Archives for: April 2012

04/30/12

Permalink 09:44:04 am, by fourth, 163 words, 629 views   English (US)
Categories: General

PA: Seeking ID from everybody in a parked car was not an investigative detention

Requesting identification of everybody in a parked car was not an investigative detention under Hiibel. Commonwealth v. Au, 615 Pa. 330, 42 A.3d 1002 (2012) (dissent).

Error in the body of the affidavit that included another person [apparently from the computer cut and paste] was a mere “scrivener’s error.” One could tell who was the target of the search from the totality of the affidavit. United States v. De La Torre, 2012 U.S. Dist. LEXIS 58884 (E.D. Okla. February 16, 2012).

There was a swearing match as to whether a particular controlled buy occurred before a search warrant was issued, and the district court found that it did. That was enough for a search warrant to issue, and the district court’s determination was binding. The officer omitted some information from the affidavit about the CI’s credibility, but, if it was included, the warrant would have issued anyway. Finally, there was probable cause and the good faith exception applied. United States v. Richardson, 478 Fed. Appx. 82 (5th Cir. 2012).*

Permalink 09:33:20 am, by fourth, 446 words, 529 views   English (US)
Categories: General

PA: Anticipatory SW failed Grubbs for lack of specific information

Anticipatory search warrant failed here because there was no probability that the drugs would be found in a particular place. Commonwealth v. Wallace, 615 Pa. 395, 42 A.3d 1040 (2012):

As the parties recognize, the United States Supreme Court, in Grubbs, established two requirements which an affidavit of probable cause in support of an anticipatory search warrant must meet under the Fourth Amendment: (1) "there is probable cause to believe the triggering condition will occur;" and (2) "if the triggering condition occurs 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Grubbs, 547 U.S. at 96-97 (emphasis omitted). The high Court also held that "[t]he supporting affidavit must provide the magistrate with sufficient information to evaluate both aspects of the probable-cause determination." Id. at 97.

The high Court has made abundantly plain that the triggering event itself must be probable, and thus that an anticipatory search warrant for a search of a person's home may not be issued solely upon a claim that fruits of a crime will be found inside if a triggering event, such as delivery of contraband to the home, takes place and the warrant is executed. Justice Scalia, writing for the majority in Grubbs, explicitly and aptly cautioned in this regard: "If that were the extent of the probability determination, an anticipatory warrant could be issued for every house in the country, authorizing search and seizure if contraband should be delivered — though for any single location there is no likelihood that contraband will be delivered." Id. at 96 (parentheses and emphasis omitted).

. . .

Likewise, this affidavit of probable cause contained a paucity of information concerning the basis of knowledge for the informant's assertion that he could purchase drugs at Appellant's home at the time and date specified in the affidavit. The means by which the confidential informant learned of "Greg's" cocaine sales and the use of his car to deliver narcotics was not set forth in the affidavit, and there was no other evidence provided in the affidavit which would tend to corroborate the truth of these allegations. There was no factual basis in the affidavit which established that the confidential informant had any past relationship with "Greg," ever witnessed "Greg" in possession of drugs, or, critically, had been inside of Appellant's home recently and observed drugs stored there. Furthermore, there were no facts in the affidavit which suggested that the confidential informant had, at any time, personally purchased drugs from "Greg," or witnessed "Greg" selling drugs at any location, let alone at Appellant's home. In short, the affidavit contained only the informant's bare assertion that he could effectuate a controlled purchase at Appellant's home at a particular time.

Permalink 08:54:17 am, by fourth, 187 words, 419 views   English (US)
Categories: General

WA: Failure to specify time of CI's observation led to staleness finding

The CI contacted the police within the previous 48 hours to say that he saw that the defendant had a marijuana grow operation, but didn’t specify when it was that he saw it. This was stale under the state constitution, and the court refuses to apply the totality of circumstances test to this situation. State v. Lyons, 174 Wn.2d 354, 275 P.3d 314 (2012), revg State v. Lyons, 160 Wn. App. 100, 247 P.3d 797 (2011).

Defendant was stopped for a traffic violation, and the smell of marijuana came from the car when the window was opened. A drug dog went into the car and alerted on the console, producing a roach. The smell of marijuana was reasonable suspicion; the dog alert was probable cause. State v. Chinn, 94 So. 3d 838 (La. App. 5 Cir. 2012).*

A child sex abuse victim’s story that defendant supplied him with alcohol and had a camera out was sufficient to show probable cause to search for the camera to see if there were pictures on it. The police also had an allegation from 2002 of defendant in possession of naked children in pictures. United States v. Westerlund, 477 Fed. Appx. 366 (6th Cir. 2012).*

04/29/12

Permalink 09:39:57 am, by fourth, 762 words, 670 views   English (US)
Categories: General

MO: Child porn knock-and-talk was not exigency for warrantless seizure

Officers did a child pornography knock-and-talk after associating defendant’s IP address with downloading child porn. Once in the house, defendant admitted he might have child porn on the computer, but he refused to consent. While defendant was out of the room, the officer clicked on the computer to exit the word processing document on the screen. That was a search in itself. Then, there was no exigency for taking the computer without a warrant that the police did not create. State v. Sachs, 372 S.W.3d 56 (Mo. App. 2012):

We begin our analysis by stating the obvious. When Detective Anderson began clicking on icons on Appellant's computer screen to view different programs that were not openly visible on the computer screen, he was conducting a search. See United States v. Payton, 573 F.3d 859, 863 (9th Cir. 2009) (holding that an officer moving a mouse, deactivating a screen saver, and opening a file on a computer was a search requiring a warrant). For these purposes, using a mouse and/or keyboard to shuffle between files that are not plainly visible on an active computer screen is just as much of a search as opening and looking through Appellant's filing cabinets or desk drawers. In fact, "the nature of computers makes such searches so intrusive that affidavits seeking warrants for the search of computers often include a limiting search protocol, and judges issuing warrants may place conditions on the manner and extent of such searches to protect privacy and other important constitutional provisions." Id. at 864. Because "it is important to preserve the option of imposing such conditions when they are deemed warranted by judicial officers authorizing the search of computers," the generally accepted practice of law enforcement officers is "to stop and seek an explicit warrant when they encounter a computer that they have reasons to believe should be searched." Id.

Detective Anderson acknowledged that he was looking through the various programs running in the background on the computer in search of evidence. This was, in any sense of the term, a search.

Accordingly, we must next determine whether the trial court could have properly found that a recognized exception to the warrant requirement was applicable in this case. The State contends that the exigent circumstances justified the detective's actions in accessing the active programs because information in the computer's RAM (random access memory) would disappear when the officer unplugged the computer to seize it. In other words, the State argues that the "exigent circumstance" of the officer wanting to seize the computer, unplug it, and remove it from the apartment before obtaining a warrant justified his search of the active files on the computer.

"The justification for the exigency exception is time related, i.e., there is a need that will not brook the delay incident to obtaining a warrant." Cromer, 186 S.W.3d at 344 (internal quotation omitted). "Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk the destruction of evidence." Id. (internal quotation omitted). "The subjective belief of the officer who conducted the [search] is not determinative. ... [W]e look to the circumstances as they would have appeared to a prudent, cautious, and trained officer." State v. Warren, 304 S.W.3d 796, 801-02 (Mo. App. 2010).

The record in this case simply does not establish any pressing need for the officer to unplug the computer prior to obtaining a warrant. Three officers were present in the apartment and had fully secured the scene. The State failed to prove the existence of exigent circumstances that would preclude an officer from remaining with the computer while a warrant was obtained. The State's argument in this regard is based entirely upon a presumption of inconvenience for the officers and Appellant's roommates. Such circumstances are simply not exigent and most certainly do not establish "a need that will not brook the delay incident to obtaining a warrant." Id. Though Detective Anderson's subjective belief is not the standard for determining exigent circumstances, if Detective Anderson truly believed that valuable evidence might be lost through the unplugging of the computer, he should have waited until a warrant was obtained and then conducted his search of the files active on the computer.

Exigency like bull in the china shop. Think about it: If the state's argument was accepted here, there would be no need for search warrants in child pornography or some other types of cases. Just do a knock-and-talk. If the suspect doesn't consent, search for the stuff anyway because you barged in and alerted him he was a target.

Permalink 09:12:16 am, by fourth, 134 words, 444 views   English (US)
Categories: General

NY4: Parole Task Force validly searched defendant's car at his house

A task force of parole officers made up a list of parolees to be searched in the Syracuse area, and defendant was handcuffed and detained for his parole search, with the officers finding cocaine in his car out front of his house. The search was legal. People v. Johnson, 2012 NY Slip Op 3317, 94 A.D.3d 1529, 942 N.Y.S.2d 738 (4th Dept. 2012).*

A buy of heroin out of defendant’s truck was probable cause to search it under the automobile exception. United States v. Williams, 2012 U.S. App. LEXIS 8564 (11th Cir. April 27, 2012).*

Defense counsel was not ineffective for not challenging the voluntariness of consent where the search was based on a dog alert. Consent or not was “immaterial.” United States v. Vazquez-Villa, 2012 U.S. Dist. LEXIS 58690 (D. Kan. April 27, 2012),* prior appeal 423 Fed. Appx. 812 (10th Cir. 2011).

Permalink 12:02:57 am, by fourth, 413 words, 2757 views   English (US)
Categories: General

KY: City of Liberty could not conduct checkpoints to look for "city stickers" on cars

The City of Liberty, Kentucky, in a case fraught with irony by the location, cannot conduct checkpoints to stop cars to check whether the car has a affixed a “city sticker” proving that the cars on the street belong to residents. It utterly fails Edmond, Prouse, Sitz, and special needs analysis. This had no valid safety purpose for a checkpoint. Search incident occurred. Singleton v. Commonwealth, 364 S.W.3d 97 (Ky. 2012):

The Commonwealth argues that Prouse should be read as approving traffic checkpoints designed to verify compliance with vehicle registration and operator licensing laws which have no impact upon highway safety. We must disagree. In Prouse, the checkpoint's purpose was found valid only because the licensing and registration requirements advanced the public interest in highway safety:

We agree that the States have a vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed. Automobile licenses are issued periodically to evidence that the drivers holding them are sufficiently familiar with the rules of the road and are physically qualified to operate a motor vehicle. The registration requirement and, more pointedly, the related annual inspection requirement in Delaware are designed to keep dangerous automobiles off the road. Unquestionably, these provisions, properly administered, are essential elements in a highway safety program.

Prouse, 440 U.S. at 658 (footnotes omitted).

This point was expressly confirmed in Edmond, "Not only does the common thread of highway safety thus run through Sitz and Prouse, but Prouse itself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control." Edmond, at 40.

As the trial court found, the City of Liberty's sticker ordinance "does not have as its purpose anything remotely connected to border patrol or highway safety." We find nothing in the record to refute that finding. It is also apparent that the checkpoint had no information-seeking function of the sort approved in Lidster. The checkpoint's only purpose was to enforce a revenue-raising tax upon vehicles in the city. Thus, the checkpoint to enforce the sticker ordinance comports with none of the purposes which the United States Supreme Court has found to be important enough to override the individual liberty interests secured by the Fourth Amendment.

[Note: They should be thankful this was resolved in a criminal case rather than an expensive civil rights case like Edmond was.]

04/28/12

Permalink 05:56:32 pm, by fourth, 100 words, 535 views   English (US)
Categories: General

MD: Frisk for a stop related to a parking violation that wasn't illegal was unreasonable

Defendant was stopped for parking over a line, which was not even a violation of law. Because defendant appeared nervous, the officer frisked him for officer safety. The frisk was unlawful for a stop for something that wasn’t even an offense. Mistake of law will not support a stop. Gilmore v. State, 204 Md. App. 556, 42 A.3d 123 (2012).

Plaintiff’s claim that her arrest was without probable cause or qualified immunity is sustained, and the district court properly granted summary judgment for her. That an arrest without probable cause is unconstitutional is well established. Merchant v. Bauer, 677 F.3d 656 (4th Cir. 2012).*

Permalink 05:19:23 pm, by fourth, 322 words, 704 views   English (US)
Categories: General

CA7: Shooting drunk driver in legs with polyurethane bullets for not getting out of car was excessive

Shooting the unarmed plaintiff drunk driver six times in the legs with SL6 polyurethane bullets for not getting out of her car fast enough was excessive force as a matter of law, and the jury verdict for the defendants is reversed. Phillips v. Community Ins. Corp., 678 F.3d 513 (7th Cir. 2012) (2-1):

To determine whether a constitutional violation has occurred, we first evaluate the level of force used to arrest Phillips. The record establishes that the force exerted by an SL6 bullet is roughly comparable to a projectile from a bean-bag shotgun. Other courts of appeals have observed that baton launchers and similar "impact weapons" employ a substantially greater degree of force than other weapons categorized as "less lethal," such as pepper spray, tasers, or pain compliance techniques. In Deorle v. Rutherford, the Ninth Circuit considered a bean-bag shotgun projectile as "something akin to a rubber bullet." 272 F.3d 1272, 1280 (9th Cir. 2001). Deorle concluded that "the cloth-cased shot constitutes force which has the capability of causing serious injury, and in some instances does so." An officer provided expert testimony that a "Use of Force Continuum ... would list an impact weapon high on the schedule of force" and that "[i]t would be unreasonable for an officer to use an impact weapon on an unarmed person." Id. at 1280 & n.17 "Such force is much greater than that applied through the use of pepper spray ... or a painful compliance hold ...." Id. at 1279-80 (citations omitted); see also Thompson v. City of Chicago, 472 F.3d 444, 451 & nn.18-19 (7th Cir. 2006) (officer testimony regarding Chicago Police Department policies limiting use of "impact weapons" to "high-level, high-risk assailants" and describing such weapons as "unwarranted against a suspect resisting arrest" by punching and struggling); Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 2005) (observing that the SL6 weapon "is classified as a 'less lethal' munition, [but that local] police regulations recognize that it can be used as a deadly weapon.").

Permalink 05:09:12 pm, by fourth, 298 words, 447 views   English (US)
Categories: General

OR: Merely giving somebody the keys to a vehicle to lock it and check on a dog is not joint control for purposes of granting consent

Defendant's companion did not have the authority to consent to a search of his van after he gave her the keys for the limited purpose of checking on the dog and locking the van. State v. Kurokawa-Lasciak, 249 Ore. App. 435, 278 P.3d 38 (2012), on remand from State v. Kurokawa-Lasciak, 351 Ore. 179, 263 P.3d 336 (2011):

Under these precepts, the consent issue in this case reduces to the question of whether defendant and Campbell had an understanding that Campbell had common access to and control of the van when she gave Bennett consent to search it. The trial court, relying on a federal case under the Fourth Amendment (United States v. Morales, 861 F2d 396 (3rd Cir 1988)), ruled that Campbell had authority to consent (although, as noted, the court also ruled that that consent was superseded by defendant's refusal). We do not find Morales helpful. The only issue in that case was whether a person who is the driver, but not the lessee, of a rental car, can consent to a search of the entire car, and the court based its decision on the fact that Morales, as the nonlessee driver, had immediate possession of and control over the car: "By giving Morales control over the car, [the actual lessee] conferred on Morales power to consent to a reasonable search of it." Id. at 399. No such delegation of control exists on the facts of this case. The only evidence that Campbell had control of defendant's van was the fact that he had given her the key. However, as we have previously held, mere possession of the key to premises does not necessarily indicate complete access or control. Fuller, 158 Ore. App at 506 (consenting co-occupant had key, but nonetheless lacked authority to consent to search of nightstand).

[Note: No cases on the Oregon court's website since February.]

Permalink 04:55:18 pm, by fourth, 208 words, 393 views   English (US)
Categories: General

OR warrantless CI eavesdropping statute requires exigency and PC

Oregon’s warrantless eavesdropping requirement to record a CI and his target requires exigency and probable cause. State v. Miskell, 351 Ore. 680, 277 P.3d 522 (2012),* revg 239 Or. App. 629, 246 P.3d 755 (2010):

Another aspect of the provision's wording supports defendant's contention that the legislature had in mind the well-known constitutional doctrine of exigent circumstances that obviate the need for a warrant. Law enforcement officers who wish to proceed without a court order under ORS 133.726(7)(b) must be able not only to point to "circumstances of such exigency that it would be unreasonable to obtain a court order," but also must have "probable cause to believe that [the person whose communication is to be intercepted] has committed, is engaged in committing or is about to commit" a felony. The phrase "probable cause" inescapably alludes to a specialized legal concept associated with the constitutional prohibition (in both the Oregon and United States constitutions) against unreasonable searches and seizures, and its use in ORS 133.726(7)(b) appears to confirm that the entire provision, including the "exigency" wording, was intended as a reference to the familiar "probable cause plus exigent circumstances" exception to the warrant requirement. See, e.g., State v. Meharry, 342 Or 173, 177, 149 P3d 1155 (2006) (warrantless search permitted if police could show probable cause and exigent circumstances).

Permalink 04:42:18 pm, by fourth, 345 words, 1013 views   English (US)
Categories: General

KY: Kentucky v. King on remand: state still can't show exigency

On remand from Kentucky v. King, the Kentucky Supreme Court finds no exigency and suppresses again. The state failed in its burden to show exigency. King v. Commonwealth, 386 S.W.3d 119 (Ky. 2012), petition for cert. filed July 25, 2012:

=> Read more!

Permalink 11:16:34 am, by fourth, 387 words, 445 views   English (US)
Categories: General

CA8: Police failed to show exigency justifying warrantless entry into hotel room

Just because the defendant attempted to elude the police before, there was no exigency to enter a hotel room without a warrant because there was no evidence that the defendant knew the police were tailing him. United States v. Ramirez, 676 F.3d 755 (8th Cir. 2012):

"We review the district court's findings of historical fact for clear error, but the ultimate determination of whether the facts as found constitute exigent circumstances is reviewed de novo." United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003). "The analysis of whether [the exigent circumstance] exception to the warrant requirement has been made out is an objective one 'focusing on what a reasonable, experienced police officer would believe.'" Id. at 1021 (quoting In re Sealed Case 96-3167, 153 F.3d 759, 766, 332 U.S. App. D.C. 84 (D.C. Cir. 1998)). "[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984). When the exigency at issue is destruction of evidence, police officers must demonstrate a sufficient basis for an officer to believe that somebody in the residence (or hotel room, in this case) will imminently destroy evidence. United States v. Clement, 854 F.2d 1116, 1119 (8th Cir. 1988).

. . .

Looking then at the remaining two bases for the district court's analysis, the circumstances relied upon by the district court are not exigent. "The urgency that would justify allowing the police officers, rather than a neutral judicial officer, to draw the reasonable inferences supporting this entry is not present in these facts." United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990). At the time these officers attempted to enter room 220, they reasonably believed that two of the occupants of room 220 possessed heroin in their shoes, and the officers believed that the men had, possibly, attempted to elude the police either to flee themselves, which seems more tenable, or, more tenuously, to destroy the evidence at some point. That the officers tracked the men also does not impact our analysis. There is no evidence supporting the inference that these men knew the police were tracking them at all, which might lend credence to that line of reasoning as it relates to the imminent destruction of evidence. Also, knowledge that drugs were in the room does not suffice to conclude that destruction was imminent.

04/27/12

Permalink 10:25:57 am, by fourth, 285 words, 684 views   English (US)
Categories: General

SC: GPS tracking was unreasonable, but police were following and saw a traffic violation and decided to stop

Warrantless installation of a GPS tracker on defendant’s vehicle violated the Fourth Amendment under Jones, but it wasn’t the cause of defendant’s stop. He was being followed, and committed a traffic offense that led to his stop, and a drug dog was ultimately called in. State v. Adams, 397 S.C. 481, 725 S.E.2d 523 (2012):

Here, the tracking device was installed while Adams's vehicle was parked in a public parking garage, and the device was used to monitor the vehicle's movements while it was on public streets and highways. Under Jones, the Department's installation of the device on Adams's vehicle and use of that device to monitor the vehicle's movements constituted a "search." Therefore, the Department's failure to obtain a warrant made that search unreasonable and resulted in a violation of Adams's constitutional rights. Nevertheless, we must still determine whether that violation required suppression of the drugs seized from Adams's person. For the reasons below, we find it did not.

. . .

Here, Sergeant Blair had probable cause to stop Adams's vehicle because he witnessed Adams commit two traffic violations. The officers acted reasonably in instructing Adams to step out of the vehicle while they waited for a license and registration report. Sergeant Blair was also permitted to walk his drug dog around the vehicle while waiting for the completion of Adams's license and registration check. The first alert occurred a mere five to six minutes after the traffic stop began, and no evidence in the record indicates the drug sniff extended the duration of the stop. Consequently, the officers' conduct up to that point was within constitutional bounds. Whether the drugs were admissible depends upon whether the resulting pat-down complied with Adams's Fourth Amendment rights.

Permalink 09:56:06 am, by fourth, 458 words, 418 views   English (US)
Categories: General

PA applies its "unique" independence source rule; second DNA test to obviate the first one valid

Applying the “unique” Pennsylvania independence source rule, and pending two years before it was decided, is Commonwealth v. Henderson, 2010 Pa. LEXIS 3074 (April 25, 2010)*:

In the present circumstances, we are unwilling to enforce a "true independence" rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans' status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881-82. Ultimately, we believe the "twin aims" of Article I, Section 8 — namely, the safeguarding of privacy and enforcement of the probable-cause requirement — may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

. . .

In the present circumstances, we are unwilling to enforce a “true independence” rule in the absence of police misconduct and on pain of the Commonwealth being forever barred from obtaining non-evanescent evidence connecting Appellant with his crimes. In answer to the specific question presented, we hold that suppression is not required on account of Detective Evans’ status as a member of the same police department as Detective Johnson. Rather, in light of the factual circumstances before the Court in both Melendez and Mason, we deem it appropriate to limit the independent police team requirement to situations in which the rule prevents police from exploiting the fruits of their own willful misconduct. Where such malfeasance is not present, we agree with the Superior Court that the Murray standard strikes the appropriate balance between privacy and law enforcement. See Lloyd, 948 A.2d at 881-82. Ultimately, we believe the “twin aims” of Article I, Section 8 – namely, the safeguarding of privacy and enforcement of the probable-cause requirement – may be vindicated best, and most stably, by taking a more conservative approach to the departure this Court has taken from the established Fourth Amendment jurisprudence.

Finally, we acknowledge the intrusiveness involved in the performance of a second blood draw occasioned by a defective first warrant. We note only that the need for the serial sample is also an unintended consequence of a previous departure from Fourth Amendment law, under which suppression would not have been required of results of the first DNA test. ...

Permalink 09:15:15 am, by fourth, 130 words, 398 views   English (US)
Categories: General

S.D.Ind.: Admission at time of search place was not defendant's showed no standing

Defendant denied he had a connection to the house at the time of the search, and that indicated that he had no standing. United States v. Sayles, 2012 U.S. Dist. LEXIS 57596 (S.D. Ind. April 25, 2012).*

Police officers sought a search warrant for defendant’s house to attempt to corroborate an allegation of sexual assault there. They were there to photograph the interior. Once inside, they found marijuana and guns in plain view. They got a second search warrant to seize them, and it was valid. United States v. Bogie, 2012 U.S. Dist. LEXIS 57831 (D. Vt. April 25, 2012).*

The trial court did not err in crediting defendant’s statement to the officer that he consented and a search warrant was not required. State v. Wright, 2012 Ohio 1809, 2012 Ohio App. LEXIS 1587 (5th Dist. April 23, 2012).*

Permalink 09:09:42 am, by fourth, 463 words, 389 views   English (US)
Categories: General

MA: Some impoundment of SW materials is possible on a showing of necessity by the state

Recognizing the right of access to search warrant papers by the target of a search and the press, the state sought impoundment of the records for a brief time until indictment, and this was reasonable under the circumstances. [The case also contains a summary of the law on access to materials.] New England Internet Café v. Clerk of the Superior Court for Criminal Business in Suffolk County, 462 Mass. 76, 966 N.E.2d 797 (2012):

In sum, we do not agree with the plaintiffs that the Fourth Amendment requires that the target of government searches be given access to the materials supporting them prior to indictment or that an analysis separate from our recognized "good cause" analysis is required whenever a Fourth Amendment interest is asserted. On the other hand, we do not agree with the Commonwealth that the privacy and property interests protected by the Fourth Amendment's constraint on unreasonable searches are irrelevant to a judge's balancing of the interests of the parties in the circumstances presented here.

