Archives for: May 2012, 16

05/16/12

Permalink 07:45:38 am, by fourth, 255 words, 419 views   English (US)
Categories: General

WA: Liquor license compliance check only in public areas was not a "search"

A Washington state ABC compliance check of a licensed establishment that only had officers in open areas was not a search under the constitutions. Dodge City Saloon v. Wash. State Liquor Control Bd., 168 Wn. App. 388, 288 P.3d 343 (2012):

In this case, the Liquor Board's actions did not constitute a search for Fourth Amendment purposes because the Liquor Board did not violate Dodge City's privacy interests. Dodge City had no reasonable privacy interest in areas of its licensed premises that it actively invites the public to enter. Barlow's Inc., 436 U.S. at 315. Even if, as Dodge City argues, it had a subjective reasonable expectation of privacy to exclude persons under 21 years old, which it did not, Dodge City lost that interest when it voluntarily admitted C.M. onto the premises. United States v. Bramble, 103 F.3d 1475, 1478 (9th Cir. 1996) ("Once consent has been obtained from one with authority to give it, any expectation of privacy has been lost."). Thus, the Liquor Board's officers did not conduct a "search" when they entered the public portions of Dodge City's premises and observed only what members of the public could also observe. Likewise, the Liquor Board's officers did not conduct a "search" when they observed C.M.'s entry into Dodge City from a public street. Accordingly, because there was no "search" in this case, the Liquor Board's actions do not implicate constitutional considerations and Dodge City has no "search" on which to base a Fourth Amendment or article I, section 7 unreasonable search and seizure claim. Centimark Corp., 129 Wn. App. at 375.

Permalink 07:40:38 am, by fourth, 119 words, 366 views   English (US)
Categories: General

CA6: Administrative search of water meters was protected by qualified immunity, if a violation at all

Attempted search of water department employee’s meters was not in violation of clearly established law, so the complaint failed to state a claim for relief against city officials, if it even violated the Fourth Amendment. Clemente v. Vaslo, 679 F.3d 482 (6th Cir. 2012).*

Defendant’s admission that he had child pornography on his flash drive being used on a university library computer was justification for his arrest by university police. He consented to a further search. United States v. LaPradd, 480 Fed. Appx. 405, 2012 FED App. 0495N (6th Cir. 2012).*

Defense counsel was not ineffective for not pursuing a search claim that would have lost under the automobile exception anyway. United States v. Whitfield, 2012 U.S. Dist. LEXIS 67292 (E.D. Va. May 11, 2012).*

Permalink 07:36:34 am, by fourth, 200 words, 382 views   English (US)
Categories: General

E.D.Ky.: When defendant asserts curtilage, he has to show standing

Defendant first failed to show that he had standing to challenge a search of open fields asserted to be curtilage. Then, it was open fields, and, alternatively, he consented. United States v. Wilburn, 2012 U.S. Dist. LEXIS 66300 (E.D. Ky. March 5, 2012)*:

The Court is simply unable to assess whether Defendant had a reasonable expectation of privacy in the place where the propane tank was discovered. Significantly, no evidence was presented to establish ownership or other interest in the land where the propane tank was located. As discussed above, the "defendant claiming that a search violated his Fourth Amendment rights has the burden of demonstrating that he had a legitimate expectation of privacy in the place that was searched." Mastromatteo, 538 F.3d at 544 (quoting Talley, 275 F.3d at 563. Here, Defendant did not present any evidence regarding this issue and has failed to meet his burden. Thus, the Court concludes that, although Defendant has standing to challenge the search of his home, he lacks standing to challenge the search of the property where the propane tank was located. Nevertheless, to ensure a complete analysis, the Court will assume for purposes of this Recommended Disposition that Defendant has standing to challenge both searches.

