Archives for: December 2011, 04


Permalink 12:41:59 am, by fourth, 168 words, 3000 views   English (US)
Categories: General "When the Police Go Military" When the Police Go Military by Al Baker:

RIOT police officers tear-gassing protesters at the Occupy movement in Oakland. The surprising nighttime invasion of Zuccotti Park in Lower Manhattan, carried out with D-Day-like secrecy by officers deploying klieg lights and a military-style sound machine. And campus police officers in helmets and face shields dousing demonstrators at the University of California, Davis with pepper spray.

Is this the militarization of the American police?

. . .

Radley Balko, a journalist who has studied the issue, told a House subcommittee on crime in 2007 that one criminologist found a 1,500 percent increase in the use of SWAT (special weapons and tactics) teams in the United States in roughly the last two decades.

. . .

The more the police fail to defuse confrontations but instead help create them — be it with their equipment, tactics or demeanor — the more ties with community members are burned, he said. The effect is a loss of civility, and an erosion of constitutional rights, rather than a building of good will.

Permalink 12:39:09 am, by fourth, 329 words, 3107 views   English (US)
Categories: General

NM explains its deferential standard of review is "substantial basis standard of review"

Review of a magistrate’s finding of probable cause is subject to a deferential standard of review, and “[a] reviewing court should not substitute its judgment for that of the issuing court.” State v. Trujillo, 150 N.M. 721, 2011 NMSC 40, 266 P.3d 1 (2011):

[*18] “[T]he substantial basis standard of review is more deferential than the de novo review applied to questions of law, but less deferential than the substantial evidence standard applied to questions of fact.” Williamson, 2009 NMSC 39, ¶ 30. The United States Supreme Court reasoned that “[a] deferential standard of review is appropriate to further the ... strong preference for searches conducted pursuant to a warrant.” Massachusetts v. Upton, 466 U.S. 727, 733 (1984). A deferential stance “to the warrant process encourages police officers to procure a search warrant.” Williamson, 2009 NMSC 39, ¶ 28. This in turn provides “a layer of protection from unreasonable searches and seizures” without a warrant. Id. (internal quotation marks and citation omitted). Accordingly, “‘the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’” Upton, 466 U.S. at 734 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)).

[*19] This standard “does not preclude the reviewing court from conducting a meaningful analysis of whether the search warrant was supported by probable cause.” Williamson, 2009 NMSC 39, ¶ 30. Rather, “[i]f, after reviewing the affidavit as a whole, the direct and circumstantial evidence alleged, as well as all reasonable inferences to be drawn from those allegations, does not support the issuing court’s determination of probable cause, then the search is invalid and unreasonable.” Id. (internal quotation marks and citation omitted). But, if the factual basis for issuing the warrant is sufficiently detailed in the affidavit, “and the issuing court ‘has found probable cause, the [reviewing] courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than commonsense, manner.’” Id. (quoting Ventresca, 380 U.S. at 109). As stated previously, under a deferential standard the reviewing judge does not substitute his or her judgment for that of the issuing judge.

Permalink 12:25:44 am, by fourth, 175 words, 2938 views   English (US)
Categories: General

HuffPo: 85 year old "Lenore Zimmerman: TSA 'Strip-Searched' Me"

HuffPo: 85 year old "Lenore Zimmerman: TSA 'Strip-Searched' Me" with wheelchair and walker:

An 85-year-old Long Island woman is threatening to sue the TSA after what she claims was a bloody strip-search by the agency.

Lenore Zimmerman, of Long Beach, was on her way from JFK airport to Fort Lauderdale on Tuesday when she claims the TSA took her into a private room and began removing her clothes, the Daily News reports.

The retired receptionist, who uses a walker and stands 4 foot 11, said her son dropped her off at the airport for a 1pm flight. When she got to security, she asked if she could not go through the scanners--fearing it could interfere with her defibrillator--and instead be patted down, which she claims she normally does. Instead, she was taken by two female agents to a private room.

"I walk with a walker -- I really look like a terrorist," she told the paper. "I'm tiny. I weigh 110 pounds, 107 without clothes, and I was strip-searched."

Being from the government means never having to say you're sorry.

