A suspect does not have a right to know what it is the police are looking for in a consent search, which is essentially his only issue for suppression. Here, defendant clearly consented by signing a consent form and even unlocked doors for the officers. He’s been through a police investigation before that was apparently fruitless and consented to a search there. State v. Chesrown, 2012 Ohio 2476, 2012 Ohio App. LEXIS 2175 (9th Dist. June 6, 2012).*
That defendant may have been injured in an accident did not affect the admissibility of the evidence in a DUI case by motion to suppress. That went to weight of the evidence. Even assuming the officers misstated their ability to force a blood draw, that does not require suppression of the search here. State v. Walters, 2012 Ohio 2429, 2012 Ohio App. LEXIS 2138 (9th Dist. June 4, 2012).*
While the officers never saw money change hands, they had probable cause to arrest defendant after months of investigation, wiretaps, and tailing the defendant on drug runs, always on a Sunday. United States v. Rucker, 2012 U.S. Dist. LEXIS 78323 (N.D. Fla. June 6, 2012).*
A patdown that revealed a wad of money was not a valid plain feel because it should have been apparent that it was not a weapon. State v. Robinson, 2012 Ohio 2428, 2012 Ohio App. LEXIS 2137 (9th Dist. June 4, 2012):
[*P20] Here, the testimony is unclear as to whether the nature of the "wad of money" was apparent by touch during the Terry search, or whether the officer reasonably believed the "wad" in Robinson's pocket to be a weapon. Moreover, the record does not indicate that Officer McConnell at any point subjectively believed that the "wad" in Robinson's pocket was a weapon. Therefore, the seizure of the money from Robinson's pockets is not justified by the Terry search or the plain feel doctrine. See Maumee v. Weisner, 87 Ohio St.3d 295, 297, 1999 Ohio 68, 720 N.E.2d 507 (1999) ("Generally, at a suppression hearing, the state bears the burden of proving that a warrantless search or seizure meets Fourth Amendment standards of reasonableness.")
Plaintiff is a state prison inmate required under state law to give fingerprints for SORNA purposes, and he refused. He was placed in segregation for refusing, and a criminal investigation was opened by the State Police. He sued under § 1983, but he doesn’t state a claim for relief because the intrusion is minimal [not to mention that, as a prison inmate, his fingerprints are in multiple places and were likely taken when he got there]. Ford v. Curtin, 2012 U.S. Dist. LEXIS 79439 (W.D. Mich. June 8, 2012).*
Officers lawfully in defendant’s place with an arrest warrant saw a gun and ammunition in plain view, so the seizure was valid. United States v. Lyons, 488 Fed. Appx. 40 (6th Cir. 2012).*
Defendant argued that one question from the officer expanded the scope of a traffic stop. The court concludes, however, that his shaking and obvious nervousness and deflection when the question was asked was reasonable suspicion. One question could be enough, but not here. State v. Smith, 814 N.W.2d 346 (Minn. 2012)*:
[W]e conclude that Smith's extreme shaking and his evasive response when asked about his shaking provided the officers with reasonable, articulable suspicion sufficient to support an expansion of the traffic stop. In essence, because we conclude that the officers had reasonable, articulable suspicion to support the alleged expansion of the stop, we assume without deciding that Ehrhardt's question caused an incremental expansion in the scope of the traffic stop.1
1 We are not persuaded by the State's argument that a question cannot expand the scope of a traffic stop. Instead, we recognize that even a single question, depending on its content, could expand the scope of a traffic stop under other facts.