With this in mind, we turn to the manner in which the judge balanced the respective interests of the parties before us. After reviewing both the warrant affidavits and the assistant attorney general's affidavit on good cause, the judge concluded that "the contents of the affidavits are unexceptional." As he explained, and we so conclude after our own review of the impounded materials, the affidavits portray a generic gaming experience at a public place of business; they are innocuous and do not expose any secretive investigative techniques or clandestine operations. In light of the judge's findings, and the opportunity he properly extended to the Commonwealth to suggest the redaction of information that it believed was particularly sensitive, the Commonwealth's interest in preserving the secrecy of its ongoing investigation as described in the affidavits, while ordinarily compelling, was considerably diminished. See In re Search Warrants Issued August 29, 1994, 889 F. Supp. 296, 302 (S.D. Ohio 1995) ("redaction of the original affidavit is feasible and would meet the government's concerns regarding any ongoing criminal investigation"). Contrary to the Commonwealth's contention that the judge overlooked critical information pertinent to the good cause analysis, his acknowledgment of potentially sensitive information worthy of redaction reflects an appreciation of the Commonwealth's purported needs, as well as his conclusion that the Commonwealth had failed to demonstrate good cause to shield the documents in their entirety.

On the other side of the scale, the judge properly considered the extent of the materials seized from the plaintiffs, the closure of the plaintiffs' businesses, and the fact that, nearly two and one-half months after the searches had been executed, the plaintiffs had not yet been charged with a crime. There was no abuse of discretion. The judge's order allowing the plaintiffs' emergency motion to modify or terminate the impoundment order is affirmed.

Permalink 08:42:20 am, by fourth, 166 words, 553 views   English (US)
Categories: General

N.D.Ga.: State ID card with address of place searched is a factor in standing, but not determinative

Just because defendant had a state ID card with the address of the place searched doesn’t mean that he had standing. It is a factor, but it isn’t determinative. Here, the USMJ’s conclusion of no standing was supported by the record. United States v. Langford, 2012 U.S. Dist. LEXIS 57894 (N.D. Ga. April 24, 2012).

Stop of bus at a border checkpoint also involved a stop of a Jeep following the bus. They were suspected to be traveling together, and a few facts were confirmed which drew that reasonable conclusion, and there was reasonable suspicion. United States v. Finley, 2012 U.S. Dist. LEXIS 57926 (S.D. Tex. April 25, 2012).*

An IP address was associated with accessing child pornography, and it tied to an address. The police investigated the address and linked defendant to it. There was a substantial basis for issuance of the search warrant for the premises by the link of the IP address. United States v. Wunderli, 2012 U.S. Dist. LEXIS 57964 (E.D. Mo. March 27, 2012).*

Permalink 07:53:11 am, by fourth, 69 words, 412 views   English (US)
Categories: General

Richmond Times Dispatch: "Police to end 'wake-up calls' effort"

Richmond Times Dispatch: Police to end 'wake-up calls' effort by Reed Williams:

One day after a civil liberties group blasted the Richmond Police Department for knocking on doors late at night to tell residents they are at risk of car break-ins, the department said it's ending the practice next week.

Since when has any police group cared what any "civil liberties group" thinks? This is more fundamental a realization.

Permalink 12:01:55 am, by fourth, 100 words, 429 views   English (US)
Categories: General

NYTimes.com: "ACLU Sues Over Border Patrol Stops in U.S. Pacific Northwest"

NYTimes.com: ACLU Sues Over Border Patrol Stops in U.S. Pacific Northwest by Reuters:

The U.S. Border Patrol is unjustifiably stopping people based on their skin color in Washington state's Olympic Peninsula, just across the water from Canada, the American Civil Liberties Union said in a lawsuit filed on Thursday.

Two Latinos and a black man - two of them prison corrections officers - said in the complaint filed in U.S. federal court in Seattle that they were subject to racial profiling. One of the officers was in his uniform when he was stopped, the lawsuit said.

04/26/12

Permalink 02:22:49 pm, by fourth, 913 words, 2833 views   English (US)
Categories: General

FL drug testing law unconstitutional [Updated with link]

Update: American Federation of State County and Municipal Employees, Council 79 v. Scott, 857 F. Supp. 2d 1322 (S.D. Fla. 2012):

To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. Chandler, 520 U.S. at 313. To warrant an exception from the main rule, the government must show that it has a “special need, beyond the normal need for law enforcement.” Id. When, as here, the government alleges such a need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314. The permissibility of a drug-testing program "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Skinner, 489 U.S. at 619-620 (quoting Delaware v. Prouse, 440 U.S. 648, 654 (1979)).

. . .

Moving to the Georgia statute [in Chandler] in question, the Court held that merely aspirational goals, such as promoting public confidence and trust in elected officials and demonstrating the government’s commitment to the struggle against drug abuse, which are not tied to any real, concrete danger, do not constitute a “special need” sufficient to exempt a state from its normal Fourth Amendment requirements. According to the Court, Georgia had failed to present any evidence of a “concrete danger” that would demonstrate that the hazards the state sought to avoid were “real and not simply hypothetical.” Id. at 319-20. In particular, the state had asserted “no evidence of a drug problem among the State's elected officials,” nor did the covered individuals “typically ... perform high-risk, safety sensitive tasks.” Id. “Symbolic” public concerns, the Chandler Court concluded, warrant no special departure from the Fourth Amendment. Id. at 322.

. . .

In other words, the Governor’s safety rationale for the EO essentially relies on the Governor's common sense belief that because illegal drug use exists in the general population, it must also exist among state employees. And, the Governor predicts these drug-impaired employees will be less reliable and more accident-prone; thus, a public benefit will be attained by ensuring that all state employees under the Governor's purview are drug-free. The Governor may be right, but unlike the programs in Skinner, Nat’l Treasury, and Vernonia, which were moored to concrete dangers, the Governor’s program is detached from any readily-apparent or demonstrated risk. Rather, the Governor’s broadly-defined objectives more closely resemble the state of Georgia’s argument, rejected in Chandler, that the testing of state officials was justified because “the use of illegal drugs draws into question an official's judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” 520 U.S. at 318. And in Chandler, the Supreme Court held that without evidence of a drug problem among the state’s elected officials (who typically do not perform high-risk, safety-sensitive tasks), this justification was “symbolic, not ‘special,’” as required by the relevant precedents. Id. at 322.

The Union here asks for a permanent injunction, which requires three elements: (1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000). Here, the Court finds that the EO, as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it. See Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992) (holding that Fourth Amendment violation is enough to show irreparable harm); see also Am. Fed'n of Teachers-West Va., AFL-CIO v. Kanawha Cnty. Bd. of Educ., 592 F. Supp. 2d 883 (S.D.W. Va. 2009); Bannister v. Bd. of Cnty. Comm'rs of Leavenworth Cnty., Kan., 829 F. Supp. 1249 (D. Kan. 1993); Marchwinski v. Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), but see 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction) vacated by 319 F.3d 258 (6th Cir. 2003). The Court also concludes that there is no adequate remedy at law in light of the immeasurable nature of the harm that will flow from the EO’s implementation; were the EO to be implemented, the current employees at the covered agencies would suffer a Fourth Amendment violation that cannot be remedied in monetary terms. “Indeed, one reason for issuing an injunction may be that damages, being immeasurable, will not provide a remedy at law.” Treasure Valley Potato Bargaining Asso. v. Ore-Ida Foods, Inc., 497 F.2d 203, 218 (9th Cir. 1974), cert. denied 419 U.S. 999 (1974).

The Court is mindful, however, that injunctive relief should be limited in scope to the extent necessary to protect the interests of the parties. See Gibson v. Firestone, 741 F.2d 1268, 1273 (11th Cir. 1984). Because the Union did not contend that the EO is unconstitutional as applied to “prospective new hires,” meaning individuals who are not currently employed at covered agencies, the Court does not reach the issues of whether such prospective employees can be subjected to preemployment testing and subsequent random drug testing pursuant to the EO. However, the relief encompasses both Union and non-Union employees because the EO is unconstitutional as applied to them for precisely the same reasons. Accordingly, the Court grants permanent injunctive relief to all individuals currently employed at covered agencies.

StoptheDrugWar.org: Judge Rejects Florida State Employee Drug Testing by Phillip Smith

Jacksonville.com: Rick Scott's state worker drug tests ruled unconstitutional by Mike Marino

HuffPo: Rick Scott Drug Testing Executive Order Ruled Unconstitutional By Federal Judge by Arthur Delaney

MiamiHerald.com: Judge: Fla. worker drug testing unconstitutional

Permalink 05:36:08 am, by fourth, 194 words, 2333 views   English (US)
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D.Kan.: Consent to a "quick look" in the car did not prohibit use of a density meter

“[T]he court does not find that Deputy Schneider's use of the density meter was unauthorized by the defendant’s consent to ‘take a quick look in the car.’” The search took six minutes and qualified. United States v. Long Tien Dang, 2012 U.S. Dist. LEXIS 56875 (D. Kan. April 24, 2012).*

A general objection to a USMJ’s R&R only requires plain error review. United States v. Sanchez-Tamayo, 2012 U.S. Dist. LEXIS 57126 (N.D. Ga. April 23, 2012) (USMJ 2011 U.S. Dist. LEXIS 154851 (N.D. Ga. November 28, 2011)*:

Defendants make no attempt to specify why they disagree with the magistrate judge's conclusions. "In order to trigger de novo review of an R&R, the objection must be 'specific.'" United States v. Diaz, No. 1:09-CR-0037-WBH, 2011 WL 344093, at *1 (Jan. 31, 2011) (quoting Fed. R. Civ. P. 59(b)(2)). "General objections which reassert arguments by reference to prior pleadings do not suffice." Id. (citing Nettles v. Wainwright, 677 F.2d 404, 410 n. 8 (5th Cir. 1982). In the absence of objections filed in accordance with Rule 59(b)(2), this court need only perform plain error review. Id.

Running a stop sign was reason enough for a stop. State v. Edmonds, 2012 Tenn. Crim. App. LEXIS 241 (April 23, 2012).*

Permalink 05:22:08 am, by fourth, 137 words, 2303 views   English (US)
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CA11: Not much seems to be required for an alien smuggling stop

How much does it take to be suspected of smuggling aliens? Not much. United States v. Castillo-Gamez, 466 Fed. Appx. 859 (11th Cir. 2012)*:

Here, the district court properly concluded that Barrientos had a reasonable suspicion that the minivan carried illegal aliens. As Barrientos testified, the minivan had out-of-state license plates, tinted windows, and appeared to be weighted down. Barrientos knew that smugglers often used I-95 to avoid the cameras and tolls on the Florida Turnpike. And when he pulled along side the minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make eye contact. Considering these facts together, Barrientos had a reasonable suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at 1272-74.

Defendant couldn’t appeal the search issue in his guilty plea without a conditional plea. United States v. Dorsey, 467 Fed. Appx. 304 (5th Cir. 2012).*

Permalink 04:55:45 am, by fourth, 150 words, 2272 views   English (US)
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W.D.Va.: Franks claim that was speculative has to be rejected

Defendant’s Franks claim was based on speculation and is unsupported by the tenor of the affidavit. If the officers had looked at his laptop and seen the child pornography, that would have only strengthened the probable cause, and it didn’t. United States v. Miller, 2012 U.S. Dist. LEXIS 56878 (W.D. Va. April 24, 2012).*

Defendant’s evasive behavior in replacing the license plate on his car to avoid detection when he was being investigated for a grow operation was reasonable suspicion. When officers stopped him, he was cooperative and admitted what he was doing. United States v. Valerio, 869 F. Supp. 2d 1366 (S.D. Fla. 2012).*

Defense counsel was not ineffective for not challenging the delay during a stop where it took time for the owner of the car to arrive or in challenging a stop based on a clear speeding violation. Owens v. United States, 869 F. Supp. 2d 653 (M.D. Pa. 2012).*

Permalink 04:37:24 am, by fourth, 160 words, 2506 views   English (US)
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InfoWars.com: "Security Experts Send Congress Letter on Fourth Amendment Busting CISPA"

InfoWars.com: Security Experts Send Congress Letter on Fourth Amendment Busting CISPA by Kurt Nimmo:

On Monday, a group of prominent engineers, professionals and academics posted an open letter to Congress stating their opposition to CISPA, the Cyber Intelligence Sharing and Protection Act that trashes the Fourth Amendment and privacy of internet users.

Later this week, CISPA will go to the House floor for a vote. On Monday, Rep. Ron Paul said CISPA represents the “latest assault on Internet freedom” and “is Big Brother writ large.”

Rep. Rogers’ Cyber Intelligence Sharing and Protection Act of 2011 (H.R. 3523) and Sen. McCain’s SECURE IT Act (S. 2151) “nullify current legal protections against wiretapping and similar civil liberties violations for that kind of broad data sharing,” the letter states. “By encouraging the transfer of users’ private communications to US Federal agencies, and lacking good public accountability or transparency, these ‘cybersecurity’ bills unnecessarily trade our civil liberties for the promise of improved network security.”

Permalink 04:26:04 am, by fourth, 119 words, 2326 views   English (US)
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CA11: Wife who left house after an argument could still consent to search

Defendant’s wife left the house after an argument and went to her father’s to spend the night. She validly consented to a search of the house even though temporarily out. She was a co-owner, had her stuff there, and still lived there with equal control over the premises. United States v. Mooney, 470 Fed. Appx. 778 (11th Cir. 2012).

Stop was justified by following too close, and defendant was properly put into the patrol car for lying about possessing weapons. State v. Demcovitz, 2012 Tenn. Crim. App. LEXIS 239 (April 20, 2012).*

Traffic stop led to inconsistent answers and reasonable suspicion which led to valid consent and a hidden compartment with drugs. United States v. Soto, 2012 U.S. Dist. LEXIS 56304 (E.D. Ark. April 3, 2012).*

Permalink 04:19:16 am, by fourth, 185 words, 2398 views   English (US)
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HuffPo: "TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport"

HuffPo: TSA Defends Pat-Down Of Crying 4-Year-Old Girl At Kansas Airport by Roxana Hegeman:

WICHITA, Kan. -- The grandmother of a 4-year-old girl who became hysterical during a security screening at a Kansas airport said Wednesday that the child was forced to undergo a pat-down after hugging her, with security agents yelling and calling the crying girl an uncooperative suspect.

The incident has been garnering increasing media and online attention since the child's mother, Michelle Brademeyer of Montana, detailed the ordeal in a public Facebook post last week. The Transportation Security Administration is defending its agents, despite new procedures aimed at reducing pat-downs of children.

The child's grandmother, Lori Croft, told The Associated Press that Brademeyer and her daughter, Isabella, initially passed through security at the Wichita airport without incident. The girl then ran over to briefly hug Croft, who was awaiting a pat-down after tripping the alarm, and that's when TSA agents insisted the girl undergo a physical pat-down.

Isabella had just learned about "stranger danger" at school, her grandmother said, adding that the girl was afraid and unsure about what was going on.

Permalink 03:46:46 am, by fourth, 240 words, 398 views   English (US)
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New Law Review article: "A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases"

New Law Review article: A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases by David H. Kaye on SSRN. Abstract:

Routine DNA sampling following a custodial arrest process is now the norm in many jurisdictions, but is it consistent with the Fourth Amendment? The few courts that have addressed the question have disagreed on the answer, but all of them seem to agree on two points: (1) the reasonableness of the practice turns on a direct form of balancing of individual and governmental interests; and (2) individuals who are convicted — and even those who are merely arrested — have a greatly diminished expectation of privacy in their identities. This Article disputes these propositions and offers an improved framework for analyzing the constitutionality of databases of biometric data. It demonstrates that the opinions on DNA collection before conviction have lost sight of the foundations of balancing tests in Fourth Amendment analysis. It argues that balancing is acceptable only for “special needs” or “administrative search” cases, or for defining new exceptions to the warrant requirement of the Fourth Amendment. The Article examines how DNA collection before conviction might be brought under the traditional special-needs doctrine and how it might fit within a new, but coherent exception for certain forms of biometric data. This framework permits the courts to analyze DNA databases without diluting the protections guaranteed by the Fourth Amendment, and it provides a sound rationale for the current law on arrestee fingerprinting.

04/25/12

Permalink 03:26:31 pm, by fourth, 160 words, 381 views   English (US)
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The Republic: "Group questions constitutionality of middle-of-the-night 'wake up calls' by Richmond police"

The Republic: Group questions constitutionality of middle-of-the-night 'wake up calls' by Richmond police by Larry O'Dell:

Richmond police are violating residents' constitutional rights by waking them in the middle of the night with a knock on the door to admonish them for leaving valuables in plain sight in their parked cars, a civil liberties group said Wednesday.

The Charlottesville-based Rutherford Institute said in a letter to Police Chief Bryan Norwood that the department's new "Wake Up Call" initiative invades residents' privacy and infringes on their Fourth Amendment right to be free of unreasonable police intrusions. The program also heightens the risk of a violent confrontation between police and an alarmed resident, the institute said.

"The recent Trayvon Martin incident from Florida should serve as a stark warning of how the fear and misunderstanding of a homeowner can turn a benign situation into tragedy involving loss of life," John W. Whitehead, executive director of the Rutherford Institute, wrote in the letter.

Permalink 01:34:20 pm, by fourth, 105 words, 570 views   English (US)
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Law.com: "Ohio Court Addresses Text Messages and the Fourth Amendment"

Law.com: Ohio Court Addresses Text Messages and the Fourth Amendment by Joshua A. Enge:

The question of who can challenge a search of cell phone records was before an Ohio court on Aug. [sic: April] 13. The case, from the Court of Appeals of Ohio, Sixth District, is State v. Young.

This case started with a missing 17-year-old girl. The police began to suspect that the defendant knew where she was. So they obtained his cell phone records from Verizon Wireless, by submitting a single page Emergency Request Form. The police also obtained the 17-year-old girl's cell phone records with the consent of her mother.

Permalink 09:04:58 am, by fourth, 310 words, 733 views   English (US)
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MD: DNA testing of arrestees violates the Fourth Amendment, applying a balancing test

DNA testing of arrestees violates the Fourth Amendment, applying a balancing test. King v. State, 425 Md. 550, 42 A.3d 549 (2012):

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112, 122 S. Ct. 587, 151 L. Ed. 2d (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State's purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

Permalink 08:28:00 am, by fourth, 234 words, 700 views   English (US)
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M.D.Fla.: Arrest at threshold did not justify protective sweep

Arrest outside the threshold of the home led to invalid protective sweep of the house. The officers failed to articulate any facts or reason to justify going in the house. United States v. Barsoum, 2012 U.S. Dist. LEXIS 56218 (M.D. Fla. April 5, 2012):

Against these standards, the government offers nothing to suggest the Defendant or anyone in the residence (his family) likely posed a danger to the agents, and certainly nothing that a reasonably prudent officer would accept. Instead, the main reason the government seemingly gives is that the agents took the Defendant inside to avoid the rainy morning and to offer him the opportunity to put on some clothes and shoes. Frankly, I find another reason is more obvious. As Agent Zdrojewski admitted, he wanted to secure the Defendant's consent to search his house. Indeed, he specifically chose that location for the Defendant's arrest, as opposed to the pharmacy, to increase his odds that he could search the residence.11 Because I find the government has failed to meet its burden under Buie, I find the agents' entry into the Defendant's house and their subsequent protective sweep illegal.

11 I do not suggest that this tactic is illegal; on the contrary, the approach is commonplace. But as Payton and Buie make clear, an arrest warrant and a search warrant are not synonymous. Without a search warrant, the government must present an exception to the warrant requirement.

Permalink 08:23:23 am, by fourth, 149 words, 488 views   English (US)
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M.D.Pa.: Stop was not unreasonably extended while waiting for owner of car to show

Defense counsel was not ineffective for not challenging the length of a stop where the stop was lengthened by the wait for the owner of the car to come to the scene. Defense counsel also was not ineffective for not challenging the stop where the car was indisputably speeding. Owens v. United States, 869 F. Supp. 2d 653 (M.D. Pa. 2012).*

The same pro se defendant’s motion to suppress was denied where he never, after being invited to do so, said what it was he was trying to suppress. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56472 (W.D. Mo. April 23, 2012),* R&R 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 11, 2012).*

Pro se defendant’s claim that a search warrant could not issue without a criminal complaint also being issued is denied as without any legal basis. United States v. Goodrich, 2012 U.S. Dist. LEXIS 56470 (W.D. Mo. April 23, 2012).*

Permalink 12:15:54 am, by fourth, 211 words, 445 views   English (US)
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D.Vt.: Exigency of person in room who wouldn't show hands justified entry for officer safety

“Quilter raises a hodgepodge of constitutional arguments in support of his motion to suppress.” [Meaning: The court is going to deny them as misguided at best.] As to entry of the hotel room, it was justified by the exigent circumstance of officer safety where one person in the room on a bed wouldn’t show his hands right away. “Entry therefore became a matter of officer safety. Since law enforcement officers must be permitted to secure environments for their own protection, Minnesota v. Olson, 495 U.S. 91, 100 (1990), this situation justified entry for that limited purpose.” United States v. Quilter, 2012 U.S. Dist. LEXIS 56393 (D. Vt. April 23, 2012)*:

The Second Circuit has adopted a non-exhaustive list of six factors to determine existence of exigent circumstances:

(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect "is reasonably believed to be armed"; (3) "a clear showing of probable cause ... to believe that the suspect committed the crime"; (4) "strong reason to believe that the suspect is in the premises being entered"; (5) "a likelihood that the suspect will escape if not swiftly apprehended"; and (6) the peaceful circumstances of the entry.

United States v. Reed, 572 F.2d 412, 424 (2d Cir. 1978) (quoting Dorman v. United States, 435 F.2d 385, 392-93 (D.C. Cir. 1970)).

Permalink 12:05:31 am, by fourth, 224 words, 442 views   English (US)
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D.Neb.: Defendant's dropping cell phone and car keys in bush was RS in a high crime area

In a high crime area, officers observed defendant dropping a cell phone and car keys into bush. That was reasonable suspicion. They did not violate the Fourth Amendment by pressing the key fob to find the car. United States v. Cowan, 674 F.3d 947 (8th Cir. 2012). United States v. Figures, 2012 U.S. Dist. LEXIS 55641 (D. Neb. April 20, 2012).*

Motion for return of property under Rule 41(g) was denied without prejudice where the claimant likely had no property interest in the place where it was seized. He needed to show more and still can. United States v. Return of Property of Fawcett, 2012 U.S. Dist. LEXIS 55620 (N.D. Ohio April 20, 2012)*:

In this matter, Mr. Fawcett has not yet shown a sufficient property interest in the jewelry listed in his Declaration. The Defendant avers the jewelry, consisting largely of vintage watches, was taken from a residence in which, at the time of the exercise of the warrant, Mr. Fawcett no longer had any property interest and in which he no longer resided. Mr. Fawcett has yet to offer any evidence to demonstrate his lawful possession of the jewelry listed in his Declaration. Further, Mr. Fawcett has failed to specify with any certainty the items he seeks to have returned. Instead, the description offered in his Declaration is generic by type (watch), and brand (Rolex), and general year (vintage 1978).

04/24/12

Permalink 09:26:41 pm, by fourth, 100 words, 456 views   English (US)
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BLT: Does Gant prohibit search incident in DUI cases?

