Archives for: December 2011, 09


Permalink 05:41:55 pm, by fourth, 600 words, 3001 views   English (US)
Categories: General

CA9: Omission that target of search was in prison six months at time of the probable cause was material

Plaintiffs stated a claim for a Franks violation in a § 1983 for a search warrant for their house for evidence that Bravo Jr. was involved in a drive-by shooting. At the time of the shooting and raid on the house, Bravo Jr. had been in prison for six months. Bravo v. City of Santa Maria, 665 F.3d 1076 (9th Cir. 2011):

Hope Bravo and Javier Bravo Sr., along with their minor granddaughter E.B. (collectively “the Bravos”), appeal the adverse summary judgment grant in their 42 U.S.C. § 1983 action arising out of the nighttime SWAT team search of their home for weapons suspected of being used in a drive-by shooting and stored in the Bravo home by their son, Javier Bravo Jr. (“Javier Jr.”). The Bravos allege their Fourth Amendment rights were violated by the issuance and execution of a search warrant whose application failed to disclose that Javier Jr. was at that time, and for over six months had been, incarcerated in the California prison system and therefore not only was not present in the Bravo home, but moreover could not have been involved in the shooting or the storage of weapons used in it. Because the Bravos presented sufficient evidence establishing a genuine issue as to whether Santa Maria Police Department (“SMPD”) Detective Louis Tanore’s (“Tanore”) omission of this material fact was intentional or reckless, as opposed to merely negligent, we reverse the summary judgment grant in his favor and remand.

. . .

Nonetheless, we must ask whether probable cause remains once the affidavit is supplemented with the challenged omission—here, Javier Jr.’s two-year sentence imposed over six months prior to the incident occasioning the search warrant, and his consequent incarceration in state prison at the time of the drive-by shooting and of the warrant’s execution. We conclude that the corrected affidavit could not establish probable cause for the search and especially does not meet the heightened standard of justification required for nighttime SWAT service.

The district court reasoned that Javier Jr.’s presence was immaterial because the warrant was not for his arrest but only to search for evidence related to the April 21 shooting. This fact, however, was highly material to the search, which authorized the seizure of evidence relating to the April 21 shooting. Javier Jr.’s custody status meant not only that he would not be present in the Bravo residence at the time of the search, but that he could not have been involved in the shooting or in concealing the evidence. Tanore had no evidence that Mr. and Mrs. Bravo or E.B. were involved in the April 21 shooting or that during a period in which Javier Jr. was not residing in their home they would have assisted Tangas gang members in concealing evidence, and specifically in concealing evidence from the shooting. The generalized statements in the affidavit that it is “common” for families of gang members to assist other members of the gang are insufficient to support probable cause to search the Bravos’ home. See United States v. Rodgers, 656 F.3d 1023, 1030-31 (9th Cir. 2011) (stating that “an assumption that most sixteen-year-old passengers have identification does not lead to probable cause to search every car carrying a teenager absent some individualized suspicion regarding the teenager, the vehicle in question, and the crime at issue”); United States v. McCarty, 648 F.3d 820, 830 (9th Cir. 2011) (“Searches and seizures are ordinarily unreasonable in the absence of individualized suspicion of wrongdoing, and the circumstances under which a warrantless search not supported by probable cause may be considered reasonable under the Fourth Amendment are very limited.”) (internal quotation marks and citations omitted).

Permalink 04:25:04 pm, by fourth, 168 words, 2924 views   English (US)
Categories: General

HuffPo: "GOP Jobs Bill Slashes Benefits, Allows States To Drug-Test The Unemployed"

HuffPo: GOP Jobs Bill Slashes Benefits, Allows States To Drug-Test The Unemployed:

Republican leaders in the House of Representatives unveiled legislation Friday that would cut 40 weeks from the duration of federal unemployment compensation and allow states to require the unemployed to pass drug tests in order to receive benefits.

Republicans have not cited any data suggesting that drug use contributes to joblessness or that there is an elevated rate of drug abuse among the unemployed. Michael Steel, a spokesman for House Speaker John Boehner (R-Ohio), said the measure is inspired by lawmakers' conversations with businesses in their districts.

Rep. Jack Kingston (R-Ga.) cited a local business this week when he introduced a stand-alone drug testing proposal. "I had an employer tell me of an overwhelming response for job openings," said Kingston. "There was just one problem: Half the people who applied could not even pass a drug test."

So test the job applicants. That's a private search. Finally, a GOP jobs bill, and it violates the Fourth Amendment.

