Archives for: January 2012, 01


Permalink 07:41:04 am, by fourth, 548 words, 2945 views   English (US)
Categories: General

OR: Car was still “mobile” for automobile exception where somebody else was going to drive it off

Officers finally arrested defendant for violating the “no alcohol” provision of his parole because they could smell it on his breath. He got them to leave the car parked where it was–in the driveway of a friend. Nevertheless, the car was mobile enough for the automobile exception to apply because somebody else wanted access to it, ostensibly to drive off. State v. Wiggins, 245 Ore. App. 119, 260 P.3d 826 (2011), on rehearing State v. Wiggins, 247 Ore. App. 490, 2011 Ore. App. LEXIS 1798 (December 29, 2011) (reaching same result):

Here, there is no dispute that the police had probable cause that defendant’s car contained evidence of a crime—a gun—at the time of the search. The only remaining question, then, is whether defendant's vehicle was “mobile” at the time the officers first encountered it. Compare State v. Coleman, 167 Ore. App. 86, 94, 2 P3d 399 (2000) (“The inquiry is centered on the circumstances surrounding the moment when the police first notice or focus their attention on an automobile.” (Emphasis added.)), with Meharry, 342 Ore. at 178 (“[A] vehicle is mobile for the purposes of the automobile exception because it was moving when the officer stopped it and nothing demonstrated that the vehicle would not be mobile once the officer relinquished control over it.” (Emphasis added.)). We conclude that defendant’s car was mobile, whether we define the initial point of the encounter as the moment when Brewster first observed defendant’s car in the parking lot of the convenience store or the moment when Brewster subsequently stopped defendant's moving vehicle. In either case, the car was occupied and operable, and nothing subsequent to the stop rendered the car incapable of mobility.

We reject defendant's argument that the vehicle was stripped of its mobility because the officers broke contact with it. ...

On reconsideration:

Similarly, here, defendant's car was mobile at the time it was stopped. That exigency persisted at the time of the search despite the intervening break in contact with the vehicle and the lapse of time. See, e.g., Meharry, 342 Ore. at 180 (“[T]he exigency that permits the police to conduct a warrantless search of a mobile vehicle arises from the fact that the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” (Citations and internal quotation marks omitted.)). As we noted in our prior opinion, defendant’s car continued to be the subject of the officers' ongoing investigation, and “[n]othing occurred between the moment of the initial encounter and the time the officers searched defendant's car that rendered the vehicle immobile. The car had not been impounded, the car was not functionally disabled, and nothing prevented the car from being driven away once the officers relinquished control over it.” Wiggins, 245 Ore. App. at 127. That conclusion is consistent with Meharry.

We need not go further and decide when a “mobile” vehicle ceases to be mobile by virtue of police delay. The Supreme Court has made clear that the automobile exception has only two requirements: (1) the vehicle must be mobile at the time that it is first encountered by police and (2) probable cause must exist for the search of the vehicle. Kurokawa II, 351 Ore. at 187. Under the facts in this case, those requirements are met. Thus, defendant's motion to suppress should have been denied.

[Note: First posted 8/20/11, and reposted]

Permalink 12:20:48 am, by fourth, 480 words, 3106 views   English (US)
Categories: General

OR: Courthouse entry search policy was subject to arbitrary and nonstandardized application in violation of state constitution

Meth found in a cigarette package during a courthouse security search was invalid because the search policy was subject to arbitrary and nonstandardized application in violation of state constitution. State v. Snow, 247 Ore. App. 497, 268 P.3d 802 (2011):

Defendant argues that the policy fails to meet the third criterion for a valid administrative search—that it be “designed and systematically administered” to control the discretion of those implementing it. Atkinson, 298 Ore. at 10. “The purpose of that requirement is to protect against arbitrariness and to ensure that individuals or particular items of property are not improperly singled out for special attention.” Weber, 184 Ore. App. at 436 (citation omitted).

Order 94-5 permits “searches of an individual’s person and carried item[s]” and requires that “any person” entering the courthouse “submit to a search of their person and a search of their bags, briefcases, valises, and hand-carried items.” That policy grants wide latitude to an officer to decide both who to search and the scope of a search. In other words, the policy does not specify which persons an officer must search—for instance, by requiring that every person’s closed containers be searched—nor does the policy specify how intrusive any given search may be—for instance, by requiring that closed containers be examined only by x-ray as opposed to a visual search. See, e.g., Department of Justice v. Spring, 201 Ore. App. 367, 373, 120 P3d 1 (2005), rev den, 340 Ore. 483, 135 P.3d 318 (2006) (statute authorizing DNA testing to establish paternity adequately limited discretion where it required every person who denied paternity to submit to a test); Coleman, 196 Ore. App. at 130 (police waiting room policy adequately limited discretion where it required “every person” to be searched and prohibited searches of closed containers); Weber, 184 Ore. App. at 436-37 (school drug testing policy adequately limited discretion where students were selected randomly and testing procedures were standardized). Instead, the policy would permit a security officer searching for weapons to subject one person to a metal detector and x-ray examination, while subjecting another to a full strip search. We readily conclude that that policy fails to limit the discretion of those conducting a search under its authority. See, e.g., State v. Eldridge, 207 Ore. App. 337, 342-43, 142 P3d 82 (2006) (police inventory policy did not adequately limit discretion because it lacked standardized criteria or procedures regarding the scope of each inventory); Haney, 195 Ore. App. at 280-81 (assuming that policy authorized officer to search car after accident, it did not adequately limit officer discretion because it provided no guidelines on the physical scope of searches); Willhite, 110 Ore. App. at 573-74 (although police inventory policy specified that every towed vehicle must be inventoried, and specified a standardized procedure for removing property, it was nonetheless defective because “it [was] so general that an officer [could] look everywhere he [could] think of”). Thus, the search in this case—carried out pursuant to that policy—violated Article I, section 9.