BLT: Does Gant prohibit search incident in DUI cases? D.C. Appeals Court Weighs Warrantless Car Searches:

The District of Columbia Court of Appeals heard arguments this morning on when it's still lawful for local police to search a car without a warrant after making a lawful arrest.

The U.S. Supreme Court tried to limit those types of searches in its 2009 decision in Arizona v. Gant. The high court did carve out some exceptions, though, which included searches where police have "reason to believe" they might find evidence of the crime.

Almost all the precedent since Gant says yes.

Permalink 08:26:23 pm, by fourth, 86 words, 375 views   English (US)
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WebProneNews: "Judge: Your Tweets Aren’t Yours, And Even Your Deleted Tweets Can Be Obtained Without A Warrant"

WebProneNews: Judge: Your Tweets Aren’t Yours, And Even Your Deleted Tweets Can Be Obtained Without A Warrant; #OWS protestor loses motion to quash subpoena by Josh Wolford:

“While the Fourth Amendment provides protection for our physical homes, we do not have a physical “home” on the Internet.”

That’s the crux of a decision from New York Criminal Court judge Matthew Sciarrino Jr. Not only that, but when you tweet, you’re giving Twitter the right to distribute all of your information however they please.

Permalink 12:11:02 pm, by fourth, 41 words, 452 views   English (US)
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cnet.com: "Wireless providers side with cops over users on location privacy"

cnet.com: Wireless providers side with cops over users on location privacy by Declan McCullagh:

The trade association representing AT&T, Verizon, and Sprint opposes a California proposal for search warrants to track mobile devices, claiming it will cause "confusion."

Permalink 07:58:15 am, by fourth, 96 words, 459 views   English (US)
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SCOTUSblog: Petition to Watch

Petitions to watch | Conference of April 27, 2012:

Virginia v. Banks
Docket: 11-1071
Issue(s): Whether the Fourth Amendment requires suppression of a pistol in a coat belonging to a suspect properly arrested for a felony, when the officers took control of the coat solely for the purpose of giving it to the suspect to protect him from the elements, and when the trial court expressly found that the officers acted in good faith, and that the search of the coat was conducted for the officers’ safety and not for the purpose of obtaining evidence of criminal activity.

Permalink 07:40:36 am, by fourth, 560 words, 1591 views   English (US)
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MI: Common law rule on resisting unlawful police entry into the home not abrogated

The legislature did not clearly overrule the common law that a homeowner may resist an unlawful entry into his home. Defendant was charged with obstruction after struggling with police officers who entered his house. The state carries the burden of showing that the officers entered legally. People v. Moreno, 491 Mich. 38, 814 N.W.2d 624 (2012):

In this case, we review whether defendant was properly charged with resisting and obstructing a police officer under MCL 750.81d after defendant struggled with officers who had entered his home unlawfully. To resolve this issue, we must address whether MCL 750.81d abrogates the common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas. We conclude that the statute did not abrogate this right.

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule People v Ventura, 262 Mich App 370, 686 NW2d 748 (2004), to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest. Because the Court of Appeals in this case relied on Ventura and extended its holding to the context of illegal entries of the home, we reverse the judgment of the Court of Appeals and remand this matter to the trial court. On remand, we instruct the trial court to grant defendant's motion to quash the charges on the basis of its ruling that the officers' conduct was unlawful.

. . .

In this case, the Court of Appeals held that "[t]he fact that defendant refused entry to the officers unless they obtained a search warrant is indicative of defendant's knowledge of their status as police officers and that they were engaged in the performance of their official duties." There is no question that defendant knew that the men at his door were police officers. However, the officers wanted to enter defendant's home without a warrant, and one of the officers physically prevented defendant from closing the door to his home. Accordingly, defendant's refusal to allow the officers into his home is not conclusive of whether defendant had reasonable cause to know that the officers were "engaged in the performance of their official duties." Consistently with the common-law rule, we conclude that the prosecution must establish that the officers' actions were lawful.

. . .

IV. CONCLUSION

While the Legislature has the authority to modify the common law, it must do so by speaking in "no uncertain terms." Neither the language of MCL 750.81d nor the legislative history of this statute indicates with certainty that the Legislature intended to abrogate the common-law right to resist unlawful arrests or other unlawful invasions of private rights. We cannot presume that the Legislature intended to abrogate this right. Therefore, we overrule Ventura to the extent that it held that the Legislature affirmatively chose to modify the traditional common-law rule that a person may resist an unlawful arrest.

There is a lot to be said for making the police think twice before a spurious entry into somebody's house, and that's what the common law does.

04/23/12

Permalink 07:37:39 am, by fourth, 148 words, 495 views   English (US)
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S.D.Ind.: A suppression motion that says "warrantless search" is not enough to get a hearing; disputed facts need to be alleged

A suppression motion that says that defendant was subjected to a warrantless search is not enough to get a suppression hearing. What are the disputed facts? The motion is denied on the papers. United States v. Brissey, 2012 U.S. Dist. LEXIS 55739 (S.D. Ind. April 20, 2012).

Officers had reasonable suspicion to believe defendant was in possession of a weapon when they arrived at a shots fired call and heard shots from behind defendant’s house and then saw defendant there. United States v. Huebner, 2012 U.S. Dist. LEXIS 55821 (E.D. Tenn. February 13, 2012).*

Defendant was stopped by the police after they saw him in a high-crime area with his compatriots flagging down cars for drug deals, and, when he saw the police, he dropped something. That was reasonable suspicion. United States v. Johnson, 2011 U.S. Dist. LEXIS 154810 (E.D. Mo. December 15, 2011), adopted 2012 U.S. Dist. LEXIS 55837 (E.D. Mo. April 20, 2012).*

Permalink 07:07:45 am, by fourth, 149 words, 549 views   English (US)
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SD: Avoiding checkpoint is not RS in itself; more required

Following the Eighth Circuit, avoiding a DUI checkpoint alone is not enough to make reasonable suspicion. Here, however, there was more. State v. Rademaker, 2012 SD 28, 813 N.W.2d 174 (2012).

2255 inventory claim fails on the merits. “I find no evidence in the record that the impoundment was unlawful or that officers conducted the inventory search before deciding to impound the vehicle.” Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Or. April 19, 2012).*

A young man brought defendant’s laptop to the police claiming there was teen gay pornography on the screen from websites defendant visited. The officer touched the mousepad and the screen came on showing what he said. The officer’s viewing of the computer went no further than the private search. Then a state search warrant was sought. United States v. Goodale, 2012 U.S. Dist. LEXIS 55554 (N.D. Ga. April 19, 2012),* adopted 2012 U.S. Dist. LEXIS 75331 (N.D. Ga. May 31, 2012).*

Permalink 05:29:15 am, by fourth, 515 words, 493 views   English (US)
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CA4: Slightly changing argument on appeal dooms appellate review under plain error

Defendant’s arguments in the trial court were not the same ones made on appeal, so his appeal is governed by the plain error standard, and he doesn’t succeed for lack of a record supporting his argument. He was shot during what was found to be a Terry stop with guns drawn. Under Graham v. Connor, it appeared, on this record, it was justified enough to support the district court's conclusion. United States v. Hill, 471 Fed. Appx. 143 (4th Cir. 2012)*:

Hill argues that when we weigh the three factors enumerated in Graham — the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to evade arrest by flight — it is apparent the officers "did not have an objectively reasonable ground to shoot Hill." Appellant's Br. at 25. As to the severity of the crime, he argues it weighs in his favor because at no point did the officers suspect Hill of having committed a crime; other than knowing that Bennett had written "help" on the receipt and herself carried a gun, all their information came from their observations of Hill inside the car. As to the third factor, he argues, Hill was not actively resisting arrest or attempting to flee.

The reasonableness of the officers' actions thus comes down to whether Hill's movements inside the car rendered reasonable the officers' belief that Hill posed an imminent threat to them, justifying the use of deadly force. The government argues the officers were justified in interpreting Hill's movements as evidence that he was reaching for a gun. Hill argues that belief was unreasonable because "the movement of a suspect's hands, without more, while he is under arrest is insufficient to give rise to an objectively reasonable basis for the police to use deadly force." Appellant's Br. at 26. Only if "the police had seen him with a gun, or had reliable and specific information that he was known to be armed," might this have been a "significant factor," he argues. Id. He also points out that the officers' descriptions of Hill's precise movements were inconsistent, and that it was Bennett, not Hill, whom the officers knew was armed.

Here again, our problem is the absence of adequate information to find that it was "obvious" that Hill did not pose an imminent threat of serious physical harm to the officers. Had Hill raised these issues in the district court, the risk of non-persuasion on these issues would have been cast upon the government to justify a warrantless seizure. See, e.g., United States v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000); United States v. Burke, 605 F. Supp. 2d 688, 693-94 (D. Md. 2009). But under the plain error standard we apply here, Hill must shoulder the burden to prove the contrary. Without findings by the district court on these and related issues, and particularly inasmuch as the surveillance video does not show Hill's movements in the car, we may not plausibly notice plain error on this record and we decline to do so.

04/22/12

Permalink 02:44:17 pm, by fourth, 276 words, 497 views   English (US)
Categories: General

HuffPo: "The Supreme Court's Decision on Strip Searches Will Make Jails More Dangerous"

HuffPo: The Supreme Court's Decision on Strip Searches Will Make Jails More Dangerous by Lovisa Stannow, Executive Director, Just Detention International:

The practice of strip searching all jail inmates, just because they are detainees, is a violation of basic human rights and unnecessary. It is also a recipe for sexual abuse. Sadly, earlier this month, five U.S. Supreme Court justices, a bare majority, found that policies that require strip searches of all inmates upon entry at a jail to be constitutional. In so doing, the Court has helped pave the way for more -- not less -- dangerous jails.

In Florence v. Burlington County, Albert Florence challenged the constitutionality of two strip searches he was forced to undergo in 2005 after he was wrongly arrested due to a records error. "After that all happened, I cried, and I hadn't cried since I was a child. I just had so much emotion from being scared, humiliated," Mr. Florence said at a press conference.

Here's what we know about the link between strip searches and sexual abuse. Just Detention International (JDI) receives thousands of letters every year from survivors of sexual violence behind bars. They describe horrific abuse, often at the hands of staff. In countless cases, the abuse began during a search. Their stories are borne out by Department of Justice data. According to the government's own studies, more than 40 percent of survivors of sexual abuse in detention were abused during a strip or pat down search. Many victims of staff abuse, including a shocking 30 percent of men, were abused within the first 24 hours of entering jail -- precisely the timeframe under consideration in Mr. Florence's case.

Permalink 12:13:29 am, by fourth, 93 words, 663 views   English (US)
Categories: General

E.D.Mich.: Defendant's ID not suppressible from illegal arrest

Defendant’s identity is is not suppressible as the product of an unconstitutional arrest. United States v. Medina-Meraz, 2012 U.S. Dist. LEXIS 55030 (E.D. Mich. April 19, 2012).

Because the vehicle was stolen, officers had probable cause to search it under the automobile exception. United States v. Smith, 2012 U.S. Dist. LEXIS 55476 (M.D. Ala. April 2, 2012).*

Officers did not violate any expectation of privacy by conducting surveillance of a marijuana patch from open fields on defendant’s own property under Oliver and Dunn. United States v. Hardin, 2012 U.S. Dist. LEXIS 55364 (S.D. Ga. March 26, 2012).*

Permalink 12:03:15 am, by fourth, 125 words, 420 views   English (US)
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IN: Patdown of passenger required RS

Patdown of passenger was without reasonable suspicion to believe he was armed. Search suppressed. Westmoreland v. State, 965 N.E.2d 163 (Ind. App. 2012).

A minor delay in the length of the stop did not make it unreasonable. The conversation while waiting did not extend it. United States v. Ghoston, 2012 U.S. Dist. LEXIS 55526 (W.D. Tenn. April 20, 2012)*:

So long as the questions do not extend the time of the stop, "an officer may ask unrelated questions to his heart's content, provided he does so during the supposedly dead time while he or another officer is completing a task related to the traffic violation." Everett, 601 F.3d at 492. Agent James asked questions while Trooper Fuller verified the licenses and conducted background checks. This was reasonable under Everett.

04/21/12

Permalink 02:18:19 pm, by fourth, 173 words, 422 views   English (US)
Categories: General

Cal.1st: While stop was without RS, probation search condition made search lawful, where not flagrant

Any illegality in the initial traffic detention was attenuated by defendant's probation search condition. Although the patdown search and discovery of the gun occurred shortly after the traffic detention, they did not occur until after the officer had recognized defendant as a person subject to a search condition. The search condition supplied legal authorization to search that was completely independent of the circumstances leading to the traffic stop. Nor was there any flagrancy or purposefulness to the alleged unlawful conduct by the officer. While the trial court found that the stop was made without reasonable suspicion, it specifically found the officer did not act in an arbitrary, capricious, or harassing manner. The officer was aware of defendant's probation condition before the search, and the existence of that probation condition dissipated any taint that might flow from the detention. People v. Durant, 205 Cal. App. 4th 57, 140 Cal. Rptr. 3d 103 (1st Dist. 2012).

Defendant was a corrections officer, and that helps show he voluntarily consented. United States v. Francis, 2012 U.S. Dist. LEXIS 54244 (W.D. Ark. March 29, 2012).

Permalink 01:56:27 pm, by fourth, 365 words, 529 views   English (US)
Categories: General

W.D.Mo.: Stop should have ended with warning ticket, but defendant was kept

The stop should have ended when the officer gave a warning ticket, and he was made to stand in the rain while the officer continued on his investigative mission. United States v. Culp, 860 F. Supp. 2d 459 (W.D. Mo. 2012)*:

Here, the unfolding of the circumstances makes the detention much more akin to a prolonged investigatory expedition with the singular mission of searching Defendant's vehicle than a permissible course of action reasonably directed toward the proper ends of the stop. The parties agree that the purpose of the traffic stop was concluded, at the latest, once Gillespie made the decision to only give Defendant a warning and not issue him a ticket, and so informed Defendant, returning his belongings, and asked Defendant if he had any questions. It was only after that point, that Gillespie embarked on an extensive course of investigation and questions aimed at conducting a search. ...

Although Gillespie testified that he had already decided not to issue Defendant a ticket for "following too closely" and only give him a warning, he nonetheless returned to the driver's side of Defendant's vehicle, directed Defendant to get out of the car and had him move to the back of the vehicle, where he was further detained while Gillespie pursued a mission entirely separate from the underlying traffic violation. It is clear from the video recording that Defendant remained there, standing in the rain, at Gillespie's behest, and would not have thought he was free to leave. Certainly, had Defendant believed that this was a mere consensual encounter at this point, he would not have remained in the pouring rain, in his shirt sleeves, while Gillespie ambled on with questions.

As the Sixth Circuit noted in Everett, "the touchstone of any Fourth Amendment analysis is reasonableness." 601 F.3d at 494. The Court "must conduct a fact-bound, context-dependent inquiry in each case." Id. Having fully considered the circumstances as they unfolded during the stop, as viewed on the video recordings, in conjunction with Gillespie's testimony, the Court finds no acceptable purpose for Gillespie's extended detention and prolonged questioning of Defendant, pat-down, and persistent requests to search the vehicle, all after the purpose of the traffic stop had undisputedly ended.

Permalink 01:45:00 pm, by fourth, 127 words, 535 views   English (US)
Categories: General

E.D.Tenn.: Tasering is an actual seizure under the Fourth Amendment

The officer had reasonable grounds to detain defendant. Tasering him was a seizure because the barbs in the Taser connected them. United States v. Davis, 2012 U.S. Dist. LEXIS 54346 (E.D. Tenn. March 29, 2012).* [Remember, Taser® is a trademark.]

Defendant’s 2255 argument that defense counsel was ineffective for not arguing invalid inventory rather than search incident wouldn’t work because there was justification for an inventory, too. Brunick v. United States, 2012 U.S. Dist. LEXIS 55096 (D. Ore. April 19, 2012).*

Even if defendant’s car was blocked on a parking lot, it didn’t rise to a seizure. But, the USPS Postal Inspectors had reasonable suspicion that defendant was involved in the theft of mail from their observations. United States v. Hampton, 2012 U.S. Dist. LEXIS 54421 (N.D. Ga. March 5, 2012).*

Permalink 01:19:06 pm, by fourth, 185 words, 396 views   English (US)
Categories: General

TX14: Search of vehicle to secure it was without justification

Searching a vehicle to “secure” it absent exigent circumstances was unreasonable. State v. Cleveland, 2012 Tex. App. LEXIS 3070 (Tex. App. – Houston (14th Dist.) April 19, 2012):

Likewise, here, the plain-view exception does not apply because, as in Keehn, the officers had no lawful right to access the object in appellee's truck absent exigent circumstances. See id. Our review of the record reveals no exigent circumstance capable of supporting Jones's seizure of the pills. Jones stated that at the time he entered the vehicle to seize the pills, "everyone was secured" and in police custody. Thus, there was no opportunity for any of the people at the scene to drive the vehicle away or dispose of any evidence while the officers were securing a search warrant. The State asserts that the "exigent circumstance" present here was the automobile exception. But as discussed above, this ground was not raised in the trial court. Thus, we may not consider it for the first time on appeal as a basis to reverse the trial court's orders. See Martinez, 91 S.W.3d 331. Under these circumstances, we overrule the State's sole issue on appeal.

Permalink 01:07:52 pm, by fourth, 112 words, 435 views   English (US)
Categories: General

M.D.Pa.: Defendant's butting into a conversation between police and two suspects created RS as to him

Officers were questioning two others about bringing money to Puerto Rico to allegedly buy drugs. Defendant interjected himself into that conversation and raised reasonable suspicion as to himself. United States v. Hammonds, 2012 U.S. Dist. LEXIS 54466 (M.D. Pa. April 18, 2012).*

Officers had probable cause for defendant’s vehicle stop, so whether there was a traffic stop was irrelevant. United States v. Sierra-Rodriguez, 2012 U.S. Dist. LEXIS 54069 (E.D. Mich. April 17, 2012).*

There was a serial rapist working the town, and the police were on the lookout because he may have been spotted. Defendant’s car was the only car in the area late at night. State v. Burdick, 2012 Tenn. Crim. App. LEXIS 229 (April 18, 2012).*

Permalink 09:46:51 am, by fourth, 92 words, 421 views   English (US)
Categories: General

Daily Sentinel: "Juror: Fourth Amendment played minor role in Lawyer case"

Daily Sentinel: Juror: Fourth Amendment played minor role in Lawyer case: Trooper's actions reasonable under the circumstances, he says by Paul Shockley:

Two jurors who sat in judgment of Colorado State Patrol Trooper Ivan “Gene” Lawyer said Fourth Amendment principles had either too much emphasis by the prosecution, or little bearing on the main issues at play in the trooper’s trial.

Lawyer was acquitted Thursday on four counts, including criminally negligent homicide and first-degree criminal trespass. Two other counts, including second-degree assault with recklessness, were left undecided by a deadlocked jury.

04/20/12

Permalink 07:09:21 am, by fourth, 258 words, 463 views   English (US)
Categories: General

S.D.Ind.: Company's retrieval of its laptop from defendant's home by his wife's consent led to a private search

Defendant worked for a business as a bookkeeper and he kept records on his work computer and one the company provided at this house. While he was on a trip, the company received mail that suggested that defendant was embezzling from it. They checked the work computer and did not find records for a whole year. They went to his house and asked for the work computer which his wife provided. Back at work they looked through the computer using the company password and found the evidence of embezzlement, which they gave to the government. This was all a private search not governed by the Fourth Amendment. United States v. Brown, 2012 U.S. Dist. LEXIS 54382 (S.D. Ind. April 18, 2012).*

It was reasonable to impound a vehicle that would have had to be left in a high crime area and was at risk of being broken into. There was no need to give the car to a present potential driver when there was no showing of insurance to drive it and the registration was expired. United States v. McKinnon, 681 F.3d 203 (5th Cir. 2012)* [Note: The court almost lost me with the insurance comment because that would be shifting the burden. They should have left that out.]

There was reasonable suspicion for defendant’s stop and frisk because it was a high crime area, defendant was walking funny like he had a gun on him, and when he “bladed” the officer could see the outline of a gun. United States v. Carson, 2012 U.S. Dist. LEXIS 54372 (D. N.J. April 18, 2012).*

Permalink 06:47:50 am, by fourth, 156 words, 421 views   English (US)
Categories: General

S.D.N.Y.: Using a flashlight can still make a plain view

An officer lawfully in a house shining a flashlight into a bedroom saw a shiny object on a night stand. Suspecting it was a gun, he retrieved it. The gun was in plain view. United States v. Simmons, 861 F. Supp. 2d 307 (S.D. N.Y. 2012).

Failing to object to a search as it takes place is implied consent. United States v. Simmons, 2012 U.S. Dist. LEXIS 54360 (E.D. Mo. April 4, 2012).* [Note: Can’t agree with this because most people are afraid or unwilling to speak at the time of a search. They are submitting to authority, and the police know it.]

The tipster here was a suspicious person, and the officer getting it clearly did not trust the tipster and called a supervisor for advice after getting the tip a second time. In total, the tipster could not be relied upon for reasonable suspicion. United States v. Melendez, 2012 U.S. Dist. LEXIS 53663 (S.D. Fla. March 30, 2012).*

Permalink 06:05:38 am, by fourth, 174 words, 658 views   English (US)
Categories: General

S.D.W.Va.: Consent to enter during a child welfare call permitted search wherever children could be found

Police received a child welfare call, and responded to defendant’s residence. He consented to an entry to check on the welfare of the children, and a gun and marijuana were found in plain view. The officers could look anywhere children might be found, so the walk through was within the limits of consent. United States v. McArthur, 2012 U.S. Dist. LEXIS 52269 (S.D. W.Va. April 13, 2012).*

Defendant consented to a search of his car for drugs, but he did not consent to seizure and then search of his cell phone. He objected, and the government, which had the burden of proof, offered no response, so the cell phone is suppressed. United States v. Smith, 2012 U.S. Dist. LEXIS 54331 (S.D. Ohio April 18, 2012).

On a remand from the Sixth Circuit, “Defendant's Motion to Suppress Physical Evidence can be disposed of on the grounds that either the Detectives had consent to conduct a search or that the Detectives could conduct a protective sweep.” United States v. Spicer, 2012 U.S. Dist. LEXIS 54306 (S.D. Ohio April 16, 2012).*

Permalink 12:03:36 am, by fourth, 126 words, 828 views   English (US)
Categories: General

NY1: Furtive movements by occupants of vehicle justified search of car for weapons

Furtive movements under the seat at the time of stop with one occupant opening and closing the glove compartment and another feigning sleep justified a protective sweep of the car. People v Newman, 2012 NY Slip Op 2816, 96 A.D.3d 34, 942 N.Y.S.2d 93 (1st Dept. 2012).*

The trial court held that the defendant lacked standing to contest a search, and defendant did not show that defense counsel was ineffective for not getting to the merits of the search. State v. Jackson, 2012 N.C. App. LEXIS 510 (April 17, 2012).*

A wiretap in New York provided probable cause defendant would be picking up drugs in Tennessee. Defendant had a suspended DL, and the owner also consented to the search. United States v. Prater, 2012 U.S. Dist. LEXIS 53739 (E.D. Tenn. February 17, 2012).*

04/19/12

Permalink 07:56:14 am, by fourth, 245 words, 741 views   English (US)
Categories: General

M.D.Fla.: Proven Franks violation nullifies good faith exception

The affiant police officer misled the issuing magistrate on the question of probable cause, and that nullified the good faith exception. United States v. Albury, 2012 U.S. Dist. LEXIS 53645 (M.D. Fla. January 19, 2012):

Beginning with Leon, the Supreme Court "recalibrated" the cost-benefit analysis under the exclusionary rule "to focus the inquiry on the 'flagrancy of the police misconduct' at issue." Davis v. United States, __ U.S. __, 131 S.Ct. 2419, 2427 (2011). Thus, "[w]hen the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent' disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. But when the police act with an objectively 'reasonable good-faith belief' that their conduct is lawful, or when their conduct involves only simple, 'isolated' negligence, the 'deterrence rationale loses much of its force,' and exclusion 'cannot pay its way.'" Davis, 131 S.Ct. at 2427-28 (citations omitted)..

