Archives for: January 2012, 14


Permalink 09:05:31 am, by fourth, 166 words, 526 views   English (US)
Categories: General

FL4: No REP in desk shared with coworkers

Defendant was fired from his job and the manager consented to a search of the desk he used that was shared with others. There was no lock on the desk. Kelly v. State, 77 So. 3d 818 (Fla. App. 4th DCA 2012).

Defendant did not show that his stop was unreasonably prolonged for consent. Sims v. State, 313 Ga. App. 544, 722 S.E.2d 145 (2012)* [Note: This opinion is badly written and comes dangerously close to putting the burden on the defendant to show a warrantless detention was unreasonable.]

The search of defendant’s car was shown to be by consent, and the court does not accept that the atmosphere was generally coercive. Berry v. State, 2012 Ga. App. LEXIS 13 (January 12, 2012).*

At least in the Sixth Circuit, municipal ordinances are subject to judicial notice, and the government didn’t have to prove it as cause for a stop. There was cause to believe defendant violated a municipal ordinance for his stop. United States v. Alexander, 467 Fed. Appx. 355, 2012 FED App. 0025N (6th Cir. 2012) (unpublished).*

Permalink 08:36:26 am, by fourth, 313 words, 616 views   English (US)
Categories: General

WA: No clear authority on community caretaker entry of home for § 1983 case so officers have qualified immunity

The entry into plaintiff’s home under the community caretaking function to retrieve weapons was not clearly unconstitutional, so the officers have qualified immunity. SCOTUS has yet to speak to it. Feis v. King County Sheriff’s Dep’t, 165 Wn. App. 525, 267 P.3d 1022 (2011)*:

¶32 At the time of Feis's arrest, the question of whether community caretaking could justify a warrantless entry of Feis's home under the circumstances attendant to this particular type of domestic dispute was not clearly established beyond debate. “Where no controlling authority specifically prohibits a defendant's conduct, and when the federal circuit courts are split on the issue, the law cannot be said to be clearly established.” Morgan, 659 F.3d at 372 (citing Wilson v. Layne, 526 U.S. 603, 617-18, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999)). Since Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), wherein the Court foreshadowed the current uncertainty regarding community caretaking by discussing the “constitutional difference” between vehicles and houses, the Supreme Court has not elaborated on whether or when the community caretaking exception may justify warrantless entry into a home. Cady, 413 U.S. at 441; see United States v. Gillespie, 332 F. Supp. 2d 923, 929 (W.D. Va. 2004). As a result, the federal circuits are not in agreement on the precise contours of the community caretaking exception. See Ray v. Township of Warren, 626 F.3d 170, 175-76 (3rd Cir. 2010) (“There is some confusion among the circuits as to whether the community caretaking exception set forth in Cady applies to warrantless searches of the home.”). Some federal courts condone resort to the community caretaking exception as an independent justification for a warrantless search of a private residence, while others do not. Because the extent, scope, and applicability of the community caretaking doctrine itself was not settled at the time of the search of Feis's home, the law was certainly not clearly established such that the deputies' actions here were unlawful beyond debate.

Permalink 08:27:51 am, by fourth, 312 words, 520 views   English (US)
Categories: General

D.Minn.: No REP in an apparent abandoned refrigator in an open field

While defendant had permission to use an open field by a relative, that did not give him a reasonable expectation of privacy in what was nothing more than an abandoned refrigerator containing some drugs. United States v. Douglas, 2012 U.S. Dist. LEXIS 3673 (D. Minn. January 11, 2012)*:

As [U.S.M.] Judge Brisbois recognized, the most closely analogous precedent in the Eighth Circuit is United States v. Stallings, 28 F.3d 58 (8th Cir. 1994). In Stallings, the Eighth Circuit found that the defendant (Stallings) did not have a subjective expectation of privacy in a tote bag that he had left in the underbrush of a field belonging to his neighbor. Stallings, 28 F.3d at 59-61. The Eighth Circuit emphasized that the tote bag "bore no indicia of ownership indicating it belonged to Stallings," id. at 61 n.4, and, moreover, that Stallings had "put on no evidence of his possession or control of the bag, his historical use of the tote bag, or his ability or attempts to regulate access to it." Id. at 60-61. The Eighth Circuit further observed that, even if Stallings had a subjective expectation of privacy, it would not have been a reasonable expectation because Stallings, by leaving the bag in an open field unattended, had no means of restricting access to the bag. Id. at 61 ("[A]ny expectation of privacy Stallings had is not objectively reasonable ... because 'animals, children, scavengers, snoops, and other members of the public' had access to the tote bag.") (quoting California v. Greenwood, 486 U.S. 35, 40 (1988)).

Police received a suspicious vehicle report from a McDonald’s near an interstate that had been robbed before. They found two people asleep who gave nonsensical explanations and the license of the vehicle did not exist. It all added up to reasonable suspicion. The request for consent and giving it was valid. United States v. Espinal, 2011 U.S. Dist. LEXIS 151179 (N.D. Ga. August 29, 2011).*

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

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Most recent SCOTUS cases:
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)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  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)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  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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