Archives for: November 2011, 13

11/13/11

Permalink 12:45:15 am, by fourth, 763 words, 3211 views   English (US)
Categories: General

CA4 explains Terry's “must diligently pursue the investigation of the justification for the stop” when ICE was called

A stop led to ICE being called, and that slowed “investigation of the justification for the stop.” However, the officer's “calling ICE to inquire into the validity of the Gaitan ID is analogous in many ways to how an officer routinely runs a driver's license and registration to check their validity,” and here it was not unreasonable. United States v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2011):

Strictly speaking, the scope and duration inquiries under Terry’s second prong are distinct. They become intertwined, however, in cases where, as here, the actions a defendant argues exceeded the scope of the stop necessarily also extended its duration. This raises the following question: Under what circumstances, if ever, may an officer prolong a traffic stop to investigate matters unrelated to the justification for the stop and without reasonable suspicion, whether through questioning or other means?

. . .

As we explained in Digiovanni, for a traffic stop to satisfy Terry’s second prong, the police officer “must diligently pursue the investigation of the justification for the stop.” Id. (citing Sharpe, 470 U.S. at 686). Although we have held that “where a delay can be characterized as de minimis under the totality of the circumstances, it will not be recognized as a Fourth Amendment violation,” id. (citing Mason, 628 F.3d at 132), the principal inquiry, as articulated by the Sixth Circuit, is “the officer’s diligence—i.e., his persevering or devoted application to accomplish the undertaking of ascertaining whether the suspected traffic violation occurred, and, if necessary, issuing a ticket.” United States v. Everett, 601 F.3d 484, 494 (6th Cir. 2010) (internal quotation marks and alterations omitted). If “the totality of the circumstances, viewed objectively, establishes that the officer, without reasonable suspicion, definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation, this would surely bespeak a lack of diligence.” Id. at 495.

This standard incorporates both the duration and scope components of Terry’s second prong. Some courts and commentators have questioned whether the scope component survives Johnson. See United States v. Stewart, 473 F.3d 1265, 1269 (10th Cir. 2007) (“The correct Fourth Amendment inquiry (assuming the detention is legitimate) is whether an officer’s traffic stop questions ‘extended the time’ that a driver was detained, regardless of the questions’ content.”); Reid M. Bolton, Comment, The Legality of Prolonged Traffic Stops After Herring: Brief Delays as Isolated Negligence, 76 U. Chi. L. Rev. 1781, 1786-87 (2009). We disagree, because, as we have explained: “[T]he scope of a police officer’s actions during a traffic stop still is relevant to the reasonableness analysis under the Fourth Amendment ... because, during a stop, a police officer must act reasonably, that is, he must diligently pursue the investigation of the justification for the stop.” Digiovanni, 650 F.3d at 509. Johnson holds only that unrelated questioning that does not prolong a traffic stop does not render the stop unlawful. In cases where, as here, the questioning does extend the seizure, the scope of an officer’s unrelated investigation could be relevant to whether the officer “definitively abandoned the prosecution of the traffic stop and embarked on another sustained course of investigation.” Everett, 601 F.3d at 495.

We acknowledge that in Digiovanni the issue was whether police questioning caused the traffic stop to exceed its permissible scope and duration. Here, in contrast, the action Guijon-Ortiz argues prolonged the stop was the call to ICE, which Flowers made from the patrol car while the three men waited in the pickup truck. We believe the “diligently pursue” standard applies nonetheless, because either questioning a person directly or pursuing other means of investigation may, in the context of a particular traffic stop, be relevant to whether an officer diligently pursued the investigation of the justification for the stop.

Our approach is in accord with not only that of the Sixth Circuit in Everett but also that of at least the Eighth and Ninth Circuits. See United States v. Turvin, 517 F.3d 1097, 1101 (9th Cir. 2008) (holding that “whether questioning unrelated to the purpose of the traffic stop and separate from the ticket-writing process that prolongs the duration of the stop may nonetheless be reasonable” is determined by “examin[ing] the ‘totality of the circumstances’ surrounding the stop”); United States v. Olivera-Mendez, 484 F.3d 505, 510 (8th Cir. 2007) (“Whether a particular detention is reasonable in length is a fact-intensive question, and there is no per se time limit on all traffic stops. When there are complications in carrying out the traffic-related purposes of the stop, for example, police may reasonably detain a driver for a longer duration than when a stop is strictly routine.”) (citing Sharpe, 470 U.S. at 685-87).

Permalink 12:20:13 am, by fourth, 335 words, 2991 views   English (US)
Categories: General

TN: Impoundment of car on arrest of driver was reasonable rather than leave it at gas pumps

Defendant was arrested for driving without a license, and it was not unreasonable to impound the car. The alternative was to leave it blocking gas pumps at a gas station, which cannot be expected. The officer was not obliged to see if there was somebody who could come and get the car. State v. Hubbard, 2011 Tenn. Crim. App. LEXIS 828 (November 9, 2011):

While the officer acknowledged that he did not ask Appellant if there was anyone else who could come and get the vehicle, this Court has held that it is appropriate to impound a vehicle despite the failure of an officer to ask Appellant about an alternative solution when there is no reasonable or plausible alternative such as a passenger at the scene to take possession of the car immediately.

