Archives for: February 2012, 19


Permalink 03:05:43 pm, by fourth, 193 words, 445 views   English (US)
Categories: General

Drug Policy Alliance Press Release: "Congress Approves Drug Testing of America's Unemployed"

Drug Policy Alliance Press Release: Congress Approves Drug Testing of America's Unemployed / Americans Will Be Forced to Pay for the Violation of their Own Constitutional Rights:

WASHINGTON, DC—Congress today approved a deal which will broadly expand drug testing. As part of the deal to extend the payroll tax cut and unemployment benefits, Democrats caved in to Republican demands to allow states to drug test people applying for unemployment insurance (UI) benefits.

The deal, which President Obama will sign, allows states to drug test UI benefit claimants who might apply to work for employers with a drug testing policy. The new policy amounts to a subsidized “prescreen,” at taxpayer expense, for employers who would eventually have done their own tests. The policy actually encourages employers to just announce that they will drug test, without actually paying to do it, because state unemployment bureaucracies will now do that for them.

This policy is strongly skewed toward lower-wage jobs, as “white-collar” employers are far less likely to humiliate job applicants in this way. This policy broadly expands and subsidizes drug testing in a way that may be difficult to reverse for many years, if ever.

Permalink 09:37:03 am, by fourth, 380 words, 479 views   English (US)
Categories: General

CA3: State court could have heard § 1983 case, so issue preclusion barred federal action

Plaintiff’s injuries were caused by the defendants’ illegal warrantless searches and penalties without due process. However, the claim was barred by issue preclusion because of a state court order that essentially decided the issues and could have heard the § 1983 claim. Cycle Chem, Inc. v. Jackson, 465 Fed. Appx. 104 (3d Cir. 2012) (unpublished):

All three requirements are met here. The judgment rendered by the New Jersey Appellate Division was valid, final and on the merits. There is also identity of the parties, for Cycle Chem was a party to the first action and the Defendant, the DEP Commissioner, is the DEP's privy. See Jones, 29 F.3d at 830 (finding that the defendants, who were employees of a state agency, were in privity with that state agency, which was the defendant in the first action); see also Schuster v. Martin, 861 F.2d 1369, 1373 (5th Cir. 1988) ("It is also a general principle of the law of preclusion that state officials are, as a matter of law, in privity with the agency or department in which they serve.").

Finally, the claims presented in this action grow out of the same transaction or occurrence as the claims in the first action; indeed, the New Jersey Appellate Division considered and rejected the same claims that Cycle Chem brings here. Cycle Chem's claims here stem from the DEP's allegedly illegal search of Cycle Chem's facilities and imposition of penalties on Cycle Chem for impeding the attempted search. In its opinion, the Appellate Division listed Cycle Chem's arguments, among them that the DEP "lacked authority to conduct a warrantless search" and that the penalties were wrongfully imposed. ... The Appellate Division then rejected those arguments, discerning "no basis in the record of this matter justifying a departure from the general rule permitting 'administrative,' i.e. warrantless, searches of highly or pervasively regulated industries" and finding that the penalties were therefore properly imposed. (Id. at A38-39.) By doing so, the Appellate Division demonstrated that it would have exercised its original jurisdiction to resolve the § 1983 claims had Cycle Chem brought them in state court. See Jones, 29 F.3d at 831-32 (predicting whether a state court would have exercised original jurisdiction over a § 1983 claim in an appeal from an administrative decision). Accordingly, res judicata bars a federal court from entertaining Cycle Chem's suit.

Permalink 12:12:26 am, by fourth, 245 words, 399 views   English (US)
Categories: General

TX4: State didn't call officer and relied on his report and failed in its burden of proving exigency

A general denial of a motion to suppress preserves all the issues raised. In the suppression hearing, the state only put in the officer’s report and the defendant testified. While the testimony at trial was far more complete, the state failed to prove destruction of the evidence as an exigent circumstance or consent, and the motion to suppress should have been granted. Turrubiate v. State, 365 S.W.3d 780 (Tex. App. – San Antonio February 15, 2012) (dissent here), PDR granted 2012 Tex. Crim. App. LEXIS 737 (Tex. Crim. App. June 6, 2012). [Note: One would suspect that the state knew the trial judge would deny the motion because of the trial judge's predictability (i.e., denies all suppression motions, no matter what the merit), so it just didn't care about the record.]

“The motion judge did not err in essentially concluding that after being read Miranda rights, the defendant consented to the search based on a pragmatic assessment of the circumstances, and not because of coercion or duress.” Commonwealth v. Charlton, 81 Mass. App. Ct. 294, 962 N.E.2d 203 (2012).*

Defense counsel was not ineffective, inter alia, because he “did not move to suppress the firearm on the grounds that the search warrant was not issued by a federal judge, was not supported by a proper affidavit, lacked the proper seals or stamps, and was not made available to defense counsel ....” The motion to suppress was litigated on the merits before trial. United States v. Broadnax, 2012 U.S. Dist. LEXIS 19901 (N.D. Tex. January 11, 2012).*

Permalink 12:02:41 am, by fourth, 401 words, 487 views   English (US)
Categories: General

GA: Reasonable to open "My Picture" folder in a search for drug records in a computer

In a search warrant of a computer for drug record evidence, it was reasonable to open the “My Pictures” folder where child pornography was found. Henson v. State, 314 Ga. App. 152, 723 S.E.2d 456 (2012):

In his sole enumeration of error, Henson contends that the trial court erred in denying his motion to suppress the evidence of child pornography found on his personal computer. Specifically, he argues that the police officer who initially searched his computer exceeded the scope of the warrant seeking evidence of illegal drug transactions when he opened the "My Pictures" folder. We disagree.

In Reaves v. State, our Supreme Court addressed the particularity requirement for warrants and held that "[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved." Specifically, "the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty."

Here, as previously noted, the warrant sought a search for "marijuana, miscellaneous items associated with drug distribution such as packaging material, digital and hand scales, marijuana smoking devices, cash proceeds and records (both written and electronic) of illegal drug sales." And given that electronic records of illegal drug transactions are included amongst those items to be searched, the warrant permitted the search of personal computers at the subject address. Indeed, Henson does not argue on appeal that his computer was an improper target of the search. Nevertheless, he contends that the officer's search exceeded the scope of the warrant because his computer's "My Pictures" folder, which by its very title obviously contained photographs, is not encompassed by the term "electronic records." However, the ordinary signification of "record" is "[a]n account of some fact or event preserved in writing or other permanent form ... or "any thing ... serving to indicate or give evidence of, or preserve the memory of, a fact or event." And given that a picture certainly preserves or gives evidence of a fact or event—in many instances as efficiently as a thousand words—Henson's claim that the term "electronic records" does not encompass pictures or photographs lacks merit. Thus, the trial court did not err in finding that the officer's search did not exceed the scope of the warrant.

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