Archives for: December 2011, 31


Permalink 12:25:17 am, by fourth, 649 words, 740 views   English (US)
Categories: General

CA4: Using knife to remove bag of drugs from penis in public was unreasonable

The use of a knife to remove a bag of drugs from a suspect’s penis in a public place at the time of arrest was a “sexually intrusive strip search” and was governed by Bell v. Wolfish. Here, it was unreasonable, and the search is suppressed. United States v. Edwards, 666 F.3d 877 (4th Cir. 2011):

Upon discovering the sandwich baggie tied around Edwards’ penis, another officer held Edwards’ pants and underwear open while Bailey put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.4 [4 Nothing in the record suggests that Edwards suffered any physical injury as a result of this action.] After Bailey cut the baggie, he reached into Edwards’ underwear and removed the baggie and its contents. During this procedure, Edwards remained in handcuffs with his hands secured behind his back.

Bailey testified that there were several reasons he conducted this second search before placing Edwards into the police van. Bailey stated that “[a] complete search is always your best option,” because often “people hide things in those areas.” Bailey also stated that because Edwards was being arrested for a handgun violation, Bailey thought that a more extensive search was warranted to ensure the safety of the officers, including the driver of the transport van. Finally, Bailey testified that he was aware of Edwards’ criminal history, including that he previously had been arrested on drug charges. When asked whether it was customary for officers in Baltimore to search inside the underwear of arrestees, Bailey testified that “it’s about 50 percent of the time, because nobody likes to do that search. You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

The officers conducted this search inside Edwards’ underwear in the middle of the street beside the police transport van. Although Edwards was searched at 11:30 p.m., a streetlight partially illuminated the area. All four officers, each of whom was male, saw the drugs being removed from inside Edwards’ underwear, but the district court found that only two officers, including Bailey, saw Edwards’ penis during the course of the search.

. . .

The manner in which contraband is removed from a suspect during a sexually intrusive search, no less than the manner in which the contraband initially is discovered, must be considered in determining under the Bell analysis whether the search was reasonable. Bell, 441 U.S. at 559-60; see United States v. Hambrick, 630 F.3d 742, 748 (8th Cir. 2011); United States v. Williams, 477 F.3d 974, 975-76 (8th Cir. 2007). Thus, the reasonableness of a sexually intrusive search depends in part on the manner in which the search was conducted and the consideration given to the privacy interests of the suspect. See Lafayette, 462 U.S. at 645; United States v. Ashley, 37 F.3d 678, 681-82 (D.C. Cir. 1994).

The safety of the suspect must be considered as well. A search that is theoretically permissible in one context may be impermissible in another if it is conducted in a cruel, painful, or dangerous manner. See United States v. Braks, 842 F.2d 509, 511-13 (1st Cir. 1988) (considering “whether the type of search exposes the suspect to pain or danger,” in court’s analysis of invasiveness of search, and upholding search in part because it did not result in “pain or danger” to defendant); United States v. Sandler, 644 F.2d 1163, 1167 (5th Cir. 1981) (en banc) (considering whether search was painful or dangerous in analyzing invasiveness of search).

Noted in: WalshLaw: How likely is it that a police officer will mistakenly cut when using a knife to remove a drug-containing baggie tied around a particular male body part? and picked up by Volokh Conspiracy: Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts.

Permalink 12:21:43 am, by fourth, 272 words, 921 views   English (US)
Categories: General

NH discusses without deciding conflict of laws question

NH faces conflict of laws question in application of exclusionary rule, which it briefly discusses, but decides it doesn’t have to decide. State v. Ruggiero, 163 N.H. 129, 35 A.3d 616 (2011):

The question presented is whether telephonic evidence that is legally obtained in a sister state by a citizen thereof is admissible in a New Hampshire court proceeding where such evidence would not be admissible if it had been obtained in New Hampshire. This question is one of first impression in New Hampshire, which we review de novo. ...

Courts in other jurisdictions that have considered the issue have generally employed two approaches — the exclusionary rule approach and the conflicts-of-law approach. See State v. Schmidt, 712 N.W.2d 530, 535 (Minn. 2006) (discussing the conflicts-of-law approaches used by other states in deciding evidentiary issues); People v. Capolongo, 85 N.Y.2d 151, 647 N.E.2d 1286, 1293, 623 N.Y.S.2d 778 (N.Y. 1995) (discussing the split in jurisdictions between the exclusionary rule approach and the conflicts-of-law approach); see also 1 W. R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 1.5(c), at 183-86 (4th ed. 2004). Jurisdictions following the exclusionary rule approach “adhere to the Federal view that the overriding purpose of the exclusionary rule is to deter unlawful governmental conduct, and that one State’s laws have no deterrent effect on conduct of governmental agents of another jurisdiction.” Capolongo, 647 N.E.2d at 1293. Alternatively, jurisdictions that conduct a conflicts-of-law analysis typically weigh the interests of the forum state against those of the sister state and assess which state has the greater interest in the process by which the evidence was obtained. See State v. Lucas, 372 N.W.2d 731, 736-37 (Minn. 1985).

Permalink 12:01:27 am, by fourth, 120 words, 575 views   English (US)
Categories: General

OH10: No evidence supported trial court's fact finding leading to suppression; reversed

Where the trial court’s finding on a fact in granting a motion to suppress is not supported by any evidence, the appellate court can reverse it. State v. Battle, 2011 Ohio 6661, 2011 Ohio App. LEXIS 5488 (10th Dist. December 22, 2011).

The court credits the officer’s testimony that the drugs in this case were dropped from defendant’s blouse, and she was not made to lift it to cause them to fall out. United States v. Lighten, 2011 U.S. Dist. LEXIS 147801 (W.D. N.Y September 20, 2011).*

Defendant’s furtive movements and driving a stolen car in Pennsylvania reasonably justified his patdown that produced a weapon used to kill a police officer in D.C. Johnson v. United States, 33 A.3d 361 (D.C. App. 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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)

Research Links:
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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
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    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

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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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