Archives for: November 2011, 03


Permalink 08:36:38 am, by fourth, 264 words, 2877 views   English (US)
Categories: General

NYT: "Dismal Tale of Arrest for Tiniest of Crimes"

NYT: Dismal Tale of Arrest for Tiniest of Crimes by Jim Dwyer. Apparently one always needs his or her driver's license on a visit to New York City, like getting on an airplane:

The arresting officer came by the cell, Samantha Zucker said, to make snide remarks about finding her with a friend in Riverside Park after its 1 a.m. closing.

For instance:

“He was telling me that I needed to get a new boyfriend, that I should get a guy who takes me out to dinner,” Ms. Zucker said. “He mocked me for being from Westchester.”

Early in the morning on Oct. 22, a Saturday, Ms. Zucker, 21, and her friend Alex Fischer, also 21, were stopped by the police in Riverside Park and given tickets for trespassing. Mr. Fischer was permitted to leave after he produced his driver’s license. But Ms. Zucker, on a visit to New York City with a group of Carnegie Mellon University seniors looking for jobs in design industries, had left her wallet in a hotel two blocks away.

She was handcuffed. For the next 36 hours, she was moved from a cell in the 26th Precinct station house on West 126th Street to central booking in Lower Manhattan and then — because one of the officers was ending his shift before Ms. Zucker could be photographed for her court appearance, and you didn’t think he was going to take the subway uptown while his partner stayed with her at booking, did you? — she was brought back to Harlem.

Reminds me of this for trying to pass through the Krakow ghetto:

Permalink 08:30:39 am, by fourth, 524 words, 3223 views   English (US)
Categories: General

E.D.Wis.: Delay in entry belied exigent circumstances claim

The officers' delay in their entry belied the suppression hearing claim of exigent circumstances for the entry into defendant's building, and the motion to suppress had to be granted. United States v. Edwards, 2011 U.S. Dist. LEXIS 126059 (E.D. Wis. October 31, 2011) rejecting R&R 2011 U.S. Dist. LEXIS 126065 (E.D. Wis. September 15, 2011):

The magistrate found that exigent circumstances existed here because he concluded that it was reasonable for the officers to conclude that a burglary was in progress. (Mag. Rec. 6).

The Court disagrees, and finds that the warrantless entry in this case was not justified by exigent circumstances. First, the Court finds that exigent circumstances simply did not exist. In Patino, the Seventh Circuit held that exigent circumstances did not exist where an officer waited thirty minutes for backup to arrive. 830 F.2d at 1416. In particular, the Patino court was concerned with the officer's failure to telephonically seek a warrant during that thirty minute wait. Id. Additionally, the Patino court noted that the officers could have secured the exits to prevent escape while awaiting a warrant. Id.

Here, similar to the important facts in Patino, Officer Dorn substantially delayed entry of the building without seeking a search warrant—demonstrating a lack of exigent circumstances. He twice called for backup and also arranged to contact the keyholders of the building prior to entering the building. Though the precise amount of time this took is unclear, nonetheless it is clear that there was ample time for Dorn to seek a search warrant, which he never did. The officers could have secured the exits to prevent escape if they were truly concerned with a burglary, but they did not do so. Therefore, this Court finds that the facts amply demonstrate that there were not exigent circumstances prior to the officers' initial entry.

Second, even if there were exigent circumstances, the Court finds that the officers could not reasonably have believed that a burglary was in progress. It is true that Edwards was a suspect in a string of burglaries and was seen by Dorn exiting and re-entering the building, but this Court finds that other circumstances should have reasonably put the officers on notice that a burglary was not in progress. In fact, less than two days prior to the events in question, the police department had held a briefing at which they discussed Edwards as a suspect. During that briefing, the police noted that Edwards was at least a "possible" renter of the building at 211 North Main Street. Of course, it was that very building that the police now claim they suspected Edwards of burglarizing.

This Court finds it highly suspect, and certainly unreasonable, that Dorn and Zywicki both failed to remember that Edwards was a renter of the building. Additionally, it is unreasonable that none of the officers sought to examine the briefing materials and discover that fact when Dorn noted that he suspected Edwards to be in the building. Finally, it is unreasonable that the officers would have arranged to call the keyholders of the building, but failed to identify Edwards as one of those keyholders and make an attempt to contact him.

