Archives for: January 2012, 03

01/03/12

Permalink 04:33:38 pm, by fourth, 218 words, 526 views   English (US)
Categories: General

E.D.Mo.: Six month GPS monitoring required no warrant

USMJ can't wait for Jones and rules that GPS requires no warrant, even though it was in place for six months (n. 10). United States v. Robinson, No. 4:11 CR 361 AGF/DDN (E.D. Mo. December 28, 2011)*:

Here, installation of the GPS tracker device onto defendant Robinson’s Cavalier was not a “search” because defendant Robinson did not have a reasonable expectation of privacy in the exterior of his Cavalier. Agents installed the GPS tracker device onto defendant’s Cavalier based on a reasonable suspicion that he was being illegally paid as a “ghost” employee on the payroll of the St. Louis City Treasurer’s Office. Installation of the GPS tracker device was non-invasive; a magnetic component of the GPS tracker device allowed it to be affixed to the exterior of the Cavalier without the use of screws and without causing any damage to the exterior of the Cavalier. The GPS tracker device was installed when the Cavalier was on a public street near defendant’s residence. See Marquez, 610 F.3d at 610. Installation of the GPS tracker device revealed no information to the agents other than the public location of the vehicle. See Karo, 468 U.S. at 712. Under these circumstances, installation of the GPS tracker device was not a search within the meaning of the Fourth Amendment.

H/T Wired.com.

Permalink 12:25:57 am, by fourth, 410 words, 542 views   English (US)
Categories: General

CA1: 911 call about man with gun permitted stop of two men leaving address as officers arrived

Five officers responded to a 911 call about a gun potentially being used in a confrontation that the caller said was escalating into a fight. On arrival at the house, two men were walking away from it dressed in baggy clothes that could have concealed a weapon. “Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation.” United States v. Brake, 666 F.3d 800 (1st Cir. 2011):

Here, the facts display reasonable suspicion with respect to both the stop and the pat-down. With respect to the stop, the 911 caller had reported the presence of a man with a handgun at the residence making threats and that a fight seemed imminent. See Romain, 393 F.3d at 73-74 (contrasting reliability of information provided by a 911 caller who is at the site of the reported criminal activity with the holding in Florida v. J.L., 529 U.S. 266 (2000), in which uncorroborated information from an anonymous tip emanating from an “unknown caller” phoning from an “unknown location” was deemed insufficient to warrant a Terry stop). A potentially fatal situation may have been rapidly cresting; indeed, five police officers responded, arriving without delay. The police immediately noticed two men who, given their temporal and spatial connection to the scene, may very well have just left the residence. Cf. United States v. Golab, 325 F.3d 63, 66-67 (1st Cir. 2003) (holding that Terry stop was improperly based only on an “impermissible hunch” in part because the seized car was located in a remote parking lot and thus lacked a geographical connection to the site of the suspected criminal activity). The baggy clothing that the men wore easily could have concealed a handgun. Finally, the cohorts’ conduct at the parked van gave rise to a fair suspicion that they may have either deposited a gun or retrieved additional weaponry. Although their actions could have been entirely innocent, the circumstances reasonably supported a more sinister explanation. See United States v. Stanley, 915 F.2d 54, 57 (1st Cir. 1990) (noting that “[u]nder Terry, the test is whether the circumstances give rise to a reasonable suspicion of criminal activity, not whether the defendant's actions are subject to no reasonable innocent explanation.”).

These circumstances called for quick decision-making by the police. See generally United States v. Sharpe, 470 U.S. 675, 686 (1985). Viewing the whole fabric through the lens of a reasonable and cautious police officer, we conclude that specific and articulable facts justified the Terry stop to investigate Brake's possible involvement in the reported disturbance.

Permalink 12:15:35 am, by fourth, 330 words, 697 views   English (US)
Categories: General

TN: Redacting illegal search from affidavit under Murray still left probable cause

A mixed affidavit that includes untainted information and information from a tainted search that occurred prior to the search warrant issuing is subject to redaction. If probable cause remains, the search warrant is still valid. State v. Smith, 2011 Tenn. Crim. App. LEXIS 952 (December 27, 2011):

Regardless, just like federal courts in the wake of the Murray [v. United States, 487 U.S. 533 (1988)] decision, following [State v.] Clark[, 844 S.W.2d 597 (Tenn. 1992)] it has remained the practice of this court to analyze the reliance issue that was so crucial to the Supreme Court in Murray by permitting trial courts to redact those search warrant affidavits partially tainted by illegal material of any and all references to the same and then to re-scrutinize the redacted affidavit in order to determine whether or not probable cause remains nonetheless. See, e.g., State v. Vanderford, 980 S.W.2d 390, 399-400 (Tenn. Crim. App. 1997); State v. Bowling, 867 S.W.2d 338, 342-43 (Tenn. Crim. App. 1993). Indeed, in State v. Stephen J. Udzinski and Donna Stokes a/k/a Donna Story, No. 01C01-9610-CC-00431, 1998 Tenn. Crim. App. LEXIS 161, 1998 WL 44922 (Tenn. Crim. App. at Nashville, Feb. 5, 1998), we were confronted with an argument virtually identical to the one made in this case — that Murray and Clark “require exclusion of the evidence as a blanket remedy where an affidavit in support of a search warrant application improperly informs the magistrate of the results of an illegal search” because the effect “the tainted information [could] have on the magistrate's ability to perform his functions” is “immeasurable.” 1998 Tenn. Crim. App. LEXIS 161, [WL] at *23. We roundly rejected that argument and also rejected the notion that Murray required a subjective inquiry into what information the magistrate may have relied upon in issuing his or her decision. Instead, we opted to follow the well-accepted practice of redacting any affidavit containing both legally and illegally gathered evidence, excising all tainted material, and scrutinizing whatever remains to confirm the continued presence of probable cause. 1998 Tenn. Crim. App. LEXIS 161, [WL] at *30.

