Archives for: April 2012, 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, 615 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, 2465 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.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
Contact / The Book
Search and seizure law consulting

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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)

2009-10 Term:

  Michigan v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam) (ScotusBlog)
  City of Ontario v. Quon, 560 U.S. 746, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) (ScotusBlog)

2008-09 Term:
  Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (ScotusBlog)
  Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (ScotusBlog)
  Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) (ScotusBlog)
  Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (ScotusBlog)
  Safford Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009) (ScotusBlog)

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  FBI Domestic Investigations and Operations Guide (2008) (pdf)
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  Section 1983 Blog

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

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
Mapp v. Ohio, 367 U.S. 643, 659 (1961).

Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property."
Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
Katz v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
Martin Niemöller (1945) [he served seven years in a concentration camp]

“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”
Pepé Le Pew

"There is never enough time, unless you are serving it."
Malcolm Forbes

"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
Johnson v. United States, 333 U.S. 10, 13-14 (1948)


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