Permalink 06:49:55 am, by fourth, 890 words, 2952 views   English (US)
Categories: General

Cal.1st: Putting key into a lock was reasonable under the circumstances

Saying it was a close question, putting a key found in an abandoned car into a lock to see if defendant had access to the property was reasonable without a warrant. People v. Robinson, 200 Cal. App. 4th 552, 133 Cal. Rptr. 3d 307 (1st Dist. 2011):

On that issue, defendant contends that testing the key in the lock was a search that could only be performed pursuant to a warrant. It is a close question whether inserting and turning the key constituted a search. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113, fn. omitted.) The court in U.S. v. Concepcion (7th Cir. 1991) 942 F.2d 1170, 1172 (Concepcion), concluded that testing a key in an apartment door lock was a search, reasoning: “A keyhole contains information—information about who has access to the space beyond. As the [F]ourth [A]mendment protects private information rather than formal definitions of property, [citations], the lock is a potentially protected zone. And as the tumbler of a lock is not accessible to strangers …, the use of an instrument to examine its workings (that is, a key) looks a lot like a search. ... [¶] Because the agents obtain information from the inside of the lock, which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a ‘search’.” (See also Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [officer’s act of turning over a turntable to read its serial number constituted a search]; Portillo-Reyes, supra, 529 F.2d at p. 848.)

On the other hand, other courts have concluded that defendants had no reasonable expectation of privacy in external, publicly-accessible locks and/or that insertions of keys into such locks were not searches. The court in U.S. v. Salgado (6th Cir. 2001) 250 F.3d 438, 456 (Salgado), held that “the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.” The court emphasized that the defendant’s apartment door was accessible to anyone passing through a hallway open to the public, and the function of the apartment door lock was to protect and keep private the contents of the apartment itself. (Id. at pp. 456-457; see also U.S. v. Hawkins (1st Cir. 1998) 139 F.3d 29, 33, fn. 1 [“insertion of a key into the lock of a storage compartment for the purpose of identifying ownership does not constitute a search”]; United States v. Lyons (1st Cir.1990) 898 F.2d 210, 212-213 (Lyons) [insertion of key into padlock of storage unit for purpose of identifying ownership did not infringe on any reasonable expectation of privacy]; United States v. DeBardeleben (6th Cir. 1984) 740 F.2d 440, 444 (DeBardeleben) [the defendant had no “reasonable expectation of privacy in the identity of his vehicle”]; Mathis v. State (Alaska 1989) 778 P.2d 1161, 1165 [“Insertion of the key did not constitute a search of the locker, but merely an identification of it as belonging to the [defendants].”]; People v. Carroll (1973) 12 Ill.App.3d 869 [299 N.E.2d 134, 139] [insertion and turning of key not a search].)

Ultimately, we need not determine whether testing the key in the lock was a search, because, even assuming it was a search, the search was not unreasonable. “As a general rule, the question of whether a particular practice is unreasonable, and thus violates the Fourth Amendment, ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’ (Skinner v. Railway Labor Executives’ Assn. [(1989) 489 U.S. 602, 619], quoting from Delaware v. Prouse (1979) 440 U.S. 648, 654, and United States v. Martinez-Fuerte (1976) 428 U.S. 543.) ‘Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish (1979) 441 U.S. 520, 559.)” (People v. King (2000) 82 Cal.App.4th 1363, 1371; see also Concepcion, supra, 942 F.2d at pp. 1172-1173.) Thus, “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted.)

. . .

The other critical consideration is the justification for the intrusion. In the present case, testing the key in the lock “served the discrete investigative purpose of confirming that” defendant had access to 321 Sanford. (Moses, supra, 540 F.3d at p. 272; see also Lyons, supra, 898 F.2d at p. 213 [“the insertion of the key into the padlock was merely a means of identifying a storage unit to which [the defendant] had access”]; DeBardeleben, supra, 740 F.2d at p. 443 [“There was therefore a legitimate reason to insert the keys ... to see whether they fit in order to identify that automobile as belonging to [the] defendant for purposes of obtaining a search warrant.” (Fn. omitted.)].) Moreover, regardless of whether the police had probable cause to believe that there was evidence inside the residence without trying the key in the lock, the police certainly reasonably suspected the residence was connected to the crime under investigation. ...

How can they not take Scalia more seriously? "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).

Permalink 05:02:15 am, by fourth, 141 words, 2835 views   English (US)
Categories: General "Feds Shift Tracking Defense" Feds Shift Tracking Defense / Prosecutors in Arizona Case Drop Position That 'Stingray' Use Didn't Require Warrant by Jennifer Valentino-Devries:

The U.S. Department of Justice now says its use of a cellphone-tracking device in a controversial Arizona case could be considered a "search" under the Fourth Amendment, a tactical move legal experts say is designed to protect the secrecy of the gadgets known as "stingrays."

For more than a year, federal prosecutors have argued in U.S. District Court that the use of the stingray device—which can locate a mobile phone even when it's not being used to make a call—wasn't a search, in part because the user had no reasonable expectation of privacy while using Verizon Wireless cellphone service. Under that argument, authorities wouldn't need to obtain a search warrant before using one of the devices.

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  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)
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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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