Archives for: March 2012, 26


Permalink 11:12:15 am, by fourth, 121 words, 751 views   English (US)
Categories: General

Cert. granted in a dog sniff equalling PC

Cert. granted today in Florida v. Harris, 11-817.

Issue: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.

Opinion below: Harris v. State, 71 So. 3d 756 (Fla. 2011) posted here.

Briefs: Cert petition; brief in opposition.

This case will be argued next Term. Read the Florida Supreme Court's decision, the petition, and the BIO before you pass judgment on the oversimplistic issue the state chose to present. The case isn't that easy, unless, of course, the conservative wing has no problem with just saying "this is Place and Caballes and we're done." If it really was, they should have GVR'd it and been done with it.

Permalink 08:48:09 am, by fourth, 291 words, 509 views   English (US)
Categories: General

TX11: Face-to-face swearing to a SW affidavit not required; fax will do

A face-to-face meeting better the affiant for a search warrant and the issuing magistrate is not required. Here, they recognized each other’s voices, the affiant swore over the phone and faxed the affidavit to the magistrate who faxed back the signed search warrant. Clay v. State, 382 S.W.3d 465 (Tex. App. – Waco March 21, 2012), discretionary review granted by Clay, 2012 Tex. Crim. App. LEXIS 847 (Tex. Crim.
App. June 27, 2012):

The second statement relied upon by Clay is a comment by the Court that, while recognizing innovations such as telephonic search warrants should not be foreclosed by the requirement of a signed affidavit, "[w]e leave those potential future changes to the Texas Legislature...." Smith v. State, 207 S.W.3d 787, 793 (Tex. Crim. App. 2006). This statement, Clay believes, is an acknowledgment that a procedure to obtain warrants by telephone and facsimile has not been authorized by statute, does not exist under Texas law, and therefore cannot be a valid practice in Texas at the present time. We believe it is not such an acknowledgement and certainly is not such a prohibition. As the Court stated, it is important for the law to retain some flexibility in the face of technological advances. Id. at 792. Had there been no flexibility in the statute, the Smith Court would have been compelled to hold that a signed affidavit was required. It did not. And thus, the statute is also flexible so as to allow for the taking of an oath over the telephone or by some other electronic means of communication under certain circumstances. That is the nature of the development of the common law. We must decide only the issue presented—in this case, is the affidavit invalid because it was not made on an oath administered face-to-face.

Permalink 12:25:16 am, by fourth, 504 words, 457 views   English (US)
Categories: General

NE: Defendant's request to delete files from computer before seizure did not support second search warrant for child porn

Officers somehow ended up at defendant's house based on an investigation that his IP address had been used for credit card fraud. They came to do a knock-and-talk for his computers and he refused to consent to a search. They came back with a search warrant, and he requested to delete files from one of the computers when one made an off-hand remark about child pornography, which they denied. Then they sought a second search warrant for child pornography based on the request to delete files. That was not an additional factor in probable cause, and the trial court was correct in suppressing the search and in finding no good faith exception. State v. Sprunger, 283 Neb. 531, 811 N.W.2d 235 (2012):

The Fourth Amendment contains a particularity requirement, stating that “no Warrants shall issue, but upon probable cause ... and particularly describing the place to be searched, and the persons or things to be seized.” (Emphasis supplied.) The Founding Fathers’ abhorrence of the English King’s use of general warrants—which allowed royal officials to engage in general exploratory rummaging in a person’s belongings —was the impetus for the adoption of the Fourth Amendment.10 Simply put, the Fourth Amendment prohibits “fishing expeditions.”


[12] To allow a search based only on the fact that Sprunger wanted to hide something would sanction the type of general exploratory rummaging the Founders wished to prohibit. As we have stated before, “‘[a] general search for evidence of any crime,’” such as the one that would be issued based solely on this fact, is unconstitutional.

It is true that the fact Sprunger asked to delete some files might have raised a suspicion. But this suspicion did not amount to a fair probability that child pornography would be found on his computers. Based solely on this fact, the deputies would have no idea what would be found. Their search would have amounted to a rummaging through a treasure trove of information. “‘[T]he modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs.’” It thus makes the particularity and probable cause requirements all the more important. To sanction a search based solely on Sprunger’s request to delete some unknown files would trivialize the protections of the Fourth Amendment.

. . .

Moreover, not only would a reasonable officer know that a general search warrant was illegal, a reasonable officer would also know that telling a person that he had “nothing to worry about” if he had no child pornography on his computer would lead that person to believe he was being investigated for child pornography. The deputy had effectively planted the idea in Sprunger’s head. Given this, we do not see how the deputies could have objectively relied on the warrant. The deputies knew—or certainly should have known—that the only fact showing any connection to child pornography was of their own making.

Permalink 12:12:39 am, by fourth, 247 words, 417 views   English (US)
Categories: General

LA4: Omission in SW application was in arrest warrant application signed at same time; magistrate could consider both

While the application for the search warrant failed to show nexus to defendant’s car, the arrest warrant application presented to the magistrate just five minutes earlier did. Therefore, it was apparent the search warrant application omission was a mere oversight, and the magistrate apparently considered both in issuing the warrant, and this was not improper. The good faith exception would apply in any event. State v. Cunningham, 88 So. 3d 1196 (La. App. 4th Cir. 2012):

In sum, we find that Detective Matthews' failure to include information in the affidavit for the search warrant linking the residence to the Mustang used in the shooting was an apparent oversight. Nonetheless, the magistrate was aware of this link because it was contained in the affidavit for Williams' arrest warrant, which the magistrate read and signed mere minutes before reading the affidavit for the search warrant for the residence. Detective Matthews and the other officers were not unreasonable in relying on the validity of the search warrant for the residence. Nor is there evidence of any police misconduct on Detective Matthews' part. Given these circumstances coupled with the fact that the magistrate was in possession of the information linking the residence to the Mustang before he signed the search warrant for the residence, none of the exceptions to the good faith doctrine applies to this case. Thus, the district court did not err in denying the motion to suppress the evidence seized from the residence. Accordingly, the Relator's writ application is denied.

Permalink 12:01:44 am, by fourth, 176 words, 434 views   English (US)
Categories: General

C.D.Cal.: One defendant had no standing in search of codefendant's cell phone

One defendant’s cell phone could be seized and searched under his parole search condition, and the other defendants had no standing in his cell phone. United States v. Delvalle, 2012 U.S. Dist. LEXIS 38547 (C.D. Cal. March 20, 2012).*

There was no reasonable suspicion to extend the stop in this case, and that unlawful detention led to an invalid consent. State v. Wendler, 47 Kan. App. 2d 182, 274 P.3d 30 (2012)*:

We conclude that under the totality of the circumstances, the duration of the traffic stop was measurably extended after the purpose of the traffic stop—to investigate Wendler's commission of a traffic violation—was concluded. Moreover, during the investigation into the traffic violation, the officer did not gain reasonable suspicion of illegal drug activity necessary to lawfully extend the scope and duration of the detention. Finally, we conclude the unlawful detention of Wendler infected or tainted his consent to answer questions and to search the RV. Accordingly, we affirm the ruling of the district court suppressing the marijuana seized from the RV and the dismissal of charges against Wendler.

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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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