Archives for: February 2012, 13


Permalink 06:20:45 pm, by fourth, 116 words, 469 views   English (US)
Categories: General "Case on 'bra-lift search' goes to N.C. Supreme Court" Case on 'bra-lift search' goes to N.C. Supreme Court by Martha Waggoner:

The state Supreme Court will hear arguments involving a student at an alternative school in Brunswick County who had to untuck her shirt and pull out her bra with her thumb as part of a search for pills.

The attorney who represents the student will argue that search in front of two men violated constitutional guarantees involving unwarranted searches.

Attorney Geeta Kapur said she believes the court's ruling will apply to all public school students, about 1.5 million of them, and not just those in alternative schools.

The case involves a 15-year-old who attended Brunswick County Academy, a school for at-risk children.

Permalink 12:29:41 am, by fourth, 363 words, 379 views   English (US)
Categories: General

CA6: Warrant to seize necessarily includes power to search; here a computer

A warrant for child pornography on defendant’s computer was based on probable cause from a report from a user who saw it. The warrant was to “seize,” and that included “search.” United States v. Evers, 669 F.3d 645, 2012 FED App. 0042P (6th Cir. 2012):

The federal courts are in agreement that a warrant authorizing the seizure of a defendant’s home computer equipment and digital media for a subsequent off-site electronic search is not unreasonable or overbroad, as long as the probable-cause showing in the warrant application and affidavit demonstrate a “sufficient chance of finding some needles in the computer haystack.” Upham, 168 F.3d at 535; see also United States v. Grimmett, 439 F.3d 1263, 1268-70 (10th Cir. 2006) (holding that a warrant for the search of “any and all” computer hardware and software for child pornography authorized both the seizure and subsequent search of the defendant’s computer files); Guest, 255 F.3d at 335 (“Because of the technical difficulties of conducting a computer search in a suspect’s home, the seizure of the computers, including their content, was reasonable in [this] case[] to allow police to locate the offending files.”); Upham, 168 F.3d at 535 (“As a practical matter, the seizure and subsequent off-premises search of the computer ... was about the narrowest definable search and seizure reasonably likely to obtain the images [of the child pornography sought].”).

Moreover, a second warrant to search a properly seized computer is not necessary “where the evidence obtained in the search did not exceed the probable cause articulated in the original warrant.” Richards, 659 F.3d at 539 n.10 (citing United States v. Gregoire, 638 F.3d 962, 967-68 (8th Cir. 2011); Grimmett, 439 F.3d at 1268-69; Upham, 168 F.3d at 535; and United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998)). This is in keeping with the general principle that “even evidence not described in a search warrant may be seized if it is reasonably related to the offense which formed the basis for the search warrant.” United States v. Wright, 343 F.3d 849, 863 (6th Cir. 2003) (citations and internal quotation marks omitted); see also United States v. Henson, 848 F.2d 1374, 1383 (6th Cir. 1988) (“A search does not become invalid merely because some items not covered by a warrant are seized.”).

Permalink 12:16:30 am, by fourth, 235 words, 439 views   English (US)
Categories: General

WY: Officer who found defendant convulsing in motel room could look in backpack for possible cause

Defendant was convulsing in a motel room, and the other person asked whether he should call 911. He said “Yes, I don’t want to die.” EMTs and a police officer arrived, and the police officer was looking around for what could have caused defendant’s condition. He looked in a backpack and found an unlabeled pill bottle with a powder in it. After defendant was taken to the hospital, police came back with a warrant. The warrant was lawfully issued because the search of the backpack was reasonable as an emergency search to attempt to find the cause of defendant’s condition. Owens v. State, 2012 WY 14, 269 P.3d 1093 (2012).

Defendant was a passenger in a car stopped by the police. He removed a package of drugs from his backpack and put it on the seat. He lacked standing to challenge the finding of the drugs he took out. United States v. Love, 2012 U.S. Dist. LEXIS 16245 (E.D. Mo. February 9, 2012)*:

As a passenger in the Altima, Defendant had no expectation of privacy. US v. Green, 442 F.3d 677, 680. While Defendant argues that he had a reasonable expectation of privacy in the contents of his backpack, Defendant completely ignores the fact that the package of heroin was no longer protected by contours of privacy he may have had in his backpack by his acts of removing the package from the backpack and placing it in the seat compartment.

Permalink 12:08:02 am, by fourth, 123 words, 318 views   English (US)
Categories: General

OH3: Search of shoes during a patdown was unreasonable

The officer had reasonable suspicion and conducted a patdown for “officer safety,” and he testified that he almost always has the suspect remove his shoes as a part of the patdown. Here, the patdown produced a baggy of marijuana, and the patdown was not for officer safety. It was a full scale search incident. State v. Minyoung, 2012 Ohio 411, 2012 Ohio App. LEXIS 367 (3d Dist. February 6, 2012).

The arrest warrant for the defendant was based on a failure to appear on the sworn affidavit of the judge presiding in the failure to appear case. There was no affidavit. The police officers’ entry into his house on that warrant was void. State v. Sandusky, 2012 Tenn. Crim. App. LEXIS 75 (February 8, 2012). [Note there was no discussion of good faith.]

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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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