Archives for: November 2011, 10


Permalink 09:38:42 am, by fourth, 134 words, 3051 views   English (US)
Categories: General "Claire McCaskill: TSA pat-downs 'get ugly'" Claire McCaskill: TSA pat-downs 'get ugly':

Now that she’s sold her private jet, Sen. Claire McCaskill is airing her grievances about flying commercial.

The Missouri Democrat told Transportation Security Administration chief John Pistole on Wednesday that she is an “expert” on commercial air travel, and that with her artificial knee, she tries her hardest to avoid what she calls “unbelievably invasive” pat-downs in favor of the Advanced Imaging Technology scanning machines.

McCaskill keeps an eye out for one TSA agent in particular. “When I see her, I tense up. Because I know it’s going to get ugly,” the senator said at a Commerce Committee hearing, noting she often arrives at checkpoints to see the machines unstaffed. Rather than wait, she submits to pat-downs, of which she’s not a fan.

Permalink 09:22:06 am, by fourth, 231 words, 3149 views   English (US)
Categories: General

A “taser” is an improper use of “Taser”; to “Tase” probably is now a word

Taser is a proper noun. To “tase” or to use a “taser” requires that Taser be capitalized. I’ll give that Tase is now a word, as in “don't Tase me, bro.”

Three uses of little-T taser as a noun in the last nine days:

“After removing the other occupants from the home, the officers used a taser in an attempt to subdue Sandberg, which proved tragically ineffective.” Sandberg v. City of Torrance, 456 Fed. Appx. 711 (9th Cir. 2011) (unpublished)

“Evans was tased and removed from the car.” People v. Evans, 200 Cal. App. 4th 735, 133 Cal. Rptr. 3d 323 (2d Dist. 2011)

“Deputy Chavarria also testified he removed and displayed his taser gun while entering the apartment ‘because at that point, I wanted compliance.’” Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011)

No case this month has used Taser properly.

It’s like “Kleenex”; a proper noun. I heard in law school that “aspirin” was once, and “Xerox” fought to protect its trademarked name. Taser may not care, and would it prefer become generic so everybody will buy theirs?

On a side note, in the local legal newspaper, our version of “big law” does a weekly article on an Eighth Circuit case which is probably longer than the original opinion. They mentioned “taser” but their spell checker made it “taster,” probably because “taser” isn’t in “big law’s” vocabulary.

Permalink 08:43:52 am, by fourth, 290 words, 2914 views   English (US)
Categories: General

TX4: Taser pointed at face and officer pushing way in was not consent

The state failed to show consent for entry where the officer pointed a Taser in her face and pushed his way in. Turrubiate v. State, 2011 Tex. App. LEXIS 8895 (Tex. App. — San Antonio November 9, 2011) (dissent)*:

In this case, the record as it existed at the time of the suppression hearing is particularly scant. In fact, the record before this court indicates that all the trial court had before it at the time of the hearing was appellant’s motion to suppress, appellant’s testimony, and the arresting officer’s police report. Appellant testified that on February 11, 2010, Christopher Lopez, an investigator for Child Protective Services, knocked on appellant’s front door while Deputy Santos Chavarria, a sheriff’s officer with the Bexar County Sheriff’s Office, “hid[] from out of sight ... of the peephole.” Appellant testified that when he “barely cracked open the door[],” Deputy Chavarria “pushed his way in with his hand, pointing his taser gun in my face, saying to turn around and put my hands behind my back. ... And he put me in handcuffs and sat me down.” At that point, appellant testified he gave Deputy Chavarria consent to search in a blue backpack nearby. Deputy Chavarria found a bag of marijuana inside the backpack and placed appellant under arrest.

The State, which had the burden of proving a lawful entry and search, did not call Deputy Chavarria to testify during the hearing, but rather produced only his report, which contained the following handwritten statement: ....

A car was stop after a suspected hand-to-hand buy, and they gave up defendant. That was probable cause for a warrant. Even if their stop was unconstitutional, defendant cannot claim an injury from that. State v. Dingess, 2011 Ohio 5659, 2011 Ohio App. LEXIS 4648 (10th Dist. November 3, 2011).*

Permalink 08:06:02 am, by fourth, 157 words, 2944 views   English (US)
Categories: General

CA6: Qualified immunity for overseizure of stolen property under SW

Defendant officer had qualified immunity for probable cause for a search warrant that described stuff from two burglaries, but actually described nineteen. “The fact that officers can seize items not listed in a warrant also makes Wirth’s reliance on the allegedly defective warrant in this case reasonable. We have held that ‘even evidence “not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.”’” Wheeler v. City of Lansing, 660 F.3d 931 (6th Cir. 2011).

The driver of the car with the keys who asserted control over the car had common authority to consent to a search of the car. United States v. Scott, 2011 U.S. Dist. LEXIS 128664 (W.D. Mo. November 7, 2011).*

An officer investigating hunting with a firearm during archery season had reasonable suspicion when he encountered defendant with a gun. United States v. Weatherford, 2011 U.S. Dist. LEXIS 129349 (N.D. Ind. November 8, 2011).*

Permalink 07:48:18 am, by fourth, 310 words, 2951 views   English (US)
Categories: General

CA6: “Consent once removed” applies only to entries, not reentries; animal control entries stated a claim

“Consent once removed” applies only to entries, not reentries. Plaintiff also stated a due process claim for animal control officers entering the property to take animals, plant microchips in them, and then require plaintiff to pay $1,000 to get the dogs back. A Fourth Amendment claim for the reentry. O’Neill v. Louisville/Jefferson County Metro Gov’t, 662 F.3d 723 (6th Cir. 2011):

Akinsanya and Diaz, however, do not stand for the general proposition that achieving “one consensual entry” permits “law enforcement agents [to] thereafter enter and exit a home at will.” Diaz, 814 F.2d at 459. Both were drug cases in which the purpose of the undercover agent’s or informant’s exit was to immediately summon officers to help effectuate an arrest. See Akinsanya, 53 F.3d at 855-56; Diaz, 814 F.2d at 459. Those circumstances distinguish Akinsanya and Diaz from this case, where the backup LMAS officers did not—after the undercover officers exited—rush in to help effectuate an arrest. They instead knocked on the O’Neills’ door to request proof of a “breeder’s license,” carried on a discussion with the O’Neills about the need for such a license, and entered only after the O’Neills specifically objected to their coming into the residence.

. . .

Applying the consent-once-removed doctrine to the LMAS officers’ second entry, where no arrest was intended, would go well beyond the confines of this limited doctrine, which has yet to be adopted by the Supreme Court. See Pearson v. Callahan, 555 U.S. 223, 243-44, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (declining to rule on whether the consent-once-removed doctrine is constitutional by instead resolving the issue of qualified immunity on the basis that no clearly established law was violated). We therefore conclude that the O’Neills have sufficiently pleaded a Fourth Amendment violation based on the second warrantless entry. Dog owners have their day at 6th Circuit.

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

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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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