Archives for: November 2011, 07


Permalink 08:51:52 am, by fourth, 152 words, 3047 views   English (US)
Categories: General

OH2: State failed to prove exigency to dispense with BAC level in DUI case

The trial court’s finding that state failed to show exigent circumstances to dispense with a warrant for blood is supported by the record. The officer was at the scene within a minute of the occurrence and had three hours to get the blood by statute. State v. Rawnsley, 2011 Ohio 5696, 2011 Ohio App. LEXIS 4662 (2d Dist. November 4, 2011).*

Defendant contended that the person granting consent was deaf and mentally retarded, but the trial court as finder of fact disagreed finding that she could hear without hearing aids and she was not retarded at all because she “demonstrated ample mental sophistication on the witness stand. Therefore, this [c]ourt determined that Ms. Cape was mentally and physically capable of giving legal consent to search.” Commonwealth v. Reese, 2011 PA Super 235, 31 A.3d 708 (2011).*

Because the officer had reasonable suspicion for the PBT it was reasonable and separate consent was not required. State v. Therrien, 2011 VT 120, 38 A.3d 1129 (2011).*

Permalink 08:37:30 am, by fourth, 181 words, 2966 views   English (US)
Categories: General

KY clarifies “inadvertent discovery” requirement of the plain view doctrine is not a requirement

The Kentucky constitution is not applied differently than the Fourth Amendment, so the “inadvertent discovery” requirement of the plain view doctrine is not a requirement. When a computer was the object of the search, a computer bag was plain view. Chavies v. Commonwealth, 354 S.W.3d 103 (Ky. 2011):

The laptop and lights were in plain view. Chavies argues the computer and lights themselves were not visible because the computer was in a laptop bag, and the lights were in a box. We disagree. Hurley said Chavies took lights packaged in a box and a computer. Police saw in Chavies’s car the original packaging for the lights, as Hurley described, and a laptop bag. It is sufficient that the police saw a laptop bag in the car. Police did not have to see the laptop itself as long as they had probable cause to believe the laptop bag was stolen or contained a stolen computer.

The incriminating nature of the evidence was immediately apparent. Where the nature of the evidence is not inherently criminal, probable cause of its incriminating nature is necessary. ...

Permalink 08:35:19 am, by fourth, 197 words, 2916 views   English (US)
Categories: General

IN: Search warrant for “any and all vehicles involved with the property” was general as applied to a vehicle leaving

Search warrant authorized a search for “any and all vehicles involved with the property.” Defendant got into a car parked outside and left and was stopped by officers. The warrant was a general warrant as to vehicles for not requiring nexus to the property. Lee v. State, 956 N.E.2d 758 (Ind. App. 2011):

In this case, neither the warrant nor the affidavit in support thereof described the vehicles to be searched; detailed the vehicles’ connection to any criminal activity; or indicated the specific locations of the vehicles with any specificity to be searched. Given the vague language of the warrant, which clearly gave officers discretion in determining which vehicles to search, we find the portion of the warrant allowing for the search of vehicles to be invalid. Accordingly, all evidence seized pursuant to the invalid language, but only pursuant to the invalid language, must be suppressed. See Warren v. State, 760 N.E.2d 608, 610 (Ind. 2002) (holding that “catchall language does not doom the entire warrant, ... but rather only requires the suppression of the evidence seized pursuant to that part of the warrant but not the suppression of the evidence obtained pursuant to the valid specific portions of the warrant”).

Permalink 08:16:00 am, by fourth, 261 words, 3031 views   English (US)
Categories: General

M.D.Tenn.: Gant not retroactive to forfeiture action either

Gant was not retroactive for a forfeiture action, either. United States v. $164,705.00 United States Currency, 2011 U.S. Dist. LEXIS 127687 (M.D. Tenn. November 3, 2011).*

Under Washington law, however, a defendant who did not challenge his search incident under Gant because the hearing was before Gant was decided could still raise it on appeal. Remanded. State v. Johnson, 164 Wn. App. 486, 273 P.3d 446 (2011).*

Summary judgment was properly granted the police officers for the Terry search of defendant’s person for a gun. They had articulable reasonable suspicion defendant was armed. Spears v. Leporace, 449 Fed. Appx. 187 (3d Cir. 2011) (unpublished).*

The defendant relied on the police reports to show that the officers did not believe that they had probable cause at the time of the stop, but the court finds probable cause despite the fact one officer said “detained” and another said “arrested.” United States v. Vazquez-Silva, 2011 U.S. Dist. LEXIS 127939 (D. Idaho November 4, 2011)*:

The defense also argues that the distinction between the officers' reports as to whether Mr. Vazquez was detained or arrested is critical. The defense contends the officers' behaviors at the time of the traffic stop suggest they had not yet determined whether or not he had any involvement in the drug transaction yet and were trying to figure out if there was any evidence they could use, even from the house, to link him to the case. The point being that at the time of his arrest there wasn't sufficient probable cause for him to have been arrested, asked incriminating questions, and his property, including the Jetta, searched. The Court finds otherwise.

Permalink 07:44:24 am, by fourth, 352 words, 3218 views   English (US)
Categories: General

CA4: Welsh does not prohibit warrantless entries to arrest for DUI; it is based on penalty for offense

Welsh did not categorically hold that a warrantless entry for DUI was unreasonable, and the circuits have split on the issue, so the officer gets qualified immunity. Cilman v. Reeves, 452 Fed. Appx. 263 (4th Cir. 2011) (unpublished):

Contrary to the district court’s contention, Welsh does not establish a categorical rule that police may never make a warrantless entry into a home to effect an arrest for driving under the influence. The Welsh Court held only that, because Wisconsin treated a DUI as a civil non-jailable offense for which the maximum penalty was a fine of $200, no exigent circumstances justified the warrantless entry at issue there. Welsh, 466 U.S. at 753-54. The Court emphasized that “the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Welsh, 466 U.S. at 754 n.14; see also id. at 754 (“[The penalty] is the best indication of the State’s interest in precipitating an arrest.”).

Although the Supreme Court later observed that “Welsh drew a distinction between jailable and nonjailable offenses, not between felony and misdemeanor offenses,” Illinois v. McArthur, 531 U.S. 326, 335-36 (2001), in Welsh itself, the Court left open the possibility that the Fourth Amendment could impose a wholesale ban on warrantless home arrests for minor offenses. Welsh, 466 U.S. at 749 n.11 (“Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses.”). We need not here determine the exact parameters of the rule set forth in Welsh because even if Officer Reeves did violate Cilman’s Fourth Amendment rights, those rights were not “clearly established.”

No controlling Supreme Court or Fourth Circuit precedent speaks to a person’s right to be free from a warrantless entry into his home in circumstances like those in the case at hand. Numerous out-of-circuit cases do address this issue, but courts have divided on this question. ...

Permalink 06:54:01 am, by fourth, 97 words, 3009 views   English (US)
Categories: General

Volokh: "Panel on United States v. Jones, the Fourth Amendment GPS Case"

Volokh Conspiracy: Panel on United States v. Jones, the Fourth Amendment GPS Case by Orin Kerr:

A few weeks ago, I participated on a panel about United States v. Jones, the GPS case, at William & Mary Law School. The panel featured Steve Leckar, who will be arguing the case for Jones; Melanie Wilson, a criminal procedure professor at the University of Kansas (visiting at W&M); and Paul Marcus of W&M. The video has just been posted, and it’s here for those interested. The oral argument in Jones will be on Tuesday.

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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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)
  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)

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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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