The Secretary of Agriculture failed to show “special needs” for random drug testing of civilian employees of the Job Corps Civilian Conservation Centers of the U.S. Forest Service. The only evidence shows that there is no drug problem. Nat'l Fedn. of Fed. Employees-IAM v. Vilsack, 401 U.S. App. D.C. 152, 681 F.3d 483 (2012):
The National Federation of Federal Employees ("the Union") challenges the constitutionality of a random drug testing policy applicable to all employees working at Job Corps Civilian Conservation Centers operated by the U.S. Forest Service. The district court granted summary judgment in favor of the Secretary of Agriculture and the Chief of the U.S. Forest Service (hereinafter "the Secretary") and denied the Union's request for a preliminary injunction. Upon de novo review, we conclude that the Secretary has failed to demonstrate "special needs" rendering the Fourth Amendment requirement of individualized suspicion impractical in the context of Job Corps employment. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665-66 (1989). Although identifying governmental interests in the students' abstention from drug use and in their physical safety, the Secretary offered no foundation for concluding there is a serious drug problem among staff that threatens these interests and thus renders the requirement for individualized suspicion impractical. Rather, the Secretary's evidence to date suggests the contrary. Because the Secretary has offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drug testing does not fit within the "closely guarded category of constitutionally permissible suspicionless searches," Chandler v. Miller, 520 U.S. 305, 309 (1997). Accordingly, we reverse and remand the case for proceedings consistent with this opinion.
Drones are coming to the U.S.?
They're already here — and the drone era is just beginning. Predator drones — the same remote-controlled, camera-equipped aircraft used to hunt terrorists in Afghanistan and Pakistan — have been patrolling U.S. borders since 2005. Emergency responders have used smaller drones to search for missing persons and track forest fires, and police departments in Florida, Maryland, Texas, and Colorado are testing drones for surveillance and search-and-rescue missions. Last month, the Federal Aviation Administration, acting at the behest of Congress, relaxed the rules for deploying unmanned aerial vehicles. Police departments across the country can now fly drones weighing up to 25 pounds, as long as the aircraft stay within sight of the operator and fly no higher than 400 feet (so as not to get in the way of commercial aircraft). More rules easing restrictions on commercial drones are expected by 2015. By the end of the decade, the FAA expects 30,000 unmanned aerial vehicles — some as small as birds — to be peering down on American soil.
Why are they allowing more drones?
Law-enforcement officials love them. They believe the mobile, eye-in-the-sky technology will improve public safety at a low cost. With high-resolution cameras, drones can help police patrol large areas, spot runaway criminals, and track drug shipments. And since a small police drone with a camera can be purchased for around $50,000 (with some basic models costing as little as $300), they're far cheaper than standard helicopters, which can cost $1 million or more.
BuzzFeed.com: The App That's Taking On The New York Police; The ACLU's new “Stop-and-Frisk Watch” app aims to help observers report and quantify stop-and-frisks. But can an app really change the police? by Rosie Gray & Matt Buchanan:
The New York branch of the ACLU has big dreams for the newest piece in its crusade against stop- and-frisk, the New York Police Department’s practice of stopping young men — nearly always men, and nearly always minorities — and frisking them on the street in public. The NYCLU’s “Stop and Frisk Watch,” a smartphone app designed to let observers record and report stop-and- frisks they see on the street, is a “free and innovative smart phone application that will empower New Yorkers to monitor police activity and hold the NYPD accountable,” per its description online.
The app is only on Android phones right now — with an iPhone version due later — in an effort to reach those who are regularly stopped-and- frisked. “We chose Android first because the demographic who gets stopped and frisked in New York City is the same demographic as who's on Android — 86 percent of people stopped are black or Latino,” NYCLU Communications Director Jen Carnig said.
New Haven Independent: FBI Gets OK To Inspect Cop-Filmer’s Phone by Paul Bass:
Federal agents will prepare a “mirror image” of Jennifer Gondola’s iPhone4 to see what happened on a violent night in the Temple Street courtyard.
Gondola’s attorney Friday faxed signed consent forms from Gondola to both the FBI and the New Haven police department’s internal affairs division giving them permission to review a video she shot on her cellphone camera before Sgt. Chris Rubino demanded she turn it over. Gondola refused and stashed the cellphone in her bra. Rubino ordered a female officer, Nikki Curry, to snatch the cellphone from Gondola’s bra. Then Rubino pocketed the phone and arrested Gondola for “interfering.”
The attorney, Diane Polan, also charged city police with violating her client’s Constitutional rights by grabbing her phone from her bra.