Here, Off. Waker acted with deliberate indifference to Defendant's Fourth Amendment rights in connection with his search of room 332. The affiant's plain-view sighting of suspected cocaine in that room is the fruit of that illegality. Even if the affiant's representations were not deliberately false on his part, in the circumstances of this case and given Blackwell's unrefuted testimony, they were made with reckless indifference of the truth and misleaded the state judge on the matter of probable cause. In the circumstances, the government may not claim the benefit of an exception to the exclusionary rule under Leon.

Permalink 07:37:20 am, by fourth, 110 words, 609 views   English (US)
Categories: General

S.D.Fla.: Uncorroborated anonymous tip was not RS

Uncorroborated anonymous tip did not provide reasonable suspicion. United States v. Melendez, 2012 U.S. Dist. LEXIS 53663 (S.D. Fla. April 4, 2012).*

Civil case over search that led to revocation was not barred by Heck because the evidence was admissible, illegal search or not. Henderson v. Davis, 467 Fed. Appx. 829 (11th Cir. 2012).*

Search warrant after controlled buy was not stale because the collective information showed a continuing operation. United States v. Tisdale, 2012 U.S. Dist. LEXIS 53294 (D. Kan. April 16, 2012).*

“[A]ny ordinary visitor to Defendant's apartment would have understood Defendant's actions to constitute assent to Officer Jordan's entry into Defendant's apartment.” United States v. Murphy, 2012 U.S. Dist. LEXIS 52246 (E.D. Tenn. April 13, 2012).*

Permalink 07:24:35 am, by fourth, 282 words, 394 views   English (US)
Categories: General

E.D.Mo.: Even if defendant had standing in the basement of another, the other could consent to a search

Defendant lived in the basement of Flynn’s house in St. Louis, and Flynn discovered a meth lab. Flynn called the police and consented to their entry and search. Defendant’s relationship to the basement was difficult and uncertain, so the court assumes standing, but more than one person stayed down there, and it wasn’t clear what his privacy relationship was to the basement. It seemed that it wasn’t sufficiently private that Flynn couldn’t consent. United States v. Hendrix, 2012 U.S. Dist. LEXIS 53823 (E.D. Mo. March 30, 2012):

In the circumstances of this case, Officer Page and the other officers acted reasonably. When they arrived at 3232 California, they knocked on the front door and it was opened by a man who said he was Thomas Flynn who had phoned them earlier about a meth lab in his basement, operated by a friend of his. He then led the officers to the basement door, which was already open. Flynn had not asked anyone for permission to admit the officers into the residence nor to take the officers to the doorway leading to the basement stairs. His actions reasonably led the officers to believe that, like the woman in the doorway with the baby on her hip in Matlock, Flynn showed he belonged in the residence and had sufficient authority over it, including the basement area, to further authorize the police to enter not only the residence generally but also to go downstairs to investigate the possibly criminal activity about which he had called them. United States v. Almeida-Perez, 549 F.3d 1162, 1170-71 (8th Cir. 2008). The officers' entry into the basement room of defendant was constitutionally authorized by the consent of Thomas Flynn.

Permalink 07:13:41 am, by fourth, 250 words, 456 views   English (US)
Categories: General

D.Utah: Inconsistencies in officers' testimony did not show voluntary consent

Inconsistencies in the officers’ testimony led the court to conclude that consent was not given after a knock-and-talk. United States v. Miranda-Cortez, 2012 U.S. Dist. LEXIS 53402 (D. Utah April 16, 2012)*:

Because of these inconsistencies and the government's failure to acknowledge or otherwise convincingly explain them, the court concludes that the testimony of the officers involved in this operation is not sufficient to sustain the government's burden to prove it had freely obtained consent to search the basement apartment. The court wants to be clear that it is not impugning the testimony of the officers. Nothing before the court suggests that the officers have intentionally attempted to mislead the court or give knowingly false testimony. Indeed, it is more likely that the officers were distracted by their roles in continuing their deception to gain access to the house and were so overly concentrated on finding the drugs once they entered the basement, that they failed to appreciate all the details of what was occurring.

The officers may well have concluded that they had sufficient evidence to proceed without a warrant. Uncertainty, however, must weigh in favor of the constitutional protections. A pretext pursued with the stated objective of gaining entrance without a warrant may prematurely lead officers to believe they have succeeded in obtaining sufficient concessions from the home occupant to claim it was consent. With no exigencies evident here to justify a departure from the constitutional requirement, the officers rely on the consent exception, which is cluttered with uncertainties and contradictions.

Permalink 05:43:50 am, by fourth, 160 words, 496 views   English (US)
Categories: General

CA10: Defendant's own consent after police entry but before search purged the taint, if there was one

Defendant objected to the alleged consent given by the lady who opened the door and let the police in. That was essentially a moot argument because, once the police were inside, he said he owned the place, and he consented and cooperated with the police. All this happened before the officers saw any evidence of crime. “Mr. Lucas's consent to the officers' presence and search was sufficient to dissipate any taint caused by an illegal initial entry. See U.S. v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008).” United States v. Lucas, 477 Fed. Appx. 486 (10th Cir. 2012).*

The state showed that the inventory search of defendant’s car was necessary to log the valuables, and defendant did not show that it was in bad faith, so he does not prevail. Boykin v. State, 2012 Ark. App. 274 (April 18, 2012).* [Note: Is the court shifting the burden of proof here? Should the state bear the burden of good faith inventory searches since they always carry the burden?]

04/18/12

Permalink 04:00:20 pm, by fourth, 108 words, 473 views   English (US)
Categories: General

AJC.com: Op-ed: "Poor people not excluded from Constitution"

AJC.com: Op-ed: Poor people not excluded from Constitution by Jay Bookman:

Here we go again.

On April 15, 1997, the U.S. Supreme Court struck down a Georgia law that required candidates to be tested for illegal drugs before they could run for public office. In “Chandler v. Miller”, the court ruled that the tests amounted to an unreasonable, unjustified search of a person’s body that is forbidden under the Fourth Amendment.

“However well-meant, the candidate drug test Georgia has devised diminishes personal privacy for a symbol’s sake,” Justice Ruth Bader Ginsburg wrote in the 8-1 decision, joined by justices such as Antonin Scalia and Clarence Thomas.

Permalink 03:39:46 pm, by fourth, 129 words, 397 views   English (US)
Categories: General

NYTimes.com: "No Savings Are Found From Welfare Drug Tests"

NYTimes.com: No Savings Are Found From Welfare Drug Tests by Lizette Alvarez:

Ushered in amid promises that it would save taxpayers money and deter drug users, a Florida law requiring drug tests for people who seek welfare benefits resulted in no direct savings, snared few drug users and had no effect on the number of applications, according to recently released state data.

Many states are considering following Florida’s example, and the new data from the state shows they shouldn’t,” said Derek Newton, communications director for the American Civil Liberties Union of Florida, which sued the state last year to stop the testing and recently obtained the documents. “Not only is it unconstitutional and an invasion of privacy, but it doesn’t save money, as was proposed.”

Permalink 07:41:47 am, by fourth, 150 words, 397 views   English (US)
Categories: General

D.C.Cir.: Presence of firearms in SW justified no announcement on entry

Officers’ alleged failure to knock before entry was entitled to qualified immunity or was constitutionally justified. The officers knew that a gun was likely involved, and the search warrant included weapons. Under Richards and Wilson, this was sufficient to dispense with announcement for officer safety. Youngbey v. March, 400 U.S. App. D.C. 177, 676 F.3d 1114 (2012).*

Defendants were moving around from room to room in a hotel, and vacated two rooms. The police had probable cause to search the rooms they were in as well as the abandoned rooms for firearms. A gun was actually abandoned in one of the vacated rooms. United States v. Albury, 2012 U.S. Dist. LEXIS 53644 (M.D. Fla. April 17, 2012).*

Officers searching a computer hard drive had the benefit of the plain view doctrine when they came upon obvious chat logs and foreign travel information. United States v. Johnston, 2012 U.S. Dist. LEXIS 53323 (E.D. Cal. April 16, 2012).*

Permalink 07:30:25 am, by fourth, 249 words, 382 views   English (US)
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E.D. Tenn.: Defendant's refusal to submit to arrest and flight showed he was not seized

The traffic stop of car defendant was in was justified by occupants not using seatbelts. Defendant refused to submit and fled, and he was never seized. United States v. Lindsey, 2012 U.S. Dist. LEXIS 52250 (E.D. Tenn. February 3, 2012), adopted 2012 U.S. Dist. LEXIS 52249 (E.D. Tenn., Apr. 13, 2012):

Because the Fourth Amendment governs actual seizure, not attempted seizures, the government need not justify Officer Fielden's attempt to stop Defendant. United States v. Smith, No. 10-1551, 2012 WL 181393 (6th Cir. Jan. 24, 2012) (holding that police need not justify their attempt to stop a defendant who evades their attempt). If a suspect is not seized because he evades the police, the Fourth Amendment is simply not implicated. Brendlin, 551 U.S. at 254; United States v. George, No. 10-6159, 2012 WL 128402, at *1 (6th Cir. Jan. 17, 2012) ("Without actual submission, 'there is at most an attempted seizure.'") (quoting Jones, 562 F.3d at 774 and Brendlin, 551 U.S. at 254); United States v. Smith, 594 F.3d 530, 535-36 (6th Cir. 2010) ("In order for a seizure to occur, the encounter must not be consensual and the officers must use physical force or the individual must submit to the officers' show of authority.").

The government does not dispute that Officer Fielden engaged in a show of authority. Defendant does not appear to contest that he failed to submit to Officer Fielden's show of authority; instead, Defendant contends he was seized, perhaps by physical force, the moment Officer Fielden's gun was drawn and pointed at him. The case law simply does not support Defendant's position.

Permalink 07:16:02 am, by fourth, 177 words, 347 views   English (US)
Categories: General

S.D.Ill.: Defendant's initial denial of connection to premises to consent denied him standing

Defendant was seen at the scene of four controlled buys and was believed involved himself, and the totality gave probable cause. Thus, the search incident of his person and car were supported by probable cause. Defendant initially denied any connection to the premises, disclaiming an ability to consent. Officers then went to the door and talked to the occupant and got consent. Defendant made no effort to show standing, so he can’t object to the consent of another. United States v. Sayles, 2012 U.S. Dist. LEXIS 53070 (S.D. Ill. April 16, 2012).*

Defendant was arrested for carjacking, and keys were found on his person. The officer could remove the keys as a potential weapon or because there was probable cause to connect him to the carjacking under the search incident doctrine. United States v. Yancy, 2012 U.S. Dist. LEXIS 52394 (W.D. Tenn. April 13, 2012).*

Defendant’s detention was legal, so that did not change the government’s burden of showing consent, which the court finds to be voluntary. United States v. Armenta, 2012 U.S. Dist. LEXIS 52729 (D. Utah April 12, 2012).*

Permalink 07:08:32 am, by fourth, 205 words, 611 views   English (US)
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S.D.W.Va.: Discusses the "hierarchy among tenants" for apparent authority

Police came to defendant’s house on a child welfare call and asked to come in, and they were permitted. The court discusses the "hierarchy among tenants" for apparent consent. United States v. MacArthur, 2012 U.S. Dist. LEXIS 52269 (S.D. W.Va. April 13, 2012):

Co-tenant consent may also be limited where a hierarchy among tenants in authority over the premises makes the consent of one insufficient to validate a search of the entire premises. For example, although a short-term guest has a reasonable expectation of privacy in his temporary quarters, Minnesota v. Olson, 495 U.S. 91, 99, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990), his control over all portions of the home where he stays may not be as extensive as that of the owner, or a more permanent co-tenant. See Olson, 495 U.S. at 99 ("From the overnight guest's perspective, he seeks shelter in another's home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.") (emphasis added); see also State v. Grant, 614 N.W. 2d 848, 853 (Iowa App. 2000) ("an overnight guest's legitimate expectation of privacy does not vitiate the homeowner's ability to consent to a search of his home.") (collecting cases).

Permalink 05:58:21 am, by fourth, 124 words, 386 views   English (US)
Categories: General

Herald American: "School wants to test all students for drugs"

Herald American: School wants to test all students for drugs by Christopher O'Donnell:

SARASOTA COUNTY - Students as young as 11 years old would be tested for use of marijuana, pills, cocaine and heroin under a proposal by a North Port charter school that wants to institute the region's most aggressive student testing program.

Imagine School at North Port hopes to begin drug testing students at its junior high school campus next school year, including sixth-graders. Students would be required to pass a drug test to attend the school and pass at least one random drug test per year to remain enrolled.

Another drug testing program that can't survive even minimal Fourth Amendment scrutiny. Why do the legislatures want to make civil rights lawyers money?

04/17/12

Permalink 06:52:58 pm, by fourth, 126 words, 482 views   English (US)
Categories: General

New American: "Mich. State Agents Raid Pig Farms to Kill So-called 'Invasive Species'"

New American: Mich. State Agents Raid Pig Farms to Kill So-called "Invasive Species" by Raven Clabough:

Michigan's Department of Natural Resources (MDNR) has reportedly violated the Fourth Amendment by conducting two armed raids on pig farms in the state's Kalkaska and Cheboygan Counties. The incursions, which included six vehicles and 10 armed men, were apparently for the purpose of shooting all the farmers' pigs under the new “Invasive Species Order” (ISO) that has much of declared traditional livestock to be an invasive species.

In 2010, the Michigan DNR outlawed feral swine — pigs classified as non-native, invasive, and said to be carriers of disease and overall harmful to the environment. Though groups fought adamantly to overturn the ban, it went into effect April 1.

Exigency to stop a pig pandemic?

Permalink 12:04:37 am, by fourth, 89 words, 524 views   English (US)
Categories: General

News and Insight: "Judge allows expert witness in 'stop and frisk' case against NYPD"

News and Insight: Judge allows expert witness in 'stop and frisk' case against NYPD:

NEW YORK, April 16 (Reuters) - The New York Police Department has lost a bid to prevent an expert witness from testifying at a trial about the controversial crime-fighting tactic known as "stop and frisk."

Manhattan federal court Judge Shira Scheindlin on Monday said Columbia University professor Jeffrey Fagan, a criminology expert, would be allowed to testify about his "stop and frisk" research showing that police were more likely to stop blacks and Hispanics than whites.

04/16/12

Permalink 06:25:17 pm, by fourth, 631 words, 520 views   English (US)
Categories: General

CA3: Porn industry stated claim for Fourth Amendment violation for recordkeeping requirement of 28 U.S.C. § 2257

The Free Speech Coalition’s case against the Attorney General for searches under pornography manufacturer’s recordkeeping requirements under 28 U.S.C. § 2257 stated a First and Fourth Amendment claim because of unannounced FBI visits to search records. On remand, the district court should consider the trespass implications of Jones. Free Speech Coalition Inc. v. Attorney General of the United States, 677 F.3d 519 (3d Cir. 2012):

There are two ways in which the government’s conduct may constitute a “search” implicating the Fourth Amendment. First, a Fourth Amendment search occurs when “the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” Smith v. Maryland, 442 U.S. 735, 740 (1979) (citations and quotation marks omitted); see also Kyllo v. United States, 533 U.S. 27, 32-33 (2001) (“[A] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”); Katz v. United States, 389 U.S. 347, 353 (1967) (“The Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied ... and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”). Determining whether one’s expectation of privacy is justifiable involves two separate inquiries: (1) whether the individual demonstrated an actual or subjective expectation of privacy in the subject of the search or seizure; and (2) whether this expectation of privacy is objectively justifiable under the circumstances. Smith, 442 U.S. at 740 (quotation marks omitted); Katz, 389 U.S. at 361 (Harlan, J., concurring); United States v. Ferri, 778 F.2d 985, 994 (3d Cir. 1985).

Second, as the Supreme Court’s recent decision in Jones makes clear, a Fourth Amendment search also occurs where the government unlawfully, physically occupies private property for the purpose of obtaining information. See 132 S. Ct. at 949-52 (stating that the reasonable-expectation-of-privacy test set forth in Katz was “added to, not substituted for, the common-law trespassory test”) (emphasis in original). Under this analysis, we must determine whether the government committed common-law trespass when obtaining the information. See Jones, 132 S. Ct. at 949-52; see also Rakas v. Illinois, 439 U.S. 128, 143 (1978) (explaining the common-law-trespass test employed prior to Katz). If such a trespass occurs, then the government’s actions constitute a search implicating the Fourth Amendment. See Jones, 132 S. Ct. at 949-52.

Here, the District Court erred in dismissing Plaintiffs’ Fourth Amendment claim, as sought to be amended. Courts generally must consider the concrete factual context when determining the constitutional validity of a warrantless search. See Sibron v. New York, 392 U.S. 40, 59 (1968) (declining to hold whether a particular statute was facially invalid under the Fourth Amendment because the “constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case”); United States ex rel. McArthur v. Rundle, 402 F.2d 701, 704-05 (3d Cir. 1968) (stating that in the case of warrantless searches, courts are required to consider the concrete factual context); see also United States v. $291,828.00 in United States Currency, 536 F.3d 1234, 1238 (11th Cir. 2008). Plaintiffs’ complaint, as amended, would allege that government officials searched and/or seized without a warrant—and in violation of the Fourth Amendment—the premises and effects of certain FSC members and others. The record, however, is not clear as to: which specific members of FSC were searched; when and where the searches of the FSC members and others occurred (i.e., offices or homes); and the conduct of the government during the search (e.g., what specific information the government reviewed and whether the government exceeded its authority under the applicable regulations).

This factual context is necessary for determining whether the government’s conduct was a “search” under the Fourth Amendment pursuant to either the reasonable-expectation-of-privacy test set forth in Katz or the common-law-trespass test described in Jones. ...

Permalink 12:35:58 pm, by fourth, 244 words, 461 views   English (US)
Categories: General

E.D.Tenn.: Consent to search for stolen guns can go anywhere a gun could be hidden

“Even if an individual is found to have validly consented, he can still challenge a search on the basis that it exceeded the scope of his consent. See United States v. Canipe, 569 F.3d 597, 604 (6th Cir. 2009).” Quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004), also on consent in general: “‘Fundamentally, Carter asks us to hold as a matter of law that consent must be given verbally, perhaps by some ‘magic words’ formula. This we decline to do. Although a man’s home is his castle, trumpets need not herald an invitation. The police may be kept out or invited in as informally as any other guest. Carter invited the police in and cannot undo his act in court.’ Id. at 589.” Defendant was actually showing the police he wanted to cooperate, so the consent was voluntary. Since the object of the search was a stolen firearm, the search could be anywhere the gun might be found. United States v. Murphy, 2012 U.S. Dist. LEXIS 52246 (E.D. Tenn. March 26, 2012), R&R 2012 U.S. Dist. LEXIS 52245 (E.D. Tenn. January 10, 2012).*

The officer applying for the telephonic search warrant was not the officer with the most information, but that did not make his hearsay application void. The Franks issue fails: “None of the claimed omissions, if included in the affidavit, would have negated the probable cause determination.” Some of the claimed omissions were actually incriminating. United States v. Salisbury, 2012 U.S. Dist. LEXIS 51998 (D. Nev. February 3, 2012).*

Permalink 12:02:43 am, by fourth, 123 words, 649 views   English (US)
Categories: General

ND: Frantic woman asked police to enter house, so that was consent

A frantic woman was worried about her children locked in the house with defendant. The district court’s finding of consent to enter was supported by the evidence. Moreover, there was sufficient evidence of exigency and the entry was not made to arrest or investigate a crime. State v. Morin, 2012 ND 75, 815 N.W.2d 229 (N.D. 2012).*

On staleness, “evidence of the manufacture of methamphetamine is closer to a regenerating conspiracy than a chance encounter in the night. On the continuum of long-versus short-term criminal operations, the manufacture of methamphetamine lies somewhere between growing marijuana and selling or consuming drugs.” It was at a residence, “the alleged criminals were entrenched rather than nomadic.” United States v. Redmond, 475 Fed. Appx. 603, 2012 FED App. 0405N (6th Cir. 2012).*

04/15/12

Permalink 11:10:54 am, by fourth, 665 words, 493 views   English (US)
Categories: General

ME: Illegal search did not bar witness discovered by it under Ceccolini

An illegal search of video enabled the state to find other witnesses. While the search was bad, the witness was not barred under Ceccolini. State v. Bailey, 2012 ME 55, 41 A.3d 535 (2012):

[*P20] In Ceccolini the Supreme Court addressed the factors that dictate whether the exclusionary rule should apply to live-witness testimony. The factors are (1) the amount of free will exercised by the witness; (2) whether the initial illegality that led to the discovery of the witness was used to compel the witness to testify, or if the witness testifies as a product of "detached reflection and a desire to be cooperative"; (3) whether the testimony is related to the purpose of the original illegal search, keeping in mind that the exclusion would forever prevent the witness from testifying; (4) the amount of time that elapsed between the initial illegality and the initial contact with the witness, and between the initial contact with the witness and the testimony at trial; (5) whether the witness was known to the police officers prior to the illegal conduct; and (6) whether applying the exclusionary rule would have a future deterrent effect on police conduct. Ceccolini, 435 U.S. at 276-80.

[*P21] Although the Court in Ceccolini declined to adopt a per se rule that live-witness testimony should never be excluded, it acknowledged that witness testimony must be evaluated differently from physical evidence. Id. at 274-76 ("Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet."). The Court instructed that the decision "cannot be decided on the basis of causation in the logical sense alone." Id. at 274. Instead, the Court indicated that a closer link between the illegality and the witness's testimony is required to exclude the testimony than with nontestimonial evidence because "the cost of excluding live-witness testimony often will be greater." Id. at 278.

[*P22] In a case factually similar to this one, the police received information about the sexual abuse of minors at a school. United States v. Wipf, 397 F.3d 677, 680 (8th Cir. 2005). The police obtained a search warrant and seized videotapes, among other evidence, from Wipf's home and used the videotapes to identify a previously unknown victim. Id. at 681. The victim's parents and a psychologist persuaded him to talk about the past abuse, partially by revealing the existence of the videotapes. Id. at 681, 684. The trial court granted Wipf's motion to suppress the evidence seized from his house, but allowed the victim to testify. Id. at 681-83. The Eighth Circuit Court of Appeals upheld the admission of the victim's testimony after applying the Ceccolini factors, specifically finding that the victim testified willingly; the illegally-seized videotapes were used indirectly to convince the victim to talk; the police never confronted the victim with the existence of the videotapes; the videotapes were never shown to the victim; about nine days elapsed between the illegal search and the first contact with the victim, and nine months elapsed before the victim testified at trial; and the purpose of the search was not to identify additional victims, but rather to corroborate the information originally received. Id. at 684-85.

[*P23] As the trial court found, application of the Ceccolini factors to this case weigh in favor of admitting the live-witness testimony. In its decision, the court found that the witnesses testified of their own free will, that there was a possibility that the witnesses could come forward in the future, and that the purpose of Detective Beaulieu's search was not to identify the then unknown victims. These findings support the court's decision to deny the motion to suppress the live-witness testimony. Additionally, the facts that the testimony was not directly related to the purpose of the original search, that the victims testified in court over two years after they were first identified, and that the victims would otherwise be forever prevented from testifying against Bailey also weigh in favor of admitting the testimony.

There aren't many cases dealing with the Ceccolini rule, so every one of them is important.