Permalink 07:37:22 am, by fourth, 317 words, 2925 views   English (US)
Categories: General

WI: Looking in a vehicle for safety purposes did not permit search of two vials for which there was no reason to believe were a threat

When defendant was stopped in a large conversion van for a traffic offense, the driver was not communicative about her travel plans, which was her right. However, the vehicle was moving like there was someone in it, and that gave the officer concern for his safety. When he opened the van, he found two blue vials which he opened, and this exceeded the scope of permitted instruction. State v. Sutton, 2012 WI App 7, 338 Wis. 2d 338, 808 N.W.2d 411 (2011):

P10 ... The cylinders here, however, were opaque, not clear, so Officer Bartol could not see what was inside, and thus, as noted, she did not have “plain view” of the pills. Further, her other experience—that pills can be transported “in a container in which people believe that police will not think is a prescription” applies to any opaque tube, box, carton, jug, can, urn, and the like. That is too slippery a criterion to permit the warrantless search of a container that could not, by its size or shape, hold a weapon. Cf. Denk, 2008 WI 130, ¶¶59-60, 315 Wis. 2d at 27-28, 758 N.W.2d at 786-787 (Officers could search inside of hard, opaque eyeglass case dropped by passenger because: (1) it could have held “a small weapon, such as a knife or a razor blade,” and (2) it could also have held evidence of the crime for which the officers arrested the driver.). Further, Sutton was, as we have seen, entirely within his rights not to tell Officer Bartol where he had been, so his refusal to answer that question is not part of the probable-cause calculus.

P11 Officer Bartol did not have “probable cause to believe there [was] a connection between the [opaque cylinders] and criminal activity.” See Buchanan, 2011 WI 49, ¶23, 334 Wis. 2d at 399, 799 N.W.2d at 785 (quotation marks and quoted sources omitted). She thus had to get a search warrant, if she could, before she opened them. Accordingly, we reverse.

Permalink 07:26:39 am, by fourth, 607 words, 3000 views   English (US)
Categories: General

D.Minn.: TSA behavioral observations led to valid intense secondary screening and seizure of cash

TSA officers noticed defendant and his traveling companion because of suspicious activities at the Delta counter at MSP airport, according to a behavioral specialist. By the time they got to security, officers were sure they would be subjected to secondary screening, and that led to intensive questioning and seizure of case in aid of local law enforcement who also got involved, reporting that defendant was allegedly involved in a drug deal the day before. United States v. Rosales, 2011 U.S. Dist. LEXIS 140949 (D. Minn. October 28, 2011):

Warrantless and suspicionless airport screening searches “are constitutionally reasonable administrative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” United States v. Aukai, 497 F.3d 955, 960 (9th Cir. 2007) (quoting United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). TSA is statutorily charged with developing and executing airport screening search procedures. See 49 U.S.C. § 44901(a). More generally, TSA is responsible for creating “regulations to protect passengers and property on an aircraft ... against an act of criminal violence or aircraft piracy.” 49 U.S.C. § 44903(b). Under 49 C.F.R. § 1540.111(a), individuals may not carry a “weapon, explosive, or incendiary” onto an airplane. Title 49 of the United States Code, Section 44902(a) requires that TSA prohibit commercial airlines from transporting “a passenger who does not consent to a search ... [thus] establishing whether the passenger is carrying unlawfully a dangerous weapon, explosive, or other destructive substance.” 49 U.S.C. § 44902(a). Pursuant to its mandate, TSA has established a “prohibited items list” which is posted online and sets forth what items may not be carried aboard aircraft. 68 Fed. Reg. 7444, 49 C.F.R. § 1540.3. The prohibited items list includes a number of small items such as razors, matchbooks, blasting caps, flares, plastic explosives, and the like. See (last visited October 28, 2011).

Administrative searches are exempt from the warrant and probable cause requirements if they are reasonable. Because these searches remain subject to the Fourth Amendment, however, a particular search is “constitutionally reasonable [only where] it ‘is no more extensive nor intensive than necessary, in the light of current technology, to detect the presence of weapons or explosives [and where] it is confined in good faith to that purpose.’” Aukai, 497 F.3d at 962 (quoting Davis, 482 F.2d at 913).2 To determine the reasonableness of an administrative airport search, this Court must balance an individual’s right to be free of intrusion with “society’s interest in safe air travel.” United States v. Marquez, 410 F.3d 612, 616 (9th Cir. 2005).

. . .

This Court concludes that the search procedures used in this case were neither more extensive nor more intensive than necessary under the circumstances to rule out the presence of weapons, explosives, or other prohibited items that might be carried on an airplane. After passing through a magnetometer, Rosales was directed to secondary screening under TSA rules because he was a traveling companion of Perez, who displayed a sufficient amount of suspicious behavior indicators to require a secondary inspection of him at the security checkpoint. TSA Officer Leonard testified that the secondary screening process begins once a person walks through the magnetometer and all their accessible property has been X-ray screened. If there are no specific target areas observed by the X-ray operator that the agents need to identify first, then “as behavior detection officers we collect all their accessible property, we ask for assistance from a checkpoint certified screening officer, another transportation security officer, to do a pat-down of their person to make sure that there is no artfully concealed items on them.”

