Archives for: December 2011, 19

12/19/11

Permalink 11:13:18 am, by fourth, 182 words, 580 views   English (US)
Categories: General

Think Progress: "Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights"

Think Progress: Eighth Circuit Embraces Dangerous Legal Claim Endangering Undocumented Immigrants’ Fourth Amendment Rights by Ian Millhiser:

Last June, the U.S. Court of Appeals for the Fifth Circuit held, wrongly, that the Second Amendment does not apply to undocumented immigrants. Last week, in a single paragraph order, the Eighth Circuit agreed. As ThinkProgress explained when the Fifth Circuit opinion was handed down, this decision isn’t just wrong, it is disastrously so. Indeed, if allowed to stand, it could strip all undocumented immigrants of their constitutional right to be free from unlawful searches and seizures.

Several constitutional provisions refer to rights that belong to “the people.” The Second Amendment refers to “the right of the people to keep and bear Arms.” And the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” According to the Fifth Circuit’s reasoning, which was embraced last week by the Eighth Circuit, undocumented immigrants enjoy neither right because they are not part of “the people”: ....

Permalink 06:49:15 am, by fourth, 194 words, 563 views   English (US)
Categories: General

E.D.Pa.: Consent was not invalid because officer was too nice

Court rejects consent was invalid because officer was too nice. As a threshold issue, none of the three had standing since they weren't on the paperwork for the rented car and didn't show they had permission to drive it. Alternatively, the consent shown on video was voluntary. United States v. Goode, 2011 U.S. Dist. LEXIS 144899 (E.D. Pa. December 16, 2011):

The defense argues that Trooper Lora’s friendly and respectful demeanor was so much so as to be actually and literally disarming and, hence, violative of Mr. Goode’s exercise of his free will. The Court declines to entertain an argument (or cynicism, generally) that would lead to a finding that politeness and good humor on the part of law enforcement officers can be subject to such alchemy as to unconstitutionally eviscerate the will power and intelligence of a fully functional adult. It is difficult to imagine the precise admonition that would have to be given to police officers to explain that they should beware of being “too nice” lest the exclusionary rule be invoked. Such a situation would set on its head the truism that more flies are caught with honey than with vinegar.

Permalink 12:22:22 am, by fourth, 211 words, 3260 views   English (US)
Categories: General

AL: Search incident of cell phone reasonable

Following California’s Diaz and the clear majority of jurisdictions, the search incident of defendant’s cell phone was reasonable. Gracie v. State, 2011 Ala. Crim. App. LEXIS 123 (December 16, 2011):

We agree with the majority of jurisdictions surveyed that a warrantless search of a defendant's cellular telephone following his arrest does not violate Fourth Amendment principles; we are not persuaded by the rationale in Smith that a cellular telephone may not be searched incident to a lawful arrest without first obtaining a warrant because the cellular telephone is not a container. In the instant case, the record indicates that Detective Soronen saw Gracie using a cellular telephone after the robbery. After placing Gracie under arrest, Detective Soronen searched the call log and text messages contained in Gracie's cellular telephone to determine if Gracie had an accomplice. The cellular telephone was immediately associated with Gracie's person, and pursuant to the decision of the United States Supreme Court in Robinson, Detective Soronen was permitted to inspect the cellular telephone. 414 U.S. at 236. Accordingly, the warrantless search of Gracie's cellular telephone following Gracie's arrest did not violate Fourth Amendment principles, and the circuit court did not err in denying Gracie's motion to suppress the text message seized pursuant to Detective Soronen's search of Gracie's cellular telephone.

Permalink 12:12:20 am, by fourth, 552 words, 2989 views   English (US)
Categories: General

E.D.Wis.: Belize search warrant executed in Belize was not a “joint venture” even though U.S. officers there

A search warrant issued for defendant’s Belize residence was not governed by the Fourth Amendment because it was conducted under and enforcing Belize law and was otherwise reasonably executed. There was no showing of a “joint venture” of the U.S. and Belize even though U.S. officers were present. United States v. Flath, 2011 U.S. Dist. LEXIS 144931 (E.D. Wis. November 18, 2011):

In arguing that he is subject to the protection of the Fourth Amendment, Flath contends that the “joint venture” doctrine is applicable to his case. I disagree. To be clear, the record shows cooperation between the U.S. officers and Belizean officers. And a Belizean officer believed the search to be a “joint operation.” But, whether the search is a joint venture depends on the level of U.S. participation. See Marzano, 537 F.2d at 271 (finding that Grand Cayman officer’s intent to help the United States was not a sufficient reason to treat his actions as those of United States agents); United States v. Baboolal, No. 05-CR-215, 2006 WL 1942357, *3 (E.D. Wis. July 11, 2006) (“[T]he mere fact that the Canadians and Americans were cooperating as part of the Toronto Strategic Partnership does not transform any subsequent search into a joint venture.”). That the U.S. also expressed interest in prosecuting Flath for violation of U.S. laws does not alter the analysis. See Marzano, 537 F.2d at 271; Baboolal, 2006 WL 1942357, at *3 (stating that “if the fact that the case ultimately ends up in a United States court was significant, the [joint venture] doctrine would apply in virtually all cases involving foreign searches”).

At the outset, I see a distinction between the U.S. officers’ involvement in the search at issue and in the interrogation of Flath which is not at issue. The U.S. was substantially involved in Flath’s interrogation. A U.S. officer read Flath his Miranda rights, questioned him, and showed him incriminating evidence.

By contrast, the U.S. officers’ level of involvement in the search, on which I must focus, was more peripheral. Marzano, 537 F.2d at 270 (whether the Government participated as to render the search a Government action must be determined by examining the facts surrounding the search). Here, the U.S. officers’ involvement in the search was as follows. The U.S. officers passed the incriminating video to the local Belizean police which launched the investigation. The U.S. officers accompanied Belizean police to get the search warrant. The U.S. officers accompanied Belizean police to the residence. The U.S. officers waited at the back door with Belizean police upon arrival at the residence. The U.S. officers stopped and secured Flath at the back door when he tried to leave. The U.S. officers were present but did not participate in the search.

These facts do not support a finding that the U.S. officers’ actions in the search were so substantial as to be considered participants in the search. Passing of information and presence during the search are not sufficient. Marzano, 537 F.2d at 270 (“[T]he law is clear that providing information to a foreign functionary is not sufficient involvement for the Government to be considered a participant in acts the foreign functionary takes based on that information .... Mere presence of federal officers is not sufficient to make the officers participants.”).

Permalink 12:01:34 am, by fourth, 87 words, 2871 views   English (US)
Categories: General

ND: Being ordered from car during stop not a “seizure”

Defendant could be ordered from his car during a traffic stop without it being a “seizure.” Engstrom v. N.D. DOT, 2011 ND 235, 807 N.W.2d 602 (2011).*

The smell of alcohol is reasonable suspicion for a further detention. State v. Smith, 2011 Tenn. Crim. App. LEXIS 913 (December 12, 2011).*

Court reaffirms (State v. Machuca, 231 Ore. App. 232, 218 P.3d 145 (2009) (Machuca I),rev'd on other grounds, 347 Ore. 644, 227 P.3d 729 (2010) (Machuca II)), that consent obtained after explanation of the economic penalties involved in refusal of consent is involuntary. State v. Moore, 247 Ore. App. 39, 269 P.3d 72 (2011).*

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"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)


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