Permalink 10:42:23 am, by fourth, 338 words, 401 views   English (US)
Categories: General

CA5: Reasonable suspicion from both driving and actions after stop

Defendant’s actions amounting to reasonable suspicion based on driving and actions after the stop. United States v. Ervin, 469 Fed. Appx. 374 (5th Cir. 2012)*:

At the suppression hearing, Officer Vallet first set forth his experience in highway interdiction, including a year and a half working interdiction and 200 hours of training in interdiction. Officer Vallet then articulated several facts that led him to suspect that Ervin may have been involved in criminal activity before Officer Vallet decided to prolong the detention. From the outset, Officer Vallet found it suspicious that Ervin, while approaching the sheriff's vehicle, dropped speed, changed lanes, and took a close position behind another vehicle. Officer Vallet testified that in his training and experience, such activity was an attempt "to blend in with other traffic, not stand out." Officer Vallet then found it suspicious that twice when Ervin exited his vehicle, he "stopped just prior to the back of his vehicle, as if to stay close to the vehicle." Based on Officer Vallet's training and experience, people acting in such a manner indicate that "they have something that is of value or there's something connected to that car that they don't want to get too far from." During his interaction with Ervin, Officer Vallet noticed that Ervin "seemed overly nervous for a minor traffic violator" as evidenced by Ervin's avoidance of eye contact. Officer Vallet also did not find out of all suspicion the sequence in which Ervin expressed his travel plans. Ervin initially stated that the purpose of his trip was to visit a family member and later added that the purpose of the trip was to start a new business. The fact that Ervin was unable to produce a rental agreement raised Officer Vallet's suspicions because "[s]ometimes that is a way to distance yourself from the vehicle, or you don't want anybody to see who rented it or if it was rented in a false name." Further, Officer Vallet found it suspicious that Ervin failed to disclose fully the details of his criminal history.

Permalink 10:35:53 am, by fourth, 170 words, 370 views   English (US)
Categories: General

W.D.Mo.: Defendant failed to show standing in a car not registered to him

There was reasonable suspicion to stop a car stopped in the middle of an intersection with its lights out when the officer came on the scene of a shots fired call. Defendant had no standing to challenge the search of the car because he could not show any connection to it or why he was driving somebody else’s car. United States v. Mitchell, 2012 U.S. Dist. LEXIS 51080 (W.D. Mo. March 1, 2012).*

UnMirandized defendant consented on the totality of circumstances. United States v. Lewis, 2012 U.S. Dist. LEXIS 51752 (W.D. Va. April 13, 2012).*

Defendant’s PO was at his house for a “field visit” and saw a notebook on top of the TV. He opened the book, and saw directions about hooking up a computer to the TV, and saw names of files from the computer suggestive of child pornography. He was handcuffed and taken outside. He started the conversation and admitted to looking at “porn.,” and that was voluntary. United States v. Gardner, 2012 U.S. Dist. LEXIS 51924 (D. Utah April 12, 2012).*

04/14/12

Permalink 08:23:24 am, by fourth, 189 words, 429 views   English (US)
Categories: General

E.D.Mich.: Search warrant issued after exigent entry mooted inquiry into the entry

The government argued exigency justified the initial entry into the hotel room, and the later issued search warrant was valid. The court finds that it does not even need to decide exigency because the warrant was clearly valid. Also, several defendants had no standing in the hotel room. United States v. Johnson, 2012 U.S. Dist. LEXIS 51482 (E.D. Mich. April 12, 2012):

The Government argues that exigent circumstances—specifically, concern that individuals inside the hotel room would destroy evidence of criminality—justified the fast and warrantless entry into the room. To launch an inquiry designed to definitively determine the constitutionality of such an entry is to invite a journey into discrete factual findings and a weighing and balancing of societal and law enforcement interests. In some cases that journey will be mandatory, or at least advisable. Here, it is neither. The court may avoid determining whether the initial entry into the hotel room was justified by exigent circumstances and simply assume that it was not, because suppression of the evidence discovered during the execution of the search warrant is not required where the warrant was valid and supported by probable cause.

Permalink 08:18:09 am, by fourth, 167 words, 372 views   English (US)
Categories: General

OH6: One has no standing in another's cell phone records

Defendant had no standing to contest seizure of his girlfriend’s cell phone records. State v. Young, 2012 Ohio 1669, 2012 Ohio App. LEXIS 1456 (6th Dist. April 13, 2012).*

The USMJ concluded that the computer search was excessive, but the Sixth Circuit spoke in a case on point right after that, so the R&R is adopted as modified. United States v. Labuda, 2012 U.S. Dist. LEXIS 51084 (W.D. Tenn. April 11, 2012)*:

The Government objects to the Magistrate Judge's conclusion that Campbell's search exceeded the boundaries of the Search Warrant. (Gov.'s Objection 4.) The Government argues that United States v. Richards, 659 F.3d 527 (6th Cir. 2011), which was decided two weeks after the Magistrate Judge's Report, established clearer parameters for electronic database and file searches. (Gov.'s Objections 2.) The Government contends that "the Richards court determined that seizure of images of child pornography other than those specifically sought in the warrant was not a violation of the Fourth Amendment, even though the server was set up with neatly compartmentalized segments and files." (Id.)

Permalink 08:11:37 am, by fourth, 225 words, 363 views   English (US)
Categories: General

OH8: SW for house need not include name of owner or occupant

A search warrant for a house does not have to include the name of the owners or occupants; a particular description is required with probable cause to believe evidence will be found, and the officers had it here. State v. Lenard, 2012 Ohio 1636, 2012 Ohio App. LEXIS 1433 (8th Dist. April 12, 2012).

Defense counsel was not ineffective for not investigating whether the window tint of his car was legal or not when that was the basis for a stop in a bank robbery case. He didn’t even claim that his windows were overtinted. United States v. Coleman, 2012 U.S. Dist. LEXIS 51481 (E.D. Pa. April 11, 2012)*:

Petitioner cannot show the existence of a colorable Fourth Amendment claim. Notably, Petitioner does not claim that his windows were not darkly tinted. He does not argue that Hartman should have been able to see inside the vehicle. Although he faults counsel for failing to investigate the level of tint, he does not claim that the windows were not in violation of Pennsylvania's Motor Vehicle Code. [¶] It is undisputed that the windows on Petitioner's vehicle were tinted. It is also undisputed that Trooper Hartman detained the vehicle because of the tinted windows. The suggestion that Counsel was ineffective because he did not investigate the extent of the tint is without merit. Sanders, 165 F.2d at 253. Petitioner's sixth claim lacks merit and is denied.

Permalink 08:06:31 am, by fourth, 292 words, 393 views   English (US)
Categories: General

ND: Adopts general rule on school resource officer searches under T.L.O.

The search here was conducted by a school resource police officer, and the court finds it was not a police search but a school search. State v. Alaniz, 2012 ND 76, 815 N.W.2d 234 (N.D. 2012). The standard:

[*P10] Other courts have addressed this issue and have held there are three categories of school searches based on the amount of police involvement: (1) when school officials initiate the search or police involvement is minimal, the reasonableness standard applies; (2) when the search involves school resource officers acting on their own initiative or at the direction of other school officials to further educationally related goals, the reasonableness standard applies; and (3) when "outside" police officers initiate the search, warrant and probable cause requirements apply. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 740 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011).

[*P11] In determining how much police involvement occurred and which standard applies, courts have considered various factors, including whether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer's duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer's purpose in conducting the search. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008). We agree with the rationale used by these courts to determine which standard should apply to school searches.

Permalink 07:27:54 am, by fourth, 154 words, 477 views   English (US)
Categories: General

AL follows majority and concludes cell phone text messages subject to search incident

Alabama follows Diaz and others and rejects Smith in holding that a cell phone’s text messages are subject to a search incident. Gracie v. State, 2011 Ala. Crim. App. LEXIS 123 (December 16, 2011)* [Note: It’s always easier to let some other court do your thinking for you. Alabama has a subscription only website for state opinions that I won’t pay for since its opinions are so shallow.]

Defendant was stopped for driving too slow in the left lane and impeding traffic. The video showed trucks slowing and passing on the right. Shell v. State, 727 S.E.2d 243 (Ga. App. 2012).*

911 caller said that the police stopped the wrong man, so officers looked at the two men nearest. Finding a gun on one did not dissipate the reasonable suspicion as to the other because the officer did not have to consider the stop over. United States v. Woods, 2012 U.S. Dist. LEXIS 51607 (W.D. Mo. April 6, 2012).*

04/13/12

Permalink 07:12:15 am, by fourth, 110 words, 475 views   English (US)
Categories: General

NY2: Automobile exception permitted delayed search of car

Defendant was stopped and volunteered he had drugs in the car, and handed them to the police. He was arrested and his car was locked up. When the police came back to the car to impound it, a gun was seen sticking out from under the seat. The automobile exception permitted the search despite the delay. [Not to mention plain view.] People v Thomas, 94 A.D.3d 914, 941 N.Y.S.2d 524, 2012 NY Slip Op 2714 (2d Dept. 2012).

Defendant’s stop for driving too slow was justified where his car impeded other vehicles. Marijuana in plain view justified a search under the automobile exception. Shell v. State, 727 S.E.2d 243 (Ga. App. 2012).*

Permalink 07:11:04 am, by fourth, 369 words, 471 views   English (US)
Categories: General

W.D.Tenn.: Search warrant for cell phone was exceeded when picture files were reviewed

A 16 year old runaway was riding with defendant and she told the police that she had oral sex with defendant which he recorded on his telephone. A search warrant for the phone was obtained, but the officer exceeded the scope of the warrant by looking for picture files and not just the video. Significantly, the court also held that the government’s preferred justification for obtaining 404(b) evidence was rejected under the terms of this warrant. United States v. Labuda, 2011 U.S. Dist. LEXIS 154700 (W.D. Tenn. October 13, 2011):

Finally, while the United States argues that the scope may have been justified to locate material "evidence of intent, plan, motive or common scheme" in accordance with Rule 404(b) of the Federal Rules of Evidence, the fact remains that the scope of the authority to search Defendant's cellular phone was based upon the authority granted in the Search Warrant. The Affidavit recited the victim's account that the alleged sexual assault occurred during a brief time period and did not indicate that there was any lengthy span of time during which investigators believed that Defendant corresponded, schemed, or planned the sexual assault. It was the substance of the Affidavit that the issuing judge relied upon to grant the authority to execute the search. Thus, the Court finds that any attempt of investigators to search for evidence not reasonably related to the time frame provided by the victim, no matter whether it may or may not be admissible under the Federal Rules of Evidence, was beyond the scope of the Search Warrant.

Ultimately, although Detective Campbell did prudently narrow his search in ways that were not required by the warrant, specifically by not viewing any files other than videos, that does not negate the fact that he also improperly broadened his search to include dates and times that the record reflects he had no reasonable basis to believe that Defendant may have been engaged in or recording sexual offenses relating to the sixteen-year-old victim about whom the Search Warrant was issued. Accordingly, the Court finds that Detective Campbell exceeded the scope of the Search Warrant in his seizure of evidence that had no temporal proximity to the sexual assault of the sixteen-year-old victim.

04/12/12

Permalink 11:01:00 am, by fourth, 213 words, 415 views   English (US)
Categories: General

FL2: IAC 4th Amd. claim requires pleading that defendant would have gone to trial

Defendant’s post-conviction claim that defense counsel was ineffective for not pursuing a motion to suppress was fatally defective for not alleging prejudice. Would she have gone to trial and not pled? Zanchez v. State, 84 So. 3d 466 (Fla. 2d DCA 2012):*

But upon further examination of her motion, we note that Ms. Zanchez has failed to allege that there is a reasonable probability that but for counsel's errors, she would not have pleaded guilty but would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985); Nelson, 996 So. 2d at 952. Thus Ms. Zanchez's motion completely omits an allegation of prejudice flowing from her attorney's alleged deficient performance.

The juvenile was detained pending “investigation” for loitering, and there was no reasonable suspicion for a patdown. The officer "testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution." D.S. v. State, 2012 Fla. App. LEXIS 5461 (Fla. 3d DCA April 11, 2012).*

A gap in the record on whether the independent source doctrine would support the search in question required remand. The case arose from a grow operation that the police visited without warrants. Outbuildings were searched off the curtilage and in open fields, but the court can’t decide the question. United States v. Noriega, 676 F.3d 1252 (11th Cir. 2012).*

Permalink 10:25:44 am, by fourth, 220 words, 616 views   English (US)
Categories: General

IL: Forced blood draw violates state statute, despite cases elsewhere finding them constitutionally reasonable

A forced blood draw in a DUI case was barred by statute. The state’s reliance on State v. Krause, 484 N.W.2d 347 (Wis. Ct. App. 1992) (permitting blood draw from hogtied suspect) and Schmerber is inapposite. People v. Farris, 2012 Ill. App. LEXIS 265, 2012 IL App (3d) 100199 (April 10, 2012):

[**P21] In addition to Krause and Schmerber, the State cites to several cases which stand for the proposition that forced blood draws are objectively reasonable and can pass constitutional muster under the fourth amendment. See State v. Clary, 2 P.3d 1255, 1256 (Ariz. App. Ct. 2000); Carleton v. Superior Court, 216 Cal. Rptr. 890 (Cal. Ct. App. 1985); State v. Worthington, 65 P.3d 211 (Idaho Ct. App. 2002); State v. Lanier, 452 N.W.2d 144 (S.D. 1990). However, we find each of these cases to be irrelevant to the question before us, which is whether the trial court correctly held that a forced blood draw was not permitted under the Vehicle Code. The trial court, relying upon our supreme court's holding in Jones, held that force is not permitted under the statute. Specifically, the trial court relied upon the Jones court's "clarification" that it was "not suggest[ing] that a DUI arrestee's lack of a right to refuse chemical testing under section 11-501.2(c)(2) permits law enforcement officers to use physical force in obtaining blood, urine, and breath samples." Jones, 214 Ill. 2d at 201.

Permalink 10:18:48 am, by fourth, 118 words, 332 views   English (US)
Categories: General

MA: Defendant's threat to shoot a witness to a crime was PC to search his car for a weapon

Defendant was accused of twice getting out of his car and battering his girlfriend. When police arrived, they had a reliable report that defendant might be armed because they threatened to shoot a bystander witness, and that justified a search of his car under the automobile exception. Commonwealth v. Gouse, 461 Mass. 787, 965 N.E.2d 774 (2012).*

Defendant’s driving back and forth three times in five minutes in front of a construction site at 1 a.m. where anhydrous ammonia was stored was reasonable suspicion. “No one was supposed to be at the construction site at that hour. Officers can consider the lateness of the hour in determining whether criminal activity was afoot.” State v. Morgan, 366 S.W.3d 565 (Mo. App. 2012).*

Permalink 10:15:11 am, by fourth, 207 words, 431 views   English (US)
Categories: General

CT: Jumping out of a hotel room window in flight from the police was abandonment of the room

Defendant jumped out a hotel room window in flight from the police, and this was an abandonment of the room. He also abandoned a pair of socks on the roof the hotel. State v. Jackson, 304 Conn. 383, 40 A.3d 290 (2012):

The defendant had no reasonable expectation of privacy in the hotel room or in the personal effects that he left there after he jumped out of the hotel window, and even if he had not manifested a subjective intent to abandon the hotel room, the New York City police officers' initial entry into the hotel room was justified under the emergency exception to the warrant requirement because they reasonably could have believed that there might be other persons in the hotel room who were injured or who needed assistance and, therefore, they were not required to obtain a search warrant before seizing the defendant's clothes for safekeeping pursuant to their community caretaking function; furthermore, the mere transfer of the items from the New York City police to the New Haven police did not violate the defendant's fourth amendment rights, the transfer having involved no additional intrusion into the defendant's privacy and the subsequent forensic testing of the defendant's pants and belt having been performed pursuant to a search warrant.

Permalink 09:30:15 am, by fourth, 365 words, 2475 views   English (US)
Categories: General

E.D.Cal.: Positive alerts by "sophisticated" dogs that can discriminate currency from drugs have more value

Positive alerts by "sophisticated" dogs that can discriminate currency from drugs have more value that "unsophisticated" dogs. United States v. Approximately $77,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 50404 (E.D. Cal. April 10, 2012):

The Ninth Circuit has given probative weight to positive alerts by "sophisticated" dogs - dogs that react only to ephemeral by-product of narcotics and not to commonly circulated currency - to show that currency is substantially connected to illegal drug activity. See United States v. $42,500 in U.S. Currency, 283 F.3d [977,] at 982; United States v. $22,474 in U.S. Currency, 246 F.3d at 1216.

More specifically, the Ninth Circuit has explained its jurisprudence on unsophisticated versus sophisticated dog alerts to currency:

In addition, Sutter alerted to the money found in Hysell's luggage. Sutter's handler submitted a declaration stating that Sutter does not alert to cocaine residue found on currency in general circulation. Rather, Sutter alerts to a by-product of cocaine which does not linger on currency. We recently held that a sophisticated dog alert, where the dog reacts only to ephemeral by-products of narcotics and not to commonly circulated currency, is an important factor in determining probable cause. See United States v. $22,474 in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir. 2001) (explaining that because of more sophisticated training a narcotics canine would not alert to money unless it had recently been in the proximity of cocaine). The evidence of Sutter's sophisticated training is undisputed, and therefore, Sutter's alert is relevant in determining probable cause. ...

United States v. $42,500 in U.S. Currency, 283 F.3d at 982-983. Here, Claimant relies on the two cases relied upon by claimant Hysell in the aforementioned excerpt. As explained above however, where a canine is trained not to alert to currency in general circulation, but instead the canine alerts only to the by product of illegal narcotics, that evidence is to be afforded greater weight in a determination of this kind.

It thus appears that Cody's training lends itself to a finding that Cody is in fact a "sophisticated" dog. Therefore, Cody's alert to the presence of illegal drugs on the currency found in Claimant's vehicle is strong evidence going to the determination of whether the Government had met its burden.

04/11/12

Permalink 03:31:50 pm, by fourth, 101 words, 376 views   English (US)
Categories: General

EFF: "Radical Library/Publisher and Prison Support Group Settle Lawsuit with FBI and UC-Berkeley Police over Improper Raid"

EFF: Radical Library/Publisher and Prison Support Group Settle Lawsuit with FBI and UC-Berkeley Police over Improper Raid
:

Berkeley, CA - Two radical groups have settled their lawsuits over an armed, over-broad police raid after the law enforcement agencies agreed to delete improperly seized computer data and pay $100,000 in damages and attorney's fees. Moreover, the University of California-Berkeley Police Department (UCBPD) acknowledged that at the time of the raid one of the groups qualified for federal protections designed to protect journalists, publishers, and other distributors of information from police searches, despite the police's persistent denial of that status throughout the lawsuit.

Permalink 12:33:35 pm, by fourth, 198 words, 444 views   English (US)
Categories: General

Law.com: "Can the Government Force the Surrender of Encryption Keys?"

Law.com: Can the Government Force the Surrender of Encryption Keys? by Joshua A. Engel:

Encrypted data is accessible only through the use of a password or encryption key, and this encryption raises several questions. What happens when the government wants to read encrypted documents? Can the government make you turn over your password or encryption key? Does the right to remain silent or the privilege against self-incrimination provide any protection? Some believe that the answer to this question may be one of the most important technology-related legal questions of the next decade.

In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects to provide passwords and encryption keys despite claims of Fifth Amendment privilege by witnesses and suspects. This issue has appeared infrequently in courts. However, a decision last month by the U.S. Court of Appeals for the Eleventh Circuit, United States v. John Doe, has started to provide some guidance. The court concluded that the Fifth Amendment privilege applied because the provision of this information is essentially an admission that the person had possession and control over, and access to, the computer, files, or data.

Permalink 10:34:55 am, by fourth, 157 words, 487 views   English (US)
Categories: General

S.D.Ind.: Peek out door during arrest in hallway justified protective sweep

The court rejects the government’s contention that an arrest warrant for a suspect causes him to not have a standing in hotel room where he was located. At any rate, defendant was arrested in the hallway, but his companion opened the hotel room door to see what was going on outside, and that made a protective sweep reasonable. United States v. Marrero, 2012 U.S. Dist. LEXIS 49494 (S.D. Ind. April 6, 2012).*

The warrant for child pornography was based on an IP address, and probable cause was shown, so the good faith exception need not be reached. [The USMJ seems uncomfortable with the fact that he issued the search warrant, too, but his decision is subject to de novo review. United States v. Nolan, 2012 U.S. Dist. LEXIS 50046 (E.D. Mo. March 6, 2012).*

A knock-and-talk does not violate the Fourth Amendment, and defendant consented to a search. United States v. Major, 2012 U.S. Dist. LEXIS 49665 (W.D. La. February 16, 2012).*

04/10/12

Permalink 07:04:45 pm, by fourth, 175 words, 565 views   English (US)
Categories: General

Grand Junction: State Trooper on trial for homicide for shooting homeowner insisting on a search warrant; says he saw a flash

Grand Junction: DA: Search central in State Trooper’s trial by Paul Shockley:

District Attorney Pete Hautzinger carried the unhinged front door that once stood at the Redlands home — splintered at an end and black shoe prints from police officers’ kicks elsewhere — into a courtroom today as the prosecution told jurors that the Fourth Amendment to U.S. Constitution was front and center in the trial of Colorado State Patrol trooper Ivan “Gene” Lawyer, who’s charged in the shooting death of 31-year-old Jason Kemp.

He told them to get a search warrant, prosecutors said.

“Jason Kemp died demanding his constitutional rights be honored,” Deputy District Attorney Todd Hildebrandt said during opening statements in Lawyer’s trial. “And the only force he (Kemp) used was trying to prevent them from coming inside his home.”

Kemp would have been justified that day in defending his home with deadly force as allowed under the doctrine of Colorado’s Make My Day law, the prosecutor told jurors.

“That force can be applied against a police officer,” Hildebrandt said.

Permalink 08:21:19 am, by fourth, 745 words, 601 views   English (US)
Categories: General

S.D.Ohio: Automatic weapons not usually “immediately apparent” for plain view purposes

In a search warrant for alleged stolen heavy equipment, automatic weapons were not “immediately apparent” for plain view purposes. They usually aren’t, especially without nexus being shown. United States v. Lamb, 2012 U.S. Dist. LEXIS 49155 (S.D. Ohio April 6, 2012):

The Government has, however, failed the third prong of the plain view analysis because it cannot demonstrate that the illegality of the automatic guns was immediately apparent. "Because the plain view doctrine supplants the need for a particularized warrant, the 'immediately apparent' requirement is necessary to prevent officers from using the plain view doctrine as a means to extend a particularized search authorized by the Fourth Amendment principles into an unlawful exploratory search." Garcia, 496 F.3d at 510.

Under the "immediately apparent" prong, "multiple factors may be taken into account, none of which are necessary, but each of which are instructive." Carmack, 426 F. App'x. at 382. Courts should consider: (1) the nexus between the seized object and the items particularized in the warrant; (2) whether the intrinsic nature or appearance of the object gives probable cause to believe it is associated with criminal activity; (3) whether the officer, at the time of the discovery of the object and with the facts then available, can determine probable cause of the object's incriminating nature; and; (4) whether the officer can recognize the incriminating nature of the object as the result of his instantaneous sensory perception, as opposed to further investigation. Id.; Garcia, 496 F.3d at 510. "Probable cause does not require knowledge that the evidence is contraband." Carmack, 426 F. App'x at 382. Instead, it requires that the available facts would warrant a man of reasonable caution in the belief that it may be contraband. Id.

Here, the first factor weighs in favor of suppression. There was no nexus between the guns seized and the documents or computer accessories authorized in the warrant. Nothing in the warrant or the affidavit suggests guns were used in the alleged theft.3 To the extent the officers were aware of the shooting that occurred on the property earlier that morning, they were likely also aware the shooting involved a handgun, not an automatic machine gun. Furthermore, there was no testimony that the guns were seized in connection with the earlier shooting; they were seized because they were found to be automatic.