Since the defendant did not send up the video of the stop with the appellate record, the court has to presume that it supported the testimony about it. State v. Carrasco, 2011 Tenn. Crim. App. LEXIS 829 (November 10, 2011)*:

As we have noted, the trial court reviewed the video recording of the stop. The agents testified about the recording, although it has not been transmitted as part of the appellate record. As the appellants, the Defendants were required to prepare a record that conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal. T.R.A.P. 24(b); State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). “In the absence of an adequate record on appeal, this court must presume that the trial court’s rulings were supported by sufficient evidence.” State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); see also State v. Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988). In the present case, we must presume that the video recording supported the trial court’s ruling, and the Defendants are not entitled to relief. In this regard, nothing in the record refutes the trial court’s findings that the weaving justified Agent Long’s stopping the truck.

Permalink 12:07:47 am, by fourth, 196 words, 2875 views   English (US)
Categories: General

CA3: Flight of apparent shooter into house with gun exigency

Flight of apparent shooter into a house with a shotgun was reasonable, particularly in light of the apparent lie about who was in the house. United States v. Parrott, 450 Fed. Appx. 228 (3d Cir. 2011):

Here, the officers had probable cause and an objectively reasonable basis for believing that exigent circumstances existed at the time that they searched the house. The officers' belief was based on a number of facts, including: the missing shotgun that had been taken into the house; the report of shots being fired and the reasonable inference that the person who ran into the house with a gun was the shooter; Mrs. Parrott's false statements regarding the number of people in the house; and the officers' reasonable belief that if somebody remained inside the house, that person might attempt to hide, destroy or remove the shotgun, or use it against the officers.

Officers listening to a wire on the CI realized that the CI’s target did not have the sought-after drugs on him, but when a vehicle showed up, and the target went to the car, that was probable cause to search the car. Jones v. State, 2011 Ark. App. 683, 2011 Ark. App. LEXIS 724 (November 9, 2011).*

FourthAmendment.com

Notes on Use

November 2011
Sun Mon Tue Wed Thu Fri Sat
<< < Current > >>
    1 2 3 4 5
6 7 8 9 10 11 12
13 14 15 16 17 18 19
20 21 22 23 24 25 26
27 28 29 30      

Search

by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting
www.johnwesleyhall.com

© 2003-14, online since Feb. 24, 2003

HWC e
URL hits since 2010

~~~~~~~~~~~~~~~~~~~~~~~~~~

Fourth Amendment cases,
citations, and links

Latest Slip Opinions:
U.S. Supreme Court
(Home)
Federal Appellate Courts Opinions
  First Circuit
  Second Circuit
  Third Circuit
  Fourth Circuit
  Fifth Circuit
  Sixth Circuit
  Seventh Circuit
  Eighth Circuit
  Ninth Circuit
  Tenth Circuit
  Eleventh Circuit
  D.C. Circuit
  FDsys: Many district courts
  FDsys: Many federal courts
  FDsys: Other
  Military Courts: C.A.A.F., Army, AF, N-M, CG
State courts (and some USDC opinions)

Google Scholar
Advanced Google Scholar
Google search tips
LexisWeb
LII State Appellate Courts
LexisONE free caselaw
Findlaw Free Opinions
To search Search and Seizure on Lexis.com $

Most recent SCOTUS cases:
2009 to date:

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)


Research Links:
  Supreme Court:
  SCOTUSBlog
  S. Ct. Docket
  Solicitor General's site
  SCOTUSreport
  Briefs online (but no amicus briefs) 
  Curiae (Yale Law)
  Oyez Project (NWU)
  "On the Docket"–Medill
  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
  LexisWeb
  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
  Lexis.com (criminal law/ 4th Amd) $
  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"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)


Misc

XML Feeds

What is RSS?

Who's Online?

  • shourryhego Email
  • aerothshiesse Email
  • alobabera Email
  • repflielt Email
  • suegreefult Email
  • chaphsiperype Email
  • merzerenunc Email
  • gypeplaipiz Email
  • emunlinuifofs Email
  • jinonoforse Email
  • carpinteyrolyn Email
  • autociava Email
  • sypecrucceeme Email
  • hyncassinny Email
  • immuctiohic Email
  • comeensuche Email
  • fuhintoneetef Email
  • abileachali Email
  • iteptinenna Email
  • cyperewly Email
  • exitiettwesee Email
  • noistnoxolo Email
  • wearsehem Email
  • excexycheetry Email
  • Guest Users: 213

powered by
b2evolution