Archives for: April 2012, 18


Permalink 04:00:20 pm, by fourth, 108 words, 476 views   English (US)
Categories: General Op-ed: "Poor people not excluded from Constitution" 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, 399 views   English (US)
Categories: General "No Savings Are Found From Welfare Drug Tests" 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, 398 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, 383 views   English (US)
Categories: General

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, 613 views   English (US)
Categories: General

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, 388 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?

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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2013-14 Term:
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  United States v. Wurie, granted Jan.17, argued Apr. 29 (ScotusBlog)
  Plumhoff v. Rickard, granted Nov. 15, argued Mar. 4 (ScotusBlog)
  Stanton v. Sims, 134 S.Ct. 3, 187 L. Ed. 2d 341 (Nov. 4, 2013) (per curiam)
  Navarette v. California, granted Oct.1, argued Jan. 21 (ScotusBlog)
  Fernandez v. California, 134 S.Ct. 1126, 188 L. Ed. 2d 25 (Feb. 25) (ScotusBlog)

2012-13 Term:
  Maryland v. King, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013) (ScotusBlog)
  Missouri v. McNeeley, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013) (ScotusBlog)
  Bailey v. United States, 133 S.Ct. 1031, 185 L.Ed.2d 19 (2013) (ScotusBlog)
  Florida v. Harris, 133 S.Ct. 1050, 185 L.Ed.2d 61 (2013) (ScotusBlog)
  Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) (ScotusBlog)
  Clapper v. Amnesty International USA, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (ScotusBlog)

2011-12 Term:
  Ryburn v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (2012) (other blog)
  Florence v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (2012) (ScotusBlog)
  United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (ScotusBlog)
  Messerschmidt v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (ScotusBlog)

2010-11 Term:
  Kentucky v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (2011) (ScotusBlog)
  Camreta v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (ScotusBlog)
  Ashcroft v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (ScotusBlog)
  Davis v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) (ScotusBlog)

2009-10 Term:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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