Archives for: April 2012, 19


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, 608 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?]

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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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