Permalink 12:11:56 am, by fourth, 567 words, 2909 views   English (US)
Categories: General

CA9: Govt failed to show attenuation of statement from illegal search

Where the search of defendant’s property was illegal and defendant saw them, confronting him with the product of the search was designed to get him to make a statement which was not attenuated since he had not consulted with a lawyer in the meantime. United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011):

The government did not bear its burden of showing that Shetler’s statements were not the product of the illegal searches. Contrary to the district court’s determination, there is no evidence in the record to support the conclusion that the statements were “the product of the initial legal search of the garage, ... and were not tainted by the illegal searches of the garage.” Both the district court and the government appear to presume that the relevant inquiry is whether the agents could have questioned Shetler regarding his drug activities but for the illegal search. The logic underlying this position is as follows: because the government had probable cause, regardless of any evidence revealed during the illegal searches of his house and garage, to arrest and question Shetler as to whether he used or manufactured methamphetamine, the statements he made during that questioning cannot be considered the product of the illegal searches.

Although the presence of probable cause may generally be the “dispositive” issue in determining whether a confession stemming from an illegal detention should be suppressed, see Crawford 372 F.3d at 1056, “[t]he analysis that applies to illegal detentions differs from that applied to illegal searches,” id. at 1054 (citing 5 Wayne R. LaFave, Search and Seizure 273, § 11.4(c) (3d ed. 1996)). As Shetler’s case illustrates, there are at least two additional relevant considerations when a confession follows an illegal search rather than an illegal detention.

. . .

A second, related, consideration in an illegal search case such as this is that the answers the suspect gives to officials questioning him may be influenced by his knowledge that the officials had already seized certain evidence. “Confronting a suspect with illegally seized evidence tends to induce a confession by demonstrating the futility of remaining silent.” 6 Wayne R. LaFave, Search and Seizure 307, § 11.4(c) (4th ed. 2004) (quoting People v. Robbins, 54 Ill. App. 3d 298, 369 N.E.2d 577, 581, 12 Ill. Dec. 80 (Ill. App. Ct. 1977)). The government has produced no evidence to demonstrate that the answers Shetler gave to the government officials' questions were not induced or influenced by the illegal search; indeed, there is every reason to believe that they were. Nothing in the record suggests that Shetler was aware of the initial, legal search of his garage: he came out of a side door of his house shortly after the officers had already completed their initial sweep. There is, on the other hand, irrefutable evidence that while detained outside his home for more than five hours he witnessed multiple illegal searches of his house and garage, including a set of lengthy searches, using protective clothing and masks, of the garage which he knew contained extensive materials associated with methamphetamine production. Witnessing government officials conduct these extensive searches that uncovered numerous items indicative of methamphetamine production could certainly have led Shetler to make the inculpatory statements he made to the DEA agents. Contrary to the district court's holding, therefore, these statements cannot be said to be simply the product of the initial legal search (of which Shetler was likely unaware) rather than the extensive subsequent illegal searches (of which Shetler was undoubtedly acutely aware).

Permalink 12:01:11 am, by fourth, 222 words, 643 views   English (US)
Categories: General

OH9: Passenger had no standing to contest search of car

Trial court erred in finding a passenger could contest the search of the car as a “fruit” of an illegal stop when he didn’t show standing. State v. White, 2011 Ohio 6748, 2011 Ohio App. LEXIS 5575 (9th Dist. December 29, 2011)*:

[*P8] Therefore, here, White contested the search of the Ogbartam-Tetteh’s vehicle as the “fruit” of an illegal stop. See Carter, 69 Ohio St. 3d at 67 (“The exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality, or ‘fruit of the poisonous tree.’”), quoting Nardone v. United States (1939), 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307. However, in the context of a valid stop, White could contest the search only if he had a “legitimate expectation of privacy” in the area searched. See Rakas, 439 U.S. at paragraph four of the syllabus. The trial court determined that the initial stop and the arrest were proper. Therefore, White had the burden of proving that he had a legitimate expectation of privacy in order to contest the validity of the search of Ogbartam-Tetteh’s vehicle.

Officers arrested defendant for being unlawfully in the country, but delayed timely bringing him before a USMJ. His subsequent statement violated McNabb/Mallory and was suppressed. United States v. Valenzuela-Espinoza, 664 F.3d 1265 (9th Cir. 2011).*

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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
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  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)

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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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