Permalink 12:18:14 am, by fourth, 361 words, 3018 views   English (US)
Categories: General

N.D.Cal.: Motion to suppress denied without prejudice to renew by showing standing

Defendant did not allege foundational facts for standing to contest a seizure of his mother's van. He had the keys, but he needed to show permission. Still, the court denies the motion without prejudice to renew it and attempt to make a proper showing. United States v. Sinclair, 2011 U.S. Dist. LEXIS 138154 (N.D. Cal. December 1, 2011):

In the instant case, Defendant has failed to establish that he had a legitimate expectation of privacy in the van. Though it is clear that Defendant possessed the keys to van, Defendant does not state how he obtained the keys or that he, in fact, had his mother's permission to use the van. Nor does Defendant make any showing that he had the authority to exclude all others, except his mother, from using or accessing the van. Based on Defendant's failure to make this foundational showing, the Court finds that Defendant lacks standing to challenge the search of the van belonging to his mother and denies his motion to suppress. E.g., [United States v. Thomas, 447 F.3d 1191 (9th Cir. 2006)] (affirming denial of motion to suppress where defendant failed to establish that he had "permission" to use the rental car). However, since it conceivable that Defendant could cure the foregoing deficiencies and make the requisite showing to establish a legitimate expectation of privacy in the van, the denial of his motion is without prejudice to renewal.

Whether property was lawfully or unlawfully seized is not the question in a Rule 41(g) proceeding for return. Defendant was entitled to return of property where he was acquitted of some counts and it wasn’t contraband. United States v. Crooker, 2011 U.S. Dist. LEXIS 138234 (D. Mass. November 30, 2011).*

Officers went to defendant’s house to do a knock-and-talk about inappropriate text messages to a young girl. His daughter answered the door and said he was in the backyard. Officers saw him and he invited them into the yard. He consented to a search of his computer and house but contended he only agreed to one doing it, not three. He didn’t object, so his claim fails. United States v. Coulter, 2011 U.S. Dist. LEXIS 138271 (E.D. Ark. November 30, 2011).*

Permalink 12:02:58 am, by fourth, 279 words, 2888 views   English (US)
Categories: General

CA4: Stop for car theft justifies a patdown

Stop for car theft justifies a patdown. United States v. Braxton, 456 Fed. Appx. 242 (4th Cir. 2011), certiorari denied, 132 S. Ct. 1815, 182 L. Ed. 2d 633, 2012 U.S. LEXIS 2468 (U.S., Mar. 26, 2012) (unpublished):

After all, as the District of Columbia Circuit has emphasized, “car theft is a crime that often involves the use of weapons and other instruments of assault that could jeopardize officer safety, and thus justifies a protective frisk under Terry.” United States v. Bullock, 510 F.3d 342, 347 (D.C. Cir. 2007).

The cases to this effect are legion. See, e.g., United States v. Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003) (approving pat-down when “[i]nability to provide proof of registration gives rise to suspicion of a stolen vehicle”); United States v. Rowland, 341 F.3d 774, 784 (8th Cir. 2003) (“[L]aw enforcement could infer the vehicle might be stolen, and as possible car thieves [defendants] might possess weapons.”); United States v. Shranklen, 315 F.3d 959, 963 (8th Cir. 2003) (holding that defendants “might have stolen the car and, therefore, might have weapons in the car that they used during the theft or had available in case they were discovered”); United States v. Tuggle, 284 Fed.Appx. 218, 227 (5th Cir. 2008) (“[W]hen [defendant]’s conduct reasonably suggested that he might be part of that auto-theft ring, the officers were justified in fearing for their safety.”); United States v. Williams, 7 Fed.Appx. 876, 885 (10th Cir. 2001) (Officer’s “frisk of [defendant] for weapons ... was permissible under Terry” in light of “the objectively reasonable suspicion that the van was stolen.”) United States v. Bradley, 1990 WL 124205 at *2 (6th Cir. 1990) (“It was reasonable for the officer to believe that appellant, who was suspected of having recently been involved in a car theft, might have been armed and dangerous.”)

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by John Wesley Hall
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  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
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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)

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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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  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)
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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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