Archives for: February 2012, 04

02/04/12

Permalink 09:23:56 am, by fourth, 189 words, 460 views   English (US)
Categories: General

CA5: Being told to follow the police officer to a drug dog is not consent when defendant was under police control

After defendant was stopped, the officer told dispatch he was going to have to follow him to a checkpoint for a dog sniff. The district court erred in finding consent. The officer made it clear to the dispatcher, in defendant's presence, that he planned to take defendant to the checkpoint “to run the dog on him,” the officer obtained defendant’s verbal consent to follow him to the checkpoint while he was in the police cruiser, defendant was in the cruiser at the officer’s direction and each time he exited the cruiser, he obtained the officer’s permission, and the officer never advised defendant he was free to go or decline his invitation to follow him to the checkpoint. United States v. Zavala, 459 Fed. Appx. 429 (5th Cir. 2012) (unpublished).*

Defendant’s stop for a seatbelt violation was valid and with probable cause. His admissions thereafter were valid. United States v. Adams, 2012 U.S. App. LEXIS 1781 (4th Cir. January 25, 2012) (unpublished).*

Defendant’s search claim was decided in the criminal case, so it couldn’t be brought up in the § 2255. United States v. Williams, 2012 U.S. Dist. LEXIS 12593 (D. Ore. February 1, 2012).*

Permalink 09:09:23 am, by fourth, 151 words, 384 views   English (US)
Categories: General

IN: DNA taken by mistake not suppressed from CODIS

Indiana’s DNA submission statute has a mistake exception, and defendant’s DNA was taken in another case because he was charged with a felony but pled to a misdemeanor. Ten months later, his DNA was connected to a murder, and it was not excluded under the mistake exception. Anderson v. State, 2012 Ind. App. LEXIS 38 (January 31, 2012).*

When defendant was approached by the police, he placed an object in his hand away from him, and the trial court found that it was abandoned. It was a magnetic key box which the officer had seen before as a place to hide drugs. State v. Lewis, 85 So. 3d 150 (La. App. 4 Cir. 2012).*

Defendant was stopped for a ticketable offense, and the fact the officer might have had an ulterior motive for the stop didn’t matter. Additional questions during the stop did not require a Miranda warning. State v. Cortes, 84 So. 3d 733 (La. App. 3 Cir. 2012).*

Permalink 08:36:02 am, by fourth, 286 words, 424 views   English (US)
Categories: General

IN: Gant officer safety exception permits SI of vehicle if passengers remain inside

Gant permits a search incident of a vehicle despite the detained driver when passengers remain in the car, if there is potential evidence in the car. Stark v. State, 960 N.E.2d 887 (Ind. App. 2012):

Davis [United States v. Davis, 569 F.3d 813 (8th Cir. 2009)], Goodwin-Bey [United States v. Goodwin-Bey, 584 F.3d 1117 (8th Cir. 2009)], and Young [Commonwealth v. Young, 78 Mass. App. Ct. 548, 940 N.E.2d 885 (Mass. App. Ct. 2011] indicate that, where unrestrained passengers remain in a vehicle, a search of the vehicle incident to a defendant's arrest is permissible to alleviate officer safety concerns and to prevent the destruction of evidence. We find this analysis persuasive. The Court in Gant emphasized the officer safety basis for the search incident to arrest exception. Gant, 556 U.S. at 332, 129 S. Ct. at 1716. The three passengers here were unsecured during Officer Shockey's arrest of Stark, Stark had behaved suspiciously regarding his jacket, and they were in a high crime area. An objective officer considering these facts would have been warranted in conducting a search of the vehicle incident to Stark's arrest under Gant's officer safety considerations. See United States v. Salamasina, 615 F.3d 925, 930 (8th Cir. 2010) (holding that, where the defendant's fiancée repeatedly entered and exited the vehicle, spoke to the defendant in a foreign language, and attempted to close the garage door, "[a]n objective officer considering these facts, in conjunction with the fact that officers had just executed an arrest warrant on [the fiancée] on drug charges, would be warranted in conducting a search of the vehicle incident to [the defendant's] arrest under Gant's officer-safety consideration"). The search of the vehicle incident to Stark's arrest was permissible under Gant, and the trial court properly denied Stark's motion to suppress.

Permalink 08:22:45 am, by fourth, 271 words, 446 views   English (US)
Categories: General

HI: Typo in date on SW not fatal

A typographical error by the judge in the date of the search warrant does not invalidate it. This issue, too, is covered by the good faith exception, and it makes no sense to suppress based on this. “Courts from other jurisdictions have concluded that a clerical or scrivener's error does not justify invalidating the warrant and suppressing evidence obtained pursuant to the warrant. E.g., State v. Dalton, 887 P.2d 379 (Or. Ct. App. 1994); State v. Steffes, 887 P.2d 1196, 1210 (Mont. 1994).” State v. McKnight, 128 Haw. 328, 289 P.3d 964 (App. 2012), aff'd State v. McKnight, 2013 Haw. LEXIS 427 (December 31, 2013) (posted here):

Defendant was a truck driver stopped for reported erratic driving. Although he was able to offer an innocent explanation and did not seem impaired, the officer did not have to accept that and could inquire further. Having him pull the truck to a different place to get out of traffic was not unreasonable. State v. McCaa, 963 N.E.2d 24 (Ind. App. 2012):

Although we consider it a somewhat close call, we conclude that Sergeant Cothran was still entitled to detain McCaa for further investigation at the time he told McCaa to move his truck to the gas station. When Sergeant Cothran was speaking with McCaa for between thirty seconds and one minute, McCaa offered a seemingly plausible explanation for his erratic driving and exhibited no outward signs of impairment. A reasonable person, however, would have been entitled to doubt McCaa's story. First, although plausible, the story was undeniably self-serving and therefore suspect. We will not adopt the rule that reasonable suspicion vanishes as soon as a suspect offers a plausible, innocent explanation for his seemingly criminal behavior.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
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www.johnwesleyhall.com

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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)

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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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  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."
—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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