Archives for: February 2012, 01


Permalink 02:16:20 pm, by fourth, 96 words, 433 views   English (US)
Categories: General

WBZ TV Boston: "FBI Uses Chainsaw In Raid On Wrong Fitchburg Apartment"

WBZ TV Boston: FBI Uses Chainsaw In Raid On Wrong Fitchburg Apartment by Jim Armstrong:

FITCHBURG (CBS) – It’s going to be a while before things get back to normal for Judy Sanchez and her three-year-old daughter.

Last Thursday, a team of FBI agents swarmed her apartment building as part of a massive citywide drug and weapons gang raid.

Trouble is, Sanchez lives in apartment 2R.

The suspect they were after is in 2F.

At 6:04 last Thursday morning, just before Sanchez’ alarm was set to go off, she heard a pounding outside her second floor apartment.

Permalink 10:29:14 am, by fourth, 439 words, 560 views   English (US)
Categories: General

NC: Search incident after arrest for possession of a weapon after stop for being involved in a drive by was valid

The search incident of defendant’s car under Gant was permissible after he was stopped on a 911 call that he was seen and shot up the caller’s house the night before. When they got him out of the car, he admitting having a gun on him, which officers took. That supported a search incident of the car for evidence of the shooting incident. Defendant was otherwise locked in the police car, but that is not determinative where there is reasonable suspicion evidence of the crime could be in the car. State v. Mbacke, 365 N.C. 403, 721 S.E.2d 218 (2012), revg 703 S.E.2d 823 (N.C. App. 2011):

Instead, we conclude that the “reasonable to believe” standard set out in Gant parallels the objective “reasonable suspicion” standard sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). Although the rationales for the two standards differ somewhat, in that Gant addresses officer safety and evidence preservation, Gant, 556 U.S. at __, __, 129 S. Ct. at 1715-16, 1719, 173 L. Ed. 2d at 492-93, 496-97, while Terry addresses “effective crime prevention and detection” along with officer and public safety, Terry, 392 U.S. at 22-24, 88 S. Ct. at 1880-81, 20 L. Ed. 2d at 906-08, we believe the underlying concept of a reasonable articulable suspicion discussed in Terry, id. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906, is readily adaptable to a scenario in which a search of a vehicle is contemplated after the occupants have been arrested and detained. See also United States v. Place, 462 U.S. 696, 702, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110, 117-18 (1983) (explicitly adopting the “reasonable, articulable suspicion” standard implied in Terry). In addition, law enforcement officers and courts have worked with the Terry standard for decades, making application of Gant’s similar objective standard a straightforward matter. Accordingly, we hold that when investigators have a reasonable and articulable basis to believe that evidence of the offense of arrest might be found in a suspect’s vehicle after the occupants have been removed and secured, the investigators are permitted to conduct a search of that vehicle.

Here, defendant was arrested for the offense of carrying a concealed gun. The arrest was based upon defendant’s disclosure that the weapon was under his shirt. Other circumstances detailed above, such as the report of defendant’s actions the night before and defendant’s furtive behavior when confronted by officers, support a finding that it was reasonable to believe additional evidence of the offense of arrest could be found in defendant’s vehicle. Accordingly, the search was permissible under Gant, and the trial court properly denied defendant’s motion for appropriate relief.

Permalink 10:05:02 am, by fourth, 104 words, 424 views   English (US)
Categories: General

LA4: No error denying defense continuance in suppression hearing for witness without proffer

The trial court did not abuse its discretion in denying a recess in the suppression hearing so the defense could attempt to locate another witness where there was no offer of proof as to what the witness would provide. State v. Lee, 79 So. 3d 1278 (La. App. 4th Cir. 2012).

There is no reasonable expectation of privacy in IP subscriber information. United States v. Lemburg, 2012 U.S. Dist. LEXIS 10907 (D. Neb. January 10, 2012).*

Defendant was excessively nervous and consented to a search of his vehicle which produced drugs. That justified a search incident of his person which produced more drugs. Lee v. State, 100 So. 3d 982 (Miss. App. 2012).*

Permalink 08:58:40 am, by fourth, 934 words, 896 views   English (US)
Categories: General

E.D.Wis.: A general “clothing and accessories exception” rejected

Defendant was arrested outside his house, and the police had no reason to believe anyone else was in the house. A protective sweep of the house was invalid, and the view of a gun case was suppressed and had to be excised from the affidavit for later search warrant. The affidavit for the search warrant was plagued with exaggerations and misstatements which greatly concerns the court because this was a double homicide investigation. The court also rejects the “clothing and accessories exception” proferred by the government. United States v. McMillian, 2012 U.S. Dist. LEXIS 10841 (E.D. Wis. January 27, 2012):

