Archives for: February 2012, 22


Permalink 03:05:54 pm, by fourth, 372 words, 826 views   English (US)
Categories: General "There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds" There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds by John W. Whitehead:

“Women might consider this bill a TSA pat-down inside their vagina.” – Jon Stewart, The Daily Show

Contraception and abortion are shaping up to be mobilizing issues in this year’s presidential election. From disputes over whether the federal health care mandate should cover contraception and abortion to state-led efforts to undermine abortion by, among other things, requiring that women seeking to have abortions be subjected to invasive transvaginal ultrasounds without their consent, these highly partisan issues keep us divided and distracted, and incapable of doing anything to prevent the steady erosion of our rights by the powers that be.

The latest political kerfuffle to make national headlines comes out of Virginia, where women’s rights advocates are mobilizing over legislation requiring that doctors act as agents of the state and subject women seeking abortions to ultrasound procedures, which in many cases would mean an invasive transvaginal probe, without their consent. This legislation encapsulates exactly how disrespectful of life and freedom the dialogue on abortion has become.

. . .

The issue, however, is not even whether or not a transvaginal ultrasound is widely used or is medically necessary in order for a doctor to carry out an early-stage abortion. The point is that requiring doctors to carry out such invasive probes on a woman without her consent, thereby intruding upon the physician-patient relationship and reducing doctors to agents of the state, violates the Fourth Amendment’s prohibition against searches by government agents. Frankly, no medical actor, doctor or otherwise, should be coerced by the state into probing a woman’s body. By mandating that doctors carry out such invasive probes on a woman without her consent, the bill’s sponsors trade one misdeed (abortion) for another (violating a woman’s Fourth Amendment right to be free from searches by government agents).

Besides being an unreasonable search, it would be rape under most state laws by forced penetration by a foreign object against a woman's will. State sanctioned rape by foreign object?

For many in the GOP, there is more of a constitutional right to the light bulb of your choice than in bodily integrity or bedroom privacy. How twisted is that?

Permalink 11:44:45 am, by fourth, 1055 words, 506 views   English (US)
Categories: General

SCOTUS reverses CA9 denial of qualified immunity on warrant that should have been good

In Messerschmidt v. Millender, 2012 U.S. LEXIS 1687 (February 22, 2012), the Supreme Court held that the Ninth Circuit en banc erred in finding officers who obtained a search warrant that might have been overbroad were still entitled to qualified immunity because the officers prepared the application and warrant, cleared it with a superior and a prosecutor, and then a magistrate signed off on it. It was not so lacking in probable cause that the good faith exception would not apply or qualified immunity would not protect them. The officers were not, in the words of Malley v. Briggs, “plainly incompetent.” Essentially, they're saying the warrant was good after all under Groh v. Ramirez. The Syllabus, omitting the facts:

(a) Qualified immunity “protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U. S. 223, 231. Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner, or in “objective good faith.” United States v. Leon, 468 U. S. 897, 922–923. Nonetheless, that fact does not end the inquiry into objective reasonableness. The Court has recognized an exception allowing suit when “it is obvious that no reasonably competent officer would have concluded that a warrant should issue.” Malley v. Briggs, 475 U. S. 335, 341. The “shield of immunity” otherwise conferred by the warrant, id., at 345, will be lost, for example, where the warrant was “based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U. S., at 923. The threshold for establishing this exception is high. “[I]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination” because “[i]t is the magistrate’s responsibility to determine whether the officer’s allegations establish probable cause and, if so, to issue a warrant comporting in form with the requirements of the Fourth Amendment.” Leon, supra, at 921. Pp.8−10.

(b) This case does not fall within that narrow exception. It would not be entirely unreasonable for an officer to believe that there was probable cause to search for all firearms and firearm-related materials. Under the circumstances set forth in the warrant, an officer could reasonably conclude that there was a “fair probability” that the sawed-off shotgun was not the only firearm Bowen owned, Illinois v. Gates, 462 U. S. 213, 238, and that Bowen’s sawed-off shotgun was illegal. Cf. 26 U.S.C. §§ 5845(a), 5861(d). Given Bowen’s possession of one illegal gun, his gang membership, willingness to use the gun to kill someone, and concern about the police, it would not be unreasonable for an officer to conclude that Bowen owned other illegal guns. An officer also could reasonably believe that seizure of firearms was necessary to prevent further assaults on Kelly. California law allows a magistrate to issue a search warrant for items “in the possession of any person with the intent to use them as a means of committing a public offense,” Cal. Penal Code Ann. §1524(a)(3), and the warrant application submitted by the officers specifically referenced this provision as a basis for the search. Pp. 10–12.

(c) Regarding the warrant’s authorization to search for gang related materials, a reasonable officer could view Bowen’s attack as motivated not by the souring of his romantic relationship with Kelly but by a desire to prevent her from disclosing details of his gang activity to the police. It would therefore not be unreasonable—based on the facts set out in the affidavit—for an officer to believe that evidence of Bowen’s gang affiliation would prove helpful in prosecuting him for the attack on Kelly, in supporting additional, related charges against Bowen for the assault, or in impeaching Bowen or rebutting his defenses. Moreover, even if this were merely a domestic dispute, a reasonable officer could still conclude that gang paraphernalia found at the Millenders’ residence could demonstrate Bowen’s control over the premises or his connection to other evidence found there. Pp. 12−16.

(d) The fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause. A contrary conclusion would mean not only that Messerschmidt and Lawrence were “plainly incompetent” in concluding that the warrant was supported by probable cause, Malley, supra, at 341, but that their supervisor, the deputy district attorney, and the magistrate were as well. Pp. 16−18.

