Archives for: March 2012, 04


Permalink 08:42:07 am, by fourth, 175 words, 480 views   English (US)
Categories: General

IA: Baggy of marijuana in the pocket was plain feel

The patdown was reasonable based on the strong smell of marijuana coming from defendant’s department. The feel of a baggy in the pocket was plain feel. State v. Banks, 814 N.W.2d 622 (Iowa App. 2012):

At the suppression hearing, Officer Younie testified he felt the crunch or crinkle of plastic in Banks's front pants pocket. Based on his experience he knew marijuana is routinely packaged in plastic baggies. He smelled the odor of burnt marijuana, and therefore, he opined the item in Banks's pocket was packaged marijuana. Officer Younie acknowledged that it was possible the baggie may have contained something other than marijuana, but as stated above, absolute certainty is not required. In addition, in his police report Officer Younie stated that he felt something in the pocket during the pat-down and that it felt like a plastic bag with a soft substance inside. We believe this evidence provided Officer Younie with probable cause to believe the item he felt in Banks's pocket was contraband, justifying his seizure of the item during the Terry pat-down.

Permalink 12:30:49 am, by fourth, 277 words, 514 views   English (US)
Categories: General

OH10: The possibility the dog might eat marijuana was not an exigent circumstance

Defendant was stopped for his license plate being out near his house, and a bag of marijuana was in plain view between his feet. Defendant asked if he could put his dog in the house, and the officer let him, and the officer could see a small quantity of marijuana and a grinder in the living room. There was no reason to believe anyone else was inside, and the entry for a protective sweep was unreasonable. State v. Alihassan, 2012 Ohio 825, 2012 Ohio App. LEXIS 718 (10th Dist. March 1, 2012):

[*P22] We disagree with the state's contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant's girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard "noises" inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.

[*P23] With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed. ...

[I resisted the temptation.]

Permalink 12:23:04 am, by fourth, 476 words, 698 views   English (US)
Categories: General

OH8: Consent here was mere submission to authority

Defendant was stopped for having a headlight out and was given a warning. Immediately after he was told he was free to leave, the officer went into asking whether he had any drugs, firearms or knives on him. In the meantime, a second officer showed up to observe. The consent to search his person was a mere submission to authority at that point. State v. Dieckhoner, 2012 Ohio 805, 2012 Ohio App. LEXIS 699 (8th Dist. March 1, 2012):

[*P22] We find no legal distinction between Robinette and the case before this court. Just as the Ohio Supreme Court was in Robinette, we are also troubled by the timing of Comerford's immediate transition from giving Dieckhoner the warning for the improperly working headlight to questioning him about contraband and then requesting to search his person.

[*P23] Comerford gave Dieckhoner a verbal warning for the improperly working headlight and told Dieckhoner that "he was all set and to have a good night." As Dieckhoner turned to walk toward his car, Comerford then asked, "[b]y the way, do you have anything illegal; guns, knives, bombs, anything[?]" Unlike the facts in Robinette, there was no departmental or "drug interdiction policy" that required Comerford to question Dieckhoner about weapons or drugs. With the second officer standing five feet away, Dieckhoner denied having any contraband. Comerford immediately asked for consent to search him and Dieckhoner agreed.

[*P24] Comerford testified that he asks everyone he stops if they have any weapons, drugs, or guns on their person, and that he had no particular reason for asking Dieckhoner to search his person. In fact, Comerford testified that Dieckhoner was not acting suspicious in any way and that Dieckhoner was free to leave.

[*P25] Although Detective Leanza testified that Dieckhoner stated he consented to the search because he did not think Comerford would find the drugs in his pocket, the test for whether consent was voluntary depends on the totality of the circumstances at the time consent was given. Dieckhoner's reasoning for consenting to the search given after being arrested and to another law enforcement officer while in police custody does not withstand the State's burden of clearly demonstrating that Dieckhoner's consent was voluntary.

[*P26] After considering the totality of circumstances in the instant case, including Comerford's testimony that Dieckhoner appeared calm, the seamless transition between the detention and the request for consent, the fact that Comerford had no reasonable suspicion that Dieckhoner was involved or engaging in criminal activity, and the presence of another uniformed police officer, this court finds there was a sufficient show of authority such that Dieckhoner would not believe at the time that he was free to get in his car and drive away. Under these circumstances, any reasonable person would have felt compelled to submit to the officer's search, rather than consenting as a voluntary act of free will. See Robinette at 244-245.

Permalink 12:11:35 am, by fourth, 171 words, 357 views   English (US)
Categories: General

OH2: Removal from car at gunpoint and handcuffing after furtive movements still not an arrest

The officer lacked reasonable suspicion for a stop in a high crime area, but the officer then saw that the license for the vehicle was expired. When defendant was stopped, he made furtive movements under the dashboard, and that justified the officer handcuffing him when defendant was removed from the vehicle. This was still not an arrest. State v. Walker, 2012 Ohio 847, 2012 Ohio App. LEXIS 739 (2d Dist. March 2, 2012):

{¶ 25} Considering the totality of the circumstances, the detective's actions of drawing his gun and handcuffing Walker did not constitute an arrest. Given Walker's frantic movements below the dashboard upon being stopped by the police, his failure to comply when ordered to show his hands, and their location in a high crime area, House took reasonable actions to ensure his safety while initiating an investigatory detention.

Officers responded to a shooting call at defendant’s premises, and a cursory review of the premises revealed bags of marijuana. Even opening a closet door was not unreasonable. State v. Smith, 2012 Ohio 845, 2012 Ohio App. LEXIS 737 (2d Dist. March 2, 2012).*

Permalink 12:02:04 am, by fourth, 182 words, 425 views   English (US)
Categories: General

WA: No expectation of privacy in a bar's public area

A bar had no reasonable expectation of privacy in the public area of its establishment under Barlow’s. “Even if, as Dodge City argues, it had a subjective reasonable expectation of privacy to exclude persons under 21 years old, which it did not, Dodge City lost that interest when it voluntarily admitted [the minor] onto the premises.” Dodge City Saloon, Inc. v. Liquor Control Bd., 166 Wn. App. 828, 271 P.3d 363 (2012).

Just because a judge denies a motion to suppress does not mean that the judge is biased against the defendant. United States v. Harris, 2012 U.S. Dist. LEXIS 26578 (W.D. Mo. January 24, 2012).*

In an Anders brief, the search warrant was valid. State v. Jones, 88 So. 3d 1120 (La. App. 5th Cir. 2012).*

Here the officers had an arrest warrant for defendant and performed a “protective sweep” to corral the children in the house so they would be attended to when the officers left with defendant. This was reasonable. Defendant consented to retrieving his ID from the bedroom and the seizure of his cell phones. United States v. Rivero, 2012 U.S. Dist. LEXIS 26867 (N.D. Ga. January 20, 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)
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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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