Archives for: January 2012, 31

01/31/12

Permalink 12:22:12 am, by fourth, 546 words, 624 views   English (US)
Categories: General

CA6: Police investigation validly led to exigent circumstances for search for drugs

The police had the defendant’s house under surveillance and observed and stopped people leaving with drugs, a strong smell of raw marijuana in their cars, and significant drug histories. A “protective sweep” of the premises was performed which the court finds lawful. Even so, a warrant was issued thereafter, and if the information from the protective sweep was left out, there was still probable cause. [The court erroneously conflates “protective sweep” and exigent circumstances in general.] United States v. Johnson, 457 Fed. Appx. 512, 2012 FED App. 0098N (6th Cir. 2012) (unpublished)*:

Moreover, the officers were aware that Hakim and the two other individuals taken into custody after leaving the Glen Drive residence would soon be released from custody and the traffic stop, respectively, after being questioned about narcotics and their connection with the Glen Drive residence. Upon release from custody, they would be able to contact the individual(s) believed to be in the house and instruct them to destroy the narcotics. We find that the officers thus had “a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512. The exigent circumstances exception applies, and we find that the officer’s initial entry for the protective sweep was constitutional.

[Note: This case is just wrong and bad precedent on use of the phrase “protective sweep” which is from Maryland v. Buie and centers on protecting police from an ambush. Buie at 333:

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

This is judicial laziness in terminology, but the existence of probable cause is evident. Moreover, the finding of “a reasonable belief that these third parties may soon become aware the police are on their trail” is premised purely on police conduct, which is somewhat tenuous and needed to be further explored.]

Permalink 12:11:45 am, by fourth, 253 words, 672 views   English (US)
Categories: General

UT: No REP vs testing for contraband of blood legitimately seized, applying Caballes to blood testing

Cabelles essentially applies to blood already seized–there is no reasonable expectation of privacy in blood already legitimately seized against testing for presence of contraband (here THC). State v. Price, 2012 UT 7, 2012 Utah App. LEXIS 28 (January 27, 2012):

[**P12] Mr. Price certainly retained a legitimate privacy interest in the non-contraband contents of his blood. Testing Mr. Price's blood for HIV status, DNA information, blood type, or other private medical facts therefore would have infringed upon a legitimate privacy interest. But that did not occur here. The THC test conducted on Mr. Price's blood was limited to revealing only the blood's THC contents, for which Mr. Price retains no legitimate privacy interest. Tests for contraband that cannot reveal details regarding legitimate privacy interests do not implicate Fourth Amendment protections. Caballes, 543 U.S. at 408. For example, the U.S. Supreme Court has upheld the use of "a well-trained narcotics-detection dog" to reveal the presence of narcotics during a routine traffic stop, because the use of drug sniffing dogs can disclose "only the presence or absence of narcotics, a contraband item." Id. at 409 (internal quotation marks omitted). Because testing Mr. Price's blood for the presence of THC could not infringe on a legitimate privacy interest, the test is not subject to the protections provided by the Fourth Amendment.

Officer’s observation of a bulge in defendant’s groin area during a traffic stop and prior knowledge of defendant’s possession of drugs and guns justified a patdown. United States v. Stennis, 457 Fed. Appx. 494, 2012 FED App. 0093N (6th Cir. 2012) (unpublished).*

Permalink 12:01:18 am, by fourth, 169 words, 611 views   English (US)
Categories: General

OH9: Particular description for SW came from other crimes defendant was suspected of

There was probable cause for issuance of the search warrant for defendant’s house, and the list of things to be searched for included a list of items taken in other crimes: “The specific list of items to be seized was based on Lt. Phister’s sworn statements regarding his investigation of recent criminal activity, including items alleged to have been stolen at gunpoint from various victims and a bottle allegedly used to perpetrate a sexual assault on one of the victims.” This was constitutionally adequate. State v. Allen, 2012 Ohio 249, 2012 Ohio App. LEXIS 205 (9th Cir. January 25, 2012).*

Defendant was stopped for a traffic offense. After the officer asked for and received consent to search the car, defendant fled. His lawyer was not ineffective for not raising the issue. Ross v. State, 313 Ga. App. 695, 722 S.E.2d 411 (2012).*

The fact it was “possible” officers violated plaintiff’s rights in arresting him was insufficient when there were no facts in the record to support it. Hernandez v. Story, 459 Fed. Appx. 697 (10th Cir. 2012) (unpublished).*

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by John Wesley Hall
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Little Rock, Arkansas
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2012-13 Term:
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  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)
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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)
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2010-11 Term:
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  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)
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  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
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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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