The “clothing and accessories” exception purports to justify a law enforcement officer’s warrantless entry into a partially clothed arrestee’s home for the limited purpose of retrieving clothing or shoes for that arrestee. United States v. Jackson, 414 F. Supp. 2d 495, 504 (D.N.J. 2006). A review of the cases from the circuits that have recognized the exception shows that the exception generally fall under one of two categories. The first and more common category is an off-shoot of the already recognized exigent circumstances exception to the Fourth Amendment. United States v. Clay, 408 F.3d 214 (5th Cir. 2005) (finding that the need to procure footwear for barefoot arrestee constituted exigent circumstances justifying officer’s return to the bedroom); United States v. Gwinn, 219 F.3d 326 (4th Cir. 2000) (finding an arrestee’s partially clothed status may constitute an exigency justifying an officer’s temporary reentry into the arrestee’s home to retrieve clothes reasonably calculated to lessen the risk of injury to the arrestee); see also United States v. Nascimento, 491 F.3d 25, 50 (1st Cir. 2007) (finding the need to dress a defendant may constitute an exigency justifying officers in entering another room to obtain clothing; however, also finding “[g]eneralizations are hazardous”); United States v. Butler, 980 F.2d 619, 621-22 (10th Cir. 1992) (allowing officers to retrieve shoes for defendant because broken glass in the area where defendant was arrested presented a legitimate health and safety risk; however, finding that “entry into the defendant’s residence cannot be effected, in the absence of consent or exigent circumstances, solely upon the desire of law enforcement officers to complete the arrestee’s wardrobe”).

This is distinct from the situation in Washington v. Chrisman, 455 U.S. 1 (1982). In that case, the police arrested a student on campus but allowed him to go to his dorm room to get his identification card. While in the dorm room, the police observed contraband in plain view. The court held that the officer’s entry into the student’s dorm room was lawful. Id. at 7. The Court explained that incident to his arrest of the student, the officer’s “need to ensure his own safety-as well as the integrity of the arrest” was “compelling” justification for him to accompany the student to his dorm room. Id.

The second and outlier category stems from a so-called duty to find clothing for a defendant. United States v. DiStefano, 555 F.2d 1094 (2nd Cir. 1977) (finding the officers had a duty to find clothing for an arrestee clad only in a nightgown and bathrobe or permit her to do so). To date, two circuits have rejected the underlying rationale for the clothing exception. United States v. Whitten, 706 F.2d 1000, 1016 (9th Cir. 1983) (finding officer’s entry into room without specific request or consent unlawful); United States v. Kinney, 638 F.2d 941, 945 (6th Cir. 1981) (entry cannot be justified when defendant did not request permission to secure additional clothing and did not consent to an entry of his home).

The Seventh Circuit has not addressed either variant of the clothing exception. Indeed, the clothing exception appears to expand the Supreme Court’s and this circuit’s exigent circumstances line of cases. U.S. v. Marshall, 157 F.3d 477, 482 (7th Cir. 1998) (“Exigent circumstances exist when there is a compelling need for official action and no time to secure a warrant”); U.S. v. Webb, 83 F.3d 913, 916 (7th Cir. 1996) (“Exigent circumstances exist when there is a reasonable belief by police that their safety, or the safety of the public, may be threatened.”). Accordingly, I agree with the district court in Jackson, 414 F. Supp. 2d at 504 n.11, that it is “a dubious proposition that the Court contemplated the evanescent risks associated with transporting a barefoot or shirtless criminal suspect to police headquarters as exigent circumstances sufficient to dispense with the Fourth Amendment’s warrant requirement.”

Moreover, even if I were to apply the “clothing and accessories” exception advanced by the government, the record does not support that McMillian’s lack of shoes amounted to an exigent circumstance or posed any risk to his health or safety. McMillian was arrested in the daytime, in July, in Milwaukee – not in the dead of night in a typical Milwaukee winter. See, e.g., Gwinn, 219 F.3d 326 at 333 (the court found exigent circumstance to enter trailer and retrieve clothing and shoes where defendant was arrested shirtless and barefooted on a cool late night in May in a remote location in rural West Virginia). There is also no evidence that any dangerous conditions such as broken glass, hazardous waste, not even rain existed to impede McMillian’s walk to the squad car. See e.g., Butler, 980 F.2d at 621-22 (court found police’s warrantless entry into defendant’s residence justified by health and safety concern for barefooted defendant who was arrested in area with broken glass).

Given the lack of authority from the Seventh Circuit on this exception and the lack of a factual record justifying its application, I do not find that the “clothing and accessories” exception validates the warrantless entry into the bedroom in this case.

Permalink 08:52:43 am, by fourth, 218 words, 441 views   English (US)
Categories: General

E.D.Tenn.: Stop and frisk can occur in front of one's own home

Defendant was lawfully “stopped” after he stopped his car at his mother’s house. There is no prohibition against a stop in front of defendant’s own home, let alone his mother’s. See O’Malley v. City of Flint, 652 F.3d 662, 670 (6th Cir. 2011) (stop in defendant’s own driveway); see also Illinois v. McArthur, 531 U.S. 326, 335 (2001) (arrest in defendant’s own doorway). United States v. Wade, 2012 U.S. Dist. LEXIS 10498 (E.D. Tenn. January 30, 2012).*

Defendant’s parole search of his house was justified by reasonable suspicion where he was a shooting victim in his front yard and didn’t cooperate in the investigation, had numerous violations before, and a gun box without the gun was found outside the house. United States v. Lynch, 459 Fed. Appx. 147 (3d Cir. 2012) (unpublished).*

Defendant’s parole officer got a telephone call from an anonymous CI that gave information that defendant was engaged in drug dealing from his apartment. There was limited predictive information, but, at the scene, the officers saw nothing that corroborated what the informant was saying. They knocked at his door, got no answer, and entered with a passkey. The motion to suppress was granted for lack of reasonable suspicion of criminal activity despite the CI’s story. United States v. Perminter, 2012 U.S. Dist. LEXIS 10836 (W.D. Pa. January 30, 2012).*

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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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  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)

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  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)
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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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