied on California v. Greenwood (1988) 486 U.S. 35, 40-41 (Greenwood), where the United States Supreme Court found no reasonable expectation of privacy in garbage bags containing evidence of drug trafficking because the bags had been left at the curb for garbage collection. (Gallego, at p. 395.) The Gallego court analogized the DNA testing of the discarded cigarette butt to the lifting of fingerprints from discarded juice containers in People v. Ayala (2000) 24 Cal.4th 243, 278-279. (Gallego, at p. 398.)

The trial court similarly found that defendant had abandoned the mouthpiece of the PAS device because he did not ask the officers to give it to him after the PAS test was over or to tell him what they planned to do with it. Defendant argues that he could not have abandoned a part of a testing device supplied by the police; nor could he have abandoned the DNA he deposited on it unconsciously. The court in Gallego agreed that abandonment requires a voluntary and conscious act, but tossing a cigarette butt on the sidewalk was deemed to be such an act. (Gallego, supra, 190 Cal.App.4th at p. 395.) The out-of-state cases on which Gallego relied went further, finding no expectation of privacy where a defendant could claim no possessory or ownership right in the object on which the DNA was deposited. (Id. at p. 396). For instance, the defendant in Commonwealth v. Cabral (2007) 69 Mass.App.Ct. 68 [866 N.E.2d 429, 433] could not claim to have a reasonable expectation of privacy in saliva he spat on a public sidewalk. Similarly, in Commonwealth v. Perkins (2008) 450 Mass. 834 [883 N.E.2d 230, 238-240], the defendant, who had refused to give blood for DNA testing, was found not to have a reasonable expectation of privacy in a soda can from which he drank during an interrogation. The can was provided by the police, and the defendant knew he could not take it out of the interrogation room. (Id. at p. 240, accord Piro v. State (2008) 146 Idaho 86 [190 P.3d 905, 909-910] [no expectation of privacy in water bottle provided by police in interrogation room].) Alternatively, the defendant abandoned any privacy interest when he failed to clean the can. (Commonwealth v. Perkins, at p. 240.)

Permalink 07:14:16 am, by fourth, 224 words, 3076 views   English (US)
Categories: General

NM: Consent given to one officer while a team swarmed his property and a helicopter hovered overhead was not voluntary

Consent given when there was a team of officers on defendant’s property and a helicopter hovering overhead. State v. Davis, 2011 NMCA 102, 263 P.3d 953 (2011), Certiorari Granted, October 4, 2011, No. 33,203:

[*16] Although Defendant gave specific and unequivocal consent, we conclude that the consent was given under duress and coercive circumstances. Defendant was surrounded by numerous uniformed, armed law enforcement officers and several law enforcement vehicles while a helicopter hovered overhead. Professor LaFave observes in his treatise that, although such circumstances are not per se coercive, “[t]he presence of a number of policemen is likely to suggest that the police are contemplating an undertaking which does not depend upon the cooperation of the individual from whom permission to search is being sought.” 4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.2(b), at 62 (4th ed. 2004). Although only Officer Merrell approached Defendant to seek consent, it is undisputed that the remaining officers were spread throughout the property and were visible to Defendant during his exchange with Officer Merrell.

There was no showing that the stop’s lasting 15 minutes was not the normal incidents of a traffic stop. [Almost sounds like the burden has shifted here to the defendant to show it was not reasonable rather than the government proving it was reasonable.] United States v. McGee, 2011 U.S. Dist. LEXIS 124677 (S.D. W.Va. October 27, 2011).*

Permalink 06:59:04 am, by fourth, 156 words, 3130 views   English (US)
Categories: General

WA: Turning and hiding hands from officer during stop was RS for patdown

Defendant’s turning from the officer and hiding hands was reasonable suspicion. Also, the former statute that required legal aliens to register guns but citizens not denied equal protection. There can be no Second Amendment distinction. State v. Ibrahim, 164 Wn. App. 503, 269 P.3d 292 (2011).*

Plaintiff had her pharmacy searched for dispensing hydrocodone without prescription, and the officers were alleged to have seized more than the warrant permitted. Charges against her were dismissed. While that may be true, the facts of each case are dependent on the situation, and it cannot be said that this warrant was executed unreasonably as a matter of law, so qualified immunity was properly granted. Gordon v. Beary, 444 Fed. Appx. 427 (11th Cir. 2011) (unpublished).*

The warrant for firearms and ammunition and documents showing any relationship between the defendant and another person was not overbroad, adopting the R&R without much explanation. United States v. Mock, 2011 U.S. Dist. LEXIS 124354 (E.D. Mo. October 27, 2011).*

Permalink 06:21:17 am, by fourth, 252 words, 3227 views   English (US)
Categories: General

CA11: Davis creates a blanket rule not subject to any wiggle room

Davis creates a blanket rule that a pre-Gant search was governed by Belton. There is no Fourth Amendment basis or justification for weighing whether then defendant was “targeted” for a stop by the police just to conduct a search incident. United States v. Owens, 445 Fed. Appx. 248 (11th Cir. 2011):

In the instant case, the arresting officers stopped Owens with probable cause to believe that he was driving on a suspended license, and searched the passenger compartment of his vehicle based on a proper understanding of pre-Gant law. Contrary to Owens’s argument on appeal, the Davis decision established a blanket rule that the good-faith exception applies to searches performed in reasonable reliance on then-binding appellate precedent. Although the Davis Court discussed the need to weigh the costs and benefits of suppression, it did so only in the context of formulating this blanket rule. Accordingly, the Davis analysis does not require us to consider alleged misconduct that fell short of violating the Fourth Amendment—as understood at the time of the search—nor does it require consideration of unrelated constitutional violations.

Fifteen minutes was not too long for a stop. “Officer Moore approached the car and noticed marijuana on Marsh's shirt while Officer Nelson was still writing Johnson's traffic citation. From that point, Officer Moore had at least a reasonable suspicion that Marsh possessed marijuana and, thus, could search the passenger area where Marsh had been sitting and the handgun was found.” United States v. Marsh, 443 Fed. Appx. 941, 2011 FED App. 0733N (6th Cir. 2011) (unpublished).*

Permalink 06:08:25 am, by fourth, 230 words, 3074 views   English (US)
Categories: General

CA8: Video of stop was best evidence of defendant's consent

Video of the stop confirms that defendant consented to a dog sniff and believed he was free to go. [But, once the questioning begins, does anybody really free to leave?] United States v. Bowman, 660 F.3d 338 (8th Cir. 2011)*:

The DVD of the stop is the best evidence of what happened; it confirms that written record which supports the conclusion that the interaction between the Trooper and Bowman after the tickets were issued was cooperative and consensual. The Trooper asked Bowman if he would answer additional questions and Bowman replied “yeah” and then responded to those questions, all of which were drug interdiction questions. The Trooper then asked Bowman if he would consent to a search of his car, to which Bowman responded “no.” (This alone indicates that Bowman understood that he was not required to comply with the Trooper's requests.) Then Bowman told the Trooper that he was “cool” with a dog-sniff search. There are no facts that would indicate a Fourth Amendment seizure occurred. This appeal point is thus also without merit.

ICE raid on a restaurant led to appellant’s arrest for entering and remaining in the country illegally. While an egregious violation of the Fourth Amendment might lead to suppression, the government does not even rely on that here, and the exclusionary rule does not otherwise apply to removal proceedings. Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
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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)

2009-10 Term:

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