Permalink 07:17:45 am, by fourth, 144 words, 365 views   English (US)
Categories: General

W.D.N.C.: “The necessary suspicion for an investigative Terry stop is not a high bar”

Defendant was driving through hotel parking lots apparently casing cars for break-in when he was stopped. It was a high crime area for break-ins, and the police were looking. “The necessary suspicion for an investigative Terry stop is not a high bar.” United States v. Stacks, 2012 U.S. Dist. LEXIS 67422 (W.D. N.C. May 14, 2012).*

Defendant’s failure to identify a document that witnesses to a consent search were not examined about does not justify 2255 relief. Based on the findings at the suppression hearing, it seems highly unlikely this document would change the outcome anyway. Jones v. United States, 2012 U.S. Dist. LEXIS 66194 (M.D. Tenn. May 11, 2012).*

Warrant for defendant’s arrest justified police entry into the house to arrest him, and then do a protective sweep after a gun was seen. United States v. Tran, 2012 U.S. Dist. LEXIS 67238 (N.D. Iowa May 15, 2012).*

Permalink 07:11:27 am, by fourth, 303 words, 301 views   English (US)
Categories: General

W.D.La.: Search of desk in criminal investigation not governed by O'Connor

Defendant was a school resource officer, and his desk was searched in a fraud investigation seizing his computer and bank statements. The search was not sustainable as a workplace search under Ortega and United States v. Slanina, 283 F.3d 670 (5th Cir. 2002), judgment vacated on other grounds, 537 U.S. 802, 123 S.Ct. 69 (2002). United States v. Johnson, 2012 U.S. Dist. LEXIS 67294 (W.D. La. May 14, 2012), R&R 871 F. Supp. 2d 539 (W.D. La. March 20, 2012):

Under Slanina, the Government is correct that the status of the "searcher" as a "law enforcement officer is not dispositive," and that "'work related misconduct' can include criminal activity unrelated to the job." [Doc. No. 31, p. 4]. However, the Government asks the Court to ignore the "critical distinction" between this case and Slanina: whether an investigation was "wholly criminal" or had the dual purpose of an internal investigation into work-related misconduct and into the possible commission of a crime. In this case, there was no dual purpose; the single purpose of this investigation was Johnson's possible commission of a crime. On September 8, 2008, Sergeant Charles Roark of the MPD, opened a criminal investigation into the sale of stolen merchandise through an eBay account in Johnson's name. On September 12, 2008, Sergeant Roark asked the Federal Bureau of Investigation ("FBI") to become involved. By the time they searched Johnson's desk at Carroll Junior High School on February 20, 2009, Sergeant Roark and Agent Chesser had been involved in a joint criminal investigation of Johnson for six months. Under these circumstances, the MPD's interest in the prompt and efficient operation of its workplace is not compelling in the least. The search of Johnson's desk should not be reviewed under the O'Connor exception, as interpreted by the Fifth Circuit, and Magistrate Judge Hayes properly recommended the exclusion of the evidence found as a result of the search of Johnson's desk.

Permalink 12:15:28 am, by fourth, 174 words, 467 views   English (US)
Categories: General

CA8: Advice of right to refuse consent was apparently determinative when consent was a close call.

The district court’s finding of consent was, it said, a close call, but defendant was advised of his right to refuse and consented. [Thus, advice of right to refuse consent was apparently determinative when consent was a close call.] United States v. Mendoza, 677 F.3d 822 (8th Cir. 2012)*:

. . . The validity of consent is a question of fact, which we review for clear error. See id.

The district court recognized the factual record made this case a close call. On the one hand, Mendoza did not explicitly state the officers were permitted to search the Louis Place residence or sign the consent-to-search form, and the significant police presence at the roadside stop and the residence raise the possibility Mendoza merely acquiesced to police authority. See id. at 773. On the other hand, Mendoza's gestures and body language indicated his consent. Officer Fink and Detective Batcheller specifically informed Mendoza of his right to refuse consent, and Mendoza clearly understood this right, because he initially refused consent and bargained with the officers regarding the terms of his consent.

Permalink 12:01:47 am, by fourth, 95 words, 352 views   English (US)
Categories: General

CA9: No clear error in finding third-party consent, especially where she testified she consented

There was no clear error in the district court’s determination that defendant’s girlfriend he shared a bedroom with consented to a search of the bedroom to look for guns. She admitted it on the stand, too. She was not advised of a right to refuse, but that is only a factor. United States v. Graham, 480 Fed. Appx. 453 (9th Cir. 2012).*

Defendant was stopped because his car was illegally parked and that was justification for the officer approaching the defendant and observing him allegedly under the influence. Miller v. Chenoweth, 229 W. Va. 114, 727 S.E.2d 658 (2012).*

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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)
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  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."
—Me

"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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