(e) In holding that the warrant in this case was so obviously defective that no reasonable officer could have believed it to be valid, the court below erred in relying on Groh v. Ramirez, 540 U. S. 551. There, officers who carried out a warrant-approved search were not entitled to qualified immunity because the warrant failed to describe any of the items to be seized and “even a cursory reading of the warrant” would have revealed this defect. Id., at 557. Here, in contrast, any arguable defect would have become apparent only upon a close parsing of the warrant application, and a comparison of the supporting affidavit to the terms of the warrant to determine whether the affidavit established probable cause to search for all the items listed in the warrant. Unlike in Groh, any error here would not be one that “just a simple glance” would have revealed. Id. at 564. Pp. 18−19.

620 F. 3d 1016, reversed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. BREYER, J., filed a concurring opinion. KAGAN, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

One could see this one coming. The Ninth Circuit to me plainly contradicted Groh, and the warrant was going to ultimately be upheld. As I've said here and in the treatise before, if the good faith exception would save the warrant, the officer would have qualified immunity, and vice versa. They work hand in glove. The qualified immunity cases were used to create the good faith exception.

Permalink 09:44:01 am, by fourth, 290 words, 507 views   English (US)
Categories: General

NC: Defendant consented to search of trunk and showed trunk key; he did not withdraw consent by equivocal statement

Defendant consented to a search of his trunk, even showing the officers the trunk key. His statement “they’re tearing up my trunk” was not a withdrawal of consent. State v. Schiro, 2012 N.C. App. LEXIS 245 (February 21, 2012)*:

In the case at hand, officers testified to receiving consent from defendant to search his vehicle. Defendant even showed officers which key opened the trunk of his car. Defendant, alternatively, contends he revoked his consent while sitting, arrested, in a nearby patrol car when he “said several times, ‘They’re — man, they’re tearing up my trunk.’” Defendant correctly notes that a person may withdraw his or her consent to a search. State v. Hagin, 203 N.C. App. 561, 564, 691 S.E.2d 429, 433, disc. review denied, 364 N.C. 438, 702 S.E.2d 500 (2010). “The scope of a valid consent search is measured against a standard of objective reasonableness where the court asks ‘what would the typical reasonable person have understood by the exchange between the officer and the suspect?’” Id. at 564, 691 S.E.2d at 432 (quoting Florida v. Jimeno, 500 U.S. 248, 251, 114 L. Ed. 2d 297, 302 (1991)). A reasonable person would not have considered defendant’s statements that the officers were “tearing up” his car to be an unequivocal revocation of his consent. Similarly, in State v. Morocco, 99 N.C. App. 421, 430, 393 S.E.2d 545, 550 (1990), our Court held that the trial court did not err in determining that the defendant did not revoke his consent to search his vehicle when he made the ambiguous statement that a tote bag found in his car had nude photographs of his wife. Had defendant, in the case at bar, desired to revoke his consent he should have made it in a clearer statement that a reasonable person would have considered to be a revocation.

Permalink 07:57:25 am, by fourth, 176 words, 616 views   English (US)
Categories: General

GA: Even arrest warrant for minor infraction justified entry to arrest

An arrest warrant for a minor infraction still justified an entry into the home to arrest. The search was limited to looking for a person. Evidence found on defendant’s person was legally seized. Jones v. State, 314 Ga. App. 247, 723 S.E.2d 697 (2012):

Here, the officers' entry into the home was not warrantless. Instead, the officers entered Brown's residence, reasonably believing she was present in the home at the time, to execute a valid arrest warrant. ... Importantly, the police limited their search to those areas in which Brown might be located; there was no evidence that they attempted to search the house for narcotics or any other items. Under these circumstances, because the police had a valid arrest warrant for Brown (albeit for a minor infraction), and because the officers properly limited their search of her home to those areas where she might be located, the fact that they might have been motivated to enter the house to search for drugs was immaterial and does not render the entry and subsequent seizure of evidence from Jones illegal. ...

Permalink 07:31:31 am, by fourth, 145 words, 411 views   English (US)
Categories: General

E.D.Va.: Trash can not far from back door was on "common easement," and, therefore, outside curtilage

In a trash pull, the court finds that the trash can was partially on a common sidewalk away from the back door of defendant’s house on a “common easement,” therefore outside the curtilage. United States v. Jackson, 2012 U.S. Dist. LEXIS 20517 (E.D. Va. February 17, 2012).*

Defendant did not show a reasonable expectation of privacy in a vehicle where he did not even know the owner of it and there was no pattern of possession of the vehicle indicative of control granted by the owner. United States v. Guevara, 2012 U.S. Dist. LEXIS 20910 (D. Neb. February 21, 2012).*

Defendant was an accused member of a drug trafficking organization (DTO) that operated for a long time. Reliance on a telephone call that was four months old was not stale given the ongoing nature of the DTO. United States v. Loaiza-Clavijo, 2011 U.S. Dist. LEXIS 153347 (N.D. Ga. October 13, 2011).*

Permalink 12:06:07 am, by fourth, 75 words, 398 views   English (US)
Categories: General "Drones May Set Off a Flurry of Lawsuits" Drones May Set Off a Flurry of Lawsuits by Somini Sengupta:

Opening up the skies to the civilian use of drones in the United States is likely to lead to a number of new questions about surveillance by electronic means.

Unmanned aerial vehicles can not only take photos and videos, they can also spot heat sources, read car license plate numbers, and perhaps soon capture other information about people and things down below.

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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:
  Riley v. California, granted Jan.17, argued Apr. 29 (ScotusBlog)
  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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