3 Some district courts in the Sixth Circuit have found the incriminating nature of a machine gun was immediately apparent for purposes of the plain view exception where the gun had a connection to the alleged crime. See United States v. Jefferson, 717 F. Supp. 2d 790, 804 (S.D. Ohio 2010) (finding incriminating nature of AK-47 immediately apparent where police were investigating a homicide involving a firearm); United States v. Case, No. 2:07-CR-111, 2008 WL 4865967, at *9 (E.D. Tenn. 2008) (finding that if the plain view exception were applied, the incriminating nature of a machine gun is immediately apparent where there was a nexus between guns and narcotics crimes). Here, there was no nexus between the alleged crime and the guns in this case, and therefore, within the context of the search, the illegal nature of the guns was not immediately apparent.

Under the second factor, neither the intrinsic nature nor the appearance of the guns gave probable cause to believe they were illegal automatic weapons. The United States Court of Appeals for the Sixth Circuit has held the incriminating nature of certain weapons and accessories, such as sawed-off shotguns and silencers, is immediately apparent. See, e.g., Carmack, 426 F. App'x at 383 (citing cases establishing the immediately apparent incriminating nature of sawed-off shotguns); United States v. Poulos, 895 F.2d 1113, 1122 (6th Cir. 1990), abrogated on other grounds by United States v. Horton, 496 U.S. 128 (1990) ("[S]ilencers, like sawed-off shotguns, are not 'intrinsically innocent' objects and their possession is a serious crime except under 'extraordinary circumstances.'").

There is, however, a distinction between silencers and sawed-off shotguns on the one hand, and automatic weapons on the other. The Sixth Circuit has held that the incriminating nature of automatic weapons is not immediately apparent. United States v. Tatman, 397 F. App'x. 152, 175-77 (6th Cir. 2010) (finding incriminating nature of automatic weapons parts kit not immediately apparent); United States v. Szymkowiak, 727 F.2d 95, 99 (6th Cir. 1984) (suppressing assault rifle where the officers could not tell by looking at the rifle whether it was automatic); United States v. Gray, 484 F.2d 352, 355 (6th Cir. 1973) (finding stolen rifles did not fall under the plain view exception). Therefore, the illegality of an automatic gun is not immediately apparent, and factor two also weighs in favor of suppression.

Permalink 08:05:39 am, by fourth, 120 words, 422 views   English (US)
Categories: General

D.Ariz.: "Elaborate remedial systems" for alleged gov't wrong obviates Fourth Amendment civil claim

Plaintiff claimed that the Department of Defense stole his intellectual property, and he filed suit alleging, inter alia, a Fourth Amendment claim, which was rejected because there was no search and seizure. “Because there are elaborate remedial systems already set up for wrongful appropriations of intellectual property, a Fourth Amendment constitutional remedy is not available for Plaintiffs' claims.” Pearlstein v. United States Dept. of Defense, 2012 U.S. Dist. LEXIS 49235 (D. Ariz. April 9, 2012).

Where the officers have probable cause to believe there are drugs in the car, defendant’s arrest on a felony drug warrant justified a search of the car under the automobile exception, and Gant was inapplicable. United States v. Fox, 2012 U.S. Dist. LEXIS 48966 (W.D. Mo. February 23, 2012).*

Permalink 08:04:07 am, by fourth, 312 words, 460 views   English (US)
Categories: General

N.D.Tex.: Flight from hand-to-hand drug deal into apartment justified entry

Hot pursuit of fleeing felon from a hand-to-hand drug transaction into an apartment justified entry into the apartment. Also, raising a new argument during the closing argument of the suppression hearing was inadequate to raise the issue because the government didn’t get to respond. United States v. Thompson, 2012 U.S. Dist. LEXIS 49472 (N.D. Tex. April 9, 2012):

The Supreme Court and the Fifth Circuit recognize that the hot pursuit of a fleeing felon is an exigency justifying a warrantless search and arrest. United States v. Santana, 427 U.S. 38, 43 (1976) ("[A] suspect may not defeat an arrest which has been set in motion in a public place ... by the expedient of escaping to a private place."); Payne v. City of Olive Branch, 130 Fed. Appx. 656, 662 (5th Cir. 2005) (per curiam) ("'Hot pursuit' of a suspect is recognized as an exigency justifying a warrantless search.") (citing Santana, 427 U.S. at 41-43 & n.3).

In addition, the warrantless search was justified by the need to preserve evidence. "[T]he need to prevent the imminent destruction of evidence has long been recognized as a sufficient justification for a warrantless search." Kentucky v. King, __ U.S. __, 131 S. Ct. 1849, 1856 (2011) (internal quotation marks omitted) (citing cases). As explained above, the officers had background knowledge that drugs were being sold out of apartments located at the Complex. They had just witnessed Thompson engage in what they believed to be a hand-to-hand drug transaction, and Thompson fled to his apartment and locked the doors after the officers unexpectedly arrived on the scene, observed the transaction as it was occurring, and commanded him to stop when he fled. Thompson was aware that the officers were pursuing him. If he had been selling drugs from his apartment and was still in possession of illegal narcotics, he could have destroyed any evidence of drugs during the time it would have taken the officers to obtain a warrant. ...

Permalink 07:57:32 am, by fourth, 478 words, 618 views   English (US)
Categories: General

E.D.Wis.: Attachment of an unsworn police report to a search warrant affidavit can support probable cause

Attachment of an unsworn police report to a search warrant affidavit can support probable cause. United States v. Schubert, 2012 U.S. Dist. LEXIS 49270 (E.D. Wis. April 9, 2012):

In State v. Wegrzyn, [751 S.W. 2d 796 (Mo.App. 1988)] the Missouri Court of Appeals held that a deputy sheriff's notarized application for warrant which was based entirely on document signed by police officer that was not dated, not verified by oath, and not properly notarized was sufficient. Similarly, in Commonwealth v. Bass, 24 Mass. App. 972, 512 N.E.2d 519 (1987), an affidavit for a search warrant, properly verified, incorporated the contents of attached documents. The attachments were not in affidavit form. They were not sworn to and they contained no jurat. The trial court held that those deficiencies invalidated the warrant. The Massachusetts Appeals Court reversed that holding and upheld the warrant and the search made pursuant to it. The court held that the attached documents were properly incorporated into the affidavit, itself in proper form, and that it was of no moment that the attachments were not sworn to or contained no jurat. See also People v. Campbell, 678 P.2d 1035, 1040 (Colo. App. 1983) ("However, documents attached to and incorporated in an affidavit by reference need not be sworn to separately and may thus fall within the four corners of the affidavit.").

As a general matter, federal courts, too, have held that attached documents that are properly incorporated into an affidavit can be considered in determining whether probable cause exists and that it is of no moment that the attachments were not sworn to or contained no jurat. See, generally, United States v. McCoy, 781 F.2d 168, 172 (10th Cir. 1985); United States v. Berisford, 750 F.2d 57, 58 (10th Cir. 1984); United States v. One Olivetti Electric 10-Key Adding Machine, 406 F.2d 1167, 1168 (5th Cir. 1969). But in most cases, the attachment is not the sole source of information needed to establish probable cause, or the affiant is the author of or has direct knowledge of the facts set forth in the attachment. Here, there is no showing that Investigator Johnson had any direct knowledge of the facts set forth in the attached report. Yet, it is not uncommon for law enforcement officers to obtain a search warrant based on an affidavit that expressly includes hearsay that is not itself given under oath or affirmation. Police affidavits made in support of search warrant applications generally recount information they obtain from citizen witnesses, other police witnesses, or even unidentified informants. There is no requirement that the affiant have direct knowledge of all of the facts essential to support a finding of probable cause. Nor must the probable cause determination be based only on evidence that would be admissible at trial. Brinegar v. United States, 338 U.S. 160, 173 (1949); see also U.S. v. Ventresca, 380 U.S. 102, 107 (1965) (holding that finding of probable cause may rest upon evidence which is not legally competent in a criminal trial).

Permalink 07:21:01 am, by fourth, 110 words, 613 views   English (US)
Categories: General

CA6: Flight + reasonable suspicion = probable cause

Flight + reasonable suspicion = probable cause. United States v. Williams, 475 Fed. Appx. 36, 2012 FED App. 0375N (6th Cir. 2012):

Once Officer Edwards approached Williams and informed him that he was a police officer, Williams fled. Williams continued to run even after being chased and being told to stop multiple times. The officers' reasonable suspicion ripened into probable cause once Williams fled. See Dotson, 49 F.3d at 230-31; McCoy, 155 F. App'x at 201-02; Bowden, 1997 U.S. App. LEXIS 19153, at *9.

Defendant’s “newly discovered evidence” for attempting to reopen the suppression hearing was cumulative at best and would not change the court’s conclusion. United States v. Hawkins, 2012 U.S. Dist. LEXIS 48851 (D. Colo. April 5, 2012).*

Permalink 07:02:54 am, by fourth, 120 words, 421 views   English (US)
Categories: General

Bloomberg: "Strip-Search Case Reflects Death of American Privacy"

Bloomberg: Strip-Search Case Reflects Death of American Privacy By Noah Feldman:

The short answer is that Kennedy couldn’t find a violation of dignity for the petitioner because almost everyone committed to a jail or prison gets similar treatment. (Some states have banned the practice after minor arrests.) Every arrest, even for major offenses, is supposed to take place on the basis of suspicion, not proven guilt. Everyone in jail is equally presumed innocent until proven guilty at trial -- or until he or she admits guilt in a plea bargain. To find that all of these people are having their most basic rights violated every day would have been too disruptive to the basic practices of American criminal justice.

04/09/12

Permalink 09:43:42 am, by fourth, 146 words, 2266 views   English (US)
Categories: General

Salon.com: "U.S. filmmaker repeatedly detained at border"

Salon.com: U.S. filmmaker repeatedly detained at border by Glenn Greenwald:

One of the more extreme government abuses of the post-9/11 era targets U.S. citizens re-entering their own country, and it has received far too little attention. With no oversight or legal framework whatsoever, the Department of Homeland Security routinely singles out individuals who are suspected of no crimes, detains them and questions them at the airport, often for hours, when they return to the U.S. after an international trip, and then copies and even seizes their electronic devices (laptops, cameras, cellphones) and other papers (notebooks, journals, credit card receipts), forever storing their contents in government files. No search warrant is needed for any of this. No oversight exists. And there are no apparent constraints on what the U.S. Government can do with regard to whom it decides to target or why.

Permalink 07:23:01 am, by fourth, 278 words, 2294 views   English (US)
Categories: General

CA2: Civilly committed non-legal mail screening and the Fourth Amendment

Plaintiff was civilly committed as a sex offender, and his 161 audio DVDs and CDs were seized to see if they were sexually explicit. It took months to do the review. Because there had been no prior case on it, the officials involved were entitled to qualified immunity. As for the merits, he has a right to the discs, but the institution has an institutional security need to evaluate them for sexually explicit materials. Ahlers v. Rabinowitz, 684 F.3d 53 (2d Cir. 2012).

This Circuit has not articulated the standard by which to analyze censorship of mail in the civil commitment context. "Restrictions on prisoners' mail are justified only if they 'further[] one or more of the substantial governmental interests of security, order, and rehabilitation ... [and] must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'" Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003) (alterations in original) (quoting Washington, 782 F.2d at 1139). With regard to legal mail, "an isolated incident of mail tampering is usually insufficient to establish a constitutional violation. Rather, the inmate must show that prison officials 'regularly and unjustifiably interfered with the incoming legal mail.'" Id. (citations omitted) (quoting Cancel v. Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. Mar. 29, 2001)). In the context of civil commitment, this formula is easily adapted. A patient must show regular and unjustifiable interference with incoming legal mail; the actions of facility staff in restricting civilly committed individuals' access to legal mail are justified if they advance or protect the state's interest in security, order, or treatment and the restrictions imposed are no greater than necessary to advance the governmental interest involved.

Permalink 05:40:41 am, by fourth, 56 words, 2276 views   English (US)
Categories: General

JSOnline: "Beloit to pay $265,000 to settle strip search lawsuit"

JSOnline: Beloit to pay $265,000 to settle strip search lawsuit; Milwaukee investigation may leave taxpayers on the hook by Gina Barton:

The City of Beloit has agreed to pay a teenage boy $265,000 to settle a federal lawsuit claiming police violated his constitutional rights by strip-searching him on the street and slamming his head into a car window.

04/08/12

Permalink 12:24:44 am, by fourth, 226 words, 2520 views   English (US)
Categories: General

AR: Wrong burden of proof in consent search mandates reversal; defendant's argument presumptively valid

The trial court’s order denying the motion to suppress erroneously put the burden of proof on the defendant to show that a warrantless search was unreasonable. Briggs v. State, 2012 Ark. App. 226, 2012 Ark. App. LEXIS 341 (April 4, 2012):

In so holding, the trial court erred as a matter of law by impermissibly shifting the burden of proof. See Danner v. Discover Bank, 99 Ark. App. 71, 257 S.W.3d 113 (2007). The grounds asserted by appellant, i.e., lack of consent, were presumptively true because all warrantless searches are presumed illegal, and the burden of showing that a search was made pursuant to unequivocal and specific consent rests entirely on the State. State v. Brown, supra. We therefore reverse and remand for the trial court to conduct such further proceedings as are necessary for it to make findings of fact in a manner consistent with this opinion. Because the new findings may differ from those made pursuant to the inverted burden of proof employed in the present case, appellant's constitutional arguments are not ripe for decision, and we therefore do not address them.

Report to the police that a vehicle was stolen was reason to stop it. At the hearing, it was shown that the victim didn’t intend to affect defendant, but the report was relied on in good faith at the time. State v. Mundy, 87 So. 3d 300 (La. App. 3 Cir. 2012).*

Permalink 12:13:06 am, by fourth, 454 words, 2461 views   English (US)
Categories: General

UT: Refusal of consent does not end stop where there is RS

Defendant’s refusal of consent did not dispel reasonable suspicion nor mandate ending the stop if there is reasonable suspicion. State v. Gomez, 2012 UT App 102, 275 P.3d 1073, 705 Utah Adv. Rep. 32 (2012):

[*P11] To the extent that Gomez is asserting that his refusal to consent to the search ended the investigation as a matter of law, we do not agree. Courts generally hold that refusal to consent cannot establish or—according to some courts—even support reasonable suspicion. ... The Tenth Circuit has well stated the rationale of these cases: "If refusal of consent were a basis for reasonable suspicion, nothing would be left of Fourth Amendment protections. A motorist who consented to a search could be searched; and a motorist who refused consent could be searched, as well." Santos, 403 F.3d at 1125-26; see also United States v. Hunnicutt, 135 F.3d 1345, 1351 (10th Cir. 1998) ("Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine.").

[*P12] However, the issue here is not whether refusal to consent supports reasonable suspicion, but whether it dispels reasonable suspicion, or at any rate terminates an officer's attempts to confirm or dispel his or her original reasonable suspicion. On this point, the case law is equally clear. Gomez "cites no case law, and we have found none, that would require [the officer] to ignore all that he had observed and all that he knew up to the moment he asked for consent." See Leal, 235 F. App'x at 940. Indeed, courts routinely hold post-refusal detentions to be supported by pre-refusal reasonable suspicion under an ordinary totality-of-the-circumstances analysis. ... Thus, a brief investigative detention of a suspect who has refused consent, like any other official detention, is lawful to the extent it is supported by reasonable suspicion, and the investigating officer acts diligently to pursue a means of investigation likely to quickly confirm or dispel that suspicion. See Sharpe, 470 U.S. at 686.

[*P13] Nor do we agree with Gomez that, as a factual matter, once he denied consent to search, Officer Speeth "had done all that he could to quickly confirm or dispel his suspicion that Gomez was involved [in] drug trafficking." Gomez's own response to the officer's request suggested a further avenue of investigation. When the officer made the original request, Gomez did not consent, but neither did he categorically refuse consent. He gave a response from which the officer inferred that "some of the other occupants had something incriminating inside the hotel room." That inference cued up the next logical step in the investigation: determining whether Gomez's companions would object to a search of the hotel room. When they disclaimed any interest in the room, the officer again approached Gomez. This time, Gomez consented.

04/07/12

Permalink 03:01:09 pm, by fourth, 233 words, 2344 views   English (US)
Categories: General

GA: Affidavit for SW that did not show how medical records would support case was "bare bones" and insufficient

Affidavit for medical records that “might” provide evidence that defendant was DUI was constitutionally insufficient as based on an assumption. It was thus “bare bones” for good faith purposes. Willoughby v. State, 727 S.E.2d 194 (Ga. App. 2012). [Note: Georgia Court of Appeals cases were only available on LexisOne which ceased April 1. This court now has the distinction of being the only court in America without decisions online.]

Defendant was subjected to a full custodial arrest, so removing a .45 bullet from his pocket was not unreasonable under Terry. United States v. Villa, 2011 U.S. Dist. LEXIS 154625 (N.D. Ga. September 20, 2011), adopted, 2012 U.S. Dist. LEXIS 48448 (N.D. Ga. April 5, 2012).*

Whether the cooperating witness had apparent authority to consent was shown to be a factual dispute that required a hearing[, and the court will tell the parties what the law is in advance]. United States v. Wright, 2012 U.S. Dist. LEXIS 47828 (E.D. N.Y. April 2, 2012)* [Why didn’t the court just let the parties do it? This order is saying there’s a factual dispute for hearing, and there’s been no factual development.]

"The defendant consented, and that obviated having to decide whether the third-party consent was valid. Inter alia, the undersigned observes that defendant is an adult, has had previous experience with police and is doubtless familiar with his rights.” United States v. Ray, 2012 U.S. Dist. LEXIS 48391 (E.D. Tenn. March 16, 2012).*

Permalink 02:44:05 pm, by fourth, 199 words, 2612 views   English (US)
Categories: General

S.D.Ind.: Touching the fog line not reason to stop in Indiana

Touching the fog line ("as nearly as practicable within" the lane) is not reasonable suspicion for a stop in Indiana. United States v. Peters, 2012 U.S. Dist. LEXIS 46977 (S.D. Ind. April 3, 2012)*:

To the extent that the Government argues that probable cause existed because, on one occasion, Officer Borgmann might have reasonably believed that the Denali momentarily and slightly touched the fog line, that argument fails as a matter of law. The statute commands only that drivers drive "as nearly as practicable within" the lane. While no Indiana case has addressed whether briefly touching a fog line violates the statute, courts in other jurisdictions have interpreted similarly worded statutes, and have rejected the Government's argument. See United States v. Colin, 314 F.3d 439, 444 (9th Cir. 2002) (collecting cases holding that momentarily touching but not crossing a dividing line does not violate a statute requiring that a driver drive as "nearly as practical entirely within a single lane." (emphasis omitted)). In opposition to those cases, the Government has collected cases of its own. Those cases are, however, irrelevant. They involve fact patterns involving "erratic" driving across one or both fog lines, ...; or "partially swerving off the roadway," .... No such behavior occurred here.

Permalink 12:42:10 pm, by fourth, 210 words, 415 views   English (US)
Categories: General

OH8: Stop on warrant shown on computer terminal in car was reasonable; warrant didn't have to be produced

Defendant was stopped for a traffic offense, but it was quickly learned from the police computer terminal in the patrol car that there was an active warrant for him. The officer never bothered to follow up with the traffic offense, but this was not unreasonable. Defendant’s car would have been left on a busy street, so it was reasonable to tow and inventory it. The fact the search started immediately does not prove that the inventory was pretextual. A printout of the computer readout was admissible in lieu of the warrant because good faith is the only question. State v. Sanders, 2012 Ohio 1540, 2012 Ohio App. LEXIS 1357 (8th Dist. April 5, 2012).*

Defendant agreed to probation with a search at any time provision. The PO showed up at his parents place where he was living, and saw him on the back deck with a friend who hurriedly left. Drugs were validly found in a potted plant. State v. Burns, 2012 Ohio 1529, 2012 Ohio App. LEXIS 1342 (4th Dist. March 29, 2012).*

The officer did not violate the Fourth Amendment by knocking on the window of defendant’s car to wake him. When defendant woke up, he was dazed and confused, and that was reasonable suspicion to go further. State v. Jones, 2012 Ohio 1523, 2012 Ohio App. LEXIS 1337 (4th Dist. March 16, 2012).*

04/06/12

Permalink 05:03:55 pm, by fourth, 162 words, 572 views   English (US)
Categories: General

Reason: "7 Rules for Recording Police"

Reason: 7 Rules for Recording Police, Courts are expanding rights but cops are cracking down. Find out how to keep your footage, and yourself, out of trouble by Steve Silverman:

Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from his 2007 felony arrest for videotaping police roughing up a suspect. Prior to the settlement, the First Circuit Court of Appeals unanimously ruled that Glik had a “constitutionally protected right to videotape police carrying out their duties in public.” The Boston Police Department now explicitly instructs its officers not to arrest citizens openly recording them in public.

Slowly but surely the courts are recognizing that recording on-duty police is a protected First Amendment activity. But in the meantime, police around the country continue to intimidate and arrest citizens for doing just that. So if you’re an aspiring cop watcher you must be uniquely prepared to deal with hostile cops.

Permalink 09:09:07 am, by fourth, 314 words, 561 views   English (US)
Categories: General

FL4: Consent involuntary after Miranda violation

Consent involuntary after Miranda violation. Defendant sought to ask a lawyer about what he was waiving, and officer kept questioning. Hebron v. State, 85 So. 3d 530 (Fla. 4th DCA 2012):

Defendant: Who can tell me? You got a lawyer here? Can we get a lawyer here that can tell me ... ?
Detective: No, let me ask you this. We don't have any lawyers who work here. Let me ask you this. Was it drug related ...

Seconds later, the defendant consented to police officers searching his apartment which uncovered the physical evidence utilized in the instant case. The defendant raised this issue before the trial court by way of a motion to suppress, arguing that his consent was obtained in violation of his right to counsel.

. . .

In the instant case, the defendant asked a clear question concerning his rights when he asked what his options were, stated that he did not know what the law was and asked "can we get a lawyer here?" The detective merely asserted that there were no lawyers on the staff and failed to provide a "simple and straightforward answer" to the question posed. The officer was required to properly answer the defendant's question regarding his Miranda rights before resuming the interrogation. See Almeida, 737 So. 2d at 525. The failure to stop the interrogation to answer the defendant's question tainted the subsequent consent to search, which, in turn, tainted the evidence seized. Because of this, the evidence discovered during the search of the defendant's apartment should have been suppressed. See Traylor v. State, 596 So. 2d 957, 968 (Fla. 1992) (noting that evidence obtained by the State in contravention of the right to counsel may not be used by the State). Because the physical evidence uncovered in the apartment was so important to the prosecution's case, we cannot find that "there is no reasonable possibility that the error contributed to the conviction." State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986).

Permalink 08:46:35 am, by fourth, 466 words, 518 views   English (US)
Categories: General

WA rejects Thornton application to Gant under state constitution

Washington rejects the Thornton “exception” to Gant on scope of search incident under state constitution. State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012) (dissent here):

In the consolidated cases before us, the issue we must decide is whether an equivalent to Gant's second exception, referred to here as Thornton 1 exception, applies under article I, section 7 of the Washington State Constitution. We conclude that no such exception is permissible under article I, section 7. Accordingly, we reverse the Court of Appeals in both cases, reverse the defendants' convictions, and remand these cases for further proceedings consistent with our decision herein.

. . .

The specific issue raised in the present consolidated cases is whether the Thornton form of the exception will apply under article I, section 7. We conclude that it does not.

First, the underpinnings of the Thornton version of the exception do not justify its existence under article I, section 7. The Court in Gant adopted the Thornton exception given "circumstances unique to the vehicle context."

. . .

