Archives for: December 2011, 18


Permalink 11:21:15 am, by fourth, 183 words, 2996 views   English (US)
Categories: General

OR: Consent sought during “unavoidable lull” in a stop and did not extend it

Asking for consent while waiting for return of information from dispatch was during an “unavoidable lull” in a stop and did not extend it. State v. Hampton, 247 Ore. App. 147, 268 P.3d 711 (2011)*:

Asking for consent to search the car did not extend the stop because it occurred during an unavoidable lull in the traffic stop while defendant was looking for his registration. See State v. Jones, 239 Or App 201, 208, 245 P3d 148 (2010), rev den, 350 Or 230 (2011) (holding that, because the defendant's consent to search occurred during an unavoidable lull in an ongoing traffic stop, the request for consent to search did not delay the stop).

The evidence supports the trial court’s conclusion and findings that the air freshener hanging from defendant’s mirror was a “material obstruction” to the driver’s view. “‘In making its decision on the motion, the trial court's focus is not on “whether an offense was actually committed but whether an arresting officer reasonably suspected at the time of the stop that criminal activity was taking place or about to take place.”’” People v. Price, 2011 IL App (4th) 110272, 962 N.E.2d 1035 (December 12, 2011).*

Permalink 09:57:44 am, by fourth, 248 words, 2909 views   English (US)
Categories: General

ND: Record did not show defendant was seized during stop

The record does not show that defendant was seized, and defendant did not show that he wasn’t free to leave, so he did not show a Fourth Amendment violation. State v. Aguilar, 2011 ND 236, 809 N.W.2d 285 (2011)*:

[*P14] The State argues Sanchez was not illegally seized because he was not being detained until he was arrested for possessing the methamphetamine and the pipe. Sanchez relied on Aguilar’s arguments at the suppression hearing and did not present any evidence that Sanchez was seized while Officer Sommer was waiting for additional officers to arrive.

[*P15] A Fourth Amendment seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Fields, 2003 ND 81, 662 N.W.2d 242, ¶ 11 (quoting State v. Koskela, 329 N.W.2d 587, 589 (N.D. 1983)). At the district court suppression hearing, Sanchez presented no evidence that he was not free to leave before he was arrested, and nothing in the record suggests otherwise. The sniff did not violate Sanchez's right to be free from unreasonable seizures because Sanchez was not seized until after the sniff occurred.

[Note: Since the burden in a warrantless search is on the government, why is this court holding that defendant had the burden to show that he was “seized.” The burden is on the state to show that he was not seized. Here, at least, the court says that nothing in the record shows that he was seized. Unfortunate language.]

Permalink 09:48:40 am, by fourth, 87 words, 2855 views   English (US)
Categories: General

Throwdown cases from IL and LA

Officers’ extraterritorial stop was without reasonable suspicion, and his throwdown was properly suppressed. People v. Contreras, 2011 IL App (2d) 100930, 357 Ill. Dec. 239, 962 N.E.2d 1140 (2011).*

The officer was investigating a burglary report and was at defendant’s threshold where defendant was observed with his pants down bleeding from the leg, and he volunteered that he was injured running from the police because he had drugs. That was reasonable suspicion to detain, and defendant’s throwdown was a valid seizure. State v. Wilford, 81 So. 3d 868 (La. App. 5th Cir. 2011).*

Permalink 12:13:12 am, by fourth, 329 words, 2980 views   English (US)
Categories: General

DC: When defendant assaults officer during illegal patdown, acquittal not the remedy for a Fourth Amendment violation

Defendant was stopped without legal justification, and one thing led to another and he assaulted the officer. Acquittal was not an appropriate remedy for what was a separate crime despite the Fourth Amendment violation. Crossland v. United States, 32 A.3d 1005 (D.C. 2011):

In his post-trial Motion for Judgment of Acquittal, appellant argued that “because Officer Baldwin’s behavior violated his [Fourth Amendment] rights,” the trial court “should consider sanctioning the Government” by entering a judgment of acquittal. Relying on Mapp v. Ohio, appellant argues that the trial court erred in denying his motion, contending that “the only way to deter the MPD police policy of ‘aggressive high visibility patrol,’ ... is to remove the incentive” for police officers to disregard constitutional rights. We discern no reason to doubt (and the government does not dispute) that Officer Baldwin’s conduct — forcibly searching appellant when, as the officer acknowledged, appellant was doing nothing unlawful — violated appellant’s Fourth Amendment right to be free from unreasonable searches and seizures. However, application of the sanction established by Mapp (the so-called “exclusionary rule”) has “been limited to cases in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct.” Artis v. United States, 802 A.2d 959, 967 (D.C. 2002) (quoting United States v. Leon, 468 U.S. 897, 910, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)). This case did not involve the seizure of evidence, and the authority that appellant cited did not require or authorize the trial court to grant appellant’s request for a judgment of acquittal. Moreover, as the trial court recognized, the APO statute “prohibits forceful resistance even if the officer’s conduct is unlawful.” Dolson v. United States, 948 A.2d 1193, 1202 (D.C. 2008) (explaining that the rationale for this rule is to “deescalate the potential for violence which exists whenever a police officer encounters an individual in the line of duty”) (citations and internal quotation marks omitted). The trial court did not err in denying appellant’s motion.

Permalink 12:02:40 am, by fourth, 191 words, 2802 views   English (US)
Categories: General

M.D.Ala.: Knowledge of place to be searched by executing officer not shown in affidavit may be considered

The knowledge of the executing officer of the place to be searched may be considered, even if not reflected in affidavit for the search warrant. United States v. Harbison, 2011 U.S. Dist. LEXIS 143957 (M.D. Ala. November 18, 2011):

The court may consider “the knowledge of the officer executing the warrant, even where such knowledge was not reflected in the warrant or in the affidavit supporting the warrant.” Burke, 784 F.2d at 1093. Based on the officers’ knowledge and prior experience at the residence, the search warrants described the residence to be search with sufficient particularity to ensure that the correct residence was searched. “The Fourth Amendment requires only that the search warrant describe the premises in such a way that the searching officer may “‘with reasonable effort ascertain and identify the place intended.’” (internal citations omitted).

Leaving one hotel to go to another is an abandonment of what’s in the first. United States v. Thornton, 2011 U.S. Dist. LEXIS 143843 (N.D. Ga. July 28, 2011).*

The search of defendant’s car was valid either as a search incident to arrest with probable cause or consent. State v. Roberson, 81 So. 3d 911 (La. App. 2d Cir. 2011).*

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

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2013-14 Term:
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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)
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  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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