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by John Wesley Hall
Criminal Defense Lawyer
Little Rock, Arkansas
Contact / About
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@JohnWesleyHall
Online since Feb. 24, 2003
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2013-14 Term:
Fernandez v. California, granted May 20 (ScotusBlog)
2012-13 Term: 2010-11 Term: General (many free): Congressional Research Service: "If it was easy, everybody would be doing it. It isn't, and they don't." "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." "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." Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment. "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." "The great end, for which men entered into society, was to secure their
property." "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." "The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth." "A search is a search, even if it happens to disclose nothing but the
bottom of a turntable." "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." “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.” “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.” "You can't always get what you want /
But if you try sometimes / You just might find / You get what you need." "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." “You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
"There is never enough time, unless you are serving it."
Maryland v. King, granted Nov. 9, argued Feb. 26
(ScotusBlog)
Missouri
v. McNeeley, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (Apr. 17) (ScotusBlog)
Bailey
v. United States, 133 S. Ct. 1031, 185 L. Ed. 2d 19 (Feb. 19) (ScotusBlog)
Florida
v. Harris, 133 S. Ct. 1050, 185 L. Ed. 2d 61 (Feb.
19) (ScotusBlog)
Florida
v. Jardines, 133 S. Ct. 1409, 185 L. Ed. 2d 495 (Mar. 26) (ScotusBlog)
2011-12 Term:
Ryburn
v. Huff, 132 S.Ct. 987, 181 L.Ed.2d 966 (Jan. 23,
2012) (other
blog)
Florence
v. Board of Chosen Freeholders, 132 S.Ct. 1510, 182 L.Ed.2d 566 (April 2,
2012) (ScotusBlog)
United
States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012) (ScotusBlog)
Messerschmidt
v. Millender, 132 S.Ct. 1235, 182 L.Ed.2d 47 (Feb. 22, 2012) (ScotusBlog)
Kentucky
v. King, 131 S.Ct. 1849, 179 L.Ed.2d 865 (May 16, 2011) (ScotusBlog)
Camreta
v. Greene, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (May 26, 2011) (ScotusBlog)
Ashcroft
v. al-Kidd, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (May 31, 2011) (ScotusBlog)
Davis
v. United States, 131 S.Ct. 2419, 180 L.Ed.2d 285 (June 16, 2011) (ScotusBlog)
2009-10 Term:
Michigan
v. Fisher, 558 U.S. 45, 130 S.Ct. 546, 175 L.Ed.2d 410 (Dec. 7, 2009) (per
curiam) (ScotusBlog)
City
of Ontario v. Quon, 130 S.Ct. 2619, 177 L.Ed.2d 216 (June 17, 2010) (ScotusBlog)
2008-09 Term:
Herring
v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (Jan. 13,
2009) (ScotusBlog)
Pearson
v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (Jan. 21, 2009)
(ScotusBlog)
Arizona
v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (Jan. 26, 2009)
(ScotusBlog)
Arizona
v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (April 21, 2009)
(ScotusBlog)
Safford
Unified School District #1 v. Redding, 557 U.S. 364, 129 S.Ct. 2633, 174
L.Ed.2d 354 (June 25, 2009) (ScotusBlog)
Research Links:
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Curiae (Yale
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F.R.Crim.P.
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www.fd.org
FBI
Domestic Investigations and Operations Guide (2008) (pdf)
DEA
Agents Manual (2002) (download)
DOJ
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Electronic
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Overview
of the Electronic Communications Privacy Act (2012)
Outline
of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Statutes Governing Wiretapping and Electronic Eavesdropping (2012)
Federal
Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012)
ACLU on privacy
Privacy
Foundation
Electronic Privacy
Information Center
Criminal
Appeal (post-conviction) (9th Cir.)
Section 1983 Blog
—Me
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
—Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
—Katz
v. United States, 389 U.S. 347, 351 (1967)
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
—Mick Jagger & Keith Richards
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
—Pepé Le Pew
—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)