Permalink 07:10:36 am, by fourth, 275 words, 2900 views   English (US)
Categories: General

N.D.Ga.: “Indicia” evidence in SW did not make it per se overbroad

A warrant seeking “indicia” evidence, evidence of ownership or control of property, was not overbroad. Also, defendant’s brief does not show standing in the property searched. There was nothing tending to show that he had control over the property. United States v. Lisbon, 835 F. Supp. 2d 1329 (N.D. Ga. 2011):

Here, the items sought (identification documents and mail) were tempered by the object of the search – evidence of identity and/or occupancy of the premises searched – and in relation to the crimes under investigation. See Gurleski, 405 F.2d at 258 (noting that the “search must be one directed in good faith toward the objects specified in the warrant or for other means and instrumentalities by which the crime charged had been committed”). The executing agents were therefore given sufficient direction in executing the warrant and as a result, the warrant did not offend the particularity requirement of the Fourth Amendment. The former Fifth Circuit's discussion in United States v. Haydel, 649 F.2d 1152 (5th Cir. Unit A July 1981), upon which Lisbon relied, demonstrates the inadequacy of Lisbon's showing on standing. In Haydel, the evidence established that the defendant's parents had given him permission to use their home and had given him a key, causing the court to conclude that his access was for all practical purposes unencumbered. Id. at 1155. Although the defendant in Haydel did not reside regularly at his parents' home, he kept clothing there and had occasionally remained overnight, when he and his wife had domestic problems. Id. & n.2. Unlike Haydel, Lisbon's statements that he kept belongings there are insufficient to establish the requisite legitimate expectation of privacy in the premises, as explained below.

Permalink 06:45:09 am, by fourth, 260 words, 2911 views   English (US)
Categories: General

N.D.Ohio: Giving officers some discretion as to what documents to seize does not make SW overbroad

Giving the officers executing a search warrant some minimal judgment as to what to seize does not make it overbroad. Here, it was papers relating to drug trafficking. United States v. Willoughby, 2011 U.S. Dist. LEXIS 139623 (N.D. Ohio November 15, 2011)*:

The categories outlined in the search warrant are no doubt broad, encompassing papers, computers, pictures, personal and business contacts, and other categories of evidence, but “‘[a] generalized seizure of business documents may be justified’ if it is demonstrated that ‘the government could not reasonably segregate ... documents on the basis of whether or not they were likely to evidence criminal activity.’” United States v. Banks, 556 F.3d 967, 973 (9th Cir. 2009) (quoting United States v. Kow, 58 F.3d 423 (9th Cir. 1995)). Here, it is not clear how officers could have made the categories any more particular. It appears from Defendant’s brief he wanted something similar to the phrase “in connection with prostitution and/or drug-related activity” to follow each category of evidence. However, such a recitation would be redundant in light of the list of specific crimes to which the search was related appearing on page two of the search warrant. Defendant also states the search warrant description would have allowed officers to collect anything located in his home. But officers executing the warrant are permitted to exercise some minimal judgment as to whether a particular document or item fell within a described category, and therefore, that fact alone does not warrant the relief Defendant seeks. See Blair, 214 F.3d at 697. In short, the search warrant is sufficiently particular and not overly broad.

Permalink 12:02:16 am, by fourth, 173 words, 2900 views   English (US)
Categories: General

WSJ: "Marijuana arrests drop after NYPD order"

WSJ: Marijuana arrests drop after NYPD order:

Arrests for low-level marijuana possession fell in the city in the weeks after Police Commissioner Raymond Kelly cautioned officers not to bust people for small amounts of the drug found in pockets or bags, according to department data released Wednesday.

Kelly issued the internal order Sept. 19 after claims that officers were wrongly arresting people. In New York, possessing a small amount of marijuana is punishable with a fine. But smoking the drug in public or having it visible remains a low-level crime that carries jail time.

There are more arrests on the pot charge — about 50,000 a year — than any other crime in New York City, accounting for about one of every seven cases that turn up in criminal courts. Critics say the numbers are driven in part by the department's strategy of stopping and frisking people who meet crime suspects' descriptions.

More than 450,000 people, mostly black and Hispanic men, were stopped so far this year, unfair targets, critics say. About 10 percent of stops result in arrests.

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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:
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  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)

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  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)

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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)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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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