Archives for: February 2012, 10


Permalink 05:01:04 pm, by fourth, 130 words, 641 views   English (US)
Categories: General "Woman who pleaded Fifth in password case now citing Fourth" Woman who pleaded Fifth in password case now citing Fourth by John Fontana:

A woman who pleaded the Fifth Amendment before being ordered by a federal court to provide a password to decrypt a computer hard drive is appealing the order and now citing the Fourth Amendment.

The case drew national attention when the accused, Ramona Fricosu, argued that surrendering a password was a violation of her Fifth Amendment rights, which protect against self-incrimination.

Fricosu, and her now ex-husband, were arrested in 2010 on bank-fraud charges as part of a mortgage scam.

The 10th Circuit Court of Appeals [sic; District Court] in Denver ruled on Jan. 23 that the Fifth Amendment had nothing to do with the case and gave Fricosu until Feb.21 to provide the password.

Prior post here.

Permalink 01:41:42 pm, by fourth, 282 words, 530 views   English (US)
Categories: General

E.D.Cal.: Presence of owner to drive made impoundment unreasonable

Where the owner of the vehicle was present and able to drive it off after the defendant’s arrest, it was unreasonable to impound the vehicle. United States v. Moreno-Nanez, 2012 U.S. Dist. LEXIS 15710 (E.D. Cal. February 7, 2012):

Although the "reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative 'less intrusive' means," Illinois v. Lafayette, 462 U.S. 640, 647 (1983), the court agrees that under the circumstances of this case impounding a vehicle under the community caretaker doctrine to remove it from an unsafe location would be unreasonable if the owner of the vehicle was present at the time of the stop and legally able to immediately drive the vehicle away from the scene. In concluding that the decision to impound a vehicle was unreasonable in Miranda, the Ninth Circuit emphasized that the owner of the vehicle, who was also a passenger at the time of the stop, was licensed to drive the car. Miranda [Miranda v. City of Cornelius, 429 F.3d 858 (9th Cir. 2005)], 429 F.3d at 866. In discussion, the court explained that "[t]he policy of impounding the car without regard to whether the defendant can provide for its removal is patently unreasonable if the ostensible purpose for impoundment is for the 'caretaking' of the streets." Id. at 865 (quoting United States v. Duguay, 93 F.3d 346, 353 (7th Cir. 1996)) (internal quotation marks omitted). Additionally, when concluding that the impoundment of a vehicle did not come within the community caretaker function in United States v. Maddox, 614 F.3d 1046 (9th Cir. 2010), the Ninth Circuit emphasized that, "because [the defendant] offered to have his friend move the vehicle, the officer did not sufficiently consider alternatives before impounding [the] truck." Id. at 1050.

Permalink 01:21:08 pm, by fourth, 142 words, 462 views   English (US)
Categories: General

W.D.Mo.: Initial reluctance to consent belies coercive atmosphere

The court finds that the entry on a knock-and-talk was by consent, discounting the consenter's version of events. The consenter was told she could refuse and said “I don’t know, I don’t know,” then later consented. “Ms. Handley's initial reluctance to consent negates a coercive atmosphere.” The consent was valid. United States v. Turner, 2012 U.S. Dist. LEXIS 14551 (W.D. Mo. January 19, 2012).*

Voluntariness of consent is reviewed for clear error, and this is supported by the evidence. The defendants also exchanged incriminating comments to each other in the jail elevator that were not the product of interrogation. United States v. Martinez, 2012 U.S. App. LEXIS 2423 (3d Cir. February 7, 2012) (unpublished).*

Officers had reasonable suspicion from defendant’s movements between his car and a known “stash pad” under surveillance. United States v. Reyes, 2012 U.S. Dist. LEXIS 14980 (S.D. N.Y. February 1, 2012).*

Permalink 01:04:54 pm, by fourth, 213 words, 493 views   English (US)
Categories: General

KS using electronic warrants on iPads

In the Treatise, I wrote in 1999 about "Why not electronic warrants?" Finally in Kansas: With iPads, judges in touch any time, any place:

Douglas County District Judge Robert Fairchild during his 16 years on the bench estimates he’s signed search warrants at nearly every restaurant in town.

Douglas County District Judge Robert Fairchild demonstrates the use of an iPad for receiving and signing warrants from his chambers last week at the Douglas County Judicial and Law Enforcement Center. The iPad is among several pieces of technology that Fairchild says is speeding up the judicial process.

Once while serving as duty judge on a weekend, Fairchild drove back from the Kansas City area and pulled over at a Eudora convenience store off of Kansas Highway 10 to sign one for an officer.

But those days are now over for the county’s six judges.

Fairchild sits at his desk holding a white Apple iPad. He touches his finger to the screen and begins moving it to scroll down to the bottom of a PDF version of a probable cause affidavit form.

Anywhere else? Surely there are. If not, why not?

The Fourth Amendment favors warrants. Anything that leads to a search warrant and judicial review (except by a rubberstamp judge) can't be bad at all.

Permalink 12:54:46 pm, by fourth, 157 words, 371 views   English (US)
Categories: General "Nevada Officers Kicked Man In Diabetic Shock" Adam Greene Settles Police Beating Suit For $300,000: Nevada Officers Kicked Man In Diabetic Shock:

A diabetic who was suffering from insulin shock when Nevada police officers mistook him for a drunk driver and physically assaulted him will receive a settlement of nearly $300,000.

Adam Greene, 38, settled his lawsuit against the city of Henderson and the state of Nevada on Tuesday night. Under the settlement, Greene will receive $158,000 from the city and $35,000 from the state. His wife will receive an additional $99,000 from the city.

The payout settles a federal civil rights lawsuit that Greene filed against Henderson city police and the Nevada Highway Patrol, accusing them of battery, assault and intentional infliction of emotional distress.

And it was all on video. Why would these cowboys be, first, so untrained to not recognize diabetic shock as a possibility, and, second, not just show basic human respect to a man being arrested instead of treating him like a dirtbag?

Permalink 12:09:12 am, by fourth, 262 words, 449 views   English (US)
Categories: General "Ramarley Graham, Unarmed Teen, Illegally Killed By New York Police, Lawyer Says" Ramarley Graham, Unarmed Teen, Illegally Killed By New York Police, Lawyer Says:

A week after police shot to death an unarmed 18-year-old in his grandmother's Bronx apartment, questions continue to swirl around the aggressive police tactics that led to the fatal confrontation.

Ramarley Graham died last Thursday after Richard Haste, 30, a New York police officer, kicked down the door of his grandmother's apartment and shot Graham in the chest while he attempted to flush a bag of marijuana down the toilet. Graham was unarmed and police did not have a warrant to enter the home.

. . .

Jeffrey Emdin, an attorney representing Graham's mother, also called the police tactics unlawful. "They illegally entered the home," Emdin said. "They had no right to be inside. They had no right to use force."

Many linked the shooting to the NYPD's aggressive street policing program, called "stop-and-frisk," which predominantly targets low-income minority neighborhoods. In 2011, the program stopped and searched more than 500,000 New Yorkers, 85 percent of them black or Latino. The searches contributed to a record number of misdemeanor marijuana arrests last year.

. . .

John Wesley Hall, a criminal defense attorney in Little Rock, Ark. who has argued cases involving police searches before the Supreme Court, said a police suspicion that Graham might be carrying an illegal handgun was insufficient justification for breaking down his door.

"If they thought he had a gun, they should have stopped him on the street and not waited for him to go inside," Hall said. "Any reasonable officer would have known that they needed a warrant to get into the house."

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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  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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