Archives for: November 2011, 19


Permalink 10:21:43 am, by fourth, 223 words, 3121 views   English (US)
Categories: General

D.Neb.: Detaining motorist 20 minutes for drug dog after warning ticket handed over was not by consent

Defendant’s stop was over when the officer handed the warning ticket back. Making the driver wait 20 minutes for the drug dog to show up was not by consent, and it was unreasonable. United States v. Grant, 2011 U.S. Dist. LEXIS 132608 (D. Neb. November 15, 2011)*:

The statement by the Sergeant Wilcynski that he would release the defendant if nothing happened is bothersome to the court. Sergeant Wilcynski told the defendant that if the dog did not indicate, “then we’ll get you going.” Id. That language sounds more like a coerced consent and resulting detention than it does a consensual arrangement. It is hard to imagine that the defendant really felt free to leave after that statement. If a reasonable person does not believe he is free to leave, a seizure occurs. Garcia, 613 F.3d at 753, citing United States v. Jones, 269 F.3d 919, 925 (8th Cir. 2001).

The burden is on the government to show consent. Law enforcement officers must ask good questions. These questions must be clear and the responses must be clear and not the result of coercion or coercive language. Further, there is always the option of obtaining a written consent which was not done in this case. The question/statement by Sergeant Wilcynski telling the defendant that if the dog did not indicate, “then we’ll get you going” was clearly coercive. ...

Permalink 09:44:41 am, by fourth, 260 words, 2951 views   English (US)
Categories: General

LA5: Off-duty narc stopped car for weaving and was valid

Defendant was stopped for DUI by an off-duty narc. He conducted a search of the car finding MDMA. The stop and search were valid as a private search. In addition, if an on-duty LEO had stopped the car, that officer could have searched the passenger compartment incident to the arrest for the cause of the DUI. State v. Common, 78 So. 3d 237 (La. App. 5th Cir. 2011).*

An anonymous CI provided sufficient predictive detail to justify the stop of defendant’s car with reasonable suspicion when defendant showed up in the car described at the time given. State v. Leonard, 80 So. 3d 535 (La. App. 5th Cir. 2011)*:

Further, the source correctly predicted the specific place and time, within ten minutes, that the suspect would arrive with contraband. The source was able to describe the vehicle defendant would be driving – a black, four-door vehicle. As the detectives surveyed the situation, they corroborated the source's information when they observed a man, fitting the description of the suspect, drive up to the expected location in a vehicle that matched the description of the suspect's vehicle within the specified time frame. As such, we find that the trial judge did not err in implicitly finding that the detectives possessed reasonable suspicion to justify the investigatory stop.

Officers were in the house of another to conduct a parole arrest, and they encountered the defendant who was there. He was handcuffed for safety reasons and told that and that he was not under arrest. Then defendant admitted to possessing contraband. State v. Jones, 78 So. 3d 274 (La. App. 5th Cir. 2011).*

Permalink 09:23:53 am, by fourth, 164 words, 3003 views   English (US)
Categories: General

E.D.Cal.: Defendant ranch worker had no REP in the curtilage of the house

Defendant worked on a ranch, and he did not show that he had a reasonable expectation of privacy in the curtilage to the house on the property. As commercial property as to him, there was a lesser expectation of privacy in it. United States v. Quesada-Garcia, 2011 U.S. Dist. LEXIS 131544 (E.D. Cal. November 14, 2011).*

Officer responding to shots fired call found defendant matching the description. Considering the totality, the officer encountered defendant and defendant did not comply with commands to show his hands and put them up. That all added up to reasonable suspicion. United States v. McCullough, 2011 U.S. Dist. LEXIS 132108 (M.D. Pa. November 16, 2011).*

While a social guest in a motel room may have a reasonable expectation of privacy, vis-a-vis an overnight guest, the defendant still carries the burden on that, and he failed to establish it here. About all he showed here was that he was there for commercial purposes. United States v. Sherrill, 2011 U.S. Dist. LEXIS 132547 (D. Kan. November 16, 2011).*

Permalink 01:40:49 am, by fourth, 134 words, 2936 views   English (US)
Categories: General

HuffPo: "TSA: 10 Years Old & None The Wiser"

Huffington Post: TSA: 10 Years Old & None The Wiser:

In the 10 years that the TSA has existed, there have been countless public blunders by the agency that just can't seem to get it right.

From John "Don't Touch My Junk" Tyner to the TSA's "Get Your Freak On Girl" note the American public seems to simply not be able to get enough of the Transportation Security Administration, for better or worse.

The TSA is a "cumbersome organization", Kate Hanni, Executive Director of (a non-profit organization with 50,000 members dedicated to bettering the conversation between travelers, the airlines and the Government), and blogger for The Huffington Post, said in a phone conversation, "There are some 67,000 employees at the TSA. It's security theater," she added.

I referred to TSA as "security theater" here in July 2007.

Permalink 01:18:51 am, by fourth, 340 words, 2989 views   English (US)
Categories: General

NY2: Statute for child sex abuse victim to submit to photographing of doubtful utility violated her rights against unreasonable search and seizure

Ordering a child who gave birth to submit to intimate photographing years after the sexual abuse served no reasonable government interest and violated the Fourth Amendment and state constitutional rights of the child in her bodily integrity. In the Matter of Shernise C., 2011 NY Slip Op 08355, 91 A.D.3d 26, 934 N.Y.S.2d 171 (2d Dept. 2011):

“There is no more worthy object of the public’s concern” than the welfare of children (Wyman v James, 400 US 309, 318). However, in our societal zeal to protect them, our most vulnerable and most valuable asset, we must be careful not to trample upon their constitutional rights. An innocent child should certainly have as much right to be free from an unreasonable search and seizure as someone suspected of committing a crime. Thus, while harmonizing the state’s extraordinary interest in protecting a child’s welfare from the potential for the invasion of a child’s constitutional rights may be at times difficult, a proper balance must be struck since even the most heinous crime of child sexual abuse does not automatically provide cause to ignore the rights of the victim.

. . .

Where a bodily intrusion is concerned, the court must give careful consideration to “not only the probable worth of the evidence to the investigation, but the nature of alternative means, if any, for obtaining the evidence” (Matter of Abe A., 56 NY2d 288, 298; see Winston v Lee, 470 US 753). When making our Fourth Amendment inquiry, we must consider whether there is a “ clear indication’ that the intrusion will supply substantial probative evidence” (Matter of Abe A., 56 NY2d at 297, quoting Schmerber v California, 384 US 757, 770; see Cupp v Murphy, 412 US 291, 295).

In the instant matter, given the conclusive evidence of abuse provided by the DNA test results, the State’s need to subject Shernise to a highly intrusive physical examination is so diminished as to render the search unreasonable under the Fourth Amendment. Thus, the mandated application of Family Court Act § 1027(g) to Shernise under the particular facts of this case is unreasonable and violates her Fourth Amendment rights.

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

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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)

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  ACLU on privacy
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  Section 1983 Blog

"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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