Archives for: May 2012, 05


Permalink 01:09:36 pm, by fourth, 115 words, 381 views   English (US)
Categories: General

N.D.Fla.: Post-conviction petition can't relitigate search without IAC claim

Defendant can’t relitigate his motion to suppress in a 2255 which was decided on the merits on appeal without an IAC claim. United States v. Reed, 2012 U.S. Dist. LEXIS 61806 (N.D. Fla. March 8, 2012).*

The intrusion by detention was minimal here and led to consent, and defense counsel was not ineffective for not pursuing that ground because it would lose on the merits. Woodson v. State, 966 N.E.2d 780 Ind. App. 2012).*

Officers who entered after no answer to knocking at a door of the location of a disturbance call were entitled to qualified immunity. This was a reasonable response to a perceived need. They were inside two minutes. Burke v. Sullivan, 677 F.3d 367 (8th Cir. 2012).*

Permalink 01:08:34 pm, by fourth, 365 words, 441 views   English (US)
Categories: General

CA6: Affiant need not personally see CP pictures

It isn’t required that the affiant actually viewed child pornography to get a search warrant, at least as long as somebody did and reported it to the affiant. It is not required to attach the photographs to the search warrant application. Even if some were computer generated images, there was still probable cause. United States v. Ranke, 480 Fed. Appx. 798, 2012 FED App. 0471N (6th Cir. 2012)*:

Next, Defendant argues that the affidavit was insufficiently detailed. He points out that the affidavit does not indicate how Detective Pitts determined that the images were of a minor and that Detective Pitts' description of a boy "apparently masturbating" suggests that he never actually viewed the images personally. Defendant claims these deficiencies were compounded when Detective Pitts failed to attach the images to the affidavit for the state court judge's independent review.

The implication, to the extent one exists, that Detective Pitts never viewed the images personally, as well as his failure to attach the photographs to the search warrant affidavit, are both factors that should have played into the state court judge's probable cause analysis. However, neither precluded the judge from issuing the search warrant. First, an officer is entitled to rely on information supplied by other officers or agencies for the purposes of a search warrant affidavit, provided that the information and its sources are accurately described for the reviewing judge's independent evaluation. See United States v. Yusuf, 461 F.3d 374, 385, 48 V.I. 980 (3d Cir. 2006); United States v. Jenkins, 525 F.2d 819, 823 (6th Cir. 1975) (per curiam). Detective Pitts fulfilled that requirement when he provided an accurate description of the circumstances under which he "received information from federal authorities" regarding the greeting card, the accompanying photographs, and the incriminating evidence discovered in Brown's cell. Likewise, Detective Pitts' failure to attach the photographs themselves did not prevent the search warrant from being issued. A magistrate judge need not view all the evidence personally to make its decision, and the probable cause stage only requires an affidavit to show the "'probability or substantial chance of' possession of images of actual children; 'an actual showing' that the images depicted real children" is not required. Lapsins, 570 F.3d at 765 (citing Gates, 462 U.S. at 243 n.13).

Permalink 11:13:49 am, by fourth, 347 words, 383 views   English (US)
Categories: General

S.D.Fla.: Entry onto curtilage led to smell of grow operation and violated Fourth Amendment

Officers entered onto the curtilage of defendant’s property before they could smell a grow operation and hear the equipment. That was a Fourth Amendment violation, and it vitiated alleged consent and the good faith exception to a later warrant. United States v. Lopez, 2012 U.S. Dist. LEXIS 61707 (S.D. Fla. May 2, 2012):

Here the Court finds that the area within the Target Residence's metal fence and gates—and specifically the areas occupied by Officers Bartra, Rios, and Benavides at the time they smelled marijuana and heard the sounds of marijuana-grow-house equipment— constituted curtilage subject to fundamental Fourth Amendment protections. The area was close in proximity to the residence, was enclosed within the metal fence and contiguous gates, and was shielded by the fence's white paneling to block observation from outside. Although the driveway may have been used for ingress to and egress from the property, and although the driveway gate did not contain obstructive paneling, the closed, locked mechanical gate clearly delineated the driveway as a private area which visitors—and thus the investigating officers—were not expected to encroach. See, e.g., Edens v. Kennedy, 112 F. App'x 870, 875 (4th Cir. 2004); United States v. Hambelton, No. 1:08cr26-SPM, 2009 U.S. Dist. LEXIS 25139, 2009 WL 722284, at *4 (N.D. Fla. 2009). Moreover, although at one point Perez opened the gate so that he and Ricano could exit, one cannot say that this brief opening of the gate converted the driveway into only a semi-private area through which visitors were free to travel. See Fernandez v. State, 63 So. 3d 881, 884 (Fla. Dist. Ct. App. 2011) ("[T]he momentary opening of the gate for the defendant to leave was not an open invitation to the public, or by extension to the police, to enter. ... No salesman or visitor could have entered the enclosed curtilage during the momentary opening. The momentary opening of the gate for the express purpose of leaving did not alter the Dunn expectation-of-privacy factors.") The Court thus finds that the area from which officers first smelled marijuana constituted "curtilage" and that the officers' physical entry into that area implicated Defendants' Fourth Amendment protections.

Permalink 10:48:13 am, by fourth, 48 words, 293 views   English (US)
Categories: General "Wireless Carriers Who Aid Police Are Asked for Data" Wireless Carriers Who Aid Police Are Asked for Data by Eric Lichtblau:

WASHINGTON — A leading House Democrat is demanding information from the country’s biggest cellphone companies about their role in helping local police departments conduct surveillance and tracking of suspects and others in criminal investigations.

Permalink 10:17:55 am, by fourth, 238 words, 332 views   English (US)
Categories: General

CA4: Unaccounted for gun at a disturbance call justified protective sweep

The district court erred in granting the motion to suppress a protective sweep. When officers arrived at a disturbance call, they heard defendant threaten a woman, and the gun he allegedly had was unaccounted for with another person inside. United States v. Laudermilt, 677 F.3d 605 (4th Cir. 2012)*:

Applying this framework, we believe the district court erred in granting the suppression motion. We begin by noting our agreement with the district court that the protective sweep was justified by Buie. The officers were responding to a potentially volatile situation involving a firearm and a domestic dispute, and they personally witnessed Laudermilt threatening Kuri and her family. When the officers arrested Laudermilt, the firearm was unaccounted for and—even by Laudermilt's own admission—at least one other person was in the home. In addition, as the officers were arriving on the scene, two individuals were leaving in a vehicle, one of whom was "slouched" over in his seat. Clearly, these articulable facts would have led a reasonably prudent officer to believe a protective sweep was warranted.

Nexus to this apartment was shown by defendant’s mail being received there and his admitting that his immigration documents were there. When defendant was confronted with a piece of mail, his demeanor changed and he refused to cooperate about going to apartment to get his immigration documents. A search warrant was obtained for the apartment. United States v. Abdul-Ganiu, 480 Fed. Appx. 128 (3d Cir. 2012).*

Permalink 08:27:16 am, by fourth, 123 words, 344 views   English (US)
Categories: General "The Justices tend to find a violation if they can imagine the search applying to them personally" The Court and the Fourth Amendment; The Justices tend to find a violation if they can imagine the search applying to them personally by Erwin Chemerinsky:

I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.

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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:
  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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"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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