Archives for: February 2012, 08


Permalink 02:50:27 pm, by fourth, 145 words, 491 views   English (US)
Categories: General

AR: Where only vehicle around was LEO in front of defendant, failure to signal might have affected use of other vehicle

Where only vehicle around was the police officer in front of defendant, defendant's failure to use a signal might have affected that vehicle, so it justified a stop. The undisputed evidence was that the police car was the only car around. Mitchell v. State, 2012 Ark. App. 128 (February 8, 2012).* [I find this laughable. The court is straining so hard it loses its credibility as an institution.]

Defendant’s trash search was valid, and that led to a search warrant with probable cause. United States v. Rodgers, 2012 U.S. Dist. LEXIS 13865 (E.D. N.C. February 06, 2012).*

Defendant ran a stop sign, recorded by the dashcam, and fled when the officer tried to stop him. When finally stopped, the officer validly saw drugs in the car in plain view. Defendant’s pro se motion to suppress denied. United States v. Scott, 2012 U.S. Dist. LEXIS 14053 (W.D. Mo. January 6, 2012).*

Permalink 02:26:55 pm, by fourth, 531 words, 523 views   English (US)
Categories: General

E.D.Wis.: Box of ammunition was plain view of contents; use of a stepladder did not exceed consent

Defendant’s roommate consented to an entry by officer to look around for the defendant who was alleged to be an unregistered sex offender. The officer looked in a grey bag that was suppressed. As to a shelf, however, the court declines to find getting a stepladder to look on the shelf was an unreasonable search. Add to that the roommate’s getting the stepladder. The box of ammunition proclaimed its contents, and it was validly seized under plain view. United States v. Tolbert, 2012 U.S. Dist. LEXIS 14287 (E.D. Wis. February 7, 2012):

It is true that, ordinarily, the police must obtain a warrant before opening a closed container because, by concealing the contents from plain view, the possessor creates a reasonable expectation of privacy. United States v. Banks, 514 F.3d 769, 773 (8th Cir. 2008). “However, like objects that sit out in the open, the contents of some containers are treated similarly to objects in plain view.” Id. Courts have held that containers which permit one to infer their contents based on their outward appearance are not entitled to full Fourth Amendment protection. Id. (citing Arkansas v. Sanders, 442 U.S. 753, 764-65 n.13 (1979) (“Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.”), overruled on other grounds by California v. Acevedo, 500 U.S. 565 (1991)); United States v. Meada, 408 F.3d 14, 23 (1st Cir. 2005) (collecting cases holding that containers which betray their contents are treated as being in plain view); United States v. Miller, 929 F.2d 364, 364-65 (8th Cir. 1991) (holding that no warrant was required to search a bag whose size and shape suggested it contained a gun). Individuals possess a lesser expectation of privacy in the contents of such containers when the container is observed from a lawful vantage point. Banks, 514 F.3d at 774.

In the present case, the boxes Decker saw proclaimed their contents -- Remington ammunition. While it might be theoretically possible that the boxes contained something else, there is certainly a reasonable likelihood that they contained bullets. Because ammunition, possessed by a felon, is evidence of a crime, Decker lawfully seized these boxes. See Banks, 514 F.3d at 775-76.

. . .

Second, even if Decker used a stool to observe and photograph the ammunition, I cannot conclude that this exceeded the scope of Warren’s consent. While a person’s failure to object should not be construed as expanding the scope of consent, the court may properly consider silence in understanding what it is she allowed the police to do. Thus, while I agree with the magistrate judge that Warren’s acquiescence to Decker’s looking through the gray bag cannot bring that search within the ambit of her consent, her apparent agreement in Decker’s use of a stool to photograph the bedroom is something else. Indeed, it appears that Warren may have fetched the stool for Decker, which suggests that she did not see this as outside the scope of what she agreed he could do.

Permalink 12:24:21 pm, by fourth, 170 words, 2518 views   English (US)
Categories: General

Democracy Now: "Ramarley Graham: NYPD Slays Unarmed Black Teen as Outrage Over Targeting of People of Color Grows"

Democracy Now: Ramarley Graham: NYPD Slays Unarmed Black Teen as Outrage Over Targeting of People of Color Grows:

The New York City Police Department is under mounting criticism after police shoot dead an unarmed teenager inside his own home. Eighteen-year-old Ramarley Graham was shot at close range in his parents’ apartment in the Bronx after being chased into the house by narcotics detectives. Police said they found marijuana in the home and think Graham may have been trying to flush some down the toilet. The NYPD is coming under criticism not only for shooting Graham, but also for its broader "stop-and-frisk" policy, which critics say disproportionately targets people of color. On Monday, about 500 protesters rallied in the Bronx to condemn the police treatment of black youth. We speak to Jamel Mims, an organizer with the Stop Mass Incarceration Network, which is working to end the practice of stop-and-frisk; and Nicholas Peart, who is serving as a witness in a federal class action lawsuit challenging "stop-and frisk" as racist and unconstitutional.

Permalink 06:07:28 am, by fourth, 156 words, 395 views   English (US)
Categories: General

CA4: Defendant's request for cigarettes from his car led to valid plain view

During this stop with reasonable suspicion, the defendant wanted cigarettes and the officer was permitted to go into the car after them, seeing crack cocaine in plain view. United States v. Scott, 463 Fed. Appx. 216 (4th Cir. 2012) (unpublished).*

Defendant’s claim that the government coerced him to provide the password to his cell phone has no support in the record at all. He was only asked his phone number when he was booked. United States v. Askew, 2011 U.S. Dist. LEXIS 152781 (W.D. Ky. December 2, 2011).*

Officers had both reasonable suspicion for a stop and saw a traffic violation. Approaching the vehicle, the officer smelled fresh marijuana, and that was probable cause. United States v. Salcido-Guzman, 2011 U.S. Dist. LEXIS 152791 (W.D. Ky. October 28, 2011).*

The officer’s observation of defendant stopping nearly in the middle of an intersection and almost hitting mailboxes was reasonable suspicion for his stop. State v. Napier, 2012 Ohio 394, 2012 Ohio App. LEXIS 338 (9th Dist. February 6, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  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)

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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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