However, although the automobile exception is recognized for purposes of the Fourth Amendment, it is not recognized under article I, section 7. See Patton, 167 Wn.2d at 386 n.4; State v. Tibbles, 169 Wn.2d 364, 369, 236 P.2d 885 (2010) (in context of automobile search where suspect was not arrested; probable cause to search did not justify search of vehicle--"the existence of probable cause, standing alone, does not justify a warrantless search"); Ringer, 100 Wn.2d at 700-01. Although the Thornton exception is consistent with the rationale underlying the federal automobile exception under the Fourth Amendment, it lacks similar support under article I, section 7.

. . .

We also reject the State's proposal made at oral argument that a modified form of the Thornton exception, so to speak, be applied. The State proposed a vehicle search incident to arrest exception that would permit a warrantless search based on probable cause to believe that evidence of the crime of arrest might be found in the vehicle, rather than a reasonable belief as stated in Gant. As we said in Buelna Valdez, "when a search can be delayed to obtain a warrant without running afoul of" concerns for the safety of the officer or to preserve evidence of the crime of arrest from concealment or destruction by the arrestee "(and does not fall within another applicable exception), the warrant must be obtained. A warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest." Id. (emphasis added). We emphasized that "time is of the essence" because in "some circumstances, a delay to obtain a search warrant might be shown to provide the opportunity for the arrestee to procure a weapon or destroy evidence of the crime." Buelna Valdez, 167 Wn.2d at 773 (emphasis added).

Permalink 08:29:39 am, by fourth, 238 words, 494 views   English (US)
Categories: General

CA11: GFE sustains searches without getting to the merits

The search incident of defendant’s car for evidence of child enticement would be saved by Davis in any event, so the search is not suppressed. As to the search of his house, the good faith exception would apply there, too. [The court never goes to the merits of the searches.] United States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2012).* [Note: The 11th Cir. condones the stagnation of the Fourth Amendment since the merits go undecided. There is a perpetual gray area where searches are possibly unconstitutional, but we'll never know. I think it's really just judicial laziness or complete lack of judicial curiosity to decide real legal issues. GFE is easy and requires no thought because one's politics and constitutional apathy decides GFE questions.]

Officers had reasonable suspicion for defendant’s stop based on collective knowledge of intercepted phone conversations with drug slang. United States v. Donaldson, 2012 U.S. Dist. LEXIS 48083 (S.D. Ga. February 23, 2012).*

Search warrant for an apartment’s address was particular and with probable cause based on the address being in a Backpage.com ad. United States v. Latham, 2012 U.S. Dist. LEXIS 48397 (D. Minn. April 5, 2012)* [Based on the opinion, this wasn’t remotely arguable.]

Plaintiff’s claims include a Fourth Amendment claim, but no facts suggest a seizure or a search so no Fourth Amendment violation, and that is dismissed. Wilfong v. State Bd. of Ethics, 2012 U.S. Dist. LEXIS 47436 (M.D. La. March 5, 2012).*

Permalink 08:23:31 am, by fourth, 229 words, 646 views   English (US)
Categories: General

E.D.Ky.: 16 hour seizure of FedEx package was unreasonable

Sixteen hour warrantless seizure of a FedEx package in transit for a dog sniff was unreasonable. The government directed FedEx to hold it, and that made FedEx its agent. (The government stipulated to one defendant’s standing, but it certainly appears to the court that she doesn’t have any. (n.1)) United States v. Poor, 2012 U.S. Dist. LEXIS 48292 (E.D. Ky. March 9, 2012):

Here, law enforcement directed FedEx to act by holding the parcels on March 2. The question then becomes whether FedEx's intent in complying was "entirely independent of the government's intent to collect evidence for use in a criminal prosecution." Howard, 752 F.2d at 227-28, vacated on other grounds, 770 F.2d 57, 62 (6th Cir. 1985)); see United States v. Jones, 2011 WL 5967230, at *2 (W.D. Tenn.) (identifying factors as whether police "'instigated, encouraged, or participated'" in search and whether "'individual ... engaged in the search with the intent of assisting the police'" (quoting United States v. Lambert, 771 F.2d 83, 89 (6th Cir. 1985))). The Fourth Amendment does not apply if a private actor is "not acting as an agent of the Government or with the participation or knowledge of any government official." United States v. Jacobsen, 104 S. Ct. at 1652, 1656 (1984) (citation and internal quotation marks omitted). The burden of proving agency generally falls on the defendant. United States v. Aldridge, 642 F.3d 537, 541 (7th Cir. 2011) (citation omitted). Here, Hart's own testimony clearly establishes the agency relationship.

Permalink 08:04:08 am, by fourth, 262 words, 541 views   English (US)
Categories: General

PR coffee industry highly regulated

The Puerto Rican coffee importing business is sufficiently regulated that Burger applies. The beans here were seized after an administrative inspection under PR law. United States v. 323 "Quintales" of Green Coffee Beans, 2012 U.S. Dist. LEXIS 47775 (D. P.R. March 30, 2012), R&R 2012 U.S. Dist. LEXIS 47765 (D. P.R. March 9, 2012):

The Supreme Court stated in Burger that an administrative search qualifies as an exception if: (1) the state has a substantial interest in regulating the industry (2), the inspection is necessary to further the regulatory scheme, and (3) the inspection is properly limited in scope and puts the business owner on notice that the search is being made. Burger, 482 U.S. at 702-703. The second part of this last requirement is satisfied if the regulatory scheme is "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Id. at 703 (quoting Donovan v. Dewey, 452 U.S. 594, 600 (1981)).

The laws of Puerto Rico contain a comprehensive set of provisions pertaining to the regulation of the coffee industry. P.R. Laws Ann. Tit. 5, § 320 et. seq.; Tit. 13, §§ 2201-2205. The laws relating to coffee production express the need to protect the local coffee industry and eradicate plant pests and diseases on coffee plantations. P.R. Laws Ann. Tit. 5, §§ 319-319g. The Court agrees with the Magistrate's determination that these provisions evince a substantial government interest in regulating the coffee industry in order to meet local consumption needs and promote the economic health of the industry.

(Lorenzo J. Palomares-Starbuck appeared for the beans.)

Permalink 07:44:29 am, by fourth, 193 words, 415 views   English (US)
Categories: General

WI declines to adopt a broader standard than Harris for a Payton violation

“[W]e adopt the Harris exception to the exclusionary rule for certain evidence obtained after a Payton violation. We hold that, where police had probable cause to arrest before the unlawful entry, a warrantless arrest from Felix's home in violation of Payton requires neither the suppression of statements made outside of the home after Felix was given and waived his Miranda rights, nor the suppression of physical evidence obtained from Felix outside of the home. Assuming without deciding that Felix's warrantless arrest from his home was in violation of Payton, we conclude that, pursuant to the Harris rule, the following evidence that police obtained outside of his home is admissible: Felix's signed statement, made after Felix was given and waived his Miranda rights, the buccal swab obtained at the police station, and Felix's clothing seized at the jail, as well as any derivative evidence.” The court declines to adopt a separate rule under the state constitution. State v. Felix, 2012 WI 36, 339 Wis. 2d 670, 811 N.W.2d 775 (2012).*

Petitioner’s Fourth Amendment claim was decided on the merits in state court, so it could not be considered on habeas. Rashad v. Lafler, 675 F.3d 564 (6th Cir. 2012).

Permalink 07:33:59 am, by fourth, 196 words, 458 views   English (US)
Categories: General

D.Minn.: Cell phone seizure was with PC and exigent circumstances

Seizure of defendant’s cell phone at the end of his interrogation was reasonable and based on exigent circumstances. Officers had probable cause to believe that the phone contained evidence and that it should be seized. United States v. Robison, 2012 U.S. Dist. LEXIS 47092 (D. Minn. March 16, 2012).*

The court finds defendant was free to leave when his papers were handed back to him, but he agreed to stay when the officer asked if he could ask a few questions. Defendant said that consent had to come from the other person which was agreeing to continue the encounter. United States v. Quintero-Felix, 2012 U.S. Dist. LEXIS 46377 (N.D. Iowa April 3, 2012).*

“Prior to conducting a warrantless probation search, an officer must have probable cause to believe the probationer lives in the residence to be searched.” United States v. Gibson, 2012 U.S. Dist. LEXIS 47138 (N.D. Cal. April 3, 2012).*

Defendant’s IAC claim that it somehow violated the Fourth Amendment for police to continue to keep records lawfully seized for several years was rejected. No case even suggests that was unlawful, so how could defense counsel be ineffective? United States v. Lecroy, 2012 U.S. Dist. LEXIS 47030 (N.D. Ga. March 30, 2012).*

Permalink 06:46:56 am, by fourth, 502 words, 678 views   English (US)
Categories: General

New law review article: "The Missed Opportunity of United States v. Jones--Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World"

New law review article: The Missed Opportunity of United States v. Jones--Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World by Mary Leary on SSRN. Abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages in a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it by merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy.

Today, those concerns have come to bear, but not in the way Amsterdam or the Court predicted, and the Court has failed to respond. Today, private commercial entities, not the government, have utilized technology to “condition” citizens to have no expectation of privacy. They have done so on two particular levels. First, these commercial entities have obtained private data about citizens, i.e. information from their “digital dossier.” They have then revealed the information to others resulting in citizens feeling as though “nothing is private.” Second, when these entities obtain the data, they do not afford the individuals the opportunity to “demonstrate” their subjective expectation of privacy. Since a “search” requires a demonstration of a subjective expectation of privacy, and these commercial entities have used today’s technology to strip citizens of any expectation of privacy or ability to demonstrate one, then little the government examines will constitute a “search” and trigger Fourth Amendment protections.

This article identifies this assault on the expectation of privacy due to “corporate conditioning” of the consumer and proposes a viable legislative solution. It examines the Court’s existing approaches, including a thorough analysis of the recently articulated frameworks announced in the majority and concurring opinions of United States v. Jones, noting their inadequacy for today’s technological challenges. Utilizing the example of satellite imaging technology, it demonstrates the threat to privacy expectations unanticipated by the Court. This article proposes a new legislative framework for respecting privacy protections in response to these corporate induced privacy affronts. This framework, supported by analogous American law and European proposals, calls for an opt-in model. Before a citizen can be assumed to have voluntarily sacrificed his privacy, he must meaningfully opt in to the sharing of his private data. Such an opt-in must not be conditioned upon the service but must be uncoerced.

This approach advocates for addressing this unanticipated problem further upstream than other solutions by focusing on the commercial entities and not the later police action. It is rooted in the concept of ownership of one’s digital footprint and, therefore, the right to control one’s data.

Permalink 06:42:13 am, by fourth, 318 words, 378 views   English (US)
Categories: General

New law review article: "A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence"

New law review article: A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence by David C. Gray on SSRN and forthcoming in American Criminal Law Review. Abstract:

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing. That conceptual deficit has produced an opaque body of doctrine that is often incoherent and always speculative and unpredictable. Faced with these results, the Court has two options. First, it can abandon almost a century of doctrine in favor of a dramatically expanded exclusionary rule cut loose from general rules and exceptions; or, second, the Court can preserve the bulk of its Fourth Amendment exclusionary rule jurisprudence by adopting a hybrid theory of the exclusionary rule that embraces retributive principles. This Article argues for the latter course and explores the consequences. Principal among them is that the Court must accept the exclusionary rule as the natural and necessary sanction for Fourth Amendment violations rather than a contingently justified judicial doctrine. Although some Justices and their academic supporters may think this a steep price to pay, this Article argues that the costs are more than justified by the rewards of doctrinal coherence, added clarity, and predictability.

04/05/12

Permalink 06:52:22 am, by fourth, 539 words, 397 views   English (US)
Categories: General

CA4: Randolph requires the objecting defendant be actually present; objecting elsewhere not enough.

Randolph requires the objecting defendant be actually present. Objecting elsewhere not enough. The court thus joins CA7 and CA8. United States v. Shrader, 675 F.3d 300 (4th Cir. 2012)

Shrader urges us, however, to expand the holding of Randolph and conclude that his earlier refusal vitiates his aunt's later consent, even though he was absent from the premises. Physical presence may not be dismissed as a mere function of the facts of Randolph, however. That presence reflected the "widely shared social expectations" that informed the Court's ruling. Randolph, 547 U.S. at 111. The Court noted that "a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.'" Id. at 113; see also id. at 114 ("[T]he co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant.") The Court plainly gave careful thought to the scope of the physical presence requirement that it articulated:

[W]e are drawing a fine line; if a potential defendant with self-interest in objecting is in fact at the door and objects, the co-tenant's permission does not suffice for a reasonable search, whereas the potential objector, nearby but not invited to take part in the threshold colloquy, loses out. This is the line we draw, and we think the formalism is justified. Id. at 121.

This case falls squarely on the permissible side of the line. Because Shrader was absent from the premises, and there was no evidence that he was arrested for the purpose of nullifying his refusal to consent to the search, his aunt's consent provided adequate permission for the police to search the house, notwithstanding his earlier objection.

In so holding, we join the Seventh and Eighth Circuits in adhering to the clearly drawn rule of Randolph and giving effect to the Supreme Court's explicit requirement that the defendant be physically present to dispute his cotenant's consent. See United States v. Henderson, 536 F.3d 776 (7th Cir. 2008); United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008) (en banc). We decline to adopt the more expansive view of the Ninth Circuit which permits a defendant's refusal to operate indefinitely, "barring some objective manifestation that he has changed his position and no longer objects." United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008). This latter approach raises practical problems. How broadly is constructive knowledge of a suspect's prior refusal to consent to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that be assessed from the totality of the circumstances? Is there some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph would involve courts in such questions, diverting attention from the basic social expectations that underlie not only the opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement that an objecting cotenant be physically present thus not only shows fealty to the Supreme Court's precedent, but also focuses police and courts on the customary norms that form the basis for this area of law.

Permalink 06:22:24 am, by fourth, 216 words, 435 views   English (US)
Categories: General

TX14: Driving 52 in 65 zone in left lane on I-10 not impeding traffic not RS for stop

Defendant’s driving 52 in a 65 zone in the left lane on I-10 was not reasonable suspicion to stop him where there was no showing that he impeded traffic. Delafuente v. State, 367 S.W.3d 731(Tex. App. – Houston (14th Dist.) 2012), Vacated by, Remanded by, 2012 Tex. Crim. App. LEXIS 813 (Tex. Crim. App., June 20, 2012).*

Defendant was detained in the police car for five minutes while a DL check was run, and this did not violate the Fourth Amendment. Defendant’s unMirandized admissions of consumption of beer made then were admissible. While a pat-down search was conducted prior to defendant's statements, this search did not convert this routine traffic stop into a custodial situation as the search was nominally consensual, it was concluded in a few seconds, and nothing was found during the search. State v. Serafin, 2012 Ohio 1456, 2012 Ohio App. LEXIS 1295 (11th Dist. March 30, 2012).*

A license plate in the back window and not where it belongs is reason for a stop in Ohio. State v. Fredo, 2012 Ohio 1496, 2012 Ohio App. LEXIS 1314 (7th Dist. March 30, 2012).*

The remedy for an alleged Fourth Amendment violation for an unlawful stop is a motion to suppress, not a motion to dismiss. Reasonable suspicion is required for the stop, not probable cause, and the trial court erred. State v. Kilbarger, 2012 Ohio 1521, 2012 Ohio App. LEXIS 1327 (4th Dist. March 19, 2012).*

04/04/12

Permalink 11:44:26 am, by fourth, 95 words, 336 views   English (US)
Categories: General

SFGate.org: "Why cell-phone tracking should require a warrant"

SFGate.org: Why cell-phone tracking should require a warrant by James Temple:

The American Civil Liberties Union released a troubling report this past weekend demonstrating that law enforcement agencies around the nation routinely track personal cell phones, often without warrants. Conspicuously absent from the survey was information about the tactics of Northern California police departments.

That's because, among the roughly 20 local agencies that received open records requests, only a handful provided substantive responses, said Linda Lye, staff attorney at the ACLU of Northern California. The rest declined to shed light on their practices, she said.

Permalink 09:05:17 am, by fourth, 252 words, 411 views   English (US)
Categories: General

IL: Where search for body under basement cement couldn't be completed in one day, officers could return next day to finish

Where a search under a warrant for a body under cement in a basement couldn’t possibly be completed in a day, it was not unreasonable for officers to return the next day. People v. Nevarez, 971 N.E.2d 579, 2012 IL App (1st) 93414 (Ill. App. 2012):

[**P48] This record indicates that the search team proceeded with diligence on the first day of the search, uncovered evidence the cadaver dog's "hit") that the body was indeed somewhere in the apartment, but was unable to complete the search that day because the long process of excavation had physically drained the searchers. They left for the night, but demonstrated their intent to continue the search the next day by boarding up the site and posting overnight police guards at both entrances. As the search could not have been completed in a single day, the resumption of the search the next day was not a separate search requiring a second warrant, but was simply a reasonable continuation of the original search for which no new search warrant was required. See United States v. Squillacote, 221 F.3d 542, 557 (4th Cir. 2000) (where search could not have been completed in a single day, "the subsequent entries were not separate searches requiring separate warrants, but instead were simply reasonable continuations of the original search").

“Reasonable suspicion of criminal activity can found [sic] on the combination of a driver's extreme nervousness and contradictory statements. United States v. Morgan, 270 F.3d 625, 631 (8th Cir. 2001).” United States v. Felix, 2012 U.S. Dist. LEXIS 46377 (N.D. Iowa April 3, 2012).*

Permalink 08:48:45 am, by fourth, 455 words, 837 views   English (US)
Categories: General

M.D.Ga.: Wrongfully deported citizen stated claim against government

Plaintiff’s claim he was a U.S. citizen wrongfully deported and rejected when he came back to the U.S. through ATL customs when they discredited his newly issued passport relying on the original bogus records survives as to the government under Bivens. Most of the officers get qualified immunity. Lyttle v. United States, 867 F. Supp. 2d 1256 (M.D. Ga. 2012):

After being detained for fifty-one days by the United States Immigration and Customs Enforcement Division of the Department of Homeland Security ("ICE"), Mark Daniel Lyttle ("Lyttle"), a United States citizen with diminished mental capacity, was flown to Hidalgo, Texas, transported to the Mexican border, forced to disembark, and sent off on foot into Mexico with only three dollars in his pocket. Wearing his prison-issued jump suit from the Stewart Detention Center, a privately managed ICE facility in Georgia, and speaking no Spanish, Lyttle wandered around Central America for 125 days, sleeping in the streets, staying in shelters, and being imprisoned and abused in Mexico, Honduras, and Nicaragua because he had no identity or proof of citizenship. Ultimately, Lyttle found his way to the United States Embassy in Guatemala, where an Embassy employee helped him contact his family in the United States to arrange for his return home.

In his Complaint, Lyttle alleges that ICE employees detained him without probable cause and subsequently deported him unlawfully to Mexico, knowing that he was a United States citizen with a diminished mental capacity. 1 Lyttle seeks damages from the responsible ICE officers in their individual capacities pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violating his constitutional right to be free from unreasonable seizure under the Fourth Amendment and his rights to due process and equal protection under the Fifth Amendment.

. . .

Defendants' motions to dismiss (ECF Nos. 47 & 49) are granted in part and denied in part. Specifically, the Court dismisses the following claims: (1) the official capacity claims against Defendants James Hayes, Eric Holder, John Morton, Janet Napolitano, and Thomas Snow; (2) the individual capacity Bivens equal protection claims as to all Defendants against whom they are asserted; (3) the individual capacity Bivens Fifth Amendment due process claims against Defendants Johnston, Keys, and Moore; and (4) the individual capacity Bivens Fourth Amendment unreasonable seizure claims against Johnston, Keys, and Moore. The following claims remain pending: (1) the Bivens Fifth Amendment due process claims against Defendants Collado, Moten, Mondragon, Simonse, and Hayes; (2) the Bivens Fourth Amendment unreasonable seizure claims against Defendants Collado, Moten, Mondragon, Simonse, and Hayes; and (3) the Federal Tort Claims Act claims against the United States for false imprisonment, negligence, and intentional infliction of emotional distress. Plaintiff's Motion for Leave to Correct Formatting Error (ECF No. 62) is unopposed and moot after issuance of this Order.

Permalink 08:32:21 am, by fourth, 235 words, 349 views   English (US)
Categories: General

S.D.Ind.: When two vehicles are traveling together, occupants of one don't have standing in the other

The stop of two vehicles traveling together did not give each standing to challenge the stop of the other. As to one, the stop was invalid and suppressed, but not the other. United States v. Peters, 2012 U.S. Dist. LEXIS 46977 (S.D. Ind. April 03, 2012):

When law enforcement conducts a traffic stop of a vehicle, both the driver of the vehicle and its passengers may challenge the legality of the stop. Brendlin v. California, 551 U.S. 249, 251 (2007). Accordingly, as passengers in the respective vehicles, Mr. Holmes can challenge the stop of the Denali, and Mr. Peters can challenge the stop of the Scion.

Unlike Mr. Holmes, [dkt. 153 at 10], Mr. Peters contends that because the Scion and the Denali were traveling together, the occupants of each vehicle can challenge the search of the other vehicle, too, [dkt. 151 at 6-7]. Neither Mr. Peters nor the Government could direct the Court to any authority directly on point. Nonetheless, the Court's own research has revealed authority from the Seventh Circuit that, by analogy, requires the Court to reject Mr. Peters' claim. If absent owners of vehicles cannot challenge the search of their vehicles because "the intrusion a vehicle stop causes is personal to those in the car when it occurs," United States v. Powell, 929 F.2d 1190, 1195 (7th Cir. 1991), mere passengers in a separate vehicle in a convoy would likewise lack the ability to raise a constitutional claim about the stopped vehicle.

Permalink 12:02:09 am, by fourth, 230 words, 502 views   English (US)
Categories: General

RollingStone: "Mike Bloomberg's New York: Cops in Your Hallways:

RollingStone: Mike Bloomberg's New York: Cops in Your Hallways by Matt Taibbi:

An amazing lawsuit was filed in New York last week. It seems Mike Bloomberg’s notorious "stop-and-frisk" policy – known colloquially in these parts by silently-cheering white voters as the "Let’s have cops feel up any nonwhite person caught walking in the wrong neighborhood” policy – isn’t even the most repressive search policy in the NYPD arsenal.

Bloomberg, that great crossover Republican, has long been celebrated by the Upper West Side bourgeoisie for his enlightened views on gay rights and the environment, but also targeted for criticism by civil rights activists because of stop-and-frisk, a program that led to a record 684,330 street searches just last year.

Now he’s under fire for a program he inherited, which goes by the darkly Bushian name of the "Clean Halls program." In effect since 1991, it allows police to execute so-called "vertical patrols" by going up into private buildings and conducting stop-and-frisk searches in hallways – with the landlord’s permission.

. . .

If you live in a Clean Halls building, you can’t even go out to take out the trash without carrying an ID – and even that might not be enough. If you go out for any reason, there may be police in the hallways, demanding that you explain yourself, and insisting, in brazenly illegal and unconstitutional fashion, on searches of your person.

04/03/12

Permalink 04:25:12 pm, by fourth, 121 words, 430 views   English (US)
Categories: General

CA7: Six day delay to get SW after seizure of cell phone not unreasonable

Defendant’s cell phone was seized without a warrant on suspicion of having child pornography on it. They waited six days to get a search warrant for the phone. “Although we agree with Burgard that the officers did not act with perfect diligence, we do not find the delay here to be so egregious that it renders the search and seizure unreasonable under the Fourth Amendment.” United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012).

