Archives for: April 2012, 21


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.

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by John Wesley Hall
Criminal Defense Lawyer and
  Fourth Amendment consultant
Little Rock, Arkansas
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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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