Permalink 12:08:01 am, by fourth, 543 words, 1092 views   English (US)
Categories: General

CA5: A ruse drug checkpoint on an interstate highway does not violate the Fourth Amendment

Plaintiff filed a § 1983 case alleging that a ruse drug interdiction checkpoint violated the Fourth Amendment, but lost. City of Indianapolis v. Edmond only applies to actual roadblocks. Webb v. Arbuckle, 456 Fed. Appx. 374 (5th Cir. 2011) (unpublished):

Numerous courts have upheld the constitutionality of ruse checkpoint operations like the one in this case or have implicitly approved of their use. For instance, in United States v. Martinez, 358 F.3d 1005, 1006-07 (8th Cir. 2004), officers stopped Orlando Martinez (“Martinez”) for rolling through a stop sign at the top of an exit ramp that followed a sign advising of an upcoming drug checkpoint. Martinez argued that the police were operating an illegal checkpoint, relying in part on Edmond. Id. at 1008. The court rejected Martinez’s contention, distinguishing Edmond as involving an “actual checkpoint[] at which motorists were stopped regardless of whether they had committed a traffic violation” and noting that “[a]ny traffic violation, however minor, provides probable cause for a traffic stop.” Id. at 1008-09 (citation and internal quotation marks omitted). The court further noted that “[t]he fact that the officers may have believed Martinez was carrying illegal drugs does not invalidate an otherwise valid stop.” Id. at 1009 (citation omitted). In upholding the constitutionality of another ruse checkpoint operation on similar grounds, the court in United States v. Williams, 359 F.3d 1019, 1021 (8th Cir. 2004) stated that “the deputy here probably pursued the traffic violation because he suspected drug trafficking .... But a law enforcement officer’s ulterior motives in initiating contact with an individual (or his pursuit of the more general programmatic purposes of the operation) are irrelevant to the Fourth Amendment question when probable cause ... exists.”). In addressing a ruse checkpoint operation, the Seventh Circuit stated:

Wendt argues that based on City of Indianapolis v. Edmond ..., the traffic stop was unreasonable because the officers lacked individualized suspicion. Moreover, Wendt asserts that the DEA established a “programmatic regiment” to stop and search cars with out-of-state license plates for drugs. An automobile stop will violate the Constitution if it is deemed “unreasonable” under the circumstances. The decision to stop an automobile is reasonable when the police have probable cause to believe that a traffic violation has occurred. Wendt’s reliance on Edmond is misplaced.

In Edmond, the police established various drug checkpoints, where officers stopped and questioned the driver of every car that passed through. The Supreme Court found that officers seized motorists without any particularized suspicion, a violation of the Fourth Amendment. In contrast, here, the traffic stop was conducted based on the officers’ reasonable belief that traffic violations had occurred.

United States v. Wendt, 465 F.3d 814, 816-17 (7th Cir. 2006) (citations omitted). Similarly, in United States v. Flynn, 309 F.3d 736, 738-39 (10th Cir. 2002), the Tenth Circuit held the use of a ruse checkpoint was constitutional and rejected the argument that such checkpoints were illegal under Edmond. As these courts have noted, ruse checkpoint operations that stop cars only when there is probable cause, such as the sign detail operation at issue in the instant case, are distinguishable from Edmond and are constitutional under the Fourth Amendment. Cf. Edmond, 531 U.S. at 47 (“When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion.”).

Permalink 12:01:00 am, by fourth, 182 words, 416 views   English (US)
Categories: General

LA5: Stop of juvenile on the street was without RS, and he tried to leave; gun suppressed

Police approached the juvenile on the street, and he started to walk away. An officer grabbed him and searched him finding a gun. The stop was without reasonable suspicion and suppressed. State in Interest of J.H., 83 So. 3d 1100 (La. App. 5th Cir. 2011).*

An officer saw a truck parked on the lot of Big Lots at 1:40 am near stuff for sale on pallets. He entered the parking lot and the truck started to move without lights on. The officer stopped him, and the defendant had a wet shirt in V down from his neck. He said he had “3 or 4 beers.” Because stuff on the parking lot could have been stolen, it was reasonable for the officer to approach the defendant to see what was going on. City of Brunswick v. Ware, 2011 Ohio 6791, 2011 Ohio App. LEXIS 5608 (9th Dist. December 30, 2011).*

CI’s detailed information of time of arrival of cocaine and a full description of the car and occupant was probable cause. Also, defendant’s actions on seeing the police heightened their suspicion of him. State v. Sierra, 83 So. 3d 239 (La. App. 5th 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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"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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