Officers had an arrest warrant because of defendant’s indictment. While in his house on the arrest warrant, defendant consented to a search of the house, so his 2255 fails on this ground. [Default unmentioned.] Martinez v. United States, 2012 U.S. Dist. LEXIS 45718 (S.D. N.Y. March 30, 2012).*

Permalink 09:36:54 am, by fourth, 123 words, 419 views   English (US)
Categories: General

A note about Lexis's production

I get most cases from my stored Lexis search about 5:30 a.m., seven days a week. Some I get from Google alerts and list servs. I have no idea how Lexis gets its cases from the federal courts or any other court. Some are obvious because they're publicly posted, but sometimes Lexis has cases that aren't on court websites. Sure, they're on Pacer, but I can't afford to get them all, save them, and make a link, and with all those cases pending, does Lexis get alerts of all filings?

Today, a 2003 case came through for some reason, and it was about 28,200. 2011 cases were over 150,000. Somewhere in there I quit reporting on civil cases in the district court level because of the number.

Permalink 06:30:39 am, by fourth, 42 words, 435 views   English (US)
Categories: General

NYTimes Editorial: "Stop and Frisk, Continued"

NYTimes Editorial: Stop and Frisk, Continued:

The Bloomberg administration and its police commissioner, Raymond Kelly, have been disturbingly dismissive of complaints about the city’s program of stops, frisks and arrests that is ensnaring hundreds of thousands of New Yorkers each year.

Permalink 04:03:46 am, by fourth, 189 words, 529 views   English (US)
Categories: General

CrimProf Blog: "Murphy on Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions"

CrimProf Blog: Murphy on Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions:

Erin Murphy (New York University School of Law) has posted The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

When criminal justice scholars think of privacy, they think of the Fourth Amendment. But lately its domain has become far less absolute. The United States federal code currently contains over twenty separate statutes that restrict both acquisition and release of covered information. Largely enacted in the latter part of the twentieth century, these statutes address matters vital to modern existence. They control police access to drivers’ licenses, education records, health histories, telephone calls, e-mail messages, and even video rentals. They conform to no common template, but rather enlist a variety of procedural tools to serve as safeguards – ranging from warrants and court orders to subpoenas and demand letters. But across this remarkable diversity, there is one feature that all of the statutes share in common: each contains a provision exempting law enforcement from its general terms.

Permalink 03:58:17 am, by fourth, 233 words, 465 views   English (US)
Categories: General

Volokh: New Draft Article, “The Mosaic Theory of the Fourth Amendment”

Volokh: New Draft Article, “The Mosaic Theory of the Fourth Amendment” by Orin Kerr

I have just posted a new draft article, The Mosaic Theory of the Fourth Amendment, which is forthcoming in the Michigan Law Review. Here’s the abstract:

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search.

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

04/02/12

Permalink 11:40:59 am, by fourth, 1150 words, 841 views   English (US)
Categories: General

SCOTUS: Fourth Amendment does not require jail officials to have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or other contraband in order to subject him to a routine strip search prior to incarceration

SCOTUS to the People: "Lift 'em and spread 'em."

The Fourth Amendment does not require jail officials to have reasonable suspicion that a person arrested for a minor offense possesses a concealed weapon or other contraband in order to subject him to a routine strip search prior to introducing him into the general jail population. (per BNA) Florence v. Board of Chosen Freeholders of County of Burlington, 2012 U.S. LEXIS 2712 (April 2, 2012) (5-4):

JUSTICE KENNEDY delivered the opinion of the Court, except as to Part IV, concluding that the search procedures at the county jails struck a reasonable balance between inmate privacy and the needs of the institutions, and thus the Fourth and Fourteenth Amendments do not require adoption of the framework and rules petitioner proposes. Pp. 5-18, 19.

(a) Maintaining safety and order at detention centers requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to problems. A regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U. S. 78, 89. This Court, in Bell v. Wolfish, 441 U. S. 520, 558, upheld a rule requiring pretrial detainees in federal correctional facilities “to expose their body cavities for visual inspection as a part of a strip search conducted after every contact visit with a person from outside the institution[s],” deferring to the judgment of correctional officials that the inspections served not only to discover but also to deter the smuggling of weapons, drugs, and other prohibited items.In Block v. Rutherford, 468 U. S. 576, 586-587, the Court upheld a general ban on contact visits in a county jail, noting the smuggling threat posed by such visits and the difficulty of carving out exceptions for certain detainees. The Court, in Hudson v. Palmer, 468 U. S. 517, 522-523, also recognized that deterring the possession of contraband depends in part on the ability to conduct searches without predictable exceptions when it upheld the constitutionality of random searches of inmate lockers and cells even without suspicion that an inmate is concealing a prohibited item. These cases establish that correctional officials must be permitted to devise reasonable search policies to detect and deter the possession of contraband in their facilities, and that “in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment in such matters,” Block, supra, at 584–585. Persons arrested for minor offenses may be among the detainees to be processed at jails. See Atwater v. Lago Vista, 532 U. S. 318, 354. Pp. 5-9.

(b) The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the invasive search procedures at issue absent reasonable suspicion of a concealed weapon or other contraband. Correctional officials have a significant interest in conducting a thorough search as a standard part of the intake process. The admission of new inmates creates risks for staff, the existing detainee population, and the new detainees themselves. Officials therefore must screen for contagious infections and for wounds or injuries requiring immediate medical attention. It may be difficult to identify and treat medical problems until detainees remove their clothes for a visual inspection. Jails and prisons also face potential gang violence, giving them reasonable justification for a visual inspection of detainees for signs of gang affiliation as part of the intake process. Additionally, correctional officials have to detect weapons, drugs, alcohol, and other prohibited items new detainees may possess. Drugs can make inmates aggressive toward officers or each other, and drug trading can lead to violent confrontations. Contraband has value in a jail’s culture and underground economy, and competition for scarce goods can lead to violence, extortion, and disorder. Pp. 9-13.

(c) Petitioner’s proposal that new detainees not arrested for serious crimes or for offenses involving weapons or drugs be exempt from invasive searches unless they give officers a particular reason to suspect them of hiding contraband is unworkable. The seriousness of an offense is a poor predictor of who has contraband, and it would be difficult to determine whether individual detainees fall within the proposed exemption. Even persons arrested for a minor offense may be coerced by others into concealing contraband. Exempting people arrested for minor offenses from a standard search protocol thus may put them at greater risk and result in more contraband being brought into the detention facility.

It also may be difficult to classify inmates by their current and prior offenses before the intake search. Jail officials know little at the outset about an arrestee, who may be carrying a false ID or lie about his identity. The officers conducting an initial search often do not have access to criminal history records. And those records can be inaccurate or incomplete. Even with accurate information, officers would encounter serious implementation difficulties. They would be required to determine quickly whether any underlying offenses were serious enough to authorize the more invasive search protocol. Other possible classifications based on characteristics of individual detainees also might prove to be unworkable or even give rise to charges of discriminatory application. To avoid liability, officers might be inclined not to conduct a thorough search in any close case, thus creating unnecessary risk for the entire jail population. While the restrictions petitioner suggests would limit the intrusion on the privacy of some detainees, it would be at the risk of increased danger to everyone in the facility, including the less serious offenders. The Fourth and Fourteenth Amendments do not require adoption of the proposed framework. Pp. 13-18, 19.

KENNEDY, J., delivered the opinion of the Court, except as to Part IV. ROBERTS, C. J., and SCALIA and ALITO, JJ., joined that opinion in full, and THOMAS, J., joined as to all but Part IV. ROBERTS, C. J., and ALITO, J., filed concurring opinions. BREYER, J., filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

This serves utterly no purpose other than to humiliate minor offenders. It will lead some state courts to find their state constitutions provide more protection. I thought Lago Vista was wrong; this just compounds that error. See HuffPo: Lift 'Em and Spread 'Em: High Court Greenlights Search Without Suspicion; NYTimes: Justices Approve Strip-Searches for Any Offense.

Because of the following story, NYC can now humiliate more minor offenders by strip searching them for the hell of it.

The great irony of Florence is that Mr. Florence was strip searched when jailed because of an erroneous record of an unpaid ticket. If his car was searched, he'd have no recourse there, either, because the erroneous record isn't subject to the exclusionary rule. So, what remedy do the people have to protect against careless police and officious bureaucrats who just don't care that you were arrested and searched based on wrong information, but allegedly in good faith? Apparently none, now.

Permalink 11:27:42 am, by fourth, 74 words, 429 views   English (US)
Categories: General

NYTimes Editorial: "Examining Marijuana Arrests"

NYTimes Editorial: Examining Marijuana Arrests:

The New York State Legislature showed good sense when it exempted people convicted of low-level marijuana possession from having to submit DNA to the state database, unless they have been convicted of a previous crime. Still, the state must do more to curb the arrests of tens of thousands of people each year in New York City for minor possession of marijuana, despite a 1977 state law that decriminalized it.

Permalink 07:19:07 am, by fourth, 262 words, 708 views   English (US)
Categories: General

D.Ariz.: I-19 immigration checkpoint stop valid even if stop was based on subjective suspicion of drug smuggling

The I-19 checkpoint south of Tucson is a constitutional immigration checkpoint per the Ninth Circuit. Occasionally vehicles are “flushed” through the checkpoint as vehicles build up. When that happens, that does not change the legal standard of suspicion necessary to stop a vehicle for an immigration check. Also, the fact all the officers working the checkpoint are cross-designated as drug officers does not make the checkpoint unconstitutional, despite the fact that 300-400 drug smuggling cases are made there a year. United States v. Ruiz-Perez, 2012 U.S. Dist. LEXIS 44505 (D. Ariz. March 30, 2012), R&R 2011 U.S. Dist. LEXIS 154502 (D. Ariz. October 6, 2011):

Agent Kouris' subjective belief that Defendant's vehicle may be smuggling drugs does not affect the analysis of the reasonableness of the stop. Although subjective intent has been considered in evaluating the subjective intrusiveness of a checkpoint stop, the key consideration is the subjective belief of the traveler, not the officer. See e.g. United States v. Hawkins, 249 F.3d 867, 874 (9thCir. 2001) (stating "in some instances, the failure to stop every vehicle could raise concerns over subjective intrusiveness," but finding no Fourth Amendment violation where Defendant was not treated differently from other drivers and no law-abiding motorist would have been unduly surprised or afraid because of this stop). In fact, the Supreme Court has indicated that some discretion and motive is inherent and permissible in routine checkpoint operations. ...

Defendant’s consent was voluntary, with the court evaluating numerous factors. Also, defendant signed a written consent. It was after a protective sweep. United States v. Salgado, 2012 U.S. Dist. LEXIS 44682 (N.D. Ga. March 12, 2012).*

Permalink 06:51:34 am, by fourth, 162 words, 367 views   English (US)
Categories: General

MA: SI unreasonable of bicycle defendant was riding when stopped for trespass

An arrest for trespass at a housing project did not justify a search incident and seizure of the bicycle the defendant was riding. It wasn’t an offense for which there would be evidence. Commonwealth v. Holloway, 81 Mass. App. Ct. 910, 964 N.E.2d 996 (2012).

Defendant was stopped for suspicion of DUI and his car was searched without a warrant in violation of the state constitution. While the officer did all that he normally could, there is no good faith exception in Washington, and the search should have been suppressed. State v. Tamblyn,167 Wn. App. 332, 273 P.3d 459 (2012).*

In an appeal dismissed for lack of a dispositive question, the court added: “Defendant has failed to cite controlling authority, and we have found none, to support his assertion that ‘proof of actual attempts by law enforcement officers to obtain a lawful warrant must be placed on the record before the court may find that exigent circumstances exist.’” State v. Lands, 377 S.W.3d 678 (Tenn. Crim. App. 2012).

Permalink 06:35:15 am, by fourth, 264 words, 460 views   English (US)
Categories: General

S.D.W.Va.: Car in garage could be searched under SW even though it wasn't homeowner's

Defendant was visiting a house that was searched under a warrant. His car was in the garage and searched too. It was reasonable for the police to believe that the car in the garage was subject to search with the premises. United States v. Powell, 2012 U.S. Dist. LEXIS 43866 (S.D. W.Va. March 29, 2012):

The scope of a warrant to search an entire property or premises "includes automobiles on the property or premises that are owned by or are under the dominion and control of the premises owner or which reasonably appear to be so controlled." United States v. Patterson, 278 F.3d 315, 318 (4th Cir. 2002). Defendant argues that the searched vehicle at 228 North Queens Court could not have reasonably appeared to be owned or controlled by the owner of the searched property, James Meeks, because the searching officers were aware that the vehicle was registered to someone other than Meeks.

The Court disagrees. Although the vehicle was not registered to Meeks, it could still reasonably appear to be controlled by him, because it was within his attached garage. Courts have long considered attached garages to be part of the home. See Taylor v. United States, 286 U.S. 1, 6 (1932) (warrantless search of garage violated Fourth Amendment); ....

Police were called to an on-the-street argument and saw defendant and a woman. Defendant was questioned by the police, and his speech was slurred and he refused to remove his hands from his pockets. He was arrested for public intoxication and convicted. The police did not need reasonable suspicion to talk to him. Woodson v. State, 966 N.E.2d 135 (Ind. App. 2012).*

Permalink 05:50:03 am, by fourth, 131 words, 429 views   English (US)
Categories: General

PolitiFact Florida: "Are lawmakers protected by First Amendment against drug testing?"

PolitiFact Florida: Are lawmakers protected by First Amendment against drug testing? by Katie Sanders:

Miami Herald columnist Carl Hiaasen torched Florida lawmakers for passing a drug-testing bill for state workers that excluded one class of government employees: the elected officials who passed the law.

Hiaasen took particular issue with the proposal's House sponsor Rep. Jimmie Smith, a Republican from Lecanto, and his explanation why the law excludes Gov. Rick Scott and legislators.

"It was found to be unconstitutional to drug test elected officials because it prevents us, as citizens, from having that First Amendment right," Smith said.

Smith's defense is novel — and wrong, it turns out.

Not just wrong: Off the wall. A de jure "speech and debate" defense to drug testing? Come on: That doesn't even pass the laugh test.

Permalink 05:45:11 am, by fourth, 96 words, 362 views   English (US)
Categories: General

Volokh: "Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information"

Volokh Conspiracy: Magistrate Judge Rejects Mosaic Theory of Fourth Amendment For Cell-Site Information by Orin Kerr:

I have posted the short opinion (dated March 23) from Magistrate Judge Collings of the District of Massachusetts here. It largely adopts the reasoning of United States v. Graham from the District of Maryland, which I blogged about here. In my view, Judge Collings was correct to issue the order without probable cause for a second reason: The Fourth Amendment questions are not yet ripe for review, as I argue in this amicus brief I filed recently in the Fifth Circuit.

04/01/12

Permalink 08:37:00 pm, by fourth, 284 words, 553 views   English (US)
Categories: General

HuffPo: "Illinois Traffic Stop Of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs, Bad Cops"

HuffPo: Illinois Traffic Stop Of Star Trek Fans Raises Concerns About Drug Searches, Police Dogs, Bad Cops by Radley Balko:

Last December, filmmaker Terrance Huff and his friend Jon Seaton were returning to Ohio after attending a "Star Trek" convention in St. Louis. As they passed through a small town in Illinois, a police officer, Michael Reichert, pulled Huff's red PT Cruiser over to the side of the road, allegedly for an unsafe lane change. Over the next hour, Reichert interrogated the two men, employing a variety of police tactics civil rights attorneys say were aimed at tricking them into giving up their Fourth Amendment rights. Reichert conducted a sweep of Huff's car with a K-9 dog, then searched Huff's car by hand. Ultimately, he sent Huff and Seaton on their way with a warning.

Earlier this month, Huff posted to YouTube audio and video footage of the stop taken from Reichert's dashboard camera. No shots were fired in the incident. No one was beaten, arrested or even handcuffed. Reichert found no measurable amount of contraband in Huff's car. But Huff's 17-and-a-half minute video raises important questions about law enforcement and the criminal justice system, including the Fourth and Fifth Amendments, the drug war, profiling and why it's so difficult to take problematic cops out of the police force.

The video: Breakfast in Collinsville (with Michael Richert), and its mostly from the POV of the police car. Pretty typical overbearing cop during an interstate stop who won't take "I won't consent" and "I want to go" for an answer. Finally he gets out the drug dog that doesn't alert and then searches anyway. This is a really long article, but typical Balko: excellent coverage.

Permalink 11:48:29 am, by fourth, 59 words, 392 views   English (US)
Categories: General

NYTimes Editorial: "The Roberts Court Defines Itself"

NYTimes Editorial: The Roberts Court Defines Itself:

For anyone who still thought legal conservatives are dedicated to judicial restraint, the oral arguments before the Supreme Court on the health care case should put that idea to rest. There has been no court less restrained in signaling its willingness to replace law made by Congress with law made by justices.

Permalink 09:37:09 am, by fourth, 168 words, 428 views   English (US)
Categories: General

NYTimes.com: 538: "Supreme Court May Be Most Conservative in Modern History"

NYTimes.com: 538: Supreme Court May Be Most Conservative in Modern History by Nate Silver

If President Obama’s health care bill is stricken by the Supreme Court, liberals will take it as evidence of judicial overreach, or at least that the court has shifted far to the right. One statistical method for analyzing the Supreme Court, in fact, already finds that the current court is the most conservative since at least the 1930s.

...

As you can see from the chart, Mr. Martin and Mr. Quinn rate the current court (based on data up through late 2010) as the most conservative in their database based on the positioning of the median justice, the previous high having come in the early 1950s. Although Justice Kennedy is not extraordinarily conservative relative to all other justices who have served on the court, he is very conservative by the standards of the median justice, who has typically been more of a true moderate.

Statistics to measure justice? Why not. Nothing else works to measure.

Permalink 12:40:52 am, by fourth, 361 words, 543 views   English (US)
Categories: General

CA3: Search of wrong house with three hour detention of occupant stated claim and overcame qualified immunity

Officers alleged to have entered the wrong unit during execution of a search warrant then detaining the occupants for three hours stated a § 1983 claim that overcame qualified immunity. Gomez v. Feissner, 474 Fed. Appx. 53 (3d Cir. 2012) (unpublished):

The Gomezes also claim that Feissner and Zola violated their right to be free from unreasonable seizure by detaining them for three hours during the search of their home. A "seizure" occurs when a government officer, "by means of physical force or show of authority ... restrains the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Under clearly established Supreme Court precedent, it is reasonable for officers to seize the occupants of a home while conducting a constitutionally valid search thereof. Michigan v. Summers, 452 U.S. 692, 705 (1981). But this is true only for the duration of the search. When the search is completed, the authority expires. Id. Moreover, under Garrison, it is clearly established that once officers know or should know that they are without authority to continue a seizure, they must end it.

The Gomezes allege that Feissner should have known after fifteen minutes that he had no authority to search their home. It is undisputed that for three hours beyond this point, the Gomezes were involuntarily detained by either Feissner or officers under his command. These allegations suffice to make out a violation of the Gomezes' clearly established right to be free from unreasonable seizure, and Feissner accordingly does not have qualified immunity from this claim.

Note: This case states the obvious. What is galling about it is the defendant police officer arguing with a straight face that he, first, could not only enter the wrong apartment when he was on notice by unit numbers and multiple doorways and satellite dishes, but, second, he could then detain the occupants of the place wrongly searched for three hours for no apparent reason. They should settle and move on, if their position in this case hasn't thoroughly added insult to injury and made trial inevitable. This is the double edged sword of qualified immunity: When the defense loses on qualified immunity, you're only arguing about the damages. This is sufficiently flagrant that punitives should result.

Permalink 12:16:32 am, by fourth, 171 words, 390 views   English (US)
Categories: General

CA3: Knock-and-talk with RS reasonably led to warrantless entry to seize MJ

Officers working patrol in a housing project smelled marijuana. They followed the smell and found it coming from an apartment. They knocked on the door and the smell was far stronger. The defendant answering the door admitted to smoking marijuana. There was exigency for an entry to seize the marijuana because they couldn’t practically leave and get a warrant without the marijuana being destroyed. United States v. McMillion, 472 Fed. Appx. 138 (3d Cir. 2012):

Here, the exigency of the circumstances provided the officers with an objectively reasonable belief that a warrantless entry was justified. The officers followed the odor of marijuana to Washington's apartment, knocked on the door and, when Washington opened the door, the odor was even stronger. It was thus reasonable for the officers to suspect that there was ongoing drug activity, and, particularly in light of McMillion's admission to smoking marijuana, it was also reasonable for the officers to conclude that contraband was being destroyed and would continue to be destroyed or removed if they did not act immediately.

Permalink 12:09:15 am, by fourth, 173 words, 355 views   English (US)
Categories: General

OH8: Shots fired call from inside a house justified entry into the house when a light came on

Police received a 911 call of shots fired from an alleged AK47 inside a house, and the SWAT team even came. Just before entry, they saw a light go on, and they entered. This was with exigent circumstances there might be a shooting victim inside. Once officers were inside, the court finds defendant consented to a full search of the premises. State v. Johnson, 2012 Ohio 1344, 2012 Ohio App. LEXIS 1170 (8th Dist. March 29, 2012).*

Defendant was approached by an officer at a rest stop because he noticed her taillights flash, suggesting she needed help. He found her OVI. He did not suspect any criminal activity, and there was no apparent need for a community caretaking encounter, so the motion to suppress should have been granted. State v. Clapper, 2012 Ohio 1382, 2012 Ohio App. LEXIS 1189 (9th Dist. March 30, 2012).

Defendant stopped for a lane change violation was in a rented car purportedly rented to his girlfriend, but he didn’t know her last name. That was reasonable suspicion to detain longer. State v. Delossantos, 2012 Ohio 1383, 2012 Ohio App. LEXIS 1192 (9th Dist. March 30, 2012).*

Permalink 12:02:59 am, by fourth, 215 words, 455 views   English (US)
Categories: General

S.D.Cal.: Flagrant Fourth Amendment violation taints money seizure; no sufficient intervening circumstances

The “consent” search here was not true consent, and the finding of defendant’s money for seizure was a product of that invalid consent. There were no intervening circumstances sufficient to purge the taint. “The Court also finds the constitutional violations that preceded Moser's consent were purposeful and flagrant.” United States v. $28,000.00 in United States Currency, 2012 U.S. Dist. LEXIS 44113 (S.D. Cal. March 29, 2012).*

Officers at the house end of the driveway were in the curtilage when they made their “plain view” of an HCL generator. The government’s alternative argument of knock-and-talk with a PO and LEO led to a “protective sweep,” but the government cannot prove that there was any articulable basis for believing there was somebody armed there. Finally, the court concludes that the PO had reasonable suspicion that defendant was involved in a methamphetamine operation, and that justified entry onto the property. United States v. Wyatt, 2012 U.S. Dist. LEXIS 42725 (W.D. Ky. March 28, 2012).*

Defendant’s guilty plea even waived ineffective assistance claims. [That violates the Sixth Amendment; how obtuse. How can defense counsel agree to a plea agreement that waives IAC? In any rational court, counsel can’t because of a conflict on the potential Sixth Amendment claim.] Wiand v. United States, 2012 U.S. Dist. LEXIS 43793 (N.D. Tex. January 17, 2012).*

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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Search and seizure law consulting
www.johnwesleyhall.com

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Most recent SCOTUS cases:
2009 to date:

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)

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  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)

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  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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  S.Ct. Monitor: Law.com
  S.Ct. Com't'ry: Law.com

  General (many free):
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  Google Scholar | Google
  LexisOne Legal Website Directory
  Crimelynx
  Lexis.com $
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  Findlaw.com
  Findlaw.com (4th Amd)
  Westlaw.com $
  F.R.Crim.P. 41
  www.fd.org

  FBI Domestic Investigations and Operations Guide (2008) (pdf)
  DEA Agents Manual (2002) (download)
  DOJ Computer Search Manual (2009) (pdf)

  Congressional Research Service:
    Electronic Communications Privacy Act (2012)
    Overview of the Electronic Communications Privacy Act (2012)
    Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
    Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)

  ACLU on privacy
  Privacy Foundation
  Electronic Privacy Information Center
  Criminal Appeal (post-conviction) (9th Cir.)